Karnataka High Court
Rohith Kumar vs State By Amruthhally on 16 December, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
CRIMINAL APPEAL No.1065/2014
C/W
CRIMINAL APPEAL Nos.11/2015 AND 1136/2017
IN Crl.A. No.1065/2014
BETWEEN:
ROHITHKUMAR,
S/O SUJEENDRAKUMAR,
AGED ABOUT 27 YEARS,
R/A QUARTERS NO.176,
SECTOR 2, DRUVA,
RANCHI,
JHARKAND STATE-828124.
...APPELLANT
(BY SRI K.B. MONESH KUMAR, ADVOCATE)
AND:
STATE BY AMRUTHHALLY
POLICE STATION,
BANGALORE.
2
REP. BY SPP.
HIGHCOURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
IN Crl.A. No.11/2015
BETWEEN:
1. SHIVANI TAKUR @ SHIVANI VARMA
D/O AJITH TAKUR @ AJITH VARMA
@ AJITHRAJ,
AGED ABOUT 22 YEARS,
RESIDING AT NO.2/2057,
RADIO COLONY, SHAHEED NAGAR,
AGRA.
@ F.L.103, DHEERAJ RESIDENCE,
OSHIVALA BUS STOP, ANDERI,
LOKANDWALA, MUMBAI.
2. PREETHI RAJ @
PREETHI APOORVA,
D/O RAMESH RAJ,
AGED ABOUT 19 YEARS,
RESIDING AT NO.E3/2057,
RADIO COLONY, SHAHEED NAGAR,
AGRA.
@ F.L.103, DHEERAJ RESIDENCE,
OSHIVALA BUS STOP,
ANDERI, LOKANDWALA,
MUMBAI.
NOW ALL ARE RESIDING AT NO.91,
MUNESHWARA EXTENSION, ATTUR,
VEERASAGAR ROAD,
3
YELAHANKA NEW TOWN,
BANGALORE.
...APPELLANTS
(BY SRI K.B. MONESH KUMAR, ADVOCATE FOR APPELLANT No.1;
SRI JAGADEESH B.N., ADVOCATE FOR APPELLANT No.2)
AND:
STATE BY AMRUTHAHALLI
POLICE STATION,
(REPRESENTED BY
STATE PUBLIC PROSECUTOR).
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
In Crl.A. No.1136/2017
BETWEEN:
VARISH,
S/O SATHISHKUMAR,
AGED ABOUT 21 YEARS,
R/AT ABHAYANTHANAGAR,
BAILY ROAD, PATNA,
BIHAR DISTRICT-800001.
(HE IS IN J.C.CENTRAL PRISON,
BANGALORE)
...APPELLANT
(BY SRI SHISHIRA AMARNATH, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY AMRUTHHALLY POLICE STATION,
4
BANGALORE RURAL DISTRICT-560092.
REPRESENTED BY LEARNED SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
****
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 31.10.2014 AND
ORDER OF SENTENCE DATED 06.11.2014 PASSED IN
S.C.NO.916/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-XV, BENGALURU CITY - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 364A, 302, 201, 120B R/W 34 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
(i) Criminal Appeal No.1065/2014 is filed by Accused Nos.2,
(ii) Criminal Appeal No.11/2015 is filed by Accused Nos.3 and 4,
(iii) Criminal Appeal No.1136/2017 is filed by Accused No.1.
5These Criminal Appeals are filed against the judgment of conviction and order of sentence dated 31.10.2014 made in Sessions Case No.916/2011 on the file of the Presiding Officer, Fast Track Court -XV, Bengaluru City, sentencing the accused to undergo imprisonment for life and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for one year for each for the offences punishable under Sections 302 and 364A r/w Section 34 of the Indian Penal Code, to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period one month for the offence punishable under Section 120B r/w Section 34 of the Indian Penal Code and to undergo simple imprisonment for a period of two years and to pay fine of Rs.2,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code.
I.Facts of the case
2. It is the case of the prosecution is that one Thushar, son of P.W.2-Pramod Kumar had come to Bengaluru to prosecute his studies in Engineering. Accordingly, he was residing in house 6 bearing No.9, AGB Layout, Hesaraghatta Main Road, Bengaluru. P.W.1- Ayushmanlal close friend of Thushar, was residing at a separate place. Both Thushar and Ayushmanlal were studying in the same College, but different subjects. When things stood thus, on 14.01.2011 deceased Thushar came to the room of P.W.1 and requested to accompany him to Esteem Mall, situated at Hebbal, Bengaluru. But P.W.1 told him that since he had to study till late night, he cannot accompany him. But, on account of the pressure put by Thushar, both, Thushar and P.W.1 left to Esteem Mall on 14.01.2011 after 4.30 pm in a motor bike belonging to the deceased. At that time, Thushar disclosed to P.W.1 that he had two girl friends and they have persuaded him to come to Esteem Mall. On reaching the Esteem Mall, they parked the motor bike in the parking lot and went near the two girls who were sitting on the bench. Thushar introduced P.W.1 to those two girls. At that time, P.W.1 came to know of the names of those two girls as Shivani- Accused No.3 and Preetaraj @ Preethi @ Apoorva-Accused No.4. Thereafter, all of them went inside the Mall, had food in Mc Donald hotel and wandered there for some time and came out of the mall. Thereafter, Thushar and said two girls discussed something and 7 later Thushar told P.W.1 that Shivani and Preethi are requesting him to accompany them to their house at R.T. Nagar and also told that the owner of their house will not allow more persons to visit the house and therefore, they are not ready to take P.W-1 to their house. P.W.1 conceded to the same. When P.W.1 was standing near shop to purchase cigarette, he saw Thushar and two girls i.e., Shivani and Preethi going in an autorickshaw. He also followed them. The auto, instead of going towards RT Nagar, went towards Yelahanka. Therefore, P.W.1 returned to college and waited for Thushar as requested by him. After some time, P.W.1 received a message from the mobile phone of Thushar stating that he is going to enjoy the company of those two girls in their house and they have also taken drinks and he will spend some time in their house. On seeing the message, P.W.1 left towards his room. Later, though he tried to contact Thushar over his mobile phone, he found that Thushar's mobile was switched off. Even on the next day morning, he tried to contact Thusar. But one person received Thushar's phone, but he could not contact Thushar.
8
3. It is further case of the prosecution that on 16.01.2011, P.W.2-father of the deceased-Thushar received phone call from the mobile phone of Thushar and the person who spoke with him told that they have abducted his son Thushar and demanded Rs.10 lakhs for his release and threatened with dire consequences if he lodges any complaint with police or informs to anybody. Immediately, P.W-2/complainant rushed to Bengaluru and met P.W.1, discussed with other relatives and finally came to know that his son Thushar was kidnapped by the persons who spoke with him through mobile phone of his son. Hence, at the first instance, filed a missing complaint and later on, one more complaint of kidnap was filed. In the meanwhile, since the kidnappers demanded to bring Rs.10 lakhs near railway station, the concerned police along with complainant, rushed to the railway station and caught hold of accused No.2 near platform No.1. On enquiry, he revealed the fact that Accused No.1 instructed him to bring money from the complainant. Later on, jurisdictional police arrested accused No.1 from Room No.301, Sri Lodge, Chickpet, Bengaluru, he was staying and, recovered mobile phone, SIM cards from the custody of Accused Nos.1 and 2 respectively in the police station. The Accused 9 Nos.1 and 2 revealed about kidnap and murder of Thushar during the night hours of 14.01.2011 itself. On the next day, at the instance of Accused No.1, dead body of Thushar was recovered at Eucalyptus garden, Veerasagar Road. Thereafter post mortem was conducted and accused led the panchas, complainant, police and P.W.1 towards the house of Accused No.2 situated at Muneshwara Block and both Accused Nos.1 and 2 produced the clothes worn by them at the time of committing the offence and also produced on lodge receipt, rent agreement and one bed on which Thushar was murdered by them. Later accused led them towards Gangenahalli bus stop. From there they produced one pair chappal and purse belonging to Thushar. In the mean time, at the instance of Accused No.2 motorbike belonging to one Rajiv Kumar, friend of accused No.2 was seized, as the said bike was used by them for shifting the dead body of Thushar from their house to eucalyptus garden at Veerasagar Road. Accused Nos.1 and 2 disclosed the location of Accused Nos.3 and 4 and the police arrested both accused Nos.3 and 4 in the house of Avinash situated at Muneshwara Block and recovered mobile phone belonging to Accused No.3. The 10 jurisdictional police, after completion of the investigation, filed the charge sheet against all the accused Nos.1 to 4.
4. The learned Magistrate took cognizance of the offence and registered the case in C.C No.13271/2011 and committed the case to learned Sessions Judge after following the procedure. Thereafter, the learned Sessions Judge registered S.C No.916/2011 and secured the presence of accused persons, framed the Charge, read over to the accused persons in the language known to them who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined P.Ws.1 to 36, marked the material documents Exs.P.1 to 108 and Material Objects M.Os.1 to 20. After completion of evidence of prosecution witnesses, the statement of the accused persons was recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused persons denied all the incriminating evidence adduced against them. However, they did not adduce any contra evidence or produce any documents. 11
6. Based on the aforesaid pleadings, the learned Sessions Judge, framed the following points for consideration.
"1. Whether the prosecution proves beyond all reasonable doubt that the death of Thushar is caused due to culpable homicide amounting to murder and not in natural circumstance?
2. Whether the prosecution proves beyond all reasonable doubt that, on 14.01.2011 at about 7.00 pm the accused No.3 and 4 kidnapped deceased Thushar from Esteem Mall for ransom and abducted in the house of accused No.2, thereby all the accused committed an offence punishable under Section 364-A r/w 34 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt on the above said date, time and place all the accused No.1 to 4 in furtherance of the common intention committed the murder of Thushar and thereby committed an offence punishable u/Section 302 r/w 34 of IPC?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place after committing the murder of Thushar and the accused shifted the dead body of Thushar to eucalyptus garden in order to disappearance of the evidence and 12 thereby committed an offence punishable under Section 201 r/w 34 of IPC?
5. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused with the intention to kidnap for ransom and commit murder by conspiring together to commit these offences, hence they have committed an offence punishable under Section 120(B) r/w 34 of IPC?"
7. Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution proved beyond all reasonable doubt that the death of Thushar is culpable homicide amounting to murder and not caused in natural circumstances; and the prosecution proved that on 14.01.2011 at about 7.00 pm the accused Nos.3 and 4 kidnapped the deceased from Esteem Mall for ransom and abducted in the house of accused No.2 and thereby all the accused persons committed an offence punishable under Section 364A r/w Section 34 of the Indian Penal Code. The learned Sessions Judge further recorded a finding that the prosecution further proved beyond 13 reasonable doubt that all the accused Nos.1 to 4 in furtherance of common intention committed the murder of Thushar and committed an offence punishable under Section 302 r/w Section 34 of the Indian Penal Code, and in order to destroy the evidence, after committing murder, the accused persons shifted the dead body to eucalyptus garden and caused disappearance of evidence and thereby committed an offence punishable under Section 201 r/w Section 34 of the Indian Penal Code. The learned Sessions Judge further recorded that the prosecution proved beyond all reasonable doubt that the accused persons with an intention to kidnap for ransom and commit the murder, conspired together to commit the aforesaid offences and thereby, committed offence punishable under Section 120B r/w Section 34 of the Indian Penal Code. Accordingly, all the persons were convicted for the offences punishable under Sections 364A, 302, 201, 120B r/w 34 of the Indian Penal Code. Hence, these appeals are filed.
8. We have heard the learned counsel for the parties. 14 II. Arguments advanced by the learned counsel for the appellants - accused persons
9. Sri K.B.Monesh Kumar, learned counsel for the appellants in Criminal Appeal No.1065/2014 contended with vehemence that the impugned judgment of conviction and order of sentence passed by learned Sessions Judge is erroneous and contrary to the material on record and is liable to be set aside. He further contended that the entire case of the prosecution is based on circumstantial evidence. The prosecution has to establish the chain of events leading to the guilt of the accused. However, in the present case no circumstances have been proved to show the involvement of accused No.2 in the homicidal death of the deceased. He further contended that the bag containing ransom money was not seized. There are ten different versions by all the prosecution witnesses. Thereby, the benefit of doubt has to be given to the accused No.2. He further contended that the arrest of the accused in the late night and recovery of M.O.1-pant and M.O.2-T shirt, worn by the deceased at the instance of the accused after long gap, after detailed deliberations and recovery of dead body of deceased has to be proved in accordance with the 15 provisions of Section 27 of the Indian Evidence Act. Though P.Ws.8 and 14 supported the case of the prosecution, the involvement of the accused No.2 is not proved beyond reasonable doubt.
10. Learned counsel further contended that the post mortem report Ex.P.48 does not depict the correct time of death, and, identity of the body of the deceased is not established. P.W.6 owner of the house where accused Nos.2 and 3 were tenants has turned hostile. P.Ws.3 and 4 neighbours of P.W.6 also turned hostile. He further contended that the last seen theory as alleged is not proved. The SMS as per Ex.P.66 is not proved and no certificate as contemplated under Section 65B of the Indian Evidence Act is produced. The blood stained clothes of Accused Nos.1 and 2 are not proved and no FSL report is produced to prove the involvement of the accused No.2. Thereby, he contended that the learned Sessions Judge proceeded to convict the accused based on the false implication at the instance of the complainant without any basis. Referring to the written arguments dated 16.11.2022, learned counsel contended that recovery of purse and chappals 16 near CBI office is an open area visible to large public has nothing to do with accused and those articles of deceased could not have been there for such a long period that too for seven long days. Thereby, recovery of body from an open area visible to human eye cannot be presumed to be at the instance of accused persons. He further contended that, according to the prosecution, on 14.01.2011, the deceased was last seen together in the company of accused Nos.3 and 4. However, recovery of dead body was after 7 days i.e., on 22.01.2011. In between anything may happen. Even otherwise, accused Nos.3 and 4, when arrested, were shown as P.WS.1 and 2. Though learned counsel is appearing for accused No.2 , he is arguing on behalf of accused Nos.3 and 4 also. He would further contend that there is no linking regarding the death of deceased by killing and the accused. The motive attributed is not proved and as such difficulty to establish the murder by the accused persons. Taking the dead body in a motor cycle from the house of accused No.2 to Veerasagara main road where it was eventually found, is highly impossible. Therefore, he sought to allow the Criminal Appeal No.1065/2014 filed by accused No.2.
17
11. In support of his contentions, learned counsel relied upon following judgments of the Hon'ble Supreme Court:
1. In the case of Subramany vs. State of Karnataka passed by the Hon'ble Supreme Court in Criminal Appeal No.242/2022 dated 13.10.2022, paragraphs 77, 80, 83, 84 and 86 to the effect that panchamnama has to be conducted in the presence of panchas after recovery of body.
2. In the case of Ravi Sharma vs. State (Government of NCT of Delhi) and another passed by the Hon'ble Supreme Court in Criminal Appeal Nos.410-
411/2015 dated 11.07.2022 with regard to Section 27 of the Indian Evidence Act, paragraphs 16 and 17.
3. In the case Amrik Singh vs. State of Punjab reported in 2022 SCC Online SC 861 paragraph 20 to contend that identification parade is must.
4. In the case of Ravinder Singh @ Kaku vs. State of Punjab reported in AIR 2022 SC 2726, paragraphs 12 and 20 to contend that compliance of Section 65B of the Indian Evidence Act is mandatory.
5. In the case of Rahul vs. State of Delhi, Ministry of Home affairs and another passed by the Hon'ble 18 Supreme Court in Criminal Appeal No.611/2022, to contend that there cannot be conviction or on the basis of suspicion alone without any corroborative evidence. Paragraphs 22, 23, 34, 35.
6. In the case of Gireesan Nair and others etc. vs State of Kerala passed by the Hon'ble Supreme Court in Criminal Appeal Nos.1864-1865/2010, to the effect that TIP is mandatory, paragraphs 25,26, 27.
7. In the case of Md.Sajjad Alias Raju Alias Salim vs. State of West Bengal reported in (2017)11 SCC 150. Paragraphs 16.
III. Criminal appeal 11/2015 filed by accused No.3 -
Shivani Takur @ Shivani Verma and accused No.4 - Preethi Raj @ Preethi Apoorva.
12. Sri Jagadeesh B.N., the learned Counsel for accused No.4 contended that though the charge sheet filed against the accused No.4 was only under the provisions of Sections 302 and 120-B IPC., conviction under the provisions of Section 364A and 201 IPC., along with Sections 302 and 120-B IPC., cannot be sustained. He would further contend that though the prosecution relied upon video clips of CC TV footages marked as Ex.D.47, no certificate under the 19 provisions of Section 65-B of the Evidence Act is produced, except examining P.W.11, who issued CCTV footages, and thereby conviction of accused No.4 by the learned Sessions Judge cannot be sustained. He would further contend that as per Ex.P.43, Test Identification Parade conducted in presence of P.W.10 - Tahsildar, P.W.1 identified accused Nos. 3 and 4, but no other corroborate evidence is produced to prove involvement of accused No.4 in the homicidal death of the deceased. He would further contend that when prosecution relied upon the evidence prosecution witnesses - P.W.3 to 6 to implicate accused No.4, they have turned hostile to the prosecution case; When the prosecution has not established the last seen theory of the deceased with accused No.4 and there is no whisper in the missing and kidnapping complaints Exs.P.2 and 3 against accused No.4, conviction of accused No.4 is erroneous and contrary to the material on record.
13. The learned Counsel for accused No.4 would further contend that during the pendency of the present appeal, accused No.4 filed an application u/s 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 r/w Section 482 of the Code of 20 Criminal Procedure with a prayer to determine her age as juvenile as per the procedure prescribed under Section 7A of Juvenile Justice (Care and Protection of Children) Act, 2000). On the basis of the said application, the Co-ordinate Bench of this Court by the order, dated 21.12.2021 directed the Registrar General of this Court, who is also of the rank of District & Sessions Judge to conduct an enquiry as contemplated under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 and submit a report. Accordingly, the Registrar General of this Court submitted a report by the order 16.6.2022 after conducting the proceedings from 5.1.2022 and securing the presence of accused No.4 digitally from the Central Prison, Bengaluru, through Video Conference and after examination of the witnesses and considering evidence of A.Ws.1, 2 and documents marked as Exs.A.1 to 6 has come to the conclusion that as on the date of the alleged incident on 14.1.2011, accused No.4 is not a juvenile. Accordingly, the on the basis of the order, dated 21.12.2021, passed by the Co-ordinate Bench of this Court, a report, dated 16.6.2022, was submitted by the Registrar General 21 holding that accused No.4 is not a juvenile as on the date of the alleged incident that is on 14.1.2011 and the same has reached finality.
14. When the matter had come up for consideration of the report submitted by Registrar General, the learned Counsel for accused No.4 submitted that the same may be considered at the time of main hearing of the appeal and accordingly, to that effect a memo was also filed. As such, now the matter is posted for final hearing along with report.
15. In view of the application filed for determination of age of accused No.4, the order passed by the Co-ordinate Bench and the report submitted by the Registrar General of this Court after conducting enquiry that accused No.4 was not a juvenile as on the date of the incident i.e., on 14.1.2011 has reached finality and as such, the finding of the Registrar General has neither been challenged and nor any document is produced before this Court except filing objections to the report. Thereby, the report submitted by the learned Registrar General is accepted and the accused No.4 has not established that she was juvenile as on the 22 date of the incident and thereby, the application filed is devoid of any merits and the same is rejected.
16. In support of his contentions, learned Counsel for accused No.4 relied upon the dictum of the Hon'ble Supreme Court in the case of Mohammed Sajjad Alias Raju Alias Salim -vs- State of West Bengal reported in (2017) 11 SCC 150 para-16 with regard to Test Identification Parade.
IV. Criminal 1136/2017 filed by the Accused No.1 - Varish
17. Sri Shishira Amarnath, learned Counsel appearing accused No.1/Varish while adopting the arguments adopted by learned Counsel for accused Nos.2 and 3 would contend that accused No.1 has been falsely implicated on the statement made by accused No.2 and as such, his conviction is erroneous and cannot be sustained. He would further contend that non sending of blood stained cloths of the deceased to the Forensic Science Laboratory is fatal to the case of the prosecution. Thereby the evidence of P.W.35 - Shahnaz Fathima cannot be accepted. The material objects M.O.13 pieces of bottle and M.O.20 - bottle which were 23 stained with blood were not subjected to any scientific examination on the basis of which accused No.1 was convicted and as such there is serious lapse on the part of the prosecution in conducting the investigation and therefore, conviction of accused No.1 cannot be sustained. He would further contend that when the finger nail marks found on the deceased as per Ex.P.48/post-mortem report is not proved by the prosecution, an adverse inference has to be drawn against the prosecution under the provisions of Section 114(g) of the Indian Evidence Act. Therefore, the impugned judgment of conviction in so far as accused No.1 is liable to be set aside and he is liable to be acquitted.
18. In support of his contentions, he relied upon the following judgments of the Hon'ble Supreme Court:
i) Tomaso Bruno and Another -vs- State of Uttar Pradesh reported (2015)7 SCC 178 to the effect that adverse inference can be drawn against the prosecution when the best evidence in possession of the prosecution is not produced.
Without realising the fact, the said judgment is 24 over ruled by the SC in the latest judgment AIR 2020 SC 4908;
ii) Prakash -vs- State of Karnataka reported in (2014)12 SCC 133 - paragraph-49 to the effect that when a grave suspicion raises that investigation was not fair, benefit of doubt has to be given to the accused for non-recognition of blood stains and finger prints on the weapons used for murder and as such, reasonable doubt must be drawn in favour of the accused;
iii) Shailendra Rajdev Pasvan and Others -vs- State of Gujarat and Others (2020) 14 SCC 750 paragraphs-9.6, 9.7 and 15 to the effect that demand of ransom by kidnapping was not proved by evidence and thus, the motive was not established. Even the evidence adduced against accused No.1 does not form the complete Chain of circumstances connecting the accused with the 25 crime and the prosecution has failed to prove the guilt of the accused;
iv) Sunil Kundu and Another -vs- State of Jharkhand reported in (2013) 4 SCC 422 paragraph-29 - lapses and irregularities in investigation that go to the root of the matter cannot be ignored;
V. Arguments advanced by the learned Addl. SPP for the State in all the appeals
19. Sri Vijay Kumar Majage,, learned Additional SPP for the State while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge contended that arrest of Accused No.2 at the Railway Station at 5 p.m. after two days of the incident, is proved by the evidence of PWs.2, 28 and 32. He would contend that bag containing seizure of ransom amount of Rs.10,00,000/- is not correct, but it contains only Rs.15,000/- to Rs.20,000/- as per the complaint made by PW. 2 and the evidence of the Investigating Officer - PW.28. He would further contend that recovery of dead body of the deceased at the 26 instance of Accused Nos.1 and 2 under Ex.P8/mahazar in presence of PW.1, PW.14 and PW.28/Investigating Officer, support the case of the prosecution. Last seen theory of the prosecution proved by the evidence of PW.1, who deposed that he has last seen the Accused Nos.3 and 4 with the deceased on the relevant day. PW.36/Nodal officer of the Vodaphone Company has been examined and he has produced the original records, thereby there is no need for production of certificate under the provisions of Section 65B of the Evidence Act.
20. Learned Addl. SPP further contended that seizure of the blood stained clothes of Accused Nos.1 and 2 in the house of Accused No.2 by the Investigating officer - PW.28 in presence of PW.16/ mahazar witness coupled with FSL report/Ex.P105 clearly depict the involvement of the accused persons in the homicidal death of the deceased. The evidence of PW.1 coupled with Ex.P70/seizure mahazar under which motorbike which was used for shifting the dead body of the deceased in a gunny bag, support the case of the prosecution. He would further contend that as per the evidence of PW.2, on 14.11.2011 the accused persons killed the 27 deceased as admitted by Accused No.1. PW.10/Tahsidlar conducted the Test Identification Parade of Accused Nos.3 and 4 and PW.1 identified Accused Nos.3 and 4.
21. Learned Addl. SPP would further contend that PW.1 has deposed in the examination-in-chief that Accused Nos.1 to 3 and the deceased were in the Esteem Hall on the relevant day and the deceased went along with Accused Nos.3 and 4. PW.12/doctor, who conducted post-mortem examination on the dead body of the deceased and issued the post-mortem report/Ex.P48, has supported the case of the prosecution. PW.13/Cashier of the Lodge deposed about the arrest of Accused No.1. PW.14/Videographer identified Accused Nos.1 and 2 and he is a panch witness to Ex.P8/dead body seizure mahazar and Ex.P55/inquest report. PW.16 is a panch witness to the place of incident and deposed about the recovery of blood stained clothes of Accused Nos.1 and 2 and slippers and purse of the deceased. Thereby, the prosecution proved the involvement of the accused in the homicidal death of the deceased. He further contended that the evidence of PW.17 clearly depicts seizure of mobile phone/MO.19 under Ex.P61 in presence of 28 the panchas/PWs.17 and 18. PW.18 though turned hostile deposed the presence of PW.17 at the relevant point of time. The said witnesses were cross-examined only by Accused Nos.1,3 and 4 and not by the counsel for Accused No.2. He would further contend that PWs.18 and 19/panch witnesses to Ex.P63 supported the case of the prosecution and PW.20/Deputy Superintendent of Police of Cyber Crimes deposed about the call details and sim cards and mobiles seized in the case and also stated that he tested mobiles of the deceased and the accused, which were produced in the case. Entries at serial Nos.133, 134, 136, 137 and 139 (mobile No.9060369994) so also entries at Serial Nos.212 213 (Mobile No.9916827817) of Ex.P66/SMS print out coupled with the oral and documentary evidence on record clearly depict that Accused Nos.3 and 4 and the deceased were having some contact prior to one day of the unfortunate incident. He would further contend that the evidence of PW.21/Videographer supported the case of the prosecution with regard to recovery of money from the accused. The evidence of PW.23, who is a panch witness to Ex.P57 and that of PW.24, who is a panch witness to Ex.P70 to 76 support the case of the prosecution. He would further contend that the PW.25/Police 29 Constable and PW.28/Investigating Officer have supported the case of the prosecution. PW.35/FSL Officer deposed that 10 items containing blood stains were sent to the her office on 15.2.2011. She supported the case of the prosecution.
22. Learned Addl. SPP further submitted that last seen theory is proved that Accused Nos.3 and 4 were with the deceased as per the evidence of PW.1 and PW.11. The SMS contacts of the accused with the deceased proved by the evidence of PW.20 and thereby certificate under Section 65B is not necessary in view of the dictum of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal reported in AIR 2020 SC 4908 {paragraph-72(b)} Accused No.2 was arrested in the railway station and trapped by PWs.22, 25 and 28 and ultimately the prosecution proved that motive for murder is for gain/ransom. He would further contend that while recording the statement of the Accused No.3 under the provisions of Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against him. Lastly, learned Addl. SPP submits that the prosecution proved the involvement of 30 the accused persons in the homicidal death of the deceased. Based on the oral and documentary evidence on record, the trial Court rightly passed the impugned judgment of conviction and order of sentence and the accused have not made out a case to interfere with the same. Therefore, he sought to dismiss all the appeals.
V. Points for determination
23. In view of the aforesaid rival contentions urged by the learned counsel for the appellants/accused Nos.1,2,3 and 4, and the learned Additional State Public Prosecutor, the points that arises for our consideration in the present Criminal Appeals are:
(i) Whether the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence, sentencing them to undergo imprisonment for life and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for one year for each for the offences punishable under Sections 302 and 364A r/w Section 34 of the Indian Penal Code?31
(ii) Whether the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence, sentencing them to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period one month for the offence punishable under Section 120B r/w Section 34 of the Indian Penal Code?
(iii) Whether the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence, sentencing them to undergo simple imprisonment for a period of two years and to pay fine of Rs.2,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code
24. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records, carefully.
V. Consideration
25. This Court being the appellate Court, in order to reappreciate the oral and documentary evidence on record, it is 32 relevant to consider the evidence of prosecution witnesses and the documents relied upon.
(i) P.W.1-Ayushmanlal, complainant and friend of the deceased deposed that he was studying mechanical engineering at SKIT engineering college. On 14.01.2011, he visited Esteem Mall along with deceased on a bike and around 5.45 pm met two girls (accused Nos.3 and 4). Deceased along with Accused Nos.3 and 4 decided to go to the house of Accused Nos.3 and 4 at RT Nagar. He saw Accused Nos.3 and 4 boarding an autorickshaw along with the deceased. He followed the autorickshaw and saw that at Hebbal junction the auto deviated towards Yelahanka. Later, he reached Ramaiah College and waited for the deceased to come back. At that stage he exchanged messages with deceased and thereafter, proceeded to his house. He further deposed that, on 16.01.2011, when he called the deceased's phone at 11.30 am, some other person answered the call and the call ended abruptly. On 18.01.2011 at 1.00 am, father of the deceased i.e., P.W.2 came to his room and stated that he has got a call from deceased's phone- the caller informed him that his son is in their custody and upon payment of Rs.10 lakhs, they would release him. Otherwise, they would kill him. Thereafter, he narrated the Esteem mall 33 incident to P.W.2. On 18.01.2011, himself and P.W.2 and one Amit Shet lodged a missing complaint before Amruthahalli police station. Subsequently, P.W.2 received another call from deceased phone. P.W.2 requested to allow him to speak with his son (deceased), but he was not allowed. Thereby P.W.2 decided to lodge a kidnap complaint before Amruthahalli police. Accordingly on 20.01.2011, P.W.1 went to police station at 9.30 pm, where personal searches of Accused Nos.1 and 2 was conducted in the presence of P.W.1. The police recovered phone and bag of the deceased from Accused No.2. On 21.01.2011, body of the deceased was recovered. He signed on the dead body seizure mahazar-Ex.P.8. Thereafter, they proceeded to the house of Accused No.2 where offence was committed. Later, based on the statement of Accused Nos.1 and 2, the purse and chappals of deceased were recovered. He signed on seizure mahazar-Ex.P.9 and identified photos-Exs.P.31 and 32. He further deposed that on 15.03.2011, Test Identification Parade was conducted in jail. P.W.1 identified Accused Nos.3 and 4.
In the cross-examination, P.W.1 admitted that he is the close friend of the deceased and he is aware of the contents of missing complaint lodged by P.W.2 as per Exs.P.2 and 3. Only on 21.01.2011 he gave 34 information to police and not prior to that date and he does not know when Accused No.2 was brought to the police station as per arrest mahazar, and supported the prosecution case.
(ii) P.W.2-Pramod Kumar, father of the deceased, resident of Bihar, deposed that he received the first call for ransom of Rs.10 lakhs, at about 12.15 pm on 16.01.2011 and he arrived to Bengaluru city from Patna at about 12.00 am on 17.01.2011. Then at 1.00 am he received another call for ransom and one more call during day hours around 12.00 pm. He lodged missing complaint on 18.01.2011 as per Ex.P.2. Subsequently, received another call for ransom in the afternoon on the same day demanding Rs.10 Lakhs. On 19.01.2011, he filed kidnapping complaint as per Ex.P.77, after his request to see his son was denied. He further deposed, he received phone call demanding Rs.10 lakhs. He placed a black bag with cash in railway station as per the instructions. The police arrested accused No.2 in the railway station and accused No.1 at Shree Lodge on the information given by Accused No.2. Accused No.1 is alleged to have stated that all accused hit deceased on head with bottle and smothered. (smothering: kill some one by covering nose and mouth so that they suffocate the deceased) On 15.01.2011, after sunset, 35 dead body was put on Accused No.2's friend's bike (P.W.7) and was disposed off at eucalyptus camp. The witness stated about recovery of Videocon mobile and two SIM cards from Accused No.1. On 21.01.2011, the witness, accused Nos.1 and 2 along with one Ashish Kindra, Rahul Singh, Arun Kumar and P.W.14- Raghavendra, Photographer were all put in police jeep around 7 am. Deceased was found in a plastic bag. Same was led by accused No.1 in spotting the place where body of the deceased was dumped in a plastic bag. The accused No.1 opened the plastic gunny bag using a cutter. The dead body was in a folded condition (legs and backbone had become folded). He identified the body as that of his son. Later the dead body was sent to post mortem. The photos of the deceased when alive and when dead were identified and marked as Exs.P.4 to 7. Later, the witness identified the T-shirt of the deceased as M.O.1 and pant as M.O.2.
In the cross-examination, P.W.2 deposed that he does not remember the contents of the missing complaint-Ex.P.2 and also does not remember the contents of the second complaint-Ex.P.3. He deposed that, he got to know about the death of his son from the accused on the night of 20.01.2011. However, he does not know who called him on his phone by using his son's phone. He does not remember the time of the 36 last call demanding ransom was made on 20.01.2011. He further deposed that he does not remember in which train he kept the bag with money and at what time the train arrived on the platform and left, etc. He does not state regarding the arrest of accused No.2. He deposed that, he does not remember the contents of seizure mahazar-Ex.P.9 and also does not remember as to who signed on the inquest report, at the time of recovery of the dead body as per Ex.P.55. He further deposed that he did not not down the serial numbers of the currency notes that were given to the police to be put in the bag and stated that the money was returned to him. He deposed that he cannot state the exact time of his arrival at the railway station to meet the kidnappers and he cannot say at what time he kept the bag insider the railway compartment. He further deposed that, he did not see the person who came to pick up the bag and he does not know the place where the accused was arrested by the police. The police did not do any panchanama at the railway platform. He deposed that the bag was not seized from the platform and he does not remember when they went to Shree Lodge.
(iii) P.W.3-Sujatha, living in the first floor of the neighbouring house of accused No.2 deposed that she does not know what happened on the night of 37 14.01.2011. She did not hear any noise. She has not seen the accused carrying any white cover bag on 15.01.2011. She further deposed that she has not seen the police at in the house of accused No.2 and denied the entire contents of her statement recorded under Section 161 of the Code of Criminal Procedure. Thereby, she turned hostile and not supported the case of the prosecution.
(iv) P.W.4-Gangegowda V.S., neighbour of accused No.2 deposed that the house where he resides belongs to one Dorai and he does not know to whom the house was given on rent. A2 deposed that house belongs to one Dorai and he does not know to whom the house was given on rent. He denied the entire contents of his statement recorded under Section 161 of the Code of Criminal Procedure. Thereby, he turned hostile and not supported the case of the prosecution.
(v) P.W.5-Manohar Narajji, living in the ground floor of the building where accused No.2 was residing, deposed that he has not seen accused Nos.2 and 3 living in the first floor of the building and he has not seen them in that area. He deposed that he cannot identify the accused in the Court and denied the entire statement given before the police and turned hostile. 38
(vi) P.W.6-M Dorai, owner of the house where Accused Nos.2 and 3 were residing as tenants deposed that he is the owner of that building. Accused Nos.2 and 3 started living in that house since 05.11.2010. He identified by the rent agreement executed with accused No.2-Ex.P.36 and identified accused Nos.2 and 3 in the open Court.
In the cross examination, the witness deposed that the neighbours informed him that police have arrested two boys and girls from his house. He deposed that the rent agreement does not bear his signature.
(vii) P.W.7-Rajeev Kumar, friend of accused No.2 and owner of the bike deposed that accused No.2 borrowed his bike on 14.01.2011 and returned the same after two days through one Avinash, another friend of accused No.2 He deposed that the police seized his bike on 22.01.2021. He identified accused Nos.1 and 2 in the Court and supported the prosecution case.
(viii) P.W.8-Nagendra Prasad, panch witness for seizure of mobile phones and SIM cards, M.Os.7 to 9, grey colour jeans bag-M.O.10 and Nokia Phone M.O.11, deposed that on 20.01.2011, around 9.00 pm, he along 39 with C.W.13 were called by the police for the purpose of panchanama-Ex.P.1, and supported case of prosecution.
(ix) P.W.9-T.P.Arun, Engineer, on the request made by the police prepared the sketch/map of the scent of occurrence marked as Ex.P.38 and supported the prosecution case.
(x) P.W.10-Venkatesh, Tahsildar, conducted the Test Indentificate Parade of Accused Nos.3 and 4. In his evidence, Ex.P.41-letter to magistrate, Ex.P.42-TIP proceedings, Ex.P.43-TIP answers, Ex.P.44-TIP list and Ex.P.45-letter of the Tahsildar were marked. He supported the case of the prosecution.
(xi) P.W.11-Nagaraj, Manager of Esteem Mall deposed regarding CCTV footage. He furnished the compact disc containing the CCTV recording on 14.01.2011 for the time between 6.00 pm to 8.00 pm. In his evidence, Ex.P.46-letter, Ex.P.47-Esteem Mall CD, Exs.P.47(a) to
(h)-CD photos were marked. He supported the case of the prosecution.
(xii) P.W.12-Dr.Nagaraj who conducted post mortem on the dead body of the deceased deposed that on 21.01.2011 he conducted the post mortem between 40 1.15 pm to 2.15 pm. Ex.P.48 is thepost mortem report and Ex.P.49 is the opinion of the doctor. List of injuries found on the dead body are:
(a) back side of head-injury similar to some one dug into head (7 x 3 cm),
(b) another head injury on the top of head (6 x 3 cm),
(c) finger nail injuries on left side of neck,
(d) finger nail injuries on right side of neck,
(e) teeth marks on the top and bottom parts of tongue.
(f) palms from the right hand was missing, alleged to have been eaten by animals.
(g) two parts (limbs) from both legs beyond knee is missing.
Further deposed that injury Nos.3 to 5 are the cause of death and that head injuries are caused by blunt object like glass bottle. Nose and mouth were forcibly closed and neck was strangulated or held by hands. Due to lack of breath, death has occurred.
The witness further deposed that there are possibilities of neck injuries occurring due to pressure by hands. There is breaking of thyroid cartilage and possibility of 41 bleeding due to pressure on mouth, nose, neck. These injuries are life threatening injuries. He further opined that M.O.13-bottle may cause such injuries on body. Further, in the cross-examination, deposed that it is false to say that time of death can be ascertained by observing stage of decomposition of body and there is no requirement of mentioning of decomposition in the post mortem report and in the present case, the body is not highly decomposed.
The witness further deposed that the bottle had brown colour stains and it does not come under his duty to determine if those stains were blood stains or not. He does not know when the police recovered body and how long it was kept in cold storage and supported prosecution case.
(xiii) P.W.13-Nagaraju, who is receptionist in the lodge, deposed that Accused No.1 had booked a room. He provided sample seal, arrival register, advance receipts marked as Exs.P.50 to 53 respectively.
The witness further deposed that on 20.01.2011, police came to lodge along with Accused No.2 at 7.30 pm and took Accused Nos.1 and 2 and left the place. On 21.01.2011 police a/w accused came to lodge, 42 examined the room and finished the mahazar at 9 pm and supported prosecution case.
(xiv) P.W.14-Raghavendra, photographer-panch witness for mahazar and inquest report deposed that on 20.01.2011, he was asked to come to police station between 7.30 to 9.30 pm to be witness for personal search and examination of Accused Nos.1` and 2. he deposed that panchanama took place between 8.00 to 9.30 pm. He identified Accused Nos.1 and 2 and identified photos Exs.P.10 to 23, 19 to 21. He is also witness to the inquest report when body recovered on 21.01.2011 as per Ex.P.8 and 55. He deposed that accused No.1 took them to recover the body and supported the prosecution case.
(xv)P.W.15-Muniraju, panch witness, deposed that he had come to the police station in respect of another case. The police asked him to sign a document Ex.P.56- mahazar drawn at lodge and he does not know anything about mahazar and turned hostile.
(xvi) PW.16 - Yogesh is a spot mahazar witness to the recovery of slipper and purse of the deceased in the house of the Accused No.2. He deposed that Accused No.1 showed the clothes worn by him at the time of the 43 incident and blood stains were present on the clothes/Mo.16 - shirt and MO.17/Jeans Pant. In the cross-examination, he has deposed that the Police showed the house of Accused No.2 to him and further there were no blood stains on MO.16/shirt. He supported the case of the prosecution.
(xvii) PW.17 - Shekhar is a panch witness for seizure of the mobile phone of Accused No.3 under Ex.P61. He supported the case of the prosecution.
(xviii) PW.18 - Babu is a panch witness for seizure of mobile phone/MO.19 of Accused No.3. He supported the case of the prosecution.
(xix) PW.19 - Govardhan is a panch witness for Esteem Mall spot shown by Accused Nos.3 and 4. He supported the case of the prosecution.
(xx) PW.20 - Sharath is Deputy Superintendent of Police, Cyber Crimes. He provided the CDRs, SMS contacts, SIM Card analysis of seized mobile phones. He supported the case of the prosecution.
(xxi) PW.21 - Babu, who is a Videographer has deposed that one of the accused took him to the spot 44 in connection with recovering the body of the deceased as per Ex.P8. He identified Mo.4 - plastic bag, MO.5 - slippers and MO.6 - purse. He further deposed that there was no light at the house of Accused No.2 and therefore he did not videotape the proceedings inside the house. When he went to Veerasagara Main Road in the Eucalyptus plantation, he noticed that ambulance was already standing there. He supported the case of the prosecution.
(xxii) PW.22 - Bathlingappa, who is the Head Constable deposed about arrest of Accused No.2 in the Railway Station. He supported the case of the prosecution. (xxiii) PW.23 - Hemanth Kumar, who is a panch witness to Ex.P57 - mahazar deposed that Police called him and CW.18 to the house of Accused No.2 and Accused No.1 gave the clothes used during the commission of the offence and further Accused No.1 has shown the Police where they have thrown away the chappal and purse of the deceased. He identified photos for recovery of MOs.5 and 6. He supported the case of the prosecution.
(xxiv) PW.24 Kumar M is the panch witness for recovery of blood stained bottle and bike at the instance of 45 Accused Nos.1 and 2 under seizure mahazar/Ex.P70 and photos -Ex.P71 to 76. He further deposed that no blood stains were found on the broken bottle/MO.20, but stains found only on the small pieces of glass. He supported the case of the prosecution.
(xxv) PW.25 - Yerriswamy is the Police Constable and he was also part of the investigation team. He supported the case of the prosecution.
(xxvi) PW.26 Pavithra is the Woman Constable and PW.27 - Veeranna is the Police Sub-Inspector. They deposed about the arrest of Accused Nos.3 and 4. They deposed that on 21.1.2011, Accused No.1 showed the house where Accused Nos.3 and 4 were present and they arrested Accused Nos.3 and 4 and produced them before the Police Station. They supported the case of the prosecution.
(xxvii) PW.28 - Ashok, who is the Investigating Officer has deposed that PW.2 had given a complaint to the Police Station about missing of his son on 18.1.2011 as per Ex.P2 and subsequently on 19.1.2011, he had given complaint of kidnap as per Ex.P3 and the same was registered in Crime No.8/2011 for the offence punishable under Section 364A of IPC as per Ex.P77. 46 He deposed that the Police started investigation process forming various special teams based on the intelligence collected and Rs.15,000/- to Rs.20,000/- amount was placed in the bag and rest of the bag was filled with paper cuttings and made to look like Rs.10,00,000/- in the bag and he went to the Railway Station on 20.1.2011 at 3.30 p.m. and he explains the entire manner in which Accused No.2 came to the spot and arrested. He further deposed that Accused No.2 told that Accused No.1 had sent him to get money from PW.2 (father of the deceased). He went to the lodge at 5.30 p.m. where Accused No.1 was arrested and Accused No.1 revealed the entire plot of the offence that on 14.1.2011 all the four accused persons assaulted the deceased and committed the murder and thereafter the dead body was put in a gunny bag and later disposed of near Veerasagar Eucalyptus plantation. He further deposed that he returned to the police station between 8.30 and 9.00 p.m. and voluntary statement of the accused came to be recorded at the Police Station. He also deposed that he seized mobile phones and the sim cards from Accused Nos.1 and 2. The mobile phone of the deceased was recovered from Accused No.2 and the same was identified by PW.1. He further deposed that on 21.1.2011, he called upon Aashish Kindra, 47 Rahul Singh, Arun Kumar, Raghavendra and PW.1/Ayushman Lal to be panchas. The photographer, Videographer and PW.2 (father of the deceased) were also present. Based on the information given by Accused No.1 and 2, the dead body was recovered and the same was identified by PW.1/friend of the deceased and PW.2/father of the deceased. He describes elaborately about the process undertaken for recovery of the dead body as also videography & photography taken during the process. Photos are identified by the witnesses. He undertook inquest of the dead body and later sent it to post-mortem examination and the inquest report is at Ex.P55. He further deposed that statements of the accused persons under section 161 of the Code of Criminal procedure were recorded in Hindi and later translated to Kannada as per Ex.P80 and 81. He identified the photos and the same were marked as Ex.P24 and Ex.P25. He further deposed that on 21.1.2011 based on 161 statements, the accused took them to the house at Attur Block, Muneshwara layout and Accused No.2 went inside the bed room and from the wardrobe removed one T.shirt and pant and states that the same were worn at the time of commission of the offence and blood stains were found on the said T. shirt/ Mo.14 and pant/Mo.15. He further deposed that Accused No.2 also showed Arrival Register of the 48 Lodge/Ex.P51, copy of the advance receipt/Ex.P52 and advance receipt/ Ex.P53 as also rent agreement/Ex.P36. Accused No.1 showed white T.Shirt having blood stains (Mo.16), jeans pants having blood stains (MO.17) and they were seized. There was one mattress (MO.18) lying on the floor with blood stains spilled over it. Panchanama took place between 1.00 p.m. and 2.00 p.m. and photograph was also taken and all material objects seized were identified by the witnesses. He would further depose that slipper and purse of the deceased (Mo.5 and 6) were recovered near BMTC bus stand, Gangenahalli. Subsequently, Accused Nos.3 and 4 were arrested and brought to the station. Thereafter, Accused Nos.1 and 2 were taken to Shree Lodge for identification by the receptionist of the Lodge and Accused Nos.1 and 2 have stated that from the room in the said Lodge, they have made calls to the father of the deceased (PW.2) demanding ransom. On 22.1.2011 bike of PW.7 was seized in Yelahanka new town near an electric pole so also bottle piece which was used to assault the deceased was also recovered and Glass pieces/Mo.13 and Glass bottle/MO.20 were seized. On 3.2.2011, he received the CD containing all photographs and videographs related to the case. However, the CD was damaged in the custody of the Court and hence, it was not marked as an Exhibit. He 49 further deposed on 6.2.2011, Nokia phone and Sony Ericsson phone SMSs were sent to the CID for further analysis of the phones and same was returned on 9.2.2011. He would further depose that on 7.2.2011 he received clothes of the deceased (MOs.1 and 2) and the post-mortem report (Ex.P48) prepared by the doctor/PW.12. On 10.2.2011 he received CDRs from the Uninor Telecom and print outs of the CDR were taken from a Cyber Café. CDRs depict that Accused No.2 was in a constant touch with the deceased from 11.01.2011 to 14.1.2011 until 6.34 pm. On 12.2.2011 material objects seized during investigation were sent to FSL Laboratory and on 24.2.2011, broken bottle (MO.20) was sent to Ambedkar Hospital to ascertain whether injuries can be inflicted from the said bottle. On 15.3.2011, he received a report from the hospital regarding analysis of the murder weapon. He identified all CDR details between Accused No.3 and the deceased and between Accused Nos.1 and 2. He states about CDR of using phone of deceased to call PW.2. He further deposed regarding SMS downloads from CID Cyber Cell which reveal messages exchanged between Accused No.3 and deceased, text messages between the deceased and PW.1 and all are produced through print outs. On 17.5.2011, he received FSL report and the investigation was completed by the 50 Investigating Officer. He further deposed that money was placed in the bag by the Police to catch Accused No.2 at the railway station has been returned to PW.2 on humanitarian grounds. He identified all the accused in the open Court. In the cross examination, he has stated that by oversight it is mentioned that he has taken custody of Accused No.2 at 7.30 p.m., but in the chief-examination he deposed that he taken custody of Accused No.2 at 4.30 pm. There are no witnesses to support the statement that Accused No.2 was arrested between 4.30 and 5 p.m. He states that he has not made any memo of arrest for Accused No.1 at the Lodge. He further deposed that he has wrongly stated date as 21.1.2011 instead of 20.1.2011 in Ex.P1/panchanama. He supported the case of the prosecution.
(xxviii) PW.29 - N.s. Mahadev is the Police Constable, who collected the post-mortem report from the hospital. He supported the case of the prosecution.
(xxix) PW.30 Venkatachalapathi is the Head Constable who wrote the missing complaint given to PW.2 as per Ex.P2. He supported the case of the prosecution. 51 (xxx) PW.31 - Ananda is the Police Constable who took material objects to F.S.L., Madivala for FSL examination. He supported the case of the prosecution. (xxxi) PW.32 - C. Balakrishna is the Police Inspector of Kothnur Police Station, who translated the Hindi voluntary statements given by Accused Nos.1 and 2 to Kannada. He supported the case of the prosecution. (xxxii) PW.33 - Manjunatha Olekar is the Police Constable who took the dead body from the place of recovery to Ambedkar Hospital for post-mortem examination. He supported the case of the prosecution. (xxxiii) PW.34 - Manju is the Photographer who deposed that Accused No.1 opened the plastic bag wherein the body was kept and subsequently Accused took them to his house where the offence was committed. He deposed that Accused No.1 showed the Bajaj bike(MO.70) and owner of the bike (PW.7) handed over the keys. He identified photos of bike at Ex.P71 to Ex.P76. He further deposed that Accused No.1 took them near a brick factory and showed the bottle used to assault the deceased. In the cross- examination, he deposed that he does not remember who gave the clothes from the cupboard and he does 52 not remember as to whether Accused No.1 gave his clothes in the Attur lay-out house. He supported the case of the prosecution.
(xxxiv) PW.35 Sahana fathima is the FSL expert. She deposed that on 15.2.2011 10 sealed items were sent to their office and they were - plastic cover, shirt, pant, T.shirt, Pant, bed, broken bottle, T.shirt, Jeans pant, Underwear (Mos.4,14,15,16,17, 18, 13, 2, 1, 12) to look for the blood stains in the items. She further deposed that on items 1,4,6,8,9,10 blood stains were present and in items 2,3,5 and 7 no blood stains were found; blood group of Item No.1 cannot be identified since the stain is decayed; blood stains found on item Nos.4,6,8,9 and 10 is of human blood; blood stains on item nos.6,8,9 and 10 is of 'O' group blood; and blood group of item No.4 is not identified. She has stated in the cross-examination that she has no training in the bloodstain pattern analysis. She admits that she did not receive blood sample of the deceased. She further deposed that at the time of examination, she spotted blood stains in MO.4. She admits that she did not see any blood stain cuttings on MO.16. She admits that it is not possible to identify the blood of either the deceased or the accused. She further deposed that she cannot say that the blood stains found in Mo.18 and the blood 53 stains found in Mos.4, 16, 2, 1 and 12 belong to the same person. She supported the case of the prosecution.
(xxxv) PW.36 - Murthy S.N.,, who is the Vodafone Nodal Officer produced the Call Details Records. He supported the case of the prosecution.
Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge by the impugned judgment and order, has convicted and sentenced the Accused Nos.1 to 4 for the offences punishable under the provisions of Sections 364-A, 302, 201, 120B r/w Section 34 of IPC.
26. It is the specific case of the prosecution that the deceased Thushar, the son of the complainant (PW.2) had come to Bangalore for pursuing studies in Engineering and he was residing in the house at AGB layout, Hesaraghatta Main road, Bangalore and PW.1, close friend of the deceased was residing separately. On 14.1.2011 at about 4.30 p.m. the deceased Thushar and PW.1 left towards the Esteem Hall in a motorbike belonging to the deceased and the deceased Thushar had disclosed with PW.1 that he has two girl friends who pursuaded him to come to Esteem Hall. 54 Accordingly, both of them went near the Esteem Mall where the deceased Thushar introduced PW.1 to those two girls i.e, Shivani Thakur (Accused No.3) and Preetharaj (Accused No.4). Thereafter all of them went inside the Mall and had food in Mc.Donald hotel and wandered there for some time and came out of the Mall and after discussion with the said two girls, Thushar told PW.1 that Accused Nos.3 and 4 requesting him to accompany them to their house at R.T. Nagar and the owner of their house would not allow more persons to visit their house and therefore, they are not ready to take PW.1 along with them to their house. Then, PW.1 conceded the request. Thereafter, instead of going to R.T. Nagar, they went towards Yelahanka in an autorickshaw and PW.1 returned to the college and waited for Thushar as requested by him. After lapse of some time, he received the message from the mobile phone of Thushar that he is enjoying the company of those two girls in their house and also taken drinks and want to spend some more time in their house, thereby PW.1 proceeded towards his room.
27. It is further case of the prosecution that on 16.1.2011, PW.2/complainant (father of the deceased Thushar) received phone 55 call from the mobile phone of Thushar and the person who spoke with him told that they have abducted his son Thushar and demanded Rs.10 lacs for release and also threatened with dire consequences if lodges any complaint with the Police or inform anybody. Thereafter, PW.2 came to Bangalore and at the first instance he filed a missing complaint as per Ex.P2 and later filed one more complaint of kidnapping as per Ex.P3. The jurisdictional Police after holding detailed enquiry filed the charge sheet against the accused.
28. In order to prove the case of the prosecution, the last seen theory has to be proved at the first instance. The last seen theory of the prosecution that the deceased was with Accused Nos.3 and 4 in Esteem Mall on the relevant day is supported by the evidence of PW.1, who is none other than friend of the deceased so also PW.11, who is the Manager of Esteem Mall. PW.11 deposed that about 3 years back, he was working as Manager in Esteem Mall consisting of Ground plus four floors, near Hebbal Kempapura and it is open from 10 a.m. to 9.30 p.m. and in order to monitor the said Esteem Hall, CCTVs were installed and they were working 56 24 hours and he was in-charge of the said Mall. On 22.1.2011 the Police Constable of Amruthahalli Police Station gave him a letter to issue Video clipping of Esteem Mall dated 14.1.2011 from 6 p.m. to 8 p.m. Accordingly, he issued video clipping in a CD as per Ex.P47 and stated that storage capacity of the CCTV installed in the Mall is 15 days and that CD has been given after downloading from CCTV system. He identified the said CD/Ex.P47 and photos/Ex.P47(a) to
(h) before the Police Station. The video clippings as per Ex.P47 and the connected photos as per Ex.P47(a) to (h) depict the presence of Accused Nos.3 and 4 along with the deceased in the Esteem Mall on 14.1.2011. The presence of Accused Nos.3 and 4 along with the deceased in the videos and their identification by the witnesses before the Court, is not disproved by the defence. The said witness was not cross-examined by the defence. The prosecution based on the oral and documentary evidence on record proved beyond reasonable doubt that the accused Nos.3 and 4 and the deceased were last seen together.
29. In order to connect the evidence of PW.1 and PW.11, PW.20 - Deputy Superintendent of Police, Cyber Crimes has been 57 examined and he deposed about the call details, SIM Cards and mobiles seized in the case (IMEI Nos.357989039270932 and 404864414943249). He provided CDRs., SMS contacts, SIM card analysis of seized mobile phones in the case as per Ex.P65 to Ex.P68. At this stage, it is relevant to refer to certain entries in Ex.P66 (SMS print out), which are as under:
Sl. Date & SM Status
No. Number Name Time SC Folder Storage Type Text
Bas kal tak ki baat
hai dear. I was also
shocked aftr hearing
my paper if u dnt
13-01-2011 belve den ask ny of
05:52:48 engg. Student dat
133 919060369994 N/A (GMT) N/A Sent Phone Out going 2mro iz d paper.
Ek kaam kro na
mere yaha aa jao
13-01-2011 dnt wry nthg wl
05:56:29 happen here I
134 919060369994 N/A (GMT) N/A Sent Phone Out going promise
13-01-2011
05:59:00
136 919060369994 N/A (GMT) N/A Sent Phone Out going Hey dnt tel thnx
13-01-2011
06:22:37
137 919060369994 N/A (GMT) N/A Sent Phone Out going kya socha tmne
13-01-2011
06:42:10
139 919060369994 N/A (GMT) N/A Sent Phone Out going ya why nt!
13-01-2011
06:59:27
142 919060369994 N/A (GMT) N/A Sent Phone Out going K. 4m wer?
58
13-01-2011
07:02:04
143 919060369994 N/A (GMT) N/A Sent Phone Out going Wer iz it?
13-01-2011
07:05:24
144 919060369994 N/A (GMT) N/A Sent Phone Out going Bel Circle tak aao
13-01-2011
07:08:19
146 919060369994 N/A (GMT) N/A Sent Phone Out going K. no problem
13-01-2011
07:09:30
147 919060369994 N/A (GMT) N/A Sent Phone Out going Hm bye
13-01-2011
08:13:13
149 919060369994 N/A (GMT) N/A Sent Phone Out going Kya hua?
13-01-2011
08:19:24
151 919060369994 N/A (GMT) N/A Sent Phone Out going Cl kro!
13-01-2011
08:37:58
152 919060369994 N/A (GMT) N/A Sent Phone Out going Oye aana kaha hai.
13-01-2011
17:50:26
155 919060369994 N/A (GMT) N/A Sent Phone Out going Padhai, aur tm
13-01-2011
17:59:35 Kuch Khana kya
156 919060369994 N/A (GMT) N/A Sent Phone Out going hota hai?
13-01-2011
18:02:50
157 919060369994 N/A (GMT) N/A Sent Phone Out going k.
13-01-2011
18:07:37
158 919060369994 N/A (GMT) N/A Sent Phone Out going Ha.
13-01-2011
18:09:11 Chawal dal aalo k
159 919060369994 N/A (GMT) N/A Sent Phone Out going sabji
13-01-2011
18:11:12 To kya kru tm to aai
160 919060369994 N/A (GMT) N/A Sent Phone Out going nai
Mai to boi bol k thak
13-01-2011 gaya tha, tm lo g
18:13:30 ulta mujhe bulne
161 919060369994 N/A (GMT) N/A Sent Phone Out going lagi.
59
13-01-2011
18:16:17
162 919060369994 N/A (GMT) N/A Sent Phone Out going Kal paper hai na!
13-01-2011
18:19:42 K. khana kha lo,
163 919060369994 N/A (GMT) N/A Sent Phone Out going bye tke cre.
13-01-2011
18:21:41
164 919060369994 N/A (GMT) N/A Sent Phone Out going Half n hr.
13-01-2011
19:45:04
166 919060369994 N/A (GMT) Read Inbox Phone Incoming Phone karo ple
14-01-2011
06:26:15
168 919060369994 N/A (GMT) Read Inbox Phone Incoming Goodmorning
14-01-2011
07:16:15 Kya hua Gussa ho
169 919060369994 N/A (GMT) Read Inbox Phone Incoming kya
14-01-2011
07:30:02
170 919060369994 N/A (GMT) Read Inbox Phone Incoming Kahan ho
14-01-2011
08:15:10 Nai Pagal abi jst
171 919060369994 N/A (GMT) N/A Sent Phone Out going exam de k aaya hu.
14-01-2011
08:16:21 To kab tak aa rahe
172 919060369994 N/A (GMT) Read Inbox Phone Incoming ho
14-01-2011
08:17:01
173 919060369994 N/A (GMT) N/A Sent Phone Out going 2 3 ghante me!
14-01-2011
08:55:00
176 919060369994 N/A (GMT) N/A Sent Phone Out going Movie chalogi
14-01-2011
08:58:53
177 919060369994 N/A (GMT) Read Inbox Phone Incoming call me
14-01-2011
10:51:15
180 919060369994 N/A (GMT) Read Inbox Phone Incoming Yaar kidhar ho?
1 ghanta lagega.
14-01-2011 Byk le kr majestic
10:58:31 gaya hai.aa raha hai
181 919060369994 N/A (GMT) N/A Sent Phone Out going raste me hai
60
14-01-2011
10:59:52
182 919060369994 N/A (GMT) Read Inbox Phone Incoming Par jaldi karo. Pls
14-01-2011
11:00:26
183 919060369994 N/A (GMT) N/A Sent Phone Out going k
14-01-2011
11:00:57
184 919060369994 N/A (GMT) Read Inbox Phone Incoming k
14-01-2011
11:43:51
187 919060369994 N/A (GMT) Read Inbox Phone Incoming wait wait wating
14-01-2011
11:44:43
188 919060369994 N/A (GMT) N/A Sent Phone Out going come come coming
14-01-2011
11:45:35
189 919060369994 N/A (GMT) Read Inbox Phone Incoming when babaa?
Are wo log bas
14-01-2011 pahuchne he wale
11:46:44 hai, within one hr I
190 919060369994 N/A (GMT) N/A Sent Phone Out going wl reach der.
yeh galat hai yaar
abhi ek hour pahle
14-01-2011 hin bola tha aur
11:48:43 abhi phir. Kya hai
191 919060369994 N/A (GMT) Read Inbox Phone Incoming dear
14-01-2011 Bas yar byk to aa
11:49:40 jane do wo lo g aa
192 919060369994 N/A (GMT) N/A Sent Phone Out going he gaye honge
14-01-2011 Tum aayo fir main
11:52:53 tumhare kaan
193 919060369994 N/A (GMT) Read Inbox Phone Incoming khichungi
14-01-2011 Jo kichna hai sab
11:53:53 kich lena pehle aane
194 919060369994 N/A (GMT) N/A Sent Phone Out going to do
14-01-2011
11:55:41
195 919060369994 N/A (GMT) Read Inbox Phone Incoming Thik hai aao
14-01-2011
12:02:30
196 919060369994 N/A (GMT) Read Inbox Phone Incoming Ghar se niklu kya.,
61
14-01-2011
12:11:12
197 919060369994 N/A (GMT) Read Inbox Phone Incoming Call me.....
14-01-2011
12:15:27
198 919060369994 N/A (GMT) Read Inbox Phone Incoming Call me
14-01-2011
12:16:20
199 919060369994 N/A (GMT) Read Inbox Phone Incoming Where are you.,...
14-01-2011
13:18:47
201 919060369994 N/A (GMT) Read Inbox Phone Incoming Kahan ho
14-01-2011
*Ayus 17:01:38 Bahi mai ghar ja
209 919916827817 MECH (GMT) Read Inbox Phone Incoming raha hu.....
14-01-2011
*Ayus 17:54:46
212 919916827817 MECH (GMT) N/A Sent Phone Out going yaar kya maal hai
14-01-2011 yaar mazaa aagaya
*Ayus 17:57:12 hai, what a picse
213 919916827817 MECH (GMT) N/A Sent Phone Out going yaar.
30. The above entries coupled with the oral and documentary evidence on record clearly depict that Accused Nos.3 and 4 and the deceased were having contact prior to one day of the unfortunate incident. PW 36 Nodal Officer of the Vodaphone Company has been examined and he had produced the original records, thereby there is no need for production of the certificate under the provisions of Section-65B of the Evidence Act and the SMS contacts of the accused with the deceased proved by the evidence of PW 20. Our view is fortified by the dictum of the Hon'ble Supreme Court in the 62 case Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal reported in AIR 2020 SC 4908, wherein at paragraph- 72(b) it is held as under:
"72(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer"
happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1),together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (Supra) which read as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited."
63
31. It is the case of the prosecution that the Accused Nos.1 to 4 have committed the murder of the deceased with an intention to make unlawful gain by demanding a sum of Rs.10 lakhs from the father of the deceased and later on disposed off the dead body in a distant place. At the instance of Accused Nos.1 and 2, the dead body was recovered and post-mortem examination was conducted by the doctor/PW.12. On examination of the dead body, the doctor found the following injuries:
1. Incised looking lacerated wound present over the back of head measuring 7 cm x 3 cm x bone depth.
2. Incised looking lacerated wound present over the top of head measuring 6 cm x 3 cm x bone depth.
3. Crescentic finger nail mark present over the right side of neck measuring 1 cm x 0.2 cm.
4. Four crescentic finger nail marks present over the left side of neck obliquely downwards and outwards, placed one below the other, each measuring 1 cm x 0.2 cm. They are separated from one another by 1 cm apart.64
5. Both the upper and lower lips at their inner aspect shows teeth marks.
6. Right hand is missing exposing the lower ends of radius and ulna and the surrounding muscles, vessels and nerves which are gnawed by the animals. (Post mortem in nature).
7. Both the feet are missing exposing the lower ends of tibia and fibula bilaterally and the surrounding muscles, vessels and nerves which are gnawed by the animals. (Post mortem in nature)
32. The doctor opined that injury Nos.1,2,3,4 and 5 are ante- mortem in nature and injury nos.6 and 7 are post-mortem in nature. The doctor opined that the death was due to respiratory failure consequent to occlusion of respiratory orifices and pressure over the neck (homicidal smothering and manual strangulation). The doctor has deposed that the death of the deceased occurred unnaturally, and it is due to the assault made on the backside of the head as well as due to pressing of the mouth and nose. Thereby the evidence of the doctor coupled with the post-mortem 65 report clearly prove beyond reasonable doubt that the death of the deceased Thushar is a homicidal death.
33. It is relevant to state that the prosecution has produced the call details pertaining to mobile phone of PW.2 (father of the deceased) so also of the deceased Thushar, which are marked as per Ex.P101 and Ex.P108. The entries made in Ex.P108 reveal that mobile no.8095602949 belong to the deceased. The mobile numbers of the complainant and the deceased found in the complaint. The numbers mentioned in Ex.P2 tally with the numbers found in Ex.P101 and Ex.P108.
34. It is the case of the prosecution that the deceased had been kidnapped by Accused Nos.3 and 4 at the instance of Accused Nos.1 and 2. While recording the statement of the accused under the provisions of Section-313 of the Code of Criminal Procedure, Accused Nos.3 and 4 have disclosed that on 14.1.2011 two boys teased them in the Esteem Hall and hence they left the Mall, but when once again they went to the Mall, they have been apprehended by the Police. Under the circumstances, nothing prevented the accused Nos.3 and 4 to file a complaint against those 66 two boys about teasing and bring it to the notice of the Security Guards available at the spot. But, the same has not been done, thereby the contention of the accused cannot be believed. The evidence of PW.1, PW.2 and PW.11 coupled with Ex.P47/Esteem Mall CD and Ex.P66/print out of SMS and seizure of mobile phone of the deceased from the Accused No.2 clearly support the case of the prosecution about the kidnap of the deceased by the accused.
35. The oral and documentary evidence clearly depict that Accused Nos.2 to 4 are residing in the same house at Attur layout. The presence of Accused No.1 is also proved since the prosecution able to prove the seizure of the clothes and the lodge receipt in the said house. Further, the Manager of the Lodge viz., Nagaraju/ PW.13 has deposed that on 17.1.2011 Accused No.1 stayed in their lodge in Room No.306 and that Accused No.2 was also often and often visiting the said room and he identified both the accused before the Court. If Accused No.1 is not having any nexus with Accused No.2, what was the necessity of his presence with Accused No.1 in that room, is not explained by the defence in the evidence. PW.13 - Nagaraju further disclosed about the drawing of the 67 mahazar in the Lodge on 21.1.2011 and seizure of duplicate copy of the receipt and copy of the lodge extract. He further deposed that on 21.1.2011 the Police have brought accused No.2 to the said Lodge. The admissions of PW.13 further strengthen the case of the prosecution about the kidnap of the deceased by the accused with a pre-plan to demand ransom money. The mobile of the deceased Thushar was seized from the custody of Accused No.2. Such being the case, it is clear that Accused No.2 himself has telephoned to the father of the deceased (PW.2) demanding Rs.10 lacs, thereby the defence of the learned counsel for the accused that there is absolutely no motive for the crime cannot be accepted. Mere non seizure of the black bag/MO.10 from Accused No.2 is also not fatal to the case of the prosecution since the other material evidence is available on record to prove the arrest of Accused No.2 in the Railway station. The material on record clearly depicts that the charge framed against all the accused persons for the offences punishable under Sections 364A, 302, 201 and 120B r/w section 34 IPC and the abundant material evidence available on record against the Accused No.2.
68
36. Based on the material available on record, the prosecution is able to prove the case against the accused persons about kidnap of the deceased by Accused Nos.3 and 4 and later on his abduction in the house of Accused Nos.2 and 3 and absolutely there is no counter evidence to disbelieve the case of the prosecution. From the date of kidnap and abduction till the date of trace out of the dead body by the Investigating Officer at the instance of Accused Nos.1 and 2, there is no evidence to the effect that the deceased was found somewhere else for which none of the accused have any connection. Therefore, the Court has to believe the evidence of kidnapping of the deceased by the accused and the accused only.
37. No doubt there is no direct material evidence available about the demanding of the amount by the accused either from the deceased or from PW.2 (father of the deceased) and the prosecution unable to collect any evidence in this regard because it might have taken place within four corners of the room in which the deceased was confined by the accused after kidnapping him. But the father of the deceased came to know about the kidnap of the 69 deceased on 16.1.2011 itself when he was threatened to give the amount of Rs.10 lacs. The father was in his native place which is far away from Bangalore and the reason for his rushing towards Bangalore is only for meeting the demand made by the kidnappers. He left his native place on 16.1.2011 and reached Bangalore on 17.1.2011 and filed the missing complaint on 18.1.2011. Therefore, there is no such time gap available to think over the matter. Even in the missing complaint it was mentioned about the demand of amount putforth by the kidnappers. Such being the case, it is not possible to accept the contention of the defence that there is no motive for the offence. From the evidence on record, this Court come to the conclusion that only for gain or ransom, all the accused with the common intention have kidnapped the deceased, thereby the ingredients of section 364A are attracted.
38. It is the case of the prosecution that when the deceased failed to yield their request, the accused demanded Rs.10 lacs from his father (PW.2). But they have started demanding money only on 16.1.2011 from the father of the deceased (PW.2) with the help of mobile phone of the deceased. After that, PW.2 came to 70 Bangalore and met the friends of the deceased and after discussing with them, a missing complaint was filed on 18.1.2011. When the accused started demanding money through the phone of the deceased continuously, the matter was revealed before the Police and accordingly the complaint was filed under Section 364A and Police applied their master mind on the basis of the calls received by the complainant (PW.2) from the mobile phone of his son Thushar by the kidnappers. Accordingly, one bag was prepared, which was filled with some currency notes and paper cuttings and that was taken to the Railway Station and kept in the compartment of a train stationed in Platform No.1 and when the Accused No.2 at the instance of Accused No.1 came to the Railway Station for lifting the bag, the Police caught hold the Accused and on enquiry, he had disclosed about the involvement of the Accused No.1 in the case. Accordingly, the Police and the complainant gone to Sri Lodge and there they caught hold Accused No.1. Both the accused were brought to the Police Station and there they revealed about the murder and disposal of the dead body.
71
39. It is also not in dispute that the dead body of the deceased was recovered at the instance of Accused Nos.1 and 2 and same was identified by PW.2/complainant and PW.1/friend of the deceased and it was recovered under the seizure mahazar in presence of the two mahazar witnesses. All these four witnesses as well as videographer and photographer have supported the case of the prosecution about the fact that at the instance of Accused Nos.1 and 2, the dead body was recovered. The dead body was thrown by Accused Nos.1 and 2 after committing the murder with an intention to destroy the evidence. It is also not in dispute that the accused have taken the Police to the house of Accused No.2 at Attur layout and from there, they have produced T.shirts, pants worn by them at the time of committing the offence and also produced the rent agreement, lodge receipt and bed and later on, they led them towards Gangenahalli bus stop and from there, the accused have produced the chappals and purse of the deceased. The bike used by the Accused Nos.1 and 2 to shift the dead body is also seized and the owner of the bike also supported the case. The bottle used by the accused to assault the deceased on his head was also recovered near the bricks factory. The doctor has examined 72 the said bottle and opined that there is chance to commit murder by assaulting on the head of the deceased with the help of the material object - bottle. The oral evidence of all the witnesses supported the case of the prosecution and learned defence counsel failed to contradict the statements of all the witnesses in connection with all these facts of the case. Therefore, the prosecution proved beyond reasonable doubt the case against the accused persons.
40. There are sufficient materials like the evidence of the doctor and evidence of FSL officer, which support the case of the prosecution. Thereby, it is the duty of the accused to rebut the evidence since the burden is on the shoulder of the accused to rebut the evidence. Unfortunately, eventhough the accused persons have taken the plea of alibi while examining them under the provisions of Section 313 of the Code of Criminal Procedure, they did not produce any material in this regard. The defence did not establish any enmity between the complainant and the accused and no material is placed in support of contention of the accused that they have been falsely implicated in the case. The prosecution proved the initial burden that the accused nos.3 and 4 and the 73 deceased were last seen together, but the accused have not offered any explanation. In the absence of the same, an adverse inference has to be drawn against the accused persons under the provisions of section 106 of the Evidence Act. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Prahalad -vs- State of Rajasthan reported in (2020)1 SCC (Crl.) 381, wherein at paragraph-11 it is held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
41. It is also not in dispute that the dead body of the deceased was recovered at the instance of accused 1 and 2. Admittedly, PW.2 (father of the deceased) had initially given the missing complaint and after coming to know the fact that his son has been kidnapped for ransom by the accused, he filed the 74 complaint under the provisions of Section 364-A of IPC. As per his statement, as soon as he received message from the mobile of his son about the kidnap on 16.1.2011, he immediately rushed to Bangalore and after discussing with PW.1 and others, the kidnapping complaint was lodged on 19.1.2011 as per Ex.P3. He has also deposed that at the instance of the Investigating officer, they have made plan for arrest of the accused who were involved in the kidnap racket. Accordingly, he has put a bag filled with currency notes and paper cuttings in Platform No.1 of the City Railway Station and accused No.2 came there to take the bag, at that time Police caught hold the Accused No.2 and at the instance of Accused No.2, Accused No.1 was arrested from Sri Lodge and the mahazar was drawn in the Police Station and the Police recovered the mobile phones. On the next day, PW.2 was also present at the time of recovery of the dead body and later it was shifted to hospital for conducting post-mortem and after post-mortem examination, he had taken the dead body to the native place for performing the last rites. Though lengthy cross examination was made by the counsel for the defence on PW.2, nothing has been elicited to disprove the case of the prosecution. 75
42. It is relevant to state at this stage that after the arrest of Accused Nos.3 and 4, they were remanded to judicial custody and on the request made by the Investigating Officer, Test Identification Parade was conducted by the Tahsildar - PW.10 in order to identify Accused Nos.3 and 4 by PW.1, who is the last seen witness. PW.10, the then Tahsildar deposed that on 10.2.2011, he had received letter from the Police Inspector. Accordingly, he has requested the concerned Jailer to make arrangement for conducting Test Identification Parade and it was conducted on 15.3.2011. It is also proved from the evidence that the Jailer arranged for Test Identification Parade and accordingly, he has selected 14 girls including Accused Nos.3 and 4 and they were placed in the middle of the row prior to the identification. Later, PW.1 identified both Accused Nos.3 and 4 from the row in presence of PW.10/Tahasildar. Later, PW.10 sent a report along with the covering letter as per Ex.P41 to the Magistrate and Ex.P42 contains the questions put to PW.1 while conducting Test Identification Parade and Ex.P44 is the report about identification of Accused Nos.3 and 4 by PW.1 in the Central Jail. The evidence of PW.10 coupled with the statement 76 given by PW.1 clearly depict that PW.1 had identified Accused Nos.3 and 4, the two girls who have kidnapped the deceased Thushar from the Esteem Mall on 14.1.2011. As already stated supra, Accused Nos.3 and 4 disclosed during examination under the provisions of Section 313 of the Code of Criminal Procedure that on 14.1.2011 two boys followed them in Esteem Mall and teased them, but no action was taken by them. It is supported by the video clips/Ex.P47 showing the deceased and PW.1 behind Accused Nos.3 and 4, thereby inference can be drawn that the deceased and accused 3 and 4 are having contact prior to the incident. This is also fortified from Ex.P66/print out of SMS. At this stage, it has to be stated that once the accused have taken the plea of alibi, it is for them to prove the same in view of the provisions of Section 103 of the Evidence Act as held by the Hon'ble Supreme Court in the case of State of Haryana v. Sher Singh, (1981) 2 SCC 300 : 1981 SCC (Cri) 421, wherein at paragraph-4 it is held as under:
4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:77
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
43. It is also relevant to state at this stage that the rent agreement/Ex.P36 executed by the owner/PW6 clearly depicts that Accused Nos.2 and 3 are residents of House 91, 1st Floor, north facing house, Muneshwara layout, Attur, Yelahanka, Bangalore and Accused No.1 used to come to their house as stated by PW.6/owner of the said building and further, the pant, T.shirt of the Accused No.1 and Lodge receipt were recovered by the Police in presence of the witnesses in the said house.
44. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made to such discrepancies as the incident occurred on 14.1.2011 and the evidence was recorded from 2012 to 2014. Further, the statements of all the witnesses about recoveries are concerned is satisfactory in nature 78 eventhough there are some discrepancies, but they are negligible because the material aspect of the case is proved from the mouth of mahazar witnesses like photographer, videographer and PW.1/Ayushmanlal as well as PW.2 (father of the deceased) supported their versions. Their statements are very much satisfactory and those statements will prove that the said recovery mahazars are made in respective places. The mahazar witnesses are not having any enmity against the accused persons nor they are getting any sorts of benefit either from the Police or from the complainant. Such being the case, there is no doubt with regard to credibility of the mahazar witnesses.
45. It is the case of the prosecution that on 20.1.2011 the accused No.2 has been arrested by the Police in the railway station. It is revealed from the voluntary statements of accused No.1 and 2 that deceased was murdered and his dead body has been disposed off far away from the place of murder. From the date of kidnap and abduction till the date of trace out of the dead body by the Investigation Officer at the instance of accused No.1 and 2, there is no evidence to the effect that the deceased was found somewhere 79 else for which none of the accused having no connection. But the evidence adduced by the prosecution about tracing out of the dead body with the help of accused No.2 and later on recovery of other incriminating materials depict that the prosecution is able to prove the case against the accused persons beyond all reasonable doubt. So from the available evidence on record, this Court able to come to the clear conclusion that even though the case only depends upon circumstantial evidence, the evidence adduced before the Court is satisfactory in nature and the chain of circumstance is definitely having the total link and it is established that accused No.1 to 4 have committed the murder of the deceased in the house of accused no. 2 and 3 by joining together.
46. There is also evidence to the effect that accused No.1 was in Shree Lodge and accused No.2 came to the lodge to meet him and that circumstance goes to prove the link between accused No.1 with other accused persons. Even otherwise, the shirt and pant belonging to accused no.1 were found in the house of accused No.2 alongwith lodge receipt. Whether there were blood stains on the shirt of accused No.1 is immaterial, since other available 80 evidence is sufficient to bring home the guilt of the accused beyond all reasonable doubt. Accused No.4 is not at all having any other avocation and residence and she being the close relative of accused No.3 has to reside alongwith accused No.2 and 3. Under the circumstances on the basis of evidence available on record, this Court has no hesitation to come to the conclusion that accused No.1 to 4 have committed the murder of the deceased in the house of accused No.2 and 3. Without the assistance of each other such a heinous offence cannot be committed in the house and offence has taken place within four corners of the wall and therefore, chances of direct evidence is very much remote.
47. It is found from the evidence on record that the murder was committed in the house of accused No.2 and 3, but the dead body was discovered far away from the place of murder. The slippers and purse of the deceased were thrown somewhere else and the bottle used by the accused to assault on the head of the deceased was thrown near the bricks factory. These things have been done by the accused only with an intention to cause disappearance of the evidence. When it is proved that the accused 81 have committed the murder after kidnapping the deceased with an intention to demand money from the father of the deceased, the accused are also liable to be convicted for the offence punishable under Section-201 of I.P.C because they have tried their level best to cause disappearance of the evidence with an intention to escape from the clutches of law.
48. It is relevant to state at this stage that in order to bring about a conviction under Section 120-B of IPC, the ingredients of Section 120A has to be proved. Section 120A of the IPC prescribes that when two or more persons agreed to do, or cause to be done -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation to Section 120A of IPC depicts that it is immaterial whether the illegal act is the 82 ultimate object of such agreement, or is merely incidental to that object. The essential ingredient of the offence of "criminal conspiracy" is the agreement to commit an offence and mere proof of such an agreement is sufficient to establish criminal conspiracy as held by the Hon'ble Supreme Court in the case of Sushil Suri - vs- CBI and another reported in AIR 2011 SC 1713, wherein it is held at paragraph-17 as under:
"17. As afore-stated, in the Charge-sheet, the accused are alleged to have committed offences punishable under Section 120B, read with Sections 420, 409, 468 and 471 IPC. We feel that at this preliminary stage of proceedings, it would neither be desirable nor proper to return a final finding as to whether the essential ingredients of the said Sections are satisfied. For the purpose of the present appeal, it will suffice to observe that on a conspectus of the factual scenario, noted above, prima facie, the Charge-sheet does disclose the commission of offences by the appellant under the afore-noted Sections. The essential ingredient of the offence of "criminal conspiracy", defined in Section 120A, IPC, is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event, 83 unless the Statute so requires, no overt act is necessary to be proved by the prosecution because in such a fact-situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A IPC, then in that event mere proof of an agreement between the accused for commission of such crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. (See: Suresh Chandra Bahri Vs. State of Bihar [1995 Supp (1) SCC 80: (1994 AIR SCW 3240:
AIR 1994 SC 2420 : 1994 Cri LJ 3271)]."
49. Now the Court has to see whether there is conspiracy in between accused No.1 to 4 to commit alleged offence. Since the alleged offence has taken place in the house of accused No.2 and 3 and as the pant and shirt belonging to accused No.1 and lodge receipt of accused No.1 were found in the house of accused No.2 and 3 and since accused No.4 has to reside alongwith accused No.2 and 3 in that house, without the connivance of each other, to grab 84 the money from the complainant, the offence cannot be committed. The material evidence like video clippings found in the Esteem Mall goes to prove that even prior to 14.1.2011 itself accused nos.3 and 4 having friendship with deceased and P.W.1, because accused No.3 and 4 wandered alongwith deceased and P.W.1 with more liberty. Such being the case unless accused No.1 to 4 have joined together such an offence would not be committed. The accused not only committed the murder but also disposed off the dead body to cause disappearance of the evidence and therefore due to the availability of the evidence on record, this Court is of the opinion that the material ingredients of section 120A of I.P.C are complied. So after examining the evidence on record and the ingredients of Section 120A of the IPC, this Court is of the view that the offence alleged against the accused for the offence punishable under Section 120B is also proved.
50. The evidence on record clearly depicts that at the first instance the Accused Nos.3 and 4 made a plan to become close friend to the deceased and thereafter Accused Nos.1 and 2 joined with Accused Nos.3 and 4 and at the instance of Accused No.1, the 85 Accused No.2 went to the Railway station to get the ransom bag from PW.2 and Accused No.2 was arrested by the Investigating Officer. Thereafter at the instance of Accused No.2, Accused No.1 was arrested in the lodge and thereafter they went to the house of Accused Nos.2 and 3 at Attur and at the instance of Accused No.1, the mobile phone of the deceased was recovered and at the instance of the accused persons, dead body of the deceased in a gunny bag was recovered at Eucalyptus garden near Attur, thereby the prosecution based on the oral and documentary evidence on record clearly proved the conspiracy among Accused Nos.1 to 4 to commit the offences charged against them.
51. Based on the oral and documentary evidence on record, the prosecution proved beyond reasonable doubt that Accused Nos.3 and 4 kidnapped the deceased Thushar from the Esteem Mall for ransom and abducted in the house of Accused No.2 and in furtherance of the common intention, committed the murder of the deceased Thushar and shifted the dead body to eucalyptus garden in order to cause disappearance of the evidence and further all the accused conspired together to commit the offences, thereby 86 Accused Nos.1 to 4 have committed the offences punishable under the provisions of sections 364A, 302, 201, 120B r/w 34 of IPC. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. On re-assessing the entire oral and documentary evidence on record, this Court is of the considered opinion that the appellants/accused have not made out any case to interfere with the well crafted judgment passed by the trial Court, in exercise of the appellate powers of this Court under the provisions of section 374(2) of the Code of Criminal Procedure. VII. Regarding judgments relied upon by learned counsel for the appellants/accused
52. Sri K.B. Monesh Kumar, learned counsel for appellants/Accused Nos.2 and 3 relied upon the judgment of the Hon'ble Supreme Court in the case of Subramanya vs. State of Karnataka in Criminal Appeal No.242/2022 dated 13.10.2022 in support of his contention that panchamnama has to be conducted in presence of the panchas after recovery of body. Admittedly in the present case, the Investigating Officer first called the independent witnesses and in their presence drawn the panchanama after asking 87 questions to the accused persons and articles used for commission of the offence were recovered at the instance of the accused persons, thereby the provisions of Section 27 of the Evidence Act have been followed by the Investigating Officer. Therefore, the principle laid down in the judgment relied upon by the learned counsel has been complied in the present case.
53. In the case of Ravi Sharma vs. State (Government of NCT of Delhi) and another in Criminal Appeal Nos.410-411/2015 dated 11.07.2022 relied upon learned counsel for Accused Nos.2 and 3, the Hon'ble Supreme Court reiterated the settled principle of law that no one can be convicted on the basis of mere suspicion, however strong it may be and further when the Court take into account the conduct of the accused, his conduct must be looked at in its entirety. In the present case, the accused persons were not convicted on the basis of mere suspicion but it is based on the established principles of law. Accused persons have committed the murder of the deceased with an intention to make an unlawful gain and the motive is proved. Last seen theory of Accused Nos.3 and 4 with the deceased; recovery of the body at the instance of the 88 accused and other circumstances are also proved based on the abundant material on record. Therefore, the said judgment has no application to the facts and circumstances of the present case.
54. Learned counsel for Accused Nos.2 and 3 relied upon the judgment in the case Amrik Singh vs. State of Punjab reported in 2022 SCC Online SC 861 and contended that Test Identification parade is must. In the present case, the Tahsildar conducted Test Identification Parade of Accused Nos.3 and 4 and in the said T.I. Parade, PW.1 identified Accused Nos.3 and 4, thereby the principle laid down in the judgment relied upon by the learned counsel has been complied in the present case.
55. Learned counsel for Accused Nos.2 and 3 relied upon the judgment of the Hon'ble Supreme Court in the case of Ravinder Singh @ Kaku vs. State of Punjab reported in AIR 2022 SC 2726, in support of his contention that compliance of Section 65B of the Indian Evidence Act is mandatory. Admittedly in the present case, the SMS contacts of the accused with the deceased were proved by the evidence of PW.20/Dy.SP, Cyber Crimes and PW.36/Nodal Officer of Vodaphone company. PW.36 has produced 89 the original records, thereby the Call Detail Records (CDRs) proved and therefore certificate under Section 65B of Evidence Act is not necessary, in terms of the latest judgment of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar -vs- Kailash Kushanra Gorantyal reported in AIR 2020 SC 4908 {paragraph- 72(b)}. Thereby, the judgment relied upon by the learned counsel has no application to the facts and circumstances of the present case.
56. Learned counsel for Accused Nos.2 and 3 relied upon the judgment of the Hon'ble Supreme Court in the case of Rahul vs. State of Delhi, Ministry of Home affairs and another in Criminal Appeal No.611/2022 in support of his contention that there cannot be moral conviction on the basis of suspicion alone without any corroborative evidence. Admittedly in the present case, there are abundant materials for conviction of the accused. Last seen theory of deceased with Accused Nos.3 and 4 is proved. Accused No.2 was arrested at the Railway Station after the incident when he came to take the bag containing ransom of Rs.10 lacs. In fact it contains only Rs.15,000/- to Rs.20,000/- as stated by 90 PW.28/Investigating Officer. The accused have committed the murder of the deceased with an intention to make unlawful gain and motive for murder is proved. Dead body of the deceased was recovered at the instance of Accused Nos.1 and 2 under Ex.P8/Mahazar in presence of PWs.1 and 14. Blood stained clothes of Accused Nos.1 and 2 were seized in the house of Accused No.2 by the Investigating Officer. Based on the medical evidence, scientific evidence and other oral and documentary evidence, the impugned judgment of conviction has been passed and not on the moral basis or on suspicion alone. Therefore, the judgment relied upon by the learned counsel has no application to the facts and circumstances of the present case.
57. Learned counsel for the appellant relied upon the judgments of the Hon'ble Supreme Court in the case of Gireesan Nair and others etc. vs State of Kerala in Criminal Appeal Nos.1864-1865/2010 and in the case of Md.Sajjad Alias Raju Alias Salim vs. State of West Bengal reported in (2017)11 SCC 150 in support of his contention that Test Identification Parade is mandatory. In the present case, Test Identification Parade has 91 been conducted by the concerned authority, thereby the principle laid down in the judgment has been complied in the present case.
58. Learned counsel for Accused No.1 relied upon the judgment in the case of Tomaso Bruno and Another -vs- State of Uttar Pradesh reported (2015)7 SCC 178, wherein the Hon'ble Supreme Court in the facts and circumstances of the said case observed that CCTV camera footage ought to have been produced by the prosecution and adverse inference can be drawn against the prosecution when the best evidence in possession of the prosecution like CCTV footage is not produced. The said judgment has been overruled by the Hon'ble Supreme Court in the latest judgment in the case of Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal reported in AIR 2020 SC 4908.
59. In yet another judgment relied upon by the learned counsel for Accused No.1 in the case of Prakash -vs- State of Karnataka reported in (2014)12 SCC 133, the Hon'ble Supreme Court observed that when a grave suspicion raises that investigation was not fair and blood stains and finger prints on the weapons used for murder not recognized, benefit of doubt to be 92 given to the accused. In the present case, the seizure of blood stained clothes of Accused Nos.1 and 2 in the house of Accused No.2 by the Investigating Officer in presence of PW.16 coupled with the FSL report and other materials on record clearly depict the involvement of the accused persons in the homicidal death of the deceased for ransom amount of Rs.10 lacs, thereby the judgment relied upon by the learned counsel has no application to the facts and circumstances of the case.
60. In another judgment relied upon by learned counsel for Accused No.1 in the case of Sunil Kundu and Another -vs- State of Jharkhand reported in (2013) 4 SCC 422, the Hon'ble Supreme Court observed that lapses and irregularities in investigation that go to the root of the matter cannot be ignored. In the present case, no such lapses or irregularities pointed out in the investigation and based on the abundant material on record, the impugned judgment of conviction has been passed, thereby the judgment relied upon by the learned counsel has no application to the facts and circumstances of the case.
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VIII. Conclusion
61. For the reasons stated above, the points raised in these criminal appeals have to be answered in the negative holding that the appellants/accused have not made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court, convicting and sentencing the appellants/Accused Nos.1 to 4 for the offences punishable under the provisions of Sections 364-A, 302, 201, 120B r/w 34 of IPC.
IX. Result
62. In view of the above, we pass the following order:
i) (a) Criminal Appeal No.1065/2014 filed by appellant/Accused No.2;
(b) Criminal Appeal No.1136/2017 filed by appellant/Accused No.1; and
(c) Criminal Appeal No.11/2015 filed by appellants/Accused Nos.3 and 4;
are hereby dismissed as devoid of any merit.
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ii) The impugned judgment of conviction dated 31/10/2014 and order of sentence dated 6.11.2014 made in S.C. No.916/2011 on the file of the Presiding Officer, Fast Track Court-XV, Bangalore, convicting and sentencing the appellants/Accused Nos.1 to 4 for the offences punishable under the provisions of Sections 364A, 302, 201, 120B r/w 34 of IPC, is hereby confirmed.
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