Karnataka High Court
State Of Karnataka vs S. Mohammed Idris S/O Late Khadar Vali on 29 April, 2025
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CRL.A No.100196/2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF, APRIL 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100196 OF 2020
BETWEEN:
STATE OF KARNATAKA
THE POLICE INSPECTOR,
BRUCEPET POLICE STATION,
BALLARI, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
Digitally signed
by
MALLIKARJUN 1. S. MOHAMMED IDRIS S/O. LATE KHADAR VALI
RUDRAYYA
KALMATH AGE: 23 YEARS, OCC: MGM BAKERY, BUSINESS,
Location: HIGH
COURT OF R/O: BADEGALLI, NEAR JANDAKATTE,
KARNATAKA
MILLERPET, BALLARI-583101.
2. MOHAMMED IMRAN S/O. M. IBRAHIM SAB
AGE: 20 YEARS, OCC: MGM BAKERY, BUSINESS,
R/O: BADEGALLI, NEAR JANDAKATTE,
MILLERPET, BALLARI-583101.
3. SADRUDDIN @ SADRU S/O. SALEEM SAB
AGE 35 YEARS, OCC: DRIVER,
R/O: NEAR JANDAKATTE,
COURT MOHALLA, MILLERPET, BALLARI-583101.
4. SHASHAVALI S/O. AMEERKHAN
AGE: 22 YEARS, OCC: CARPENTER,
R/O: NEAR SOCIETY RICE MILL,
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CRL.A No.100196/2020
MILLERPET, BALLARI-583101.
5. IRFAN S/O. LATE MOHAMMED HUSSAIN
AGE: 22 YEARS, OCC: LOADER OPERATOR,
R/O: BADEGALLI, NEAR JANDAKATTE,
MILLERPET, BALLARI-583101.
6. SYED MOHAMMED S/O. MOHAMMED ISMAIL
AGE: 36 YEARS, OCC: OWNER OF MGM BAKERY,
R/O: NEAR JANDAKATTE, COURT MOHALLA,
MILLERPET, BALLARI-583101.
7. MOULA @ MOULA HUSSAIN S/O. KHAJAPEER
AGE: 20 YEARS, OCC: MECHANIC,
R/O: 1ST CROSS, ANDHRA BABU STREET,
COURT MOHALLA,
MILLERPET, BALLARI-583101.
...RESPONDENTS
(BY SRI. SRINAND A. PACHCHAPURE AND
SRI. RAJENDRA R. PATIL, ADVOCATES FOR R1 TO R5
AND R7;
SRI. SRINAND A. PACHCHAPURE AND
SMT. PALLAVI S. PACHCHAPURE, ADVOCATES FOR R6)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. PRAYING TO, GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 28/08/2019 PASSED BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BALLARI IN S.C.NO.127/2011 AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
28/08/2019 PASSED BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, BALLARI IN S.C.NO.127/2011 AND TO CONVICT THE
SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 364A, 302, 201, 120(B) AND
109 R/W. SECTION 149 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.03.2025, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No.100196/2020
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the judgment of acquittal dated 28th August 2019 passed in Sessions Case No.127 of 2011 passed by the I Additional District & Sessions Judge, Bellary (for short hereinafter referred to as the "trial Court").
2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court.
3. The factual matrix of the case are that Bruce Pet Police Station filed charge sheet against accused for offences punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code. It is alleged that accused 1 to 5, with an intention to extract money from the relatives of Pankaj Jain, made a conspiracy and on 1st February 2011 at 8:40 pm and when said Pankaj Jain was proceeding on a scooter bearing registration number KA-34/J-7477, they kidnapped him in an Indica car bearing registration number KA- 34/M-2248, assaulted on his head with wooden stick causing injury. Later, the accused made a phone call to the relatives of Pankaj Jain and demanded a ransom of ₹8,20,000/- for his -4- CRL.A No.100196/2020 release. It is further alleged that on 2nd February 2011 at 8:30 pm accused received ₹7,00,000/- from the complainant near LLC Canal near Guggarahatti. Instead of releasing Pankaj Jain, the accused tied his hands and legs with a rope and stamped tape on his mouth, committed murder of Pankaj Jain by drowning him in LLC Canal at 12:30 midnight. The accused have taken equal share in the ransom amount received from the complainant. It is alleged that the accused have also taken gold ornaments like chain and finger-ring of deceased-Pankaj Jain. It is further alleged that accused No.6, knowing fully well about the overt acts of accused 1 to 5, has not given information to anybody with an intention to screen the evidence of murder. It is further alleged that accused No.7 provided his mobile number to accused 1 to 5 to commit kidnap and murder and gave the information to accused 1 to 5 about the relatives of Pankaj Jain and accused 6 and 7 aided accused 1 to 5 in the commission of offence. Thereby, accused have committed the alleged offences punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code. After filing of charge sheet, cognizance was taken against the accused for punishable of alleged offence and a case was registered in CC No.253 of 2011. After committal of the same -5- CRL.A No.100196/2020 to the Court of Sessions, case was registered in SC No.127 of 2011. On hearing charges, the trial Court framed charges against accused for commission of offence punishable under abovementioned Sections and the same was read over and explained to the accused. Accused have denied the charge levelled against them and claimed to be tried.
4. To prove the case, prosecution, in all, examined 47 witnesses as PWs1 to 47 and marked 165 documents as per Exhibits P1 to P165 and marked 51 Material Objects as MOs1 to
51. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded and the accused have totally denied that evidence of prosecution witnesses but have not chosen to lead any defence evidence on their behalf. But, during the cross-examination of the witnesses, eleven documents have been marked as Exhibits D1 to D11. Having heard on both sides, the trial Court has acquitted the accused. Being aggrieved by the judgment of acquittal, State has preferred this appeal. Submissions on behalf of the State:
5. Sri M.B. Gundawade, learned Additional State Public Prosecutor appearing for the State, would submit that the -6- CRL.A No.100196/2020 judgment and order of acquittal passed by the trial Court is contrary to law, facts of the case and evidence on record. It is submitted that out of witnesses examined by the prosecution, PW1 is the wife of the deceased, PWs2 & 5 and 7 & 8 are mahazar Witnesses. PWs3 & 4, 10-13, 16-20, 21, 29, 30, 31 and 41 are the other material circumstantial witnesses who have supported the case of prosecution. The evidence of these witnesses have not been properly read and appreciated by the trial Court in its proper perspective and thereby erred in acquitting the accused. Official Witness PW35-Section Officer of BESCOM, PW36-Engineer, PW37-Doctor who has conducted autopsy, PW46-Assistant Director of Truth Lab, PW48-FSL Officer and PWs39, 40-45 and 47 who are Police officers have deposed regarding their role in investigating the case. The deposition of all these witnesses have been given a go-by while acquitting the accused, is the submission of learned Additional State Public Prosecutor.
5.1 He would further submit that the trial Court has acquitted the accused on the ground that PW1-wife of the deceased and PW6-maternal uncle of the deceased, have not seen the deceased at the time of incident and also they have not paid the amount to the accused, so also on the ground that -7- CRL.A No.100196/2020 the tower location of the mobile phone of the deceased was located in Andhra Pradesh as on the date of incident and also on the ground that the gold chain and the finger ring recovered from the accused belonging to deceased not having any special identification marks. They said reasoning assigned by the trial Court is not sustainable as the articles are identified by the wife of deceased and maternal uncle. It is submitted that Bellary District is adjacent to Andhra Pradesh and in that regard the reasoning assigned by the trial Court that the Tower location of the Mobile of deceased was located at Andhra Pradesh, is not sustainable as the mobile tower of Andhra Pradesh is very near to Bellary border.
5.2 The learned Additional SPP would further submit that payment of amount to the accused is specifically stated by the prosecution witnesses PWs1, 6 and other witnesses.
Further, the trial Court has acquitted the accused on the ground that the Investigating Officer has not conducted investigation in proper manner and there are so many laches on the part of the Investigating Officer in conducting the investigation, the said reasoning is also not sufficient to acquit the accused as the prosecution has proved its case beyond reasonable doubt by producing other material witnesses. He -8- CRL.A No.100196/2020 would further submit that the trial Court acquitted the accused on the ground that PW37-Doctor, while conducting the autopsy had not found blood stains on the clothes worn by the deceased and also on the wooden stick used for commission of offence. But as per PW48-FSL Officer, the clothes worn by the deceased and the wooden piece used for commission of offence were stained with blood and the same has been created by the police officers. The said reasoning is also not correct as the Doctor has not witnessed the clothes with naked eyes, but the Officer of Forensic Science Laboratory has identified blood stains with microscope. Therefore, the reasoning assigned by the trial Court in this regard is liable to be set aside.
5.3 He would further submit that the trial Court was inferred by the suspicious role played by Investigating Officer during the investigation. He submits that the Criminal Justice system should not be made a casualty for the wrong committed by the Investigating Officer and submits that the trial Court has given much importance to the minor lacunae found the investigation of the prosecution case and thereby erred in acquitting the accused. He would submit that the accused have taken different defences at the time of trial. One of the defence is that the complainant and one Shankar, the labourer -9- CRL.A No.100196/2020 of the said Shankar and some people from Andhra Pradesh have committed the murder of Pankaj Jain at the instance of the complainant and the other defence is with regard to total denial of the case of prosecution. Taking different stand at different stage is another link to connect the accused to the crime committed by them.
5.4 Further, the learned Addl. SPP would submit that the trial Court acquitted the accused on the ground that the call details was not supported by the certification of issuing authority as provided under Section 65-B(4) of Indian Evidence Act. The said reasoning assigned by the trial Court is not sustainable in view of the decision of Hon'ble Supreme Court in the case of SHAFI MOHAMMAD v. STATE OF HIMACHAL PRADESH reported in 2018 Cri.L.J. 1714 (SC). In view of the principles enunciated in the above case, call details produced by the prosecution are admissible in evidence and the rejection of same by the trial Court is bad in law is the submission of the learned Addl. State Public prosecutor.
5.5 Further, he would submit that appellants/accused 1 to 5 have committed the murder of the deceased and the place of murder is also shown by the accused and accused have also
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CRL.A No.100196/2020shown the dead body and the gold articles worn by the accused were recovered from the house of the accused in the presence of panchas. He submits that the dead body and the articles of the deceased were recovered upon the disclosure made by the accused. Therefore, the trial Court ought to have considered the above while acquitting the accused.
5.6 PW42 is the photographer, who in his examination- in-chief has categorically stated about the photograph taken and videograph recorded by him at the time of investigation of the case. But in his cross-examination, he has turned hostile and stated entirely against the deposition made on 18th March 2004. But during cross-examination made by the Public Prosecutor, he has admitted the material particulars. The said evidence has also not been properly read and appreciated by the trial Court. Thereby the trial Court believed the evidence of PW12, who stated before the trial Court regarding the last seen of the deceased in the company of the accused. He has stated before the Court that some boys informed him about kidnapping of the deceased in an Indica car. The said evidence ought to have been accepted by the Court, but the trial Court has committed an error in rejecting the same on the ground
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CRL.A No.100196/2020that he is not the direct witness for kidnapping the deceased by the accused.
5.7 PW46-Assistant Director of Truth Lab, Bangalore, who has examined sample voice and also the questioned voice in the CD, has opined that the seal of the CDs were intact, both sample and questioned voice would tally with each other. The said material evidence has also not been accepted by the trial Court on the ground that the Investigating Officer has requested the Mysore Lab for examination but the same has been examined by Truth Lab at Bengaluru and thereby discarded the evidence of PW46. It is submitted that PW46 has explained as to under what circumstance the articles regarding voice testing was examined at Bengaluru Lab. He has deposed that the Mysore Lab was crowded with more examination works and hence the same has been sent to Bangalore Lab. The said explanation also has not been accepted by the trial Court.
5.8 As regards demand of ransom amount by PW1 and PW6 is concerned, learned Addl. SPP would submit that the same has been established by the prosecution through the evidence of PW1 and PW6 and also the evidence of PW46-FSL examiner and also the voice recording of the accused and PW1
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CRL.A No.100196/2020& 6, but the same has not been considered by the trial Court. It is further submitted that at the time of cross-examination of PW7, at page 25 it is stated that the amount and the Golden articles were kept in the house of accused by PW7 and thereby Police prepared Panchanama at about 2.00 am. The said cross- examination itself shows that Panchanama was conducted in the House of the accused in the presence of PW7 and the Investigating Officer and the said fact has not been denied by the accused in their statement made under Section 313 of Code of Criminal Procedure though indirectly they have admitted the fact of recovery of gold articles and cash from the house of the accused. Therefore, failure to explain the same would result in drawing adverse inference against the accused as per Section 106 of the Indian Evidence Act. It is further submitted that there is a mobile conversation between the accused No.1 and PWs1 & 6 in respect of payment of ransom amount. The said fact has been proved by the prosecution through the evidence of PW46, wherein PW46 has clearly stated that the voice found in the CD belonging to PWs1 & 6 and the accused No.1 is tallying with each other. The said evidence has not been properly appreciated by the trial Court and accordingly, the trial Court has committed an error in acquitting the accused.
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CRL.A No.100196/2020Hence, he submitted that trial Court has not properly appreciated the evidence in its proper perspective and the same has resulted in miscarriage of justice. On all these grounds he sought to appeal.
Submission on behalf of the respondents-accused:
6. On the other hand, learned Counsel Sri Basavaraj appearing for respondents-accused, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely there are no grounds to interfere with the impugned judgment of acquittal and hence, sought for dismissal of the appeal.
7. Having heard the arguments on both sides and on perusal of entire material and record, the following points would arise for our consideration:
i) Whether the impugned judgment and Order of acquittal passed by the Sessions Court suffers from legal infirmities requiring this court to intercede?
ii) What order?
8. Our answer to the above points is:
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Point No.1: in the negative;
Point No.2: as per final order.
Regarding Point No.1:
9. Before delving into consideration of the contentions advanced by the learned Additional State Public Prosecutor and the learned Counsel appearing for the respondent-accused, it is necessary to refer to the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.
10. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate Court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
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(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not
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CRL.A No.100196/2020disturb the finding of acquittal recorded by the trial Court."
11. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial Court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial Court has led to a miscarriage of justice. ..."
12. In the case of HARI RAM & OTHERS v.
STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan
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on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial Court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of
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acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."
13. In the case of STATE OF RAJASTHAN v.
KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."
14. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent Court after a full-fledged trial, and once the trial Court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate Court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate Court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the Court has to be
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very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate Court while passing an order has to give clear reasoning for such a conclusion."
15. It is alleged by the prosecution that Brucepet Police Station filed charge sheet against accused for offences punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code. It is alleged that accused 1 to 5, with an intention to extract money from the relatives of Pankaj Jain, on 01st February 2011 at 8:40 pm when said Pankaj Jain was proceeding on a scooter, kidnapped him in an Indica car, assaulted on his head with wooden stick causing bleeding injury. Later, accused made a phone call to the relatives of Pankaj Jain and demanded a ransom of ₹8,20,000/- for his release. It is further alleged that on 02nd February 2011 at 8:30 pm accused received ₹7,00,000/-, but, instead of releasing Pankaj Jain, accused tied his hands and legs with a rope, stamped tape on his mouth and committed murder by drowning him in LLC Canal. Later, the accused have taken equal share in the ransom amount received from the complainant. It is alleged that the accused have also taken gold chain and ring of deceased-Pankaj Jain. It is further
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CRL.A No.100196/2020alleged that accused No.6, knowing fully well about the overt acts of accused 1 to 5, has not given information to anybody with an intention to screen the evidence of murder. It is further alleged that accused No.7 provided his mobile number to accused 1 to 5 to commit kidnap and murder and gave the information to accused 1 to 5 about the relatives of Pankaj Jain and aided accused 1 to 5 in the commission of offence. Thereby, accused have committed the alleged offences punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code.
16. The entire case of prosecution is based upon circumstantial evidence. It is settled principle of law that in the case based on circumstantial evidence, prosecution has to bring on record, the events which form a chain together and lead to irresistible conclusion of involvement of accused only in the crime. Each event/circumstance must be proved by cogent and convincing evidence. No circumstance which shows possibility of involvement of third person should be left. This chain has to be so complete that it rules out involvement of any other person as accused. Keeping this basic principle in mind and also the aforesaid decisions of the Supreme Court, we have to examine the materials placed before this Court.
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17. It is the case of prosecution that accused 1 to 5, with an intention to extract money from the relatives of Pankaj Jain, made a conspiracy and on 1st February 2011 at 8:40 pm and when said Pankaj Jain was proceeding on a scooter they kidnapped him in an Indica car, assaulted on his head with wooden stick causing injury. Later, accused made a phone call to the relatives of Pankaj Jain and demanded a ransom of ₹8,20,000/- for his release. That on 2nd February 2011 at 8:30 pm accused received ₹7,00,000/- from the complainant near LLC Canal near Guggarahatti, but instead of releasing Pankaj Jain, they tied his hands and legs with a rope and by stamped tape to his mouth and committed murder of Pankaj Jain by drowning him in LLC Canal. Thereby, accused have committed the alleged offences punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code.
18. The Investigating Officer has cited 72 witnesses in the chargesheet. Out of them, prosecution has examined 48 witnesses as PWs1 to 48 and marked 165 documents as per Exhibits P1 to 165 and 51 material objects are marked as MOs1 to 51. Accused have also marked 11 documents as per Exhibits D1 to D11.
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19. CW10-Indubala Jain, wife of the deceased Pankaj Jain, has deposed in her evidence that her husband Pankaj Jain was working in the electric shop being run by Praveen Jain, the maternal uncle of her husband. Her husband used to go to shop at 9 AM and come back to lunch at 3 PM and again from 4:30 PM to 10:30 PM he used to be in the shop. She has stated that on 01st February 2011 at 4:30 PM after lunch, as usual, her husband went to the shop and at 9:30 PM, her father-in-law, Uttam Chand Jain called to enquire about the presence of her husband in the house. She replied that he has not returned. At 9:25 PM Praveen Jain had made a phone call to her enquiring about the clothes worn by her husband. Being shocked, she replied that her husband has worn red colour T- shirt and blue colour jeans pant. At about 9:30 PM, there was a phone call to the landline and her husband Pankaj Jain was on the other side. He told her that "Main Mera Dost Ke Saath hoon Thoda Late Aaoongaa". She stated that her husband always used to talk her in Marwadi language, and when she asked her husband, why he is talking in Hindi, the line got disconnected. Thereafter, she tried for her husband's phone, but he did not receive the call and there was a recorded message in Telugu language as "Receiver is out of coverage
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CRL.A No.100196/2020area" and at 9:45 PM, she has informed the said fact to her father-in-law. She has also stated that she had tried to call her husband at 10 PM and at that time it was switched off and again she called at 10:30 PM, the phone was ringing, but there was no response. At 11:30 PM, her father-in-law came to the house and informed her that husband has been kidnapped and Praveen Jain went to Police Station to lodge the complaint. On 02nd February 2011 at 4:30 PM, there was a phone call to the landline and her father-in-law received it and handed over the receiver to her. Someone on the other side in Hindi language told her that Pankaj Jain is with them and demanded ₹8,20,000/- for his release. When she pleaded her inability to pay the amount, the person on the other side told her that they had financed ₹20 to 25 lakh to others, then she told him that she would manage the amount and requested him not to harm her husband. When she started weeping, the person on the other side said that they are not ready to deal with a weeping person to which she replied that she will pay the amount, then the person on the other side said that they are not ready to deal with women. She requested him to give the phone to her husband. Then her husband spoke to her over phone and said that he had sustained injuries to his head, hand and legs, and
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CRL.A No.100196/2020he is tired as no food is provided to him and asked her to intimate the same to Praveen Jain and to pay the amount and get him freed. Then she stated that she had informed the person and the other side that she will send amount with Praveen Jain to which the side person told that Praveen Jain is a dangerous person and when she told that she will send the amount with Uttam Chand Jain, the person on the other side replied that he is even more dangerous and instructed her to send the money with her father. She had informed that her father's health is not good and hence she will come with a boy to pay amount to which the person on the other side told that he will deal with Praveen Jain.
19.1 She has further stated that at about 6 PM, CW1- Praveen Jain asked her to come to the house of Roshan Jain. She, her father-in-law went to the house of Rohan Jain at that time police were also present. She informed the conversation that took place with the kidnapper. She has handed over Rs.3,50,000/- which was in her possession. Her father Kailash Jain has given Rs.1,50,000/-; her father-in-law paid Rs.1.00 lakh and Praveen Jain also paid Rs.1.00 lakh, totally Rs.7.00 lakh was collected and it was handed over to CW1-Praveen Jain. He went to the place near Guggarahatti and put the
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CRL.A No.100196/2020amount as per the instructions of the kidnapper. Kidnapper told them that they will free Pankaj Jain after two hours, but Pankaj Jain did not come back even after lapse of two hours.
19.2 She has further stated that on 05th February, 2011 at 4:30 PM, she and her father-in-law went to Police Station. Roshan, Vinay Jain, Mahendra, Keerti and Ankesh were present. They came to know that accused drowned her husband in a canal. They along with Police and accused went to the spot near Gududuru LLC Canal. Accused 1 to 5 showed the place where they drowned Pankaj Jain. Thereafter, they started to trace the body with the help of torchlight in the Canal and at about 5:30 PM they found the dead body of her husband. Body was taken out from the Canal with the help of others. It was decomposed. She has identified the body of her husband and the clothes on the body as also the undergarment and the red colour belt MOs 1 to 4. She has also identified the right leg footwear of her husband which is marked as MO5. She has further stated that on 07th February, 2011, Police called her to Police Station and handed over her the Gold Ring and Chain and cash of Rs.7.00 lakh to her as per the order of the Court. The gold ring and chain are marked as MOs6 & 7. At that time, Police took photos marked as Exhibit P1 to P6 and the photo of
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CRL.A No.100196/2020Bajaj Chetak scooter of her husband which is marked as Exhibit P7. She has stated that somebody had murdered her husband.
20. CW6-Mohan Kumar, who is examined as PW2 has deposed that on 03rd February, 2011, he and his brother went to Bruce Pet Police Station to enquire about kidnap where the police requested them to assist to draw Panchanama. They also came to know that the conversation from the cellphones of Pankaj Jain and Praveen Jain are being recorded. The police requested them to assist in drawing Panchanama to upload it on a compact disc from the Cellphone. In the mobile, phone there were voices of Praveen Jain, Pankaj Jain and the kidnapper. They also heard voice of women and the same were uploaded to a compact disc and sealed in cloth bag. Police had drawn Panchanama as per Exhibit P8. On 05th February 2011, again, Police called and they went to Police station at 10 AM. Police seized mobile from accused No.6, drawn Panchanama as per Exhibit P9 and the mobile phone and SIM were marked as Exhibits MOs9 & 10. He has further stated that at 3 PM, police have seized another mobile phone produced by accused No.7 under panchanama Exhibit P1 and Mobile and SIM are marked as MOs11 & 12. It is further stated that on 07th February, 2011 at 6:30 PM. Police have returned
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CRL.A No.100196/2020the amount, gold ring and chain recovered from accused to the wife of deceased Pankaj Jain and drawn Panchanama as per Exhibit P1. At that time, his brother, Ashok Reddy, Praveen Jain, Indubala Jain, Kailash Jain and Uttam Chand Jain were present.
20.1 It is further stated that on 08th February 2011 at 8 AM when they were in Police Station, Police informed them that accused 1 to 5 will show the place of incident and requested them to assist to draw panchanama at those places. Then they went with police in a police Jeep. Along with them, photographer was also there. Near Chellagurki, accused No.3 showed the petrol bunk where they fuelled the car. There the police drawn panchanama and took photo. Then they all went to Vidupanakallu, where accused No.4 shown the shop where he purchased turmeric powder. The shopkeeper identified the accused and said that accused No.4 had purchased turmeric powder there. The police have drawn panchanama and the photographer took photo and video. Later, they went to KK Circle, where accused No.3 shown the puncture shop where the car was vulcanized. The shopkeeper was present, he identified the accused. Police took the photo and video of the shop. He further stated that they went on Bengaluru Road and after 20
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CRL.A No.100196/2020km from Chellikere in one Place, accused No.1 shown the place and where he had thrown the club used for committing the offence. Police took the club, seized and sealed it and marked as MO13 and put it in a bag which was marked as number MO14 which was also videographed. Further, he has stated that the accused took them in front of Lavanya Dhaba situated near Hiriyur and said that on the day of incident, they had a tiffin in the said Dhaba, where one Manohar has identified the accused and police took photo and video and drawn panchanama as per Exhibit P12. He has further stated that on 14th February 2011, Police called them to Bruce Pet Police Station and informed that they want to record sample voice of accused where one Jagadish was present. He has recorded the sample voice of accused 1 to 5. Inspector instructed the accused to talk in Hindi language as he said and accused repeated the same Hindi language. Their voices were recorded in separate CDs. and police drawn Panchanama in this regard as per Exhibit P13. The compact disc containing the voice of accused 1 to 5 were marked as MOs15 to 19 and were kept in cloth bag and sealed. The sample voice of accused recorded in one CD was marked as MO20 which was also kept in a bag and sealed. The photos are marked as Exhibits P14 to 26 of which,
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CRL.A No.100196/2020Photos of petrol bunk are marked as Exhibits P14 & 15, photo of Kirana shop ws marked as Exhibit P16, photo of puncture shop marked as Exhibit P17, photos where they club was seized was marked as Exhibits P20 & P21, and the photos where sample voice of accused were recorded are marked as Exhibits P22 to P26.
21. CW8-Vinay Jain examined as PW3, has stated that on 01st February 2011 at 9:30 PM CW1 made phone call to him and said that one Shankar informed him that about 4 to 5 persons kidnapping Pankaj Jain in an Indica car and asked him to come to shop. He rushed to the shop of Praveen Jain, where Ankesh, Keetri, Mahendra Jain were present. They all went to Police Station and CW1 lodged complaint. He had stated that at 9:35 PM when they came back to their houses, there was a call from Pankaj Jain to the cellphone of CW1, where the person on the other side told in Hindi language "Pankaj Aapko chahiye Kyaa?" to which Praveen said "haan". To that, the person on the other side said "Police Ke paas Jayenge toh Pankaj aapko nahin Milega" saying thus he cut the phone call. Again after 15 to 20 minutes, there was a call to CW1 and the person on the other side informed him that there is head injury to Pankaj Jain and they are going to hospital and
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CRL.A No.100196/2020when CW1 enquired as to which hospital they are going, the person on the other side told "woh sab mein baad mein Bataoongaa" and disconnected the call. He has stated that on 02nd February 2011 at 10:15 AM CW1 came to his house and informed that kidnappers put a demand of ₹8,20,000/-. Meanwhile, Police Inspector and mobile repairer by name Khaja Peer came there. Thereafter, Khaja Peer removed SIM from the Mobile of Parveen Jain, inserted into another mobile and downloaded the software and informed about recording of incoming and outgoing calls. He has stated that on the very day at 5 PM, he and CW1 went to the house of Roshan Jain situated at SN Pet. At that time, Police Officer, Ankesh, Keerti, Mahendra were present. CW1 made phone call to the wife of Pankaj Jain and asked to come there. She came and informed that at 4:30 PM. She has received a call from kidnappers putting demand of Rs.8,20,000/- CW1 arranged ₹7,00,000/- and went to pay the amount to kidnapers. He has stated that he came to know that CW1 put the bag containing the amount near Guggarahatti Bridge and came back and informed that Pankaj Jain will come after two hours, but he did not return.
22. Further, he has stated that on 05th February 2011 at 4:30 PM, Police called him to Police station.
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CRL.A No.100196/2020CW1, Roshan Jain and wife of Pankaj Jain were present and accused 1 to 5 were also present. The police have informed him that on 01st February 2011 accused 1 to 5 kidnapped Pankaj Jain and on 02nd February 2011, committed his murder and accused were ready to show the place of crime. Hence, they along with all accused and police went near Talur Road LLC. Accused showed the place near bridge and informed them that they have tied hands and legs of Pankaj Jain and stamped tape on his mouth and drowned him in the canal. They proceeded to search the body and after 30 to 35 kilometers, near Sindhuwala village, they found the body of Pankaj Jain. The police with the help of villagers, took the corpse out and identified that it was of Pankaj Jain. It was in decomposed condition. Police drew Panchanama as per Exhibit P27. There was head injury on the body. The Police drawn Panchanama as per Exhibit P28 and took photos which are marked as Exhibits P9 to P42.
23. CW18-Ismail a watermelon merchant, who is examined as PW4, has stated that he has purchased a second hand Nokia Mobile handset Model 5230 marked as MO21 from CW19 Sarmas. He has put DOCOMO SIM with No.8147251688 and used the said phone for three months.
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CRL.A No.100196/2020Later, he sold it to the same person. He has identified the said mobile phone which is Mark as MO21.
24. CW2-Sanjay said to be the attester to Panchanama is examined as PW5. He has deposed in his evidence that he and Mahendra Kumar were called by police on 02nd February 2011 at 7 o'clock and they went to police station from where they were taken to Dattasai Nagar. There CW13 showed the place from where the accused kidnapped the deceased Pankaj Jain. The said place belonged to one Srinivasa Reddy, where they found Bajaj Chetak scooter bearing number KA-34/J-7477 and on the number plate, it was written in English as 'Solanki'. They also found right leg footwear near the scooter and the same has been identified as of Pankaj Jain's and the same is marked as Exhibits P43 to P47 and MO5. Further, he has deposed that on 07th February 2011, again Police called him. He and Praveen Jain went to the Police Station where accused was present. It was informed by accused to the police that they will show the place and shop, where they have thrown the mobile phone and also where they had purchased the tape and rope for committing the offence. In police station, Mohammad Idris and Shasha Wali were there and he has identified them. Then they were taken to Miller Pet
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CRL.A No.100196/2020by Police Jeep where Mohammed Idris asked to stop the Jeep and all followed him. He had taken them to the gutter located behind his house and told that he had thrown the mobile in that gutter. Police called the municipality people and asked to search for mobile. One Raju located the mobile phone from the gutter which was of Samsung model Black in colour which contained SIM card and battery and a 1GB memory card. The same was marked as MO22. He has further stated that they went near Guggarahatti and accused No.1 showed the place where they collected the amount. There is an iron bridge near the place. Police took photo and video and drawn panchanama between 1.15 and 2.00 PM. Further, the accused brought them to a shop on Bangalore Road where accused No.4 and shown Deepak Stationery Store. The shopkeeper of the said Stationery told that accused purchased one tape for Rs.20/- and Police took photo and video of the shop. They went to another shop near Nagareshwara Temple where accused number showed the shop where they purchased a rope. The name of the shop was KGF Ropes. Its owner Nazeer Ahmed was present and told that accused purchased the rope from his shop. The police took photo and video and drawn the Panchanama as per Exhibit P49.
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CRL.A No.100196/2020
25. CW1-Praveen Jain is the complainant who is examined as PW6. He has deposed that he is having a electric shop in the new market wherein Pankaj and Pankaj's father Uttam Jain were working and Pankaj Jain used to look after the transaction in the shop and also used to collect the money from the customers and Pankaj Jain is the son of his sister. He has deposed that on 01st February 2011, at about 7.45 PM, he had informed Pankaj Jain to collect the money and at about 8.00 PM Pankaj Jain called from his mobile to inform that the customers of SP Circle have not paid any money on that day and told that they will pay on Saturday. On the same day at about 9:15 PM. one Shankar came to his shop and informed him that when he had been to the program of Ravi Shankar Guruji in BUDA Ground at about 8:55 PM, Nallanna had informed him over phone that Praveen Jain has been kidnapped in an Indica car and the scooter of Pankaj Jain is abandoned at the kidnap spot. The said Shankar further informed that Praveen Jain has collected Rs.5,000/- from Devi Prasad. Then he telephoned Pankaj Jain, but his phone was switched off. Later, Vinay, Keerti, Mahendra went to Police Station and lodged the complaint which is marked as Exhibit P50. He has further stated that he has given further statement
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CRL.A No.100196/2020before the police. In the further statement he has stated that Nallanna is the resident of Hanuman Nagar and not the resident of Hussain Nagar. He has stated that Rs.5,000/- was received by Praveen Jain from Devi Prasad. He has further stated that on the very day of kidnap, he has received a phone call and the person on the other side spoke in Hindi language asking "Paise ka Kya Hua?" to which he replied that he will manage it within 2 to 3 days, but the person and the other side demanded to pay within 1.00 PM to which he said 'yes'. At 10:30 AM, he had been to Police Station and the police officers and Kaja Peer were present. Police officer removed the SIM from his mobile and put it on Nokia E5 Mobile. Khaja Peer connected the software to the said phone and recorded communication of kidnappers. The kidnappers made phone call to the said mobile and demanded the amount. At 5.00 PM, he, Vinay Jain, Ankesh, Mahendra and Keerti went to the House of Roshan Jain situated at SN Pet, where the Police officer was also present and he asked the wife of Pankaj Jain to come there. She came and informed that kidnappers had called her and demanded ₹8,20,000/- ransom. He further stated that again he received phone call from Pankaj Jain's mobile and the person the other side spoke in Hindi language asking "Paisa ready hua Kya?" He
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CRL.A No.100196/2020said that he has arranged ₹4 to 5 lakhs, and the person on the other side demanded full amount, hence he collected Rs.3,50,000/- from the wife of Pankaj Jain, Rs.1,50,000/- from the father-in-law of Pankaj Jain Rs.1,00,000/- from father of Pankaj Jain and he arranged Rs.1,00,000/- totally Rs.7,00,000/- was collected and he has stated that at 7:30 hours again, he received phone call from the phone of Pankaj Jain and the person on the other side asked him to come near KSRTC Bus stand to pay the amount. He took Rs.7,00,000/- in one briefcase and to be on the safer side, he took mobile of Rajesh Jain, dialed the number of Mahendra Jain and leaving it on, kept in his pocket. He has stated that he went on Honda Activa bearing registration number KA-34/Q-2469 to KSRTC Bus stand. After five minutes, he received phone call from the kidnapper, asking him to come near APMC yard. At 8.05 pm Kidnappers called him to come near Guggarahatti LLC, and then kidnapper called him to come near third Bridge near Guggarahatti. By that time, it was dark and the kidnapper asked him to keep the briefcase there. After keeping the Briefcase there, he called the number of Pankaj Jain to inform that he had paid the ransom. The person on the other side told
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CRL.A No.100196/2020to go back and assured that Pankaj Jain will return in two hours, but he did not return.
25.1 He has further deposed that on 05th February, 2011, Police called him to the police station where accused 1 to 5 were also present. He came to know that accused 1 to 5 kidnapped and murdered Pankaj Jain. He has further stated that accused No.6 was running MGM bakery and he was earlier doing electric work borrowed Rs.5,00,000/- from him and still he has to pay balance of Rs.2,00,000/-. He has stated that Pankaj Jain used to go to his shop to recover the amount. He came to know that accused No.6 conspired to commit offence colluding with accused 1 to 5. He has stated that he came to know that on 05th February, 2011 at 5:15 hours kidnappers drowned Pankaj Jain in LLC near Gududuru Village. Later, he, wife of Pankaj Jain, his father, Vinaya Jain, accused 1 to 5 and Police went to the spot. Accused showed the spot and said that they tied hands and legs of Pankaj Jain stamped tape on his mouth and drowned him in LLC. They started to search the body and after 30-35 kilometers near LLC near Sindhvala Village they found the dead body of Pankaj Jain which was in a decomposed condition. The Police brought the dead body to VIMS Hospital and after post-mortem, collected the dead body
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CRL.A No.100196/2020and performed funeral. He has further stated that on 07th February 2011, he, Indubala wife of Pankaj Jain, her Father and father-in-law went to Police Station where the Police handed over the seized amount of Rs.8,20,000/- Gold Ring and Chain, as per the order of the Court. Police took photo there which are marked as Exhibits P4 to P7 the Ring and chain or marked as MOs6 & 7 and the Police drawn Panchanama as per Exhibit P51.
26. CW3A-Mahendra Kumar, who is examined as PW7, is the seizure panch witness. He has deposed in his evidence that on 05th February 2011, Bruce Pet Police called him between 2.00 to 2.30 hours and he and Ritesh went to the spot where Panchanama was being drawn. When he went there, Mohammad Idris and Sadruddin were in the custody of police. He has stated that the police has seized Nokia mobile phone, ING, Vysya Bank debit card, Canara Bank ATM Card, Corporation Bank ATM card, DOCOMO SIM Card, Vodafone SIM Card, cash of Rs.5,860/- marked as MOs24 to 33 under body search of accused No.1 under Panchanama Exhibit P52. He has further stated that police has seized Spice mobile, valet, cash of Rs.2,650/- marked as Exhibits MO34 to 36 under body search of accused No.3 and drawn Panchanama as per Exhibit
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CRL.A No.100196/2020P52. He has further stated that on the same day at 3:45 PM, police seized Nokia Mobile handset, Cash of ₹1,230/- from accused No.2, Cash of Rs.8,075/- from accused No.4 and Mobile model No.1280 and cash of Rs.3,640/- and valet from accused No.5 marked as MOs37 to 42 under seizure panchanama Exhibit P53. He has further stated that on 6th February 2011 at 12:30 hours in the night again on request of the Police they had been to Police Station and the Police had shown five accused and informed them to go to the houses of the accused. They came to know that all the accused had got distributed the ransom amount among themselves, and were ready to show the amount in their houses. Police have secured photographer and went to the house of accused No.1. He had produced gold chain MO7, briefcase MO23, cash of Rs.2,39,000/- connected to this Case and cash of Rs.38,000/- connected to another case. The photographer took photo and video. Accused No.1 also shown the gutter where he threw the mobile phone of Pankaj Jain. With the help of torch light they tried to trace the mobile, but in vain. He has further stated that accused No.2 in his house shown cash of Rs.1,58,000/- connected to this case and Rs.26,000/- connected to another case and the Police had drawn Panchanama between 2.15 to
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CRL.A No.100196/20202.45 hours. Accused No.3 shown cash of Rs.78,000/- connected to this case and Rs.33,000/- connected to another case and the Police had drawn Panchanama between 3.00 and 3.30 hours. Accused No.4 has shown case of Rs.86,000/- connected to this case and Rs.15,000/- connected to another case and the police have drawn Panchanama between 3.45 and 4:15 hours. Accused No.5 has shown cash of Rs.69,000/- connected to this case and Rs.18,000/- connected to another case. He has also produced golden ring, which is marked as MO6 and Police drawn Panchanama between 4.30 and 5.00 AM. Accused No.3 shown one Indica car bearing registration number KA-34/M-2248 parked near Lakshmi Iron and Steel Godown, Rani Thota, and stated that in the said car, they kidnapped Pankaj Jain. Police secured its owner, Daula and received key of the said car and drawn Panchanama between 5.15 and 5:45 AM. Accused No.1 showed Honda Activa scooter parked at 4th Cross near Maula Masjid and stated that they used the said scooter to pick ransom amount. The scooter belonged to one Asif and the police recovered the key of the scooter from its owner, drawn Panchanama between 6.00 and 6.30 AM. Accused No.1 showed one Yamaha motor motorcycle parked near Moti Talkies and stated that he used the said
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CRL.A No.100196/2020motorcycle to find out the activities of Pankaj Jain and the Police drawn Panchanama and seized the said motorcycle bearing registration number KA-34/W-9782. Accused 1 to 5 shown the place of kidnap at Datta Sai Nagara. Police drawn Panchanama as per Exhibit P54 between 7.45 and 8.00 AM. The photographer took photos and videos of the above said places. He has further stated that on 06th February 2011 at 10.00 am Police called him and Ritesh to the Police Station to draw Panchanama regarding seizure of articles pertaining to Pankaj Jain produced by Police Constable Mallikarjuna which is collected from Doctor at the time of postmortem. The same were marked as Exhibit P55. Photo of the dead body of Pankaj Jain is marked as Exhibit P56 and Photos of articles of Pankaj Jain are marked as Exhibits P59 & P60. Photos of Houses of accused marked as Exhibits P58, P75 & P76, P68, P72 and P63 respectively, and handing over of amount pertaining to one Pawan Kumar by the accused are marked as Exhibits P61 & P62, P75 & P76, P71, P74, P73 and P64 & P65 respectively. Photo of car is marked as Exhibit P80, photo of Honda Activa scooter is marked as Exhibit P81, Photo of Yamaha motorcycle is marked as Exhibit P82 & 83 and the photo of place of kidnap
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CRL.A No.100196/2020is marked as Exhibit P84. Tata Indica car, Yamaha motorcycle and Honda activa scooter are marked as MO43 to 45.
27. CW13-Shankar who is running fabrication workshop in Hanuman Nagar, Bellary examined as PW8. One Devi Prasad is manager in his workshop. Mr Nallanna is his neighbour. He has stated that he knows CW1 and he has borrowed Rs.1,00,000/- from CW1, he was making repayment at Rs.5,000/- every week through Pankaj Jain. On 01st February 2011, he was attending Ravi Shankar Guruji's preaching program at Municipal College Ground, Bellary between 8.30 to 8.45 PM and at that time Nallanna made a phone call to him and informed that he was told by some boys that 3 to 4 unknown persons kidnapped Pankaj Jain in an Indica car and the scooter of Pankaj Jain is abandoned on the spot. Immediately he called on mobile, his manager Devi Prasad to go to the place of Scooter where it is abandoned and find out whether it belong to Pankaj Jain or not. Devi Prasad informed him that the scooter is of Pankaj Jain and also told that he called Pankaj Jain, but his phone was switched off. Then he rushed to Datta Sai Nagar Main Road and found the abandoned scooter and one footwear. He has informed the said incident to CW1. On the next day, he showed the place of
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CRL.A No.100196/2020kidnap to the police and the police seized the scooter and footwear.
28. CW15-Khaja Peer computer repairer, is examined as PW9. He is running a computer repair shop on Bengaluru Road, Bellary. He has stated that he does not know CW1. It is the case of the prosecution that he has inserted call recording software in the mobile of CW1 to record the incoming and outgoing calls. However, he has denied the said facts. This witness has not supported the case of the prosecution. He was treated as hostile witness with the permission of Court, and during the course of cross-examination by Public Prosecutor, he has categorically denied as to the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which is marked as Exhibit P87.
29. CW17-Mr. P Badrinath is into mobile business. He is examined as PW10. He has deposed in his evidence that he knows CW1 and his shop is in front of the shop of CW1, and he do know Pankaj Jain. On 10th June, 2010, he sold Samsung mobile MO22 to pankaj Jain for Rs.6,100/- issued receipt as per Exhibit P18. But in the cross-examination by the learned Counsel for the accused, he has denied as to
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CRL.A No.100196/2020Pankaj Jain purchasing mobile from his shop. He has also denied that to assist CW1, he has deposed false evidence before the Court. He has stated that he does not remember the IMEI number of the mobile phone. He has stated that whenever mobiles are sold, usually battery number and charger numbers are mentioned in the receipt, but there is no mention of battery or charger number in Exhibit P88 and he is unable to say on which date police have recorded his statement.
30. CW16-G Venkatesha examined as PW11 said to have sold Yamaha motor motorcycle MO44 to accused No.1 through a mechanic. He has stated that he does not know accused No.1. He has stated that he brought one Yamaha motorcycle from the showroom at Bangalore in the year 2010 and he got the same temporarily registered. After 3 to 4 months, he sold the said motorcycle to accused No.1 through a two wheeler mechanic Murthy as the said vehicle was giving less mileage. He has also put his signature on Forms 29 and
34. Thereafter, he came to know that the vehicle was not transferred in the name of Idris. He has identified vehicle MO44. Police have informed him to come to enquiry as the accused has used the said vehicle for commission of a crime.
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CRL.A No.100196/2020
31. CW12-Nallanna is examined as PW12. He has deposed in his evidence that he is the neighbour of PW8- Shankar. He has stated that while he was going back to restaurant from Datta Sai Nagar, he saw an abandoned scooter on the street where three boys were present, and when he enquired the boys, he came to know that four person's kidnapped the scooterist in the car, and so he informed the said fact to Shankar. In his cross-examination by the learned counsel for the accused, he has stated that he has no transaction with CW1 and he never spoke with Pankaj Jain. He does not know anything about the boys who informed him about kidnap and he does not know CW1 and Pankaj Jain and does not also know where Pankaj Jain visited to collect money. He has denied the payment by CW1.
32. CW14-Devi Prasad examined as PW13. He has stated that there is money transaction between CW1 and his owner PW8. Pankaj Jain was collecting the money on behalf of CW1. On 01st February, 2011 as per instruction of PW8, he has paid Rs.5,000/- to Pankaj Jain at 8:30 PM. He was in workshop at 9.00 PM. His owner had made a call and instructed him to go to Datta Sai Nagar and to see the scooter as Nallanna
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CRL.A No.100196/2020has informed him that it was abandoned on the road. He visited the spot, found scooter and informed the same to PW8.
33. CW19-Sarmas Hussain Sab examined as PW14. He has not supported the case of prosecution and he is treated as hostile witness with the permission of the Court. During the cross-examination he has categorically denied as to the Investigating Officer recording the statement under Section 161 of Code of Criminal Procedure, which is marked as Exhibit P 90. He also denied the contents of Exhibit P89.
34. CW-22 Gudadaiah is examined as PW15.
He has deposed that at the request of police, at 6.00 PM he has taken the dead body out from the Canal. The photos are marked as Exhibits P37 and P38. At the time of he recovering the body from the Canal, the relatives of dead person were present. He could not see the presence of accused at the place as it was dark.
35. CW25-Satish Kumar examined as PW16. He has deposed in his evidence that he has received Rs.1,00,000/- from CW1. He has stated that he used to borrow amount from the complainant and would repay the same in weekly instalments. On 01st February, 2011, Pankaj Jain called him on
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CRL.A No.100196/2020mobile and asked for repayment of the amount and he sought 2-3 days time. He has stated that his mobile number is 9900850659. He do not know the mobile number of Pankaj Jain. Since Pankaj Jain is no more, he has deleted the number of Pankaj Jain. He has further stated that as on the date of last call of Pankaj Jain, he has cleared Rs.60,000/- and had to pay the balance of Rs.40,000/-.
36. CW26-G Satish and CW34-Daula, examined as PWs17 and 18, have not supported the case of prosecution and have been treated as hostile witnesses with the permission of the Court. During the cross-examination, they have categorically denied as to the recording of Investigating Officer recording the statement under Section 161 of Code of Criminal Procedure which are marked as Exhibits P91 and P92.
37. CW33-Mohammad Asif examined as PW19 is the owner of Honda Activa scooter. He has not supported the case of prosecution.
38. CW38-Suresh Jain examined as PW20. He is the owner of Deepak Stationery shop on Bengaluru Road, Bellary. He has deposed that on 07th February, 2011, accused Shasha Wali was brought to his shop by the police and
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CRL.A No.100196/2020enquired as to whether the accused has purchased a tape from his shop. He had informed the police that on 01st February 2011, he has purchased one brown colour tape from his shop and he has identified Exhibit P95 bill. He has also identified photo Exhibit P96.
39. CW35-P Raju examined as PW21 is a contract labour in Bellary Municipality. He has deposed that he is working in the Municipality for more than ten years. About two years back when he went home after office, about 3 to 4 police came and told him that a mobile had fallen in the gutter and asked him to collect it so he and one Raja along with Obalesh went to Miller Pet water Tank at that time accused Idris was with police. Accused Idris threw a stone at the point where the cellphone was thrown and he searched for it, recovered and handed over to police. The police took photographs. He identified the photographs and also Exhibit P97. He also identifies MO22 the mobile phone recovered from the gutter.
40. CWs45, 44, 10, 41, 42, 43, 48, 49, 39, 52, 51, 47, 44 are examined as PWs23 to 29 and 31 to 34 respectively. They have not supported the case of prosecution.
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CRL.A No.100196/2020Even in the cross-examination made by the learned Public Prosecutor after treating them as hostile witness with the permission of the Court, they have categorically denied as to the statement recorded by the investigating officer under Section 161 of Code of Criminal Procedure, which are marked as Exhibits P99, P100, P101, P102, P106, P103, P104, P107, P108, P109 and P110.
41. CW52-Budena Bi examined as PW29 has deposed that she knows Noorjahan mother of accused no.3. She had let out her house on rent to the mother of accused No.3 on a monthly rent of Rs.1,300/-. Since the police were often visiting the house of Noorjahan, she had vacated Noorjahan from that house. She has identified the photo Exhibit P8. She is not aware of the husband of Noorjahan and she has also not seen her husband. She was her tenant.
42. CW50-Marim Bi examined as PW30. She had deposed as to letting out of her shed on a monthly rent of Rs.500/- to Shameem the mother of accused, Irfan. She had asked the tenant to vacate the house and at present she is residing in the shed. She has identified Exhibit P75 the photo of the house which she had let out to mother of accused Irfan.
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43. CW51-Zarina Begum and CW49-Syed Dada Peer examined as PW34 & PW31 respectively, have not supported the case of prosecution.
44. CW61-S Chandrashekar examined as PW36. He has deposed that he is working as Assistant Engineer in Tungabhadra CADA office. He has prepared the sketch as per the request of the police and he has identified the sketch Exhibit P116.
45. CW63-Dr Chaitanya R, Associate Professor, Forensic Medicine, VIMS Bellary has conducted postmortem on the deceased and he has deposed as to the examination of the body and issuance of Exhibit P120 Postmortem report. He has also issued opinion with regard to club as per Exhibits P121 and Exhibit P122.
46. CW53-Syed Mohammad Rafiq examined as PW38, Chief Officer, Bhatkal Municipality. He has deposed that he has worked as Revenue Officer in Bellary Municipal Corporation from 2006 to August 2013. At the request of Bruce Pet Police Station, he has issued the assessment extract as per Exhibit P123 to P126.
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47. CW60-Anjaneya is the Police Constable. He has deposed as to delivering of the report of Forensic Science Laboratory, Davangere to the Police Inspector.
48. CW54-Jagadish examined as PW41, has deposed in his evidence that he is running Earth King Creations, advertisement shop. He has deposed that on 14th February 2011 on the request of Investigating Officer he brought laptop Mic and earphone to the police station to record the sample voice of some persons. Investigating Officer had instructed the accused 1 to 5 to say three times in Hindi as he says. Accordingly accused have repeated those lines in Hindi and he had recorded their voice in separate CDs. and one joint CD. The separate CDs are marked as MOs15 to 19 and one joint voice CD is marked as MO20. He has also deposed as to handing over of MOs15 to 20 to the investigating officer which has been seized in a white cloth.
49. CW55-Raghu examined as PW42 is a photographer. He has stated that he's doing the profession for the past 10 years. On 02nd February 2011. The Police had secure him to go to Datta Sai Nagar to take photos of scooter and footwear, he took photos thereof as per Exhibits P43 to
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CRL.A No.100196/2020P47. That on 05th February 2011, he and accused and police went to Canal near Talur Road. He took the photos of where the deceased was drowned as per Exhibits P29 to P31. He also took the photos of dead body as per Exhibits P37 to 42. On 06th February, 2011 at about 01.00 am in the early morning till 5 o'clock, he accompanied the police to all the houses of accused, took photos of accused houses and the photos of handing over of the amount by accused to the police which marked as Exhibits P59 to P79. He has also taken the photograph of Indica car, Honda activa the photo in front of MGM bakery marked as Exhibits P80 to P83 and on 7th February 2011, he had taken photos of Canal as per Exhibits P84 and 85 and on 08th February 2011 had taken the photograph of petrol bunk and the grocery shop which is marked as Exhibit P 14. He has also taken the photographs of Lavanya Dhaba near Hiriyur. The Bridge of Gugguratti Canal, Deepak Stationery store and KGF Ropes where tape and rope have been purchased, which are marked as Exhibits P127 and P105. He has further stated that on 4th February 2011 in the Bruce Pet Police Station, the Police were recording voice sample as per the say of Police and he has taken those photographs which are marked as Exhibits P22 to 26. He has also taken the photograph and videograph
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CRL.A No.100196/2020and downloaded in a CD and handed over to the police, which is marked as MO48 and the videograph CDs. are marked as MOs49 and 50. In the cross examination, this witness has been treated as hostile witness and has been cross-examined by the Public Prosecutor.
50. CW71-B Niranjan, Police Inspector, examined as PW43 has stated that on 01st February 2011 at 1:45 PM when he was on duty, he has registered the complaint and sent FIR to the Court. Complaint is marked as Exhibit P50 and FIR as Exhibit P128. He has further stated that on 5th February 2011, upon instructions by the Inspector, he and his staff apprehended accused 2, 4 and 5 at BUDA Park Bellary and produced them before the police Inspector on 05th March 2011, he apprehended accused No.6 and produced before the police inspector.
51. CW66-B Babu, Head Constable examined as PW44, has transmitted FIR Exhibit P128 to the Magistrate.
52. CW69-M Wali retired Assistant Sub-Inspector examined as PW45 has stated that on 19th March 2011 Investigating officer has taken voice sample of five accused in a CD and seized it on 20th March 2011. He submitted the same
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CRL.A No.100196/2020before the Director, All India Institute of Speech and Hearing, Manasa Gangotri, Mysore.
53. CW73-Kumari S Neeru Assistant Director of Truth, Lab, Bengaluru examined as PW46. She has stated that she got training in voice identification. On 17th July 2012, Bruce Pet Police have sent 7 CDs in parcel with a request to examine the questioned voice with sample voice series and submit report. The same was brought by Assistant Sub-Inspector, Venkatesh. She has examined the questioned voice and issued report as per Exhibits P130 to P133.
54. CW72-Bhaskar Rai, Deputy Superintendent of Police examined as PW47 was the Investigating Officer in this case. He has deposed as to his part of investigation.
55. CW62-Lingegowda examined as PW48 is the Scientific Investigating Officer of FSL, Davanagere. He has stated that on 28th February 2011, Bruce Pet Police, Bellary sent 10 materials in a sealed packet containing T-shirt, jeans, pant, underwear, belt, rope, cello-tape, bamboo stick, three cotton swag, etc. He has stated that blood stains detected all over these materials which is of B group human blood, and he
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CRL.A No.100196/2020has examined those materials and submitted his report as per Exhibit P164.
56. On a careful examination of entire materials on record, it is crystal clear that the entire case is based on circumstantial evidence. It is settled legal proposition of law that in a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
57. In the backdrop of the observation made by the Hon'ble Supreme Court in the case of RAMANAND @ NANDLAL BHARATI v. STATE OF UTTAR PRADESH reported in (2022)5 SCR 162, and also the scope of Appellate Court while dealing
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CRL.A No.100196/2020with the appeals against acquittal as stated supra, we have to appreciate the evidence on record.
58. On the basis of complaint, Exhibit P50 filed by Praveen Jain PW6, the Station House Officer of Bruce Pet Police registered a case in Crime No.18 of 2011 for the offence punishable under Sections 364-A, 302, 201, 120-B, 109 read with Section 149 of Indian Penal Code against unknown persons and submitted FIR to the Court as per Exhibit P128 on 02nd February 2011 at 12:15 AM. On the same day investigating officer visited to the spot conducted Panchanama as per Exhibit P48 and seized the scooter bearing number KA- 34/S-7477. During the course of investigation. Investigating officer has arrested accused 1 to 5 and had interrogated them and recorded their voluntary statement. On the basis of the statement, the Investigating Officer has recovered the dead body of the deceased under mahazar and he has also seized gold ring and gold chain, Mobile and SIM card and submitted chargesheet against the accused.
59. With regard to Conspiracy under section 120B read with Section 149 of Indian Penal Code is concerned, it is alleged that on the alleged date, time and place, accused having
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CRL.A No.100196/2020common object, kidnapped Pankaj Jain for the purpose of extracting money from his relatives and committed his murder and accused No.6 has provided the mobile number and the details of the relatives of Pankaj Jain. In this regard, absolutely there is no evidence as to the conspiracy made by the accused. Accordingly, prosecution has failed to prove the alleged conspiracy.
60. It is alleged by the prosecution that the deceased was kidnapped and assaulted by MO43 while taking in an Indica car. PW18 is the owner of the car. He has deposed that accused No.3 is the driver and he never took his car at any point of time. This witness is treated as hostile witness and with the permission of the Court he has been cross-examined by the Public Prosecutor. Even in the cross-examination, the prosecution has not elicited any favourable answers from him. He has categorically denied as to the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure marked as Exhibit P92. That apart, PW18 is not the owner of this car. The car is standing in the name of Mohammed Badshah, i.e. is the father of PW18 which is reflected from the RC extract produced as Exhibit P114. Owner of this vehicle, Mohammed Badshah has not been examined by
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CRL.A No.100196/2020investigating officer. Accordingly prosecution has failed to prove that accused have kidnapped the deceased in an Indica car MO 43.
61. It is the case of the prosecution that the accused has purchased turmeric powder from the shop of PW23. Whereas, PW23 has not supported the case of prosecution. He was treated as hostile witness with the permission of the Court and was cross-examined by the Public Prosecutor. In the cross- examination, he has categorically denied as to the statement recorded by the investigating officer under Section 161 of Code of Criminal Procedure.
62. PW47-Investigating officer has stated that accused No.4, in the presence of Pancha, showed Deepak Stationary shop, where accused have purchased rope and tape for commission of offence. The shop owner denied the fact that he sold rope to accused No.4 or has issued receipt in this regard. He has stated that as per the say of police he has issued receipt. PW20 Suresh, owner of Deepak stationery shop has stated that the police told him that accused No.4 has purchased brown colour tape from his shop and as per the say of Police, he has given receipt Exhibit P95. In the cross-examination he
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CRL.A No.100196/2020has admitted that he had CCTV in the shop and it is in order and the movement of customers is recorded, but he had not furnished the footage of CCTV to the police. He has further stated that he used to issue computerized receipt on every sale of material like Exhibit 81, which is a computer receipt. Exhibit P95 is in handwriting. Looking to the evidence of PWs28 and 29 it appears that police have compelled these witnesses to issue receipts. Prosecution has failed to prove that the accused purchased rope and tape in the subject shops. These witnesses have issued receipts as per the say of the Police. Therefore, their evidence would not come to aid of the prosecution that accused have purchased rope and tape from those shops to commit crime. The investigating officer could have seized the CCTV footage of Deepak Stationary shop, if any available, to prove the fact that accused No.4 has purchased material in the said shop. But he has not done so, which is an omission committed by the investigating officer.
63. It is a case of prosecution that the accused stamped tape on the mouth of Pankaj Jain and tied his hands and legs with rope and was drowned in LLC near Gududuru,. But the body of Pankaj Jain was found in LLC near Sindhwala, which is around 35 kms away from the alleged place of drowning. PW16
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CRL.A No.100196/2020and the Investigating Officer has stated that the body was found with rope tied around the hands and legs. PW35, Lakshmana, an employee in Thungabhadra Board has stated that on the request of Police official, he prepared hand sketch of the Canal as per Exhibit P151. He has also stated about the speed of flowing water in the canal which is at 144 feet per minute. PW36-S Chandrashekhara, Assistant Engineer of CADA Office, Bellary, has stated that upon request of Police, he has prepared hand sketch of the spot where the body of Pankaj Jain was found near Sindhvala LLC as per Exhibit P116. He has stated that the said place is about 35 km away from LLC, No.2 Sub-division i.e., Gududuru LLC, which is the alleged place of drowning. He has stated that there are two regulators in between these two LLC to control the flow of water and there are four Guards to watch the Canal and Regulators and if any foreign body is found in the canal water, immediately, the Guards will inform the same to him. He has stated that between 01st and 05th February 2011, no Guard has informed him about finding of dead body in LLC-3 near Sindhvala Village. He has deposed to that extent because if a person is drowned in LLC near Gududuru, certainly it would be found in one or other place where regulators are fixed. As PW36 has stated
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CRL.A No.100196/2020that there are four Guards to watch the Canal and Regulators and they have not found any foreign material like dead body in the Canal where these regulators are fixed, so also, it is not possible to a human body to pass through Regulators, such being the fact the theory of prosecution that near Gududuru LLC, the accused was drowned and the dead body had flown till Sindhvala LLC, could not be believed as trustworthy evidence. On perusal of inquest Panchanama Exhibit P2, photos and video in MO49, it can be seen that the body was not tied by the rope around hands and legs of the deceased. It also appears that the body of deceased was tied to bushes situated at the edge of the Canal water. Therefore, it appears that body has not floated from the place of alleged drowning to the place where it was found. Therefore, the evidence of the complainant PW6 and the wife of deceased PW1 and the investigating officer does not repose confidence in the minds of the Court regarding drowning the deceased by the accused by tying rope around the hands and legs. Further, the photo of the dead body taken at the time of recovering the body and drawing of inquest Panchanama disclose that no rope tied around legs and hands of the deceased, and it was free. Surprisingly, when the dead body was brought to the hospital for post-mortem, PW37-Dr.
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CRL.A No.100196/2020Chaitanya found the dead body was tied with hands with white color rope with several knots. When the hands and legs of the dead body were free when it was recovered from Sindhwala Canal, then the question arise as to who has tied rope with several knots around the hands and legs of the corpse. It is the further case of prosecution that the accused stamped tape on the mouth of the deceased. Whereas PW37-Doctor has stated that there was no tape stamped on the mouth of the corpse but it was found around neck. There is no ligature mark around the neck. Therefore, in this regard, the evidence of PWs16 & 47 could not be believed as a trustworthy evidence.
64. In the postmortem report, Exhibit P120, the doctor PW37 has mentioned the cause of death considering the drowning time i.e., about 48 to 72 hours prior to postmortem. Whereas the statement is contrary to the content marked at Exhibit D1. Exhibit D1-Autopsy Register of VIMS Hospital, Bellary which is the particular concerning to the postmortem of the dead body of Pankaj Jain. It is admitted by Doctor PW37 that he is the person who has mentioned as to cause of death in Exhibit D1 as per Exhibit D1(a). It is mentioned therein that the cause of death is assault. So there is conflict about the cause of death described in Exhibit P120 and Exhibit D1(a) both
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CRL.A No.100196/2020of which are issued by the same person i.e., PW37-Dr. Chaitanya mentioning two different causes of death in respect of deceased-Pankaj Jain. There is manipulation in Exhibit D1(a) autopsy particulars and Exhibit P120 postmortem report and PW37-Doctor has not said anything about this manipulation. It is further mentioned that white colour rope was found over the body. Contrary to it he handed over brown colour rope to the Police. This also creates doubt as to the case of the prosecution. Further, as regards stamping of tape to the mouth of the deceased is concerned, PW37-Doctor has stated that no plastic was stamped on the mouth of the deceased and had the mouth been stamped with a tape, there was no possibility of water entering into the stomach of the dead body. PW37-Doctor found one liter of water in the stomach of the dead body so evidence placed by prosecution regarding stamping of mouth with tape is not supported by medical evidence.
65. Further, the prosecution has alleged that the wooden club MO13 that was used by accused to assault on the head of the deceased was seized as per the say of the accused No.2. PW37-Doctor who has examined MO13 has not detected any blood stain on it. Contrary to it PWs47 and 48 have stated
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CRL.A No.100196/2020that bloodstain is detected on MO13. Further MO13 is neither a wooden stick nor club, but it is a bamboo stick. Therefore, the evidence connecting to deceased as posed by the prosecution witnesses does not hold force and could not be believed as trustworthy evidence.
66. Viewed from any angle, the case of the prosecution will create doubt about the involvement of the accused as alleged by the prosecution. It is settled principle of law that benefit of doubt shall be given to the accused. The trial Court has appreciated and analysed the evidence and record in accordance with law and facts and materials placed before it. The findings and conclusion of the trial Court are sound well- founded and based on evaluation and evidentiary record. Even on re-appreciation, re-evaluation and re-examination of the entire evidence on record, we do not find any legal infirmity or error in the conclusion reached by the trial Court. Accordingly, we answer Point No.1 in the negative.
67. It is to be observed here that in view of the provisions of Section 357A of the Code of Criminal Procedure, 1973, as well as Circular No. 4 of 2017 issued by this Court to all Judicial Officers across the State, it is deemed just and
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CRL.A No.100196/2020proper to direct the Member Secretary of the concerned District Legal Services Authority to assess and award appropriate compensation to the victim. Such compensation shall be disbursed promptly and in accordance with the statutory mandate to secure some degree of restorative justice for the children of the deceased.
Regarding Point No.2:
68. For the aforestated reasons and discussions we proceed to pass the following:
ORDER
(i) Appeal is dismissed;
(ii) Judgment of acquittal dated 28th August 2019 passed in Sessions Case No.127 of 2011 passed by the I Additional District & Sessions Judge, Bellary is confirmed;
(iii) Registry to send the copy of this judgment along with trial court records to the concerned court;
(iv) Registry is also directed to send a copy of this judgment to the Member Secretary, District Legal Services Authority, Ballari to award
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suitable compensation as required under Section 357A of the Cr.P.C. and 'Victim Compensation Scheme' after due enquiry to the legal heirs of the deceased.
(v) The Member Secretary, District Legal Services Authority, Ballari shall award the compensation to victim within three months from the date of receipt of certified copy of this judgment in accordance with Victim Compensation Scheme.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G BASAVARAJA) JUDGE lnn CT-CMU