State Of Karnataka vs Rakesh. G. @ Bheema on 22 October, 2021

[Cites 47, Cited by 0]

Bangalore District Court

State Of Karnataka vs Rakesh. G. @ Bheema on 22 October, 2021

KABC010057702012




                           Presented on      : 04082012
                           Registered on    : 04082012
                           Decided on      : 22.10.2021
                           Duration        : 9 years 2 months 14 days

IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
         JUDGE BENGALURU CITY [CCH66]

                          PRESENT

                   SRI.SUBHASH SANKAD
                                             B.A., LL.M.

            LXV Addl. City Civil & Sessions Judge,
                        Bengaluru.

         Dated this the 22nd day of October, 2021

                     S.C.No.1035/2012

COMPLAINANT/S:            STATE OF KARNATAKA,
                           By Ashok Nagar Police station,
                           (CCB), Bengaluru.

                           (Rep. by Public Prosecutor)

                                      V/s.

ACCUSED:            1.    RAKESH. G. @ BHEEMA,
                           s/o Govindaraju,
                           Aged about 24 years,
                           R/at No.8485, 25th Cross,
                           Cubbonpet, Bengaluru.
                           [Accused No.1]
                             2
                                                  S.C.No.1035/2012




                    2.    GIRI @ ONTE,
                          Ananthajetti,
                          Aged about 20 years,
                          R/at No.32, Andanappa Lane,
                          Avenue Road Cross, Bengaluru.
                          [Accused No.2]

                     3.   YOGHESH @ YOGI
                          s/o late Prabhakar,
                          Aged about 20 years,
                          R/at No.3, 31st Cross,
                          Kilari Road, Bengaluru.
                          [Accused No.3]

                     4.   MICHEL JOHN @ MICHEL,
                          s/o S. Rajan,
                          Aged about 20 years,
                          R/at No.374, 5th Cross,
                          Anandapura,
                          T.C. Palya Main Road,
                          K.R. Puram, Bengaluru.
                          [Accused No.4]

                     5.   SHASHIKANTH,
                          s/o Harishandra,
                          Aged about 24 years,
                          R/at No.2, 21st Cross,
                          Cubbonpet Main Road,
                          Bengaluru. [Accused No.5]

                          (A1 to 3 by Sri. TS/GR., Advocate)
                          (A4 & 5 by Sri. RR., Advocate)


Date of Commencement of
offences                             27.03.2012
                                   3
                                                        S.C.No.1035/2012




Date of report of offences
                                           28.03.2012
Name of complainant                   Smt. Uma Bera
Date of recording of evidence
                                           18.02.2015
Date of closing of evidence
                                           26.12.2019
Offence complained of            U/Ss. 120(B), 364(A), 384, 302,
                                    201, 404 r/w Section 34 IPC

Opinion of the judge                        Acquittal



                              JUDGMENT

Charge sheeted by the Ashok Nagar police and committed by the I Addl. Chief Judicial Magistrate Court, Bengaluru, accused Nos.1 to 5 are before this Court facing trial for the offences punishable under Sections 120(B), 364(A), 384, 302, 201, 404 r/w Section 34 IPC.

2. The brief facts of the prosecution case are that: On night intervening 27.03.2012/28.03.2012 at 3.15 am., P.W.13 filed complaint before Ashok Nagar police stating that on 27.03.2012 night at about 10.00 pm., while she was in home, her husband told her over phone that he has gone outside for work, a person will come to home and insisted her to give gold ornaments and money to that person. After half an hour a person came to her home on her husbands' vehicle. When she asked him about her husband that person asked her to give gold ornaments and money 4 S.C.No.1035/2012 and also insisted her not to talk in loud voice. Thereafter, she gave him one necklace, five pairs of earrings, three rings, 10 grams gold coin and Rs.2,000/. That person took away these articles and left the place. The police have received the complaint as per Ex.P61 and registered Crime No.152/2012 for the offences punishable under Sections 363, 384 IPC.

3. It is further case of the prosecution that on 28.03.2012 P.W.1A.N. Dayanidhi, Highway patrolling incharge officer, lodged complaint before Dabaspet Police as per Ex.P1 stating that on 28.03.2012 while he was in patrolling duty, he came to know from the public that a dead body of a male is lying in the ditch at Gubbegudda Forest Area near Dabaspet Power Checkpost. Immediately, he went to the place at about 11.45 am., he saw the dead body of male which was lying in supine position. Only black colour pant was there on the body and there was a stab injury on the left side neck and chilly powder was smeared on the dead body. P.W.23 received Ex.P1 the complaint and registered Crime No.64/2012 for the offences punishable under Sections 302, 201 IPC. Thereafter, P.W.24 Dy.S.P. visited the spot where the dead body was lying along with his staff and photographer. He drew panchanama in presence of panchas as per Ex.P84, collected the blood stained soil and sample soil, chilly powder found on the dead body. Since the dead body was not identified he requested Tumkur District Hospital to keep the dead body in cold storage for the 5 S.C.No.1035/2012 purpose of identification. Thereafter, he directed C.W.23 P.S.I. to circulate this information along with photographs to surrounding police stations.

4. On 29.03.2012 morning at about 6.00 a.m., wife and relative of deceased came to Dabaspet police station, Dabaspet police took them to Tumkur District Hospital, wherein they have identified the dead body as Nitish Bera . Thereafter in presence of the wife of deceased and his relatives, inquest mahazar was prepared as per Ex.P6 and he requested the District Medical Officer, District Hospital, Tumkur to conduct postmortem over the dead body, he also recorded the statement of P.W.13 Uma Bera and his brother.

5. It is further case of the prosecution that accused Nos.1 to 5 and absconding accused No.6 were addicted to bad vices. To fulfill their needs they were in need of money, to gain the money they hatched conspiracy to abduct a wealthy person and to extort money from him. With the help of accused No.5 who is goldsmith, they hatched conspiracy to kidnap Nitish Bera and extort money from him. Accused Nos.1to 6 held meeting, accused Nos.1, 2 and accused No.6 agreed to collect the material which are necessary to implement their plan. Accused No.1 held meeting along with accused Nos.2, 3, 4 and 5 at his Cyber Cafe to kidnap Nitish Bera and kill him. As agreed between them accused No.1 purchased the Honda City Car bearing No.KA04/P1739 for Rs.1,10,000/ from 6 S.C.No.1035/2012 CW33 on 18.02.2012 and paid Rs.50,000/ advance and issued cheque bearing No.551829 drawn on Vysya Bank which he had stolen the said cheque from CW44 and he has also taken Karate nonchak from Jim of accused No.6.

6. It is further case of the prosecution that to have a telephonic conversation among themselves, accused No.1 purchased two Uninor SIM cards in the name of different persons. It was further agreed in the meeting that the accused Nos.3 and 5 to watch the movements of deceased Nitish Bera and also his daily business. Accordingly accused Nos.1 & 5 collected the information by following him to his house and shop. After gathering sufficient information about deceased Nitish Bera, on 27.03.2013, in order to kidnap Nitish Bera for ransom, accused Nos.1 and 5 gave information about the movements of the Nitish Bera to accused Nos.2, 3 and 4. The conversation was done between the accused person through mobile phones with Uninor SIM cards.

7. In this backdrop, it is the story of the prosecution that on 27.03.2012 night at about 9.15 pm., Nitish Bera was going to his home after completion of his work on his Activa Honda vehicle bearing No. KA01/EL3270. Accused Nos.1 and 5 informed this fact to accused No.3. The accused No.1 followed deceased Nitish Bera. When deceased Nitish Bera came near Lakshmamma Hanumanthappa hospital at K.G. Road, accused No.3 came on his vehicle, intentionally caused accident and got injured and shown it 7 S.C.No.1035/2012 as deceased himself has caused the accident. At that time, accused Nos.2 and 4 who were waiting there in a car came there. In the guise of consoling accused No.3 they took deceased Nitish Bera in their Honda City Car. Thereafter, accused Nos.1, 2 and 4 kidnapped deceased Nitish Bera on the said car. On the same day at about 10.30 pm., they telephoned P.W.13, wife of Nitish Bera, Nitish Bera told his wife to give gold ornaments and money to the person who will come in his motorbike.

8. Accused No.3 went to the house of deceased in Scooter bearing Reg.No.KA01/EL3270, and he threatened P.W.13 that if she wants her husband she has to handover the cash and gold ornaments. Thus accused No.3 managed to receive the cash of Rs.2,000/ and gold ornaments from P.W.13. Again accused Nos.1, 2 and 4 forced the deceased to contact his wife P.W.13 and to get the keys of the shop. Accused No.3 went near the house of P.W.13 to bring keys of the shop of deceased. Thereafter, accused No.3 went near the shop of deceased. By seeing PW9 Mithun Mallik and P.W.5 - Suresh, near the shop of deceased, he ran away from the place on his Scooter. Thereafter, accused Nos.1, 2 and 4 kidnapped the deceased in the said car and took him towards Dabaspet. While traveling itself they stabbed by means of knife and suffocated him and taken away gold chain and ring from his body and by using Karate Nanchak, strangulated his neck and murdered him. Thereafter thrown away his dead body into a ditch, 8 S.C.No.1035/2012 sprinkled chilly powder on the dead body thereby tried to destroy the evidence by throwing the SIM card and knife which they used in committing the of offences.

9. It is further case of the prosecution that the accused were arrested and after completion of the investigation at their instance they were remanded to judicial custody. P.W.37 held investigation and submitted the charge sheet before the I Additional Chief Metropolitan Magistrate, Bengaluru, who in turn took cognizance of the offences and committed the case for trial. After committal, the case has been made over to this court for disposal in accordance with law. Accused Nos.1, 2, 4 and 5 are on bail, accused No.3 is in judicial custody. Accused have engaged the counsel of their choice. Accused and their respective counsels were heard before the charge. Since there was a prima facie materials against accused, the benefit of Section 227 Cr.P.C., was not given to the accused. Thereafter, the charges for the offences punishable under Sections 120(B), 364(A), 384, 302, 201, 404 r/w Section 34 IPC were framed, read over and explained to the accused in the language known to them i.e., in Kannada.

10. The accused denied the charges levelled against them and claimed to be tried. The case was posted for trial. The prosecution in all examined 38 witnesses as P.W.1 to P.W.38 and got marked the documents at Ex.P1 to Ex.P169 and material objects were identified as M.O.1 to M.O.47. The contradictions 9 S.C.No.1035/2012 came to be marked as Ex.D1 to Ex.D.9. After conclusion of the trial, the accused Nos.1 to 5 were examined as required under Section 313 of Cr.P.C. The accused have denied all the incriminating circumstances and all the accused Nos.1, 2, 3, 4 have given statement in writing, accused No.5 has given oral statement.

11. The accused adduced defense evidence as D.W.1 to D.W.5 and got marked the documents at Ex.D.10 to Ex.D19.

12. I have heard the argument of the learned Special Public Prosecutor, so also defense counsel. Shri. Tommy Sabastin, learned Senior counsel has argued for accused Nos.1 to 3, and Shri.Ranganath Reddy for accused Nos.4 and 5.

13. On perusal of the entire evidence, both oral and documentary and considering the points for arguments, the points that arise for my consideration are.

1. Is the death of Nitish Behra homicidal one?

2. Whether the prosecution proves beyond reasonable doubt that accused Nos.1 to 5 along with accused No.6 conspired each other to kidnap Nitish Behra for ransom ultimately achieved their goal, thus accused Nos.1 to 5 have committed an offence punishable under Section 120(B) r/w Section 34 of IPC?

S.C.No.1035/2012

3. Whether the prosecution proves beyond reasonable doubt that on 27.03.2012 night at about 9.15 p.m., deceased was going to home after completion of the work, when he came near Lakshmamma Hanumanthappa hospital accused No.3 intentionally caused accident and got injured, in the guise of treating accused No.3, accused Nos.1, 2, 4 and 5 came there and took deceased in the Honda City Car bearing No.KA04/P1739 and kidnapped to extort money from him, thereby committed an offence punishable under Section 364(A) r/w Section 34 of IPC?

4. Whether the prosecution proves beyond reasonable doubt that accused Nos.1, 2, 4 and 5 instructed accused No.3 to take money and gold ornaments from the house of the deceased, accordingly accused No.3 went to the house of deceased and received Rs.2,000/ and gold ornaments by putting the deceased under life threat thereby committed an offence punishable under Section 384 r/w Section 34 of IPC?

5. Whether the prosecution proves beyond reasonable doubt that after accused No.3 extorting money and gold ornaments from P.W.13, accused Nos.1, 2, 4 and 5 took the deceased near Dabaspet Forest area near Tumkur, accused Nos.1, 2, 4 and 5, with an intention to murder the deceased, and with knowledge that by their act they will cause the death of deceased, accused Nos.1 and 2 strangulated the deceased with M.O.13Karate Nonchak due to which the 11 S.C.No.1035/2012 deceased became unconscious and accued No.4 stabbed at his neck with M.O.8 knife due to which deceased died, thereby they have committed the offence of murder punishable under Section 302 r/w Section 34 of IPC?

6. Whether the prosecution proves beyond reasonable doubt that accused Nos.1, 2, 4 and 5 taken the gold rings, chain from the deceased with dishonest intention thereby committed an offence punishable under Section 404 r/w Section 34 IPC?

7. Whether the prosecution proves beyond reasonable doubt that the accused Nos.1, 2, 4 and 5 have removed the shirt from the dead body thrown the shirt, sprinkled the chilly powder from the dead body and also threw SIM card and knife to destroy the evidence thereby committed an offence punishable under Section 201 r/w Section 34 IPC?

8. What Order?

14. My answer to the above points are: Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: In the Negative Point No.4: In the Negative Point No.5: In the Negative Point No.6: In the Negative Point No.7: In the Negative 12 S.C.No.1035/2012 Point No.8: As per the final order for the following REASONS

15. Points No.1: Much has been argued by both sides so far as the homicidal death is concerned. In this back ground, this court has to examine whether the prosecution has proved the homicidal death of the deceased or not. Homicidal death itself presupposes that the death is by means of killing. Further, the proof of homicidal death is an harbinger to prove the case against the accused. Unless the homicidal death is proved by the prosecution the court is not in position to ascertain who has committed such homicidal death.

16. The stand of the learned Special Public Prosecutor is that the death of deceased is nothing but homicidal. He has referred Ex.P6 the inquest panchanama and Ex.P63 postmortem report and the evidence of P.W.13 and P.W.2. The learned counsel for accused has disputed the death of deceased as homicidal.

17. It is necessary to look into Ex.P6 the inquest panchanama and Ex.P63 postmortem report. The injuries mentioned in column No.7. In column No.7 of Ex.P6 it is mentioned as

1) cut injury on the left side neck and it was bleeding.

2) cut injury on the right side neck an abrasion on the right shoulder and arms.

S.C.No.1035/2012

18. Further, the following injuries are mentioned in Ex.P62 the postmortem report.

1) lacerated wound measuring 3 c.m., x 0.5 c.m., x skin deep present over back of head.

2) Incised wound measuring 4 c.m., x 0.25 c.m., x subcutaneous deep present over right side of neck at its lower aspect.

3) Incised wound measuring 5 c.m., x 0.5 c.m., x subcutaneous deep present over left side of neck at its lower aspect with falling backwards for 06 c.m.,

4) Contusion measuring 3 c.m., x 1 c.m., present over lower lip on right side and 2.5 c.m., x 2 c.m., over upper lip on right side.

5) Multiple contused abrasions measuring seen 2 c.m., x 1 c.m., to 1 c.m., to 0.5 c.m., present over right arm and right shoulder region.

6) Contusions measuring 3 c.m., x 2 c.m., 3 c.m., x 2.5 c.m, present over left side of neck placed one below the other.

7) Multiple 3rd degree burns present over right upper limb, left upper limb, both legs and chest in patches with peeling of skin and expesing areas redness at places and areas of palest few places.

The doctor has specifically stated in his evidence that the death has occurred due to combined effect of strangulation, smothering and due to head injuries sustained.

S.C.No.1035/2012

19. During the course of the crossexamination, the counsel for accused No.4 suggested to P.W.14 that the injuries found on the dead body at Serial No.1 can occur when the deceased fallen on hard surface stone and the injuries at Serial No.2 can occur when a sharp edged object came in contact with the deceased and injuries at Serial No.3 can occur when injured fallen on the ground. P.W.14 has answered to these suggestions in the affirmative. However, this witness has denied the suggestion that the injuries can occur when the deceased hit the tree and due to lack of treatment death can occur. P.W.14 has further denied the suggestion that the injuries at Serial No.4 can occur when the deceased fallen down on the road due to skid. The defense has disputed the mode of occurrence of the injuries. However, the injuries found on the dead body are not disputed.

20. P.W.1 has stated in his evidence that he went to the spot and saw the dead body. The dead body was lying in the ditch in a supine position and he saw injuries on the dead body and chilly powder was smeared. Further, P.W.2 and P.W.3 have also stated about the injuries found on the dead body. The injuries that are mentioned herein in Ex.P6 and Ex.P63 clearly shows that these injuries have occurred due to human intervention.

21. P.W.14 has categorically stated that after conducting the postmortem he came to know that the deceased was died due to the combined effect of manual strangulation, smothering and head 15 S.C.No.1035/2012 injury sustained. Though the defense has crossexamined P.W.14 in this regard the suggestions indicate that the defense has disputed the mode of occurrence of the injuries. The answers given by P.W.14 gave a clear picture that the death of Nitish Bera is homicidal. All that has been elicited by P.W.14 is with regard to nature of injuries caused whenever a person is fallen, came in contact with the sharp edged weapons and the hard surface. Though P.W.14 has given affirmative answers to the defense, the external injuries found on the dead body, the place where the dead body was found and the position how the dead body was lying, clearly indicate that unless there is a human intervention such position cannot occur. Ex.P63 clearly shows that the death is due to combined effect of manual strangulation, smothering and head injury sustained and which requires a human intervention. With this it can be concluded that the death of Nitish Behra is nothing but a homicidal. Accordingly, point No.1 is answered in the 'Affirmative'.

22. Points No.2 to 7: Since these six points are interconnected with each other, for the sake of convenience, I have taken these points together for discussion and answer.

23. The learned Special Public Prosecution has submitted the detailed written argument and learned Senior counsel for accused Nos.1 to 3 have filed detailed written synopsis. In the written argument learned Special Public Prosecutor has referred to 16 S.C.No.1035/2012 the evidence of each of the witnesses. However, the specific points for argument are mentioned at last in the written argument. The detailed written synopsis is also came to be filed for accused Nos.1 to 3. This detailed written synopsis is nothing but English translation of the Kannada depositions. Some of the points are highlighted during oral argument. The same will be adverted at the relevant point of time.

24. The learned Special Public Prosecutor has concluded his written argument with following points. a. Accused have hatched the conspiracy and in pursuance of conspiracy kidnapped the deceased Nitesh Behara.

b. From the nature of evidence regarding place of kidnap, the prosecution has addressed cogent and consistent evidence.

c. The prosecution has placed the probable evidence that from the place of kidnap, the accused Nos.1, 2 & 4 took the deceased in a car towards Tumkur Road on NH4 and passed through Toll of Nelamangala.

d. The prosecution has also placed the evidence deceased Nitish Bera was in the custody of accused Nos.1, 2 & 4 from the place of kidnap till his death.

e. After commission of offence the dead body was thrown in the forest area.

f. The Dabaspet Police have registered the case and after conducting the spot mahazar and also 17 S.C.No.1035/2012 inquest, subjected the dead body of deceased for postmortem.

g. The doctor of Tumkur Government Hospital has conducted the autopsy and issued postmortem report and death of deceased is homicidal. Further he has also clarified by examining nan chock and knife recovered from accused Nos.1, 2 & 4 and opined that injuries could be caused from the said weapons.

h. The IO recorded the voluntary statement of accused and in pursuance of voluntary statements all accused have lead police and panchas and their instance recovered the material objects.

i. Regarding commission of murder is concern, accused Nos.1, 2 & 4 lead the panchas and police and shown the place of throwing the dead body.

j. Though the dead body was already recovered by the Dabaspet Police, showing the place of throwing the dead body and recovery of incriminating articles i.e., knife, shirt at the same place attributes the knowledge of accused amounts to discovery of facts as contemplated under Section 27 of the Evidence Act.

k. Chilly powder poured on the dead body in order to cause disappearance of the dead body. Likewise, the accused have pointed out the places regarding destruction of mobiles used by them and mobile used by the accused.

l. The Uninor mobile numbers purchased by accused No.1 has been amply proved to show that these two numbers have been used by accused Nos.1, 2, 3 & 4 18 S.C.No.1035/2012 for communication between them and also for communication to the mother of accused Nos.2 & 3.

25. As I have stated above, the written synopsis submitted by the learned Senior counsel appearing for accused Nos.1 to 3 is English translation of Kannada depositions and it is the points of oral argument which needs to be considered. Going by the argument of both sides. The entire case of the prosecution rests on the circumstantial evidence. Apart from submitting the detailed written argument and the written synopsis, both sides have addressed elaborate argument on each circumstance. It is better to meet those points of argument separately while discussing each circumstance.

26. Since the case of the prosecution rests on the circumstantial evidence, as there is no eye witnesses to the alleged kidnapping and murder of the deceased, it is necessary to mention here the principle applicable while appreciating the circumstantial evidence. It is well recognized principles of criminal jurisprudence that whenever the case rests on the circumstantial evidence, the prosecution must prove that within all the human probabilities, the act must have been done by the accused alone and none else.

27. At this juncture it is necessary to refer the judgment in the case Bodhraj V. State of J & K, reported in (2002) 8 SCC 45, wherein the Hon'ble Apex Court with regard to proof of offence by circumstantial evidence has held that 19 S.C.No.1035/2012 'for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

28. Further, at para 10 of the judgment the Hon'ble Court has held that.

10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

S.C.No.1035/2012

29. By referring to the earlier judgment in, Bhagat Ram Vs. State of Punjab, (AIR 1954 SC, 621), C. Chenga Reddy Vs. State of A.P, (1996) 10 SCC 193, Hanumant Govind Nargundkar Vs. State of M.P., [AIR 1952 SC 343], Padala Veer Reddy Vs. State of A.P., State of U.P. V. Ashok Kumar Srivastava, [1989 (2) SCC 706, Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, the Hon'ble Apex Court laid down that, the conditions precedent in the words of this court, before conviction could be based on circumstantial evidence, must be fully established. They are:

1. the circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must' or 'should' and not 'may be' established.

2. the facts so established should be consistent only with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. the circumstances should be of a conclusive nature and tendency;

4. they should exclude every possible hypothesis except the one to be proved; and

5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human 21 S.C.No.1035/2012 probability the act must have been done by the accused.

30. Bearing this settled principles of law in mind, I would like to mention as to what are the circumstances the prosecution has relied upon.

31. On considering the entire material on record, it appears that the prosecution has relied upon the following major circumstances, apart from homicidal death.

        i.       Motive

        ii.      Conspiracy

        iii.     Preparation

        iv.      Last seen theory


        v.       Receiving of money and M.O.26 to
                 M.O.39 gold ornaments by the
                 accused No.3 from P.W.13

        vi.      Passing of Honda City Car bearing
                 No.KA04/P1739 through Nelamangala
                 Byepass on 27.03.2012 at 10.55 pm.

        vii. Subsequent abscondence of accused

        viii. Extra judicial confession

        ix.      Recovery of incriminating articles on
                 the disclosure made by the accused.

        x.       Telephonic conversation between the
                 accused with regard to proper
                                  22
                                                     S.C.No.1035/2012




              implementation of plan, between the
              deceased and P.W.13, between the
              accused No.3 and his mother, on
              27.03.2012.

32. To appreciate the evidence in the background of the points urged by both sides, it is necessary to refer to the evidence given by each witness.

33. P.W.1 A.N. Dayanidi speaks about lodging of first information with regard to seeing the dead body of deceased Nitish Behra, in the Dabaspet police station limit. He also given description of dead body, and about participating in spot panchanama proceedings held as per Ex.P1, and seizure of blood stained soil, sample soil, and chilly powder smeared on the dead body. He has identified these articles as M.O.1 to M.O.3.

34. P.W.2 Manjunath Rao, Tax consultant of deceased Nitish Behra, is examined to establish that Nitish Behra was wealthy man and he was earning huge income. He states that Nitish Behra was carrying the business of making gold ornaments, his yearly business was about five crores. He further speaks about having mobile phone conversation with Nitish Behra. P.W.9 Mithun Mallik called him and told that Nitish Behra has not returned home. He further speaks about receiving phone call from P.W.9 about a person coming to home, receiving gold and cash and coming near Ganesh Prasad Hotel. He further states that he came 23 S.C.No.1035/2012 to know that P.W.9 and P.W.5 went near Ganesh Prasad Hotel, that person escaped from the place. P.W.13 lodged complaint before Ashok Nagar Police Station. He further stated that in the next day he came to know that Nitish Behra is murdered, he went to Tumkur District Hospital along with P.W.13 Uma Bera. He has also spoken about the injuries found on the dead body and about participating in the panchanama proceedings held as per Ex.P6.

35. P.W.3 Laxminarasamma, mother of accused No.2, P.W.4 Pankaja, mother of accused No.3, who are examined to establish the use of SIM cards by accused Nos.2 and 3, have turned hostile to the prosecution's case. However, P.W.3 has stated that the police had brought his son to her home on 01.04.2012, searched her home and they did not get anything.

36. P.W.5 Suresh, Supervisor of the building construction work of deceased, speaks about receiving information about kidnapping of Nitish Behra from P.W.2 Manjunath. He further states that P.W.2 instructed him to go to shop of Nitish Behra, and told that a person will come to the said shop and he has to apprehend him. As per his instructions he went near Ganesh Prasad Hotel, P.W.9 Mithun Mallik and his friend came there. They were standing at some distance in a dark. After some time a person aged about 2025 years came on Activa Scooter and went to speak with Mithun Mallik. When they tried to apprehend him that person escaped. He further speaks about identifying accused No.3 24 S.C.No.1035/2012 in the Central Prison after 4 to 5 months during test identification parade.

37. P.W.6 Santhosh. This witness has been examined to establish last seen theory. He states that about three years back one day night at about 9.30 p.m., after having dinner he was going to purchase banana. While he was eating banana in front of the said shop he saw an accident at Service Road passing towards Marths hospital. At that time two persons came from the main road and took the person who caused the accident in the car. He stated that the person who caused the accident is Nitish Behra and he cannot tell whether other persons are the accused persons. This witness was treated as hostile witness, the prosecutor cross examined this witness. In the crossexamination conducted by the learned Public Prosecutor he deposed about giving statement before the police and also identifying accused Nos.1, 2 and 3 and also admits that it is accused Nos.1 and 2 who took the deceased in the said car. Since he was afraid he did not give statement before the police.

38. P.W.7Shakthi, Manager, Muthoot Finance Corporation at K.R. Puram branch, has deposed about the procedure adopted by the Muthoot Finance Corporation while lending gold loan by accepting the gold ornaments. He states that accused No.4 had pledged gold ring of 8 grams 50 ml., and borrowed a sum of Rs.15,000/. At that time they had collected xerox copy of the PAN 25 S.C.No.1035/2012 card as per Ex.P17, and issued receipt as per Ex.P18. He further states that on 07.04.2014 accused No.4 along with him 34 police had come to their shop, accused No.4 asked him to give the said ring to police. Accordingly he had handed over the gold ring to the police. The police prepared the panchanama in the said place as per Ex.P19 and recovered M.O.6 gold ring.

39. P.W.8 Naveen Kumar, speaks about participating in the panchanama procedure as per Ex.P23, Ex.P37. He states that at the call of the police he went to C.C.B police, he saw five persons in the police station, the police explained what the accused have stated before them. Accused No.3 took all of them near Mysore Satellite and shown Activa Honda Scooter and the police have seized the same under panchanama as per Ex.P23. Accused Nos.1, 2 and 4 took himself and the police near Martha's hospital gate and said that in the said place they have kidnapped the deceased Nitish Behra. The police have prepared panchanama as per Ex.P27 in his presence. On the same day all the accused took them near Dabaspet and gone to place and shown the place and said that they have thrown the dead body. Again he participated in the panchanama procedure as per Ex.P31. He further spoken about spot mahazar prepared at the place pointed by accused Nos.1, 2 and 4 and seized M.O.7knife and M.O.8 Shirt at the instance of the accused Nos.1 and 4. The police recovered the same under panchanama at Ex.P37. He further deposed about 26 S.C.No.1035/2012 preparation of panchanama by the police in his presence at the house of accused No.4Michel as per Ex.P41, under which the police recovered M.O.9 gold ring and Tshirt. This witness has further stated that the police prepared panchanama as per Ex.P.45 in front of shop as per information given by the accused in which chilly powder and Cigarette were purchased. Spot panchanama as per Ex.P46 in which place where SIM cards were thrown. He further deposed about participating in the recovery proceedings of M.O.6 gold ring under panchanama at Ex.P19 at Muthoot Finance at K.R. Puram.

40. P.W.9 Mithun Mallik, a friend of deceased Nitish Behra, has stated in detail about the conversation taken between himself, deceased and P.W.13 Uma Bera. He further stated that on the instructions of Mrs. Uma Bera he went near the shop of deceased along with P.W.5, he was waiting that person to come while he was waiting one person came on the vehicle of deceased. They tried to apprehend that person, however that person escaped. He further states about going to police station along with P.W.13 and lodging the complaint and he has given statement before the police. He has also deposed about identifying accused No.3 during test identification parade.

41. P.W.10 Janardhan Shetty is a pancha witness. This witness has been examined to prove series of panchanamas. This witness states about participation in panchanama proceedings as 27 S.C.No.1035/2012 per Ex.P47 under which M.O.12 mobile phone, M.O.13 Karate nonchak, on the discloser made by accused No.1, M.O.14 Bag, M.O.15 key, M.O.16 locket, M.O.17 note book, M.O.18 guide book, on the discloser made by the accused No.2, Ex.P51 under which M.O.10, M.O.20, M.O.21, M.O.22 and M.O.23 are recovered at the instance of accused No.3, Ex.P55 under which M.O.24 mobile phone and five pairs of earrings are recovered at the instance of accused No.5, recovery mahazar as per Ex.P10 and Ex.P13 under which M.O.4 and M.O.25two mobile phones are seized by P.W.37 on producing the same by two women.

42. P.W.11Palraj, pancha witness to Ex.P58 seizure mahazar under which the Honda City Car and currency notes from accused Nos.1 to 5 are recovered. This witness has turned hostile to the prosecution to some extent. He states that he is unable to identify the accused as his memory power is not good. In the cross examination conducted by the Public Prosecutor he admits that the car was in the spot and police have shown him accused Nos.1 to 5. He also admits about seizure of the car from the possession of the accused and recovery of currency notes from all the accused. P.W.12 Babu, another pancha witness to Ex.P58. He has completely turned hostile to the prosecution.

43. P.W.13 Uma Bera, wife of deceased has deposed about lodging of the complaint as per Ex.P61. She has deposed in detail about all the telephonic conversation taken between herself and her 28 S.C.No.1035/2012 husband and herself and Mithun Mallik. She further states that one person, whom she has identified as accused No.3, came to her house on her husband's vehicle and took gold ornaments and sum of Rs.2,000/ from her and gold ornaments as per Ex.P26 to Ex.P39 and also keys of her husband's shop. She identifies all the gold ornaments, key and bags.

44. P.W.15 Murtaza T. Taambawala. This witness has been examined by the prosecution to prove the preparation by the accused and to establish the case of the prosecution with regard to purchase a Honda City Car. He states that accused have stolen his bag containing passbook, M.O.17 cheque book, M.O.18bank passbook, M.O.11 and M.O.16 cheque and keys.

45. P.W.16 Subbarama Reddy, Bank Managre, ING Vysya Bank has deposed about furnishing information to the investigating officer about M.O.46cheque as per Ex.P67 and he states that M.O.46 cheque belong to account of Murthurja T. Thambavala.

46. P.W.17 Dr. Malathi, Scientific Officer, FSL, Madiwala, Bengaluru has stated about examining M.O.1, M.O.2, M.O.3, M.O.7, M.O.8, M.O.10, M.O.11, M.O.41, M.O.44, M.O.43, M.O.47 totally 12 articles and she has issued report as per Ex.P16.

S.C.No.1035/2012

47. P.W.18 Dr. P.N. Sathyanarayana, Medical Officer, Emergency Section, Victoria Hospital. This witness has been examined to prove the extra judicial confession of accused No.3.

48. P.W.19 N.S. Thippeswamy, Assistant Engineer, Small Irrigation Department, Davanagere SubDivision, is examined to prove the sketch of the spot as per Ex.P72. P.W.20 Kiran Kumar is examined to prove preparation with regard to purchase of SIM cards by accused Nos.1 and 2 states that in the year 2012 he had purchased two SIM cards of Uninor company among those two SIM cards he was using one SIM card and he had given one SIM card to his Aunty Shylaja and at the time of purchasing the said SIM cards he had given photo and driving license to the company. He further states that the application shown to him is not the same which he had submitted to the company. He further states that his signature has been forged.

49. P.W.21Sanjeev, is another witness who has been examined to establish the preparation by the accused i.e., purchase of SIM cards by the accused. This witness has turned hostile to the prosecution to some extent. The gist of the evidence of this witness is that in the year 2012 he had sold activated SIM cards to one Shanmugam, Shanmugam in turn sold the said SIM cards to Rakesh Raj of Cubbonpet and his friends. He admits that Shanmugam told him that he has sold the said SIM cards to accused No.1 Rakesh and accused No.2 Girish.

S.C.No.1035/2012

50. P.W.22 Anil Kumar has also turned hostile to the prosecution. Again this witness has been examined to establish the preparation i.e., purchase of Honda City Car. After seeing the documents as per Ex.P76 he says that one Mr. Wasif Faiyaz has sold the said car to Rakesh and he has also identified the transfer of insurance form from Faiyaz Ahamed to Rakesh as per Ex.P80 and Ex.P81.

51. P.W.23 Farooq Pasha, P.S.I., Kolar, Traffic Police station speaks about receiving the first information from P.W.1 as per Ex.P1 and registered Crime No.64/2012 for the offence punishable under Section 302 r/w Section 201 IPC and he also speaks about visiting the spot and his presence along with Dr. S. Prakash in the said spot.

52. P.W.24 Dr. S. Prakash. Dy.S.P., State Secret News states that P.W.23 informed him about registration of Crime No.64/2012 and also about lying the dead body of Dabaspet Forest area. He has also given description and position of the dead body in which it was lying and he drew spot panchanama in presence of panchas and also collected samples and blood stained soil. He sent the dead body to Tumkur District Hospital and to keep the same in the cold storage for the purpose of identification as the dead body is of an unknown person. He has also instructed P.W.23 to publish the information and the photo of the dead body in the T.V. and news papers. He further states that on 29.03.2012 Smt. Uma Bera 31 S.C.No.1035/2012 came to the hospital and identified the dead body, as of her husband's dead body. Thereafter in presence of herself and pancha witnesses he drew inquest panchanama. Thereafter he requested the Medical Officer to conduct the postmortem over the dead body.

53. P.W.25 Chethan, who is examined to establish conspiracy among the accused, turned hostile to the prosecution case. P.W.26 Wasik Fayaz Ahamed, earlier owner of the Honda City Car speaks about selling the said car to one Anil. He also stated that said Anil has sold the said car to one Rakesh. P.W.27 Chandrappa, A.S.I., Ashok Nagar police station speaks about registration of the FIR for the offences punishable under Sections 363, 384 IPC after receiving the complaint from P.W.13 as per Ex.P61. P.W.28 N.B. Sakri, P.I., speaks about the apprehension of arrest of the accused. He states that on 03.04.2012 night at about 3.30 a.m., as per the instructions of the Police Commissioner and guidance of P.W.37 he along with P.W.37 and C.W.62 assembled at CCB police station. P.W.37 told him the information about the arrival of the accused from Tirupathi and asked them to assist in apprehension of the accused. Accordingly, they went to K.R. Puram and they were waiting on the road. Early morning at about 5.30 a.m., the Honda City Car bearing No.KA04/P1739 came near them, by suspecting the said vehicle they stopped the vehicle and apprehended the accused and recovered the currency notes from all the accused.

S.C.No.1035/2012

54. P.W.29 H.C. Jagadish, deposed about conducting part of the investigation i.e., drawing the spot panchanama at the house of P.W.19 in presence of pancha witnesses C.W.2 and C.W.3 as per Ex.P62. He further stated that he has received a call details of the mobile phone of Nitish Behra from the Airtel company and he requested the police control room, Bengaluru Rural District to trace out the Honda Activa Scooter of the deceased. On the same day he recorded the statement of witnesses such as P.W.9, C.W.27, C.W.28, C.W.29, C.W.10, C.W.31 and C.W.32. He further states that on the basis of the information about the call details he went to Nelamangala along with Manjunath Jadav who was working in the shop of Nitish Behra. After enquiry he came to know that the dead body of a male person was lying in the Gubegudda Forest and he came to know that the said place come under the jurisdiction of Dabaspet police station. He went to Dabaspet police station he enquired P.W.23 Farooq Pasha and he got know about registration of Crime No.64/2012 pertaining to the dead body. The said dead body was at Tumkur District hospital, he went to Tumkur District hospital along with Manjunath Jadav they saw the dead body. The said Manjunath Jadav identified the dead body as of Nitish Behra and he informed the said fact to his higher officials and he also visited the shop of Nitish Behra and enquired one Shiva Kumar, employee of Nitish Behra.

S.C.No.1035/2012

55. P.W.30Stanley, Nodal Officer, Bharthi Airtel, Bengaluru Division, Karnataka Circle, P.W.31 Mallikarjun Thimmapur, Nodal Officer, Reliance Communication Ltd., P.W.32 Prashanth, Nodal Officer, Vodafone Mobile Services Ltd., P.W.33 Ravi Narona, Nodal Officer, Tata Tele Services, P.W.34 Sheshu Chilkuri, Nodal Officer, Aircel Ltd., P.W.36 V. Jaganmohan Rao, Nodal Officer, Telenor, have speaks about receiving the requisition from the Investigating Officer to submit a subscriber application form and call details of the mobile numbers that are recovered during the course of investigation.

56. P.W.35 Suma. R., Assistant Director, Executive Magistrate, stated about conducting the test identification parade of accused No.3 at Bengaluru Central Prison on 07.07.2012 as per the direction issued by the I Additional Chief Metropolitan Magistrate, Bengaluru.

57. P.W.37 B. Balaraj, states about conducting the major portion of the investigation and submitting the charge sheet. P.W.38 Suresh Babu. S.S., Police Head Constable. He states about participating in seizure and spot mahazar and videographing the process of seizure and drawing the spot mahazar.

58. The defense has adduced evidence in this case. Four witnesses are examined by the defense as D.W.1 to D.W.4. D.W.1 Sudharshan Channagihalli, is the Chief Editor, Vijaya Karnataka 34 S.C.No.1035/2012 Daily newspaper, D.W.2 Jagadeesh Angadi is the Press Reporter of Deccan Herald, Daily newspaper, D.W.3 Munnegowda is the then Press Reporter of Vijaya Karnataka, Daily newspaper, D.W.4 M.V. Chaithanya is an advocate, who has been examined for receipt of Ex.D15 from the office of Police Commissioner under Right to Information Act. During the defense evidence Ex.D1 to Ex.D19 are got marked. D.W.1 to D.W3 are examined by the defense to establish a fact that the accused were apprehended on 01.04.2012 and not of 03.04.2012, thereby to demolish the prosecution's case in respect of recovery of incriminating articles on the alleged disclosure by the accused.

59. Now, I would like to discuss each and every circumstance in detail to ascertain whether the prosecution has proved the circumstance beyond reasonable doubt.

i. Motive.

60. The motive alleged in this case by the prosecution is that the accused were addicted to bad vices, to fulfill their desires they were in need of money and they wanted to reap money to get their desires satisfied. Hence, they decided to kidnap a wealthy person and demand money. In pursuance of their plan they have kidnapped deceased and tried to gather money. So far as the motive factor is concerned, absolutely no material is placed by the prosecution.

S.C.No.1035/2012

61. During the course of the hearing, the Special Public Prosecutor has argued that the accused themselves have admitted in their voluntary statement as to why they have kidnapped deceased. The prosecution places reliance on the voluntary statement of the accused as regards the motive is concerned. Except the voluntary statement of the accused there are no evidence with regard to motive. It is necessary to mention here that the voluntary statement of the accused with regard to admission of the motive cannot be accepted as the same is prohibited under Section 25 of the Indian Evidence Act, since the voluntary statement of the accused, so far as leading to discovery is only admitted.

62. So far as the proof of motive factor is concerned, it is necessary to mention the recognized principle of criminal law at this juncture. In a case of circumstantial evidence, motive assumes great importance., for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. However, the evidence regarding existence of motive which operates in mind of assassin in very often, not within the reach of others. The said motive may be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to such evil thought, in the mind of the assassin. In a case of circumstantial 36 S.C.No.1035/2012 evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of crime. Therefore, if the evidence on record suggests sufficient/ necessary motive to commit a crime, it may be conceived that the accused has committed the crime.

63. Further, in a case when the motive alleged against the accused is fully established, it provides fundamental material to connect the chain of circumstances. It affords a key on pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. It is further necessary to mention here that in the absence of any motive, there is no absolute legal proposition of law that in the absence of any motive an accused cannot be convicted for murder. Effect of absence of motive would depend on the facts of each case. Where the prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 18 of the Indian Evidence Act, but where the chain of circumstances establish beyond reasonable doubt that it is the 37 S.C.No.1035/2012 accused alone who has committed the offence, the court cannot hold that in the absence of the motive of the accused being established by its prosecution, the accused could not be held guilty of the offence. The absence of the motive cannot be a ground to reject the prosecution case where other proved circumstances are there.

64. So far as the present case is concerned, the motive alleged by the prosecution is mentioned herein above. Since there is no evidence regarding proof of the motive it cannot be held that the prosecution has proved this circumstance. However, in the light of the aforementioned principle of law it has to be held that failing to prove the motive by the prosecution itself is not a ground to reject the prosecution case as the same depends on whether the prosecution is able to prove the other circumstances. Though the motive alleged in the present case appears feeble the same itself is not sufficient to hold that the prosecution has failed to prove the motive as the same depends on the proof of other circumstances.

ii. Conspiracy.

65. The conspiracy alleged in the case is that accused Nos.1 to 5 held meeting at a Gym owned by absconding accused No.6, conspired to kidnap deceased. It is necessary to mention the settled principle of criminal law with regard to proof of conspiracy by the prosecution. In N.V. Subba Rao Vs. State, 2013 Crl.L.J. 38 S.C.No.1035/2012 954, the Hon'ble Apex Court has held that the conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.

Further, in Gulam Sabar Vs. State of Bihar, reported in 2014 Crl.L.J. 34, the Hon'ble Apex Court has held that the offence can be proved by adversing circumstantial evidence or by necessary implication. Meeting of mind to form a criminal conspiracy has to be proved by adducing circumstantial evidence in cases where the circumstantial evidence is incomplete or vague. It is further held that the circumstantial evidence must establish conspiracy beyond reasonable doubt. Keeping this principle of law it is necessary to evaluate the evidence put forth by the prosecution to prove the conspiracy.

66. The prosecution has placed reliance on the evidence of P.W.25 Chethan. This witness has turned hostile to the prosecution. A specific case of the prosecution is that accused Nos.1, 2 and 5 along with absconding accused were frequently meeting in the Gym owned by absconding accused situated at Cubbonpet and they were discussing hours together. Further, these accused were also meeting at the Cyber Cafe owned by accused No.1 to hatch the plan. The prosecution tried to establish the conspiracy by examining P.W.25 Chethan. This witness has completely turned hostile to the prosecution. There is omissions in 39 S.C.No.1035/2012 the evidence of P.W.25 regarding not giving statement before the Investigating Officer with regard to knowing of accused Nos.1, 2, 5 and absconding accused. Not giving statement before the Investigating Officer regarding observing accused Nos.1, 2, 5 and absconding accused No.6 discussing hours together and all of them joining in the Cyber Cafe.

67. In the crossexamination conducted by the learned Special Public Prosecutor, P.W.25 stated that on 01.04.2012 night at about 2.00 p.m., police came to his house and asked whereabouts of one Raju. He state that he does not know who is Raju and he further told before the police that he is running a Gym and police took him to CCB police station and there he saw accused Nos.1, 2 and 5 and the police told the names of accused Nos.1 to 5 to him and the police seized his Pulsar motorbike. He has further stated that he has not given the documents pertaining to Pulsar motorbike and he has also made an application for taking the Pulsar motorbike to his interim custody. He has further stated that he has purchased the said motorcycle from one Mohan and said Pulsar motorcycle is still standing in the name of said Mohan. He denies the suggestion that he has given statement as per Ex.P3 that Raju is resident of Tamil Nadu, several cases were registered against him in various police stations and he had requested accused No.1 to seek anticipatory bail for him. He further denied the suggestion that he has not purchased the said vehicle from one 40 S.C.No.1035/2012 Mohan and he has not made an application for taking the Pulsar motorcycle to his interim custody. Further, he has denied giving of statement before the police that Rakesh Raj had taken one Karate non chak from Gym and Rakesh Raj, Raja and Shashikanth were sitting hours together and they were discussing among themselves. That Pulsar motorbike belongs to said Raja.

68. The learned Special Public Prosecutor further tried to establish a fact that the accused No.1 took M.O.13 Karate non chak from Gym. However, this witness refuted the suggestions put by the learned Special Public Prosecutor with regard to taking of M.O.13 Karate non chak from his Gym. He further denied giving statement as per Ex.P93 that he came to know that on 27.03.2012 Shashikanth and Rakesh Raj along with their friends kidnapped deceased Nitish Bera and also took gold ornaments from his wife thereafter they have murdered Nitish Bera and thrown the dead body at Dabaspet Forest Area.

69. Further, in the crossexamination of counsel for accused Nos.4 and 5 he state that he had purchased the Pulsar vehicle from one Mohan, since 2011 the said Pulsar motorbike is with him and he himself was using the said motorcycle and he has not given the Pulsar Motorcycle to any one and it is he who has paid the entire loan amount pertaining to the Pulsar motorcycle. He further admits that since the vehicle was still standing in the 41 S.C.No.1035/2012 name of one Mohan he has filed an application for interim custody of the said vehicle in the name of said Mohan.

70. A careful appreciation of the evidence of this witness it can be said that this witness is very firm in his evidence. He has specifically stated that the Pulsar Motorcycle was in his possession and it is he who was running a Gym and he has categorically stated that he has not seen the accused prior to 01.04.2012 and it is on 01.04.2012 he has seen the accused Nos.1, 2 and 5 in the CCB police station and it is the police who told the names of these accused to him only he came to know about the names of these accused. The learned Special Public Prosecutor tried to establish in his crossexamination that the Pulsar motorbike was belonging to absconding accused No.6Raja, accused Nos.1, 2 and 5 were meeting in the Gym and were discussing hours together, accused No.1 had taken two Karate non chak from the Gym of accused No.6. Further, he has given all the statement before the police. All these suggestions are refuted by P.W.25. The answers elicited in the crossexamination clearly indicate that the Gym was not owned by accused No.6 and it is owned by P.W.25. When it is specific case of the prosecution that it was absconding accused No.6 who owns the Gym, there should have been evidence to that effect. The learned Special Public Prosecutor failed to discredit the evidence of this witness. Hence, the evidence of this witness is not available to the prosecution. At this stage, it cannot be held that the 42 S.C.No.1035/2012 prosecution has proved the alleged conspiracy. However, as it is stated by the Hon'ble Apex Court in the aforementioned judgment that it is not possible to obtain direct evidence with regard to conspiracy and the same has to be inferred by necessary implication, the proof of conspiracy depends upon other circumstances.

iii. Preparation.

71. The preparation as alleged by the prosecution in this case is that the accused Nos.1 to 5 made preparation to kidnap the deceased in the meeting held by accused Nos.1 to 5, accused No.1 had agreed to purchase a car for the purpose of kidnapping and SIM cards to have mobile phone conversation for the proper implementation of the plan. These circumstance may be discussed as follows.

a) Purchase of Honda City Car bearing Registration No.KA04/P1739 by the accused No.1.

72. So far as this circumstance is concerned, the prosecution relies on the evidence of P.W.22 Anil Kumar and P.W.26 Wasik Fayaz Ahamed and Ex.P.77 to Ex.P.81. P.W.22 has stated in his evidence that about three years back C.C.B. police called him to police station and took signature on the documents. The said document is property file Ex.P74. The first document in Ex.P74 is the registration book of the Honda City Car. He states that he does not know the contents of Ex.P74 and the police did not 43 S.C.No.1035/2012 show him Honda City Car in the police station. He has further stated that he cannot say from whom he purchased the car and to whom he sold it. The Public Prosecutor has crossexamined this witness after treating him hostile. In the crossexamination he admits that the car stands in the name of one Wasik Fayaz Ahamed. The prosecution got marked the delivery note which stands in the name of accused No.1 Rakesh. Ex.P77 is the document through which Wasik Fayaz Ahamed transferred the car in favour of accused No.1 Rakesh and other documents, Ex.P78 - transfer of insurance form, Ex.P79 issue of clearance certificate. All these documents are executed by Wasik Fayaz Ahamed to accused No.1 Rakesh and other documents Form No.29 and Form No.30 respectively marked as Ex.P80 and Ex.P81 are also executed by Wasik Fayaz Ahamed to accused No.1 - Rakesh. These documents are got marked by the prosecution through this witness. So far as other suggestions are concerned, this witness has refuted all the suggestions. He has even denied the giving of statement before the police. In the crossexamination he has denied the suggestion that he is working as recovery agent of Sriram Car Finance Corporation.

73. As per the version of the prosecution this witness has purchased the car from P.W.26 Wasik Fayaz Ahamed, thereafter he has sold the same to accused No.1. The prosecution places reliance on Exs.P74 to Exs.P81. All these documents show the 44 S.C.No.1035/2012 execution by the Wasik Fayaz Ahamed to accused No.1 Rakesh. However, P.W.22 has denied all these suggestions.

74. Now it is the evidence of P.W.26 which needs to be looked into. P.W.26 has stated that he was owning a Honda City Car bearing Registration No.KA04/P1739 in the year 2005. Still the said car is in his name and R.C. book also stands in his name. In the year 2011, due to technical problem in the car, he had left the said car in garage of one Naseer for repair. Said Naseer introduced him to P.W.22 Anil Kumar who expressed his willingness to purchase the car. Accordingly, on 22.11.2011 he sold the said Honda City Car to Anil Kumar for Rs.1,50,000/. While purchasing the said car he insisted Anil Kumar to pay Rs.50,000/ towards loan amount. At that time Anil Kumar paid him Rs.1,00,000/ by agreeing to repay the remaining amount towards loan to ICICI Bank. Since said Anil Kumar did not pay Rs.50,000/ to ICICI Bank and without paying the same he requested to transfer of the documents pertaining to the said car, he did not transfer the same. Even till today the said documents stand in his name. He further admits the execution of Ex.P77 to Ex.P81 at the time of sale of car to P.W.22. At that time he has transferred the car also. At the time of purchase of car two persons are there along with Anil Kumar. He does not know the names of those persons.

75. He further states that P.W.22 told him that the said car has met with a road accident and asked him to come to Halasuru 45 S.C.No.1035/2012 Gate police station he did not go to the police station, he insisted Anil Kumar to go to the station and get the vehicle released. He further states that Anil Kumar had told him that he had sold the said vehicle to one Rakesh who is resident of their locality. He went to the CCB police and he identified the car in the police station. In the crossexamination conducted by accused Nos.1 to 3, he states that he has written the name of P.W.22 Anil Kumar at Ex.P79 and Ex.P80, thereafter he has signed and gave it to Anil Kumar. However, the name of Anil Kumar is not found in Ex.P77 to Ex.P81. He further admits that the hand writing found on Ex.P77 to Ex.P81 was not there at the time he handed over the said documents to P.W.22. However, he denied the suggestion that the police have obtained his signature at Ex.P77 to Ex.P81 in the police station. He further stated that after 23 months Anil Kumar told him that he has sold the said car to a person at Avenue Road. He further state that till today he has not paid the remaining amount of Rs.50,000/ to the bank and he has not even intimated the bank regarding transfer of the vehicle to Anil Kumar.

76. In chief examination he states that police have recorded his statement. In the crossexamination the counsel put him a suggestion that he has not given statement before the police as Anil Kumar told him that he has sold the said car to a person at Avenue Road. This witness has answered the suggestion as he does not remember. The main documents which the prosecution relies 46 S.C.No.1035/2012 on are Ex.P77 to Ex.P81. According to the prosecution as per these documents P.W.26 has transferred the vehicle to accused No.1. However, P.W.26 has stated in his evidence that at the time of delivering the vehicle he had written the name of Anil Kumar at Ex.P77 to Ex.P81. He further admits that the writing found at Ex.P77 to Ex.P81 were not there at the time when he delivered the said documents to P.W.22. Specifically he has stated that he had written the name of Anil Kumar at Ex.P77 to Ex.P81. When this is the situation there is no explanation by the prosecution as to how the name of accused No.1 Rakesh came in Ex.P77 to Ex.P81. It is not the case of the prosecution that P.W.26 directly transferred the said vehicle to accused No.1 Rakesh. He has done it through P.W.22 Anil Kumar. However, P.W.22 has not supported the prosecution case. P.W.26 himself has stated in his evidence that he had written the name of Anil Kumar at Ex.P77 to Ex.P81 which shows that he was intended to transfer the vehicle to P.W.22 - Anil Kumar. Further, undisputed fact is that till today all the documents such as R.C. Book etc., are standing in the name of P.W.26. Absolutely, there are no material to show that the offended Honda City Car bearing Registration No.KA04/P1739 has been purchased by the accused No.1.

77. The prosecution has tried to brought before the court that P.W.22 purchased the said car from P.W.26 and sold the same to accused No.1. As it is stated herein above, the evidence of 47 S.C.No.1035/2012 P.W.22 is not available to the prosecution as he turned hostile to the prosecution. However, his evidence is relevant to the fact of marking of Ex.P77 to Ex.P81 which are the document pertaining to the offended car stated to have been executed by P.W.26 in favour of accused No.1. There arise a serious doubt regarding execution of these documents in favour of accused No.1. Because, P.W.26 has categorically stated in his evidence that while transferring the vehicle he had written the name of P.W.22 Anil Kumar at Ex.P77 to Ex.P81 and writings found at Ex.P77 to Ex.P81 was not there at the time of execution of the said documents and name of Anil Kumar is not found at Ex.P77 to Ex.P81. Further, all the R.C. book and other documents are standing in the name of P.W.26. When the same is admitted by P.W.26 when this is the evidence of P.W.26, it cannot be said that accused No.1 has purchased the Honda City Car bearing Registration No.KA04/P1739 from P.W.26.

78. It is further case of the prosecution that accused No.2 had stolen the cheque M.O.14 belonging to account of P.W.15 Murtaza T. Taambawala from Vysya Bank. With regard to this contention it is the evidence of P.W.15 which is relevant. P.W.15 has stated in his evidence that on 17.02.2012 evening at about 7.15 p.m., he had gone to purchase household articles by parking the car and he had kept a bag containing documents relating to his business in front of the seat. By that time he returned to the car he 48 S.C.No.1035/2012 did not find the bag. Hence, he has lodged the complaint before the Halasuru Gate police in this regard. He has further states that the said bag was containing two cheque books at M.O.17, pass book at M.O.18 and 11 cheques at M.O.45 and 46 and key bunch at M.O.16. He has further states that about three years back he was secured to CCB police and the police showed him his bag and his cheque books and key bunch and he had identified the same in the police station.

79. In the crossexamination the defense has tried to elicit that P.W.15 himself has given the bag containing cheque books and passbook and key bunch to the police at the request of the CCB police. P.W.15 has refuted this contention and no other answers were elicited from the defense to discredit the evidence of P.W.15 with regard to belonging of 11 cheques at M.O.45, passbook at M.O.18, M.O.14 bag, M.O.46 another cheque belonging to P.W.15. However, a specific contention of the prosecution that after stealing the said articles accused Nos.1 and 2 have issued M.O.46 - cheque to P.W.22 mentioning the amount as Rs.40,000/, towards payment of the price of the car. It is only the evidence of P.W.15 which is available to the prosecution to show that the accused Nos.1 and 2 had issued M.O.46 cheque to P.W.22. P.W.22 has denied the entire transaction. Further, though P.W.15 has stated that he has lodged the complaint before the Halasuru Gate police station, absolutely there is no material to show the registration of the separate case in that regard. Though the prosecution tried to elicit 49 S.C.No.1035/2012 the answers from P.W.22 with regard to this transaction the same is not done. So in the absence of any supportive evidence with regard to this fact. Again it cannot be said that M.O.46 is issued by accused Nos.1 and 2 to P.W.22. With this discussion I hold that the prosecution has not established the preparation with regard to purchase of Honda City Car bearing Registration No.KA04/P1739, by accused No.1 from P.W.26.

b) Purchase of SIM cards by the accused Nos.1 and 2 to have communication for proper implementation of plan.

80. It is further case of the prosecution that the accused have purchased the SIM cards to have communication for the proper implementation of plan. So far as this particular circumstances is concerned, the prosecution relies on the evidence of P.W.20 Kiran Rao and P.W.21 Sanjeeva.

81. P.W.20 is examined to establish the fact that the SIM card No.8548992369 is used by the accused No.3 to have communication among other accused. The prosecution contends that the said SIM card was purchased by P.W.20 and he had given it to his aunt Shylaja who is mother of accused No.3. P.W.20 states that in the year 2012 he had purchased two Uninor SIM cards in his name out of that one SIM card he was using and he had given another SIM card to his aunt Shylaja. Since Uninor mobile company was closed the SIM card used by his aunt Shylaja became 50 S.C.No.1035/2012 useless. At the time of purchasing the SIM cards he had given his photograph, xerox copy of driving license. After three years CCB police called him to police station and enquired him and they showed him his photograph and the driving license. He stated that the driving license and photograph belong to him, the said application is not submitted by him as his signature was forged. He has further stated that number of SIM card which he had given to his aunt is 8548992369. In the crossexamination he states that he had purchased one SIM card in footpath and another at Devaiah Park. At the time of purchasing both the SIM cards he had signed the application form and given it to the dealer and he had not filled up the application form and he had given photographs and the driving license.

82. After careful appreciation of the evidence of this witness it can be said that in the chief examination he has stated that his signature has been forged. However it is clear from his evidence that he has purchased two SIM cards. In the cross examination he states that at the time of purchasing the SIM cards he had given signed application form. When he state that by signing the application form he had given it, again forging of his signature is at doubt.

83. P.W.21 Sanjeeva has been examined to establish the fact that accused Nos.1 and 2 have purchased the SIM cards 8550068957 and 8550850945. P.W.21 has stated in his evidence 51 S.C.No.1035/2012 that from 2010 to 2013 he was selling cell phones and SIM cards of Airtel, Vodafone, Idea and Uninor company. In the year 2012 the Uninor company was selling the SIM cards in footpath under special offer and the activated SIM cards were being sold in the footpath. The distributors of the SIM cards were selling the SIM cards in footpath by activating them as per the application pending before them. He further states that so far as this case is concerned he had sold many activated SIM cards to one Shanmugam. Said Shanmugam used to sell the activated SIM cards purchased from him to some other persons. Shanmugam has not brought any customer to him and he does not know to whom Shanmugam has sold the SIM cards purchased from him and he does not remember the SIM card numbers purchased by Shanmugam from him.

84. This witness was treated as hostile by prosecution and he was crossexamined by the learned Special Public Prosecutor. In the crossexamination conducted by the learned Special Public Prosecutor he states that the CCB police have called him to the police station and recorded his statement and they showed him applications pertaining to SIM card Nos.8550068957 and 8550850945 along with photographs and Voter ID. The said applications were standing in the name of Raghavendra and Kiran Rao. After purchasing the SIM cards from him Shanmugam was selling the said SIM cards to customers at higher price. He admits that Shanmugam had sold the SIM card Nos.8550068957 and 8550850945 to Rakesh Raj and his friend. He further states that 52 S.C.No.1035/2012 he is aware that the accused No.1Rakesh Raj is resident of Cubbonpet. He further admits that Shanmugam had told him that he had sold the SIM cards with No.8550068957 and 8550850945 to accused No.1Rakesh Raj and he further admits that Shanmugam had showed him accused Nos.1 and 2 and further told that he had sold those two SIM cards to accused Nos.1 and 2.

85. In the crossexamination conducted by the counsel for accused Nos.1 and 2 he has stated that when he went to CCB police accused Nos.1 and 2 were in the police station and it is the CCB police who told the names of accused Nos.1 and 2 to him. He knows where Shanmugam was residing and he had shown the address of Shanmugam to CCB police. The CCB police had called Shanmugam to police station. At that time also the accused Nos.1 and 2 were in the police custody. He states that Shanmugam did not tell before the CCB police that he has sold the SIM cards with Nos.8550068957 and 8550850945 to accused Nos.1 and 2 and he further admits that Shanmugam had not sold those two SIM cards to accused Nos.1 and 2 in his presence. He had sold the said SIM cards one month before he was called to CCB police. He further admits that he came to know about these two SIM cards only after seeing the application form and photographs at the CCB police and he has seen the application form, photographs and the Voter ID in the police station. He further states that he does not remember the SIM card numbers who he had sold to Shanmugam. He further 53 S.C.No.1035/2012 admits that he has not given statement before the police saying that Shanmugam has sold the two SIM cards to accused Nos.1 and

2. He further admits that he does not know where the accused Nos.1 and 2 were residing. In his further crossexamination he has stated that only after ascertaining the address and by accepting the address proof they had issued the SIM cards and he further stated that he has not purchased the Uninor company SIM cards and Kiran Rao and Raghavendra have not purchased those SIM cards and he has not activated the said SIM cards through distributor and he denies of giving statement before the police as per Ex.D7. Lastly he has admitted that since the police did not get the salesman who sold the SIM cards to him the police have taken his statement as per Ex.D7.

86. After careful appreciation of the evidence of this witness it can be said that in the chief examination he states that he does not know to whom Shanmugam has sold the SIM cards and in the crossexamination conducted by the Special Public Prosecutor he admits that Shanmugam has introduced him to accused Nos.1 and 2. He has stated that he had sold two SIM cards bearing Nos.8550068957 and 8550850945 to accused Nos.1 and 2. He further admits during his crossexamination conducted by the learned Special Public Prosecutor that he knows where the accused Nos.1 and 2 were residing and in his presence only Shanmugam sold those two SIM cards to accused Nos.1 and 2 and he further 54 S.C.No.1035/2012 admits that the accused No.1 Rakesh Raj is the resident of Cubbonpet. Again in the crossexamination conducted by the counsel for accused Nos.1 and 3 he states that he does not know where the accused Nos.1 and 2 are residing and what they are doing, he came to know about these two SIM cards only after seeing the application form, photographs and Voter ID in the CCB police station. He further admits that the CCB police have told him in the police station that Shanmugam had sold the SIM cards prior to 15 days, police had told him that Shanmugam had sold the two SIM cards to accused Nos.1 and 2. He has further stated that Shanmugam has not sold the SIM cards bearing Nos.8550068957 and 8550850945 to accused Nos.1 and 2 in his presence. He further admits that he does not know to whom Shanmugam sold those two SIM cards. However, in the crossexamination conducted by the Special Public Prosecutor he admits that in his presence only Shanmugam sold those two SIM cards to accused Nos.1 and 2, and he knows where accused Nos.1 and 2 are residing and what they are doing. Again in the crossexamination conducted by the counsel for accused Nos.1 and 3 he states that Shanmugam had not sold the SIM cards to accused Nos.1 and 2 in his presence and he does not know where the accused Nos.1 and 2 are residing. This witness is not firm in his evidence. He is very much inconsistent while answering. He has given contradictory statement in cross examination and in the examination in chief. He is very much inconsistent in his evidence. It cannot be said that this witness has 55 S.C.No.1035/2012 the knowledge about the fact that accused Nos.1 and 2 have purchased the SIM cards bearing Nos.8550068957 and 8550850945 from one Shanmugam. Hence it is not safe to believe the evidence of this witness.

87. Further, in the crossexamination conducted by the counsel for accused Nos.1 and 3, P.W.21 admits that along with him Shanmugam was also present in the police station and the police have also enquired said Shanmugam and he himself has shown address of Shanmugam to CCB Police. When he clearly states that Shanmugam was very much present in the police station and he himself has shown the address of said Shanmugam to police, it is astonishing why said Shanmugam is not cited as witness and why he has not been examined before this court. As per the prosecution version it is Shanmugam who sold those SIM cards which are used to have communication for the proper implementation of the plan for kindnapping the deceased. It is established that Shanmugam was also available to the police and he is a material witness to the case of the prosecution. So far as this circumstance is concerned, non citing and nonexamination of this witness is fetal to the case of the prosecution. With this I hold that the prosecution has failed to prove that the SIM cards bearing Nos.8550068957 and 8550850945 have been purchased by accused Nos.1 and 2. The prosecution has failed to prove this circumstance also.

S.C.No.1035/2012 iv. Last seen theory.

88. The prosecution has come up with the story that accused Nos.1, 2, 4 and 5 were seen together with deceased Nitish Bera immediately just before he was kidnapped. The prosecution in order to establish this strong and vital circumstance against the accused has relied upon mainly the evidence of P.W.6 Santhosh. P.W.6 states in his evidence that about three years back one day at 9.30 p.m., he had gone to a pan shop near Martha's hospital at Cubbonpet to eat Banana. While he was eating Banana, an accident occurred at road in front of the said pan shop. There was a tussle among the people. Two persons came near the person who caused the accident and took him in a car. He further stated that the person who suffered accident is Nitish Bera and he does not know who caused the accident and he has seen the accident. The Investigating Officer has subjected him for interrogation and has recorded his statement. He has further states that he cannot tell whether those two persons are the accused in this case.

89. This witness was crossexamined by the learned Special Public Prosecutor. In the crossexamination conducted by the prosecution he admits the giving of statement before the police. He admits that the place of occurrence of accident on 27.03.2012 at about 9.30 p.m., is the shop, in front of which he was eating Banana, is situated in front of the hospital. The name of the hospital is Karegundi Hanumanthappa Lakshmamma hospital.

S.C.No.1035/2012 There is a road proceeding from Cubbonpet to K.G. Road. He has given statement before the police that Yogesh asked Nitish Bera to come to police station since he has caused the accident. He denied the suggestion that at the same time Rakesh, Giri and another person came from K.G. Road and asked Yogesh as to what happened. Thereafter, all of them took Nitish Bera to K.G. Road and took him in a red coloured car, parked at K.G. Road.

90. By identifying the accused Nos.1, 2 and 3 he admits that accused Nos.1, 2 and 3 took Nitish Bera after some days after reading the newspaper and after watching the T.V. he has given statement before the police.

91. In the crossexamination of the defense, P.W.6 admits that he does not know the remaining accused other than accused No.1. There were about 78 persons at the accident spot and he does not know the names of those persons. He further admits that there was a dark in the place of accident. Since there was a dark he could not identify who are those two persons came near the spot. The car was parked at the distance of 15 feet from the place where he was standing and he cannot tell which is that car. He further states that the names of accused Nos.1, 2 and 3 was published in the newspaper and he remembered the names of these persons so he told the names of those persons before the police. The defense further tried to elicit that he had not seen Nitish Bera on that day and he has falsely deposed before the court. This witness has 58 S.C.No.1035/2012 denied the suggestion. In the reexamination he states that street lamps were on at the place of accident.

92. In chief examination he states that he does not know who are those persons came to the place of accident. There is an omission in the evidence of this witness with regard to non stating of the statement that Rakesh, Giri and another person came and asked Yogesh as to what happened, and all of them took Nitish Bera to K.G. Raod and asked him to sit in the red coloured car, standing at K.G. Road. This is a material omission with regard to last seen theory.

93. In the examination chief he states that he cannot tell that those two persons are the accused persons. In the cross examination of learned Public Prosecutor, he admits that it is the accused No.3 who has caused the accident and it is the accused Nos.1 and 2 who came near accused No.3. Again in the cross examination of the defense he admits that he does not know the remaining accused persons other than accused No.1. To some extent he says that he does not know between whom the accident has occurred and there was a dark in the place of occurrence of accident and he could not identify those two persons since there was a dark.

94. After careful appreciation of the evidence of P.W.6 it can be said that he has given inconsistent statement before the 59 S.C.No.1035/2012 Court. In chief examination he states one thing, in the cross examination conducted by the learned Special Public Prosecutor he has given complete contrary statement. The evidence of P.W.6 is inconsistent and completely contrary to his earlier evidence. This witness is not firm in his evidence. It is very difficult to believe the evidence of P.W.6 with regard to last seen theory. The admissions given by this witness and the omission in his evidence compels this court to discredit his evidence.

95. Further, the omission as per Ex.P15 with regard to not giving statement that Rakesh, Giri and another person came there and asked Yogesh as to what happened and all of them took Nitish Bera to K.G. Road and made him to sit in a red coloured car is a material omission which raises serious doubt with regard to the fact that accused Nos.1, 2 and 3 are the last seen along with deceased Nitish Bera by the accused No.6. So the last seen theory also fails.

V. Receiving of money and M.O.26 to 39 gold ornaments by accused No.3 from P.W.13.

96. The prosecution theory is that immediately after kidnapping the deceased, accused No.1 instructed accused No.3 to take gold ornaments from the house of deceased. In the mean time, as per the instructions of accused No.1, the deceased had told his wife P.W.13 to handover the gold ornaments and money to the 60 S.C.No.1035/2012 person who comes to her house in his two wheeler. The defense of the accused in connection with this circumstance is again denial.

97. To prove this circumstance the prosecution relies on the evidence of P.W.13 Uma Bera wife of deceased. Let me now discuss the evidence of P.W.13 so far as this particular circumstance is concerned. P.W.13 states that on 27.03.2012 at about 10.45 pm., her husband told her over phone that a boy will come to home in his scooty, and told her to give money and gold ornaments. After 15 minutes a boy came on her husbands' scooty, parked the same in front of gate and she gave all the gold ornaments such as one gold necklace, 5 pair of earrings, 3 gold rings, one gold coin of 10 grams, gold bracelet with black beads, gold plated black bangles and Rs.2,000/ cash. Total weight of gold ornaments was around 82 to 85 grams. The said boy took all the gold ornaments with him. P.W.13 has specifically stated that it is accused No.3 who received the gold ornaments from her on that day, by identifying him before the court, whom she had also seen in the Bengaluru Central Prison during the Test Identification Parade.

98. The defense tried to elicit in the crossexamination that these gold ornaments are created one. The suggestions are to the effect that P.W.13 never handed over these gold ornaments to accused No.3 and she has not stated about handing over of the gold ornaments by describing the gold ornaments in her 161 statement.

S.C.No.1035/2012 All these suggestions are denied by P.W.13. In the cross examination she has specifically stated that she has not given 5 gold bangles to that boy who had come to her house. There are omission in her evidence. She has stated that she has not stated in her 161 statement as per Ex.D2 that she has given 2 notes of Rs.1,000/ and one gold necklace, 4 to 5 rings, gold coin of 10 grams and hand bracelet, 5 bangles, one pair of Jumki, earrings, hangings and she does not know the weight and price of these articles. Portion of this statement has been marked in her evidence as Ex.D2. She has further stated that she has not stated before the Investigating Officer that on 29.03.2012 she identified the dead body of her husband in Tumkur District Hospital and Nelamangala police have recorded her statement.

99. She has stated in her statement that she gave 2 notes of Rs.1,000/, one necklace, 4 to 5 rings, 10 grams of gold coin, hand bracelet, 5 bangles, one pair of Jumki, earrings and hangings to the boy, who came to her husbands' Honda Activa vehicle on 27.03.2012 on night. P.W.13 has specifically stated that she has not given such statement before the police. She has stated before the court that she has given 20 notes of Rs.100/. She further denies the giving of statement as per Ex.D2 and Ex.D3 that she has given 2 notes of Rs.1,000/, one necklace, 4 to 5 rings, gold coin of 10 grams, hand bracelet, 5 bangles, one pair Jumki, earrings and hangings to the person who came to her home on her husbands' Honda Activa 62 S.C.No.1035/2012 vehicle and she specifically stated that she has given statement before the Investigating Officer that she has given 20 notes of Rs.100/ and she has not stated that she had given 2 notes of Rs.1,000/. By pressing upon this omission, the learned counsel for defense submits that these omission amounts to serious contradictions which itself proves that P.W.13 has not given M.O.26 to 39 to accused No.3.

100. Apart from these omissions P.W.13 is very firm in her evidence regarding handing over gold ornaments and money to the person who came to her house on that day. The police have recovered Rs.1,200/ of 100 denomination from the accused. The statement of P.W.13, in her evidence before the court in respect of giving 20 notes of Rs.100/ each, no doubt is an improvement. However, she has firmly stated that she has gave Rs.2,000/ to the person who came to her house on that day. The statement of P.W.13 was recorded at the time of inquest mahazar as per Ex.P.6 on 29.03.2012. The same was recorded after she has seen the dead body of her husband. There is possibility of she being upset and shocked. It is necessary to mention at this juncture that it is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omissions where the witness made improvements as to be irrelevant details. The same cannot be labeled as omissions or contradictions. Here in the present case the omission as per Ex.P2 and Ex.D2 and 63 S.C.No.1035/2012 improvement in her evidence is not of much importance and cannot be given much significant and cannot destroy the contention of the prosecution regarding handing over of M.O.26 to M.O.39 and Rs.2,000/ by P.W.13 to the person who came to her house on that day.

101. As per the evidence of P.W.13 she has handed over M.O.26 to M.O.39 gold articles and money to the person who came to her house on the night of 27.03.2012 between 10.45 to 11.00 pm., The prosecution case is that it is the accused No.3 who received M.O.26 to M.O.39. It is further case of the prosecution that it is accused No.3 who came near Ganesh Prasad Hotel after collecting M.O.26 to M.O.39 and Rs.2,000/ from P.W.13. P.W.13 has categorically stated that it is the accused No.3 who has received those articles and she has confirmed this after identifying accused No.3 in her Test Identification Parade.

102. At this juncture, it is necessary to mention that subsequent to the arrest the Test Identification Parade of accused No.3 was conducted on 07.07.2012. P.W.13, P.W.5 Suresh and P.W.9 Mithun Mallik are the witnesses who identified accused No.3 during the Test Identification Parade. The first time P.W.13, P.W.5 and P.W.9 seen accused No.3 was on 27.03.2012 during night hours. Test Identification Parade was conducted on 07.07.2012. There is a long gap in conducting the Test Identification Parade. The accused were stated to have been arrested on 03.04.2012 and 64 S.C.No.1035/2012 even though the Magistrate has passed order to conduct Test Identification Parade on 20.04.2012. The evidence of P.W.35 needs to be looked into at this juncture. The evidence of P.W.35 the Executive Magistrate, is to the effect of conducting the Test Identification Parade. She has conducted Test Identification Parade of accused No.3 by P.W.5, P.W.9 and P.W.13. An important point which needs to be mentioned is that P.W.5 Suresh stated in his chief evidence that he saw the face of the person who came near Ganesh Prasad Hotel at street lamp. He has further stated that the said person had worn helmet. He further stated that he had seen accused No.3 wandering at Cubbonpet and it is accused No.3 Yogesh who had come near Ganesh Prasad Hotel. His evidence clearly indicate that when he saw that person who came near Ganesh Prasad Hotel he knew that it is accused No.3 at that night. He was having knowledge that it was accused No.3. He has further stated that he has not stated before the police or before any one about this incident. However, he has stated that after 23 days the police enquired him and he stated before the police what he knew. The evidence of P.W.5 is relevant in respect of identifying accused No.3 on 27.03.2012 near Ganesh Prasad Hotel and during Test Identification Parade. However, his evidence cannot be relied upon for the reason that the police have not recorded his statement while they have enquired him, as P.W.5 has specifically stated that after 23 days the police have enquired him and they have not recorded his statement. Had P.W.5 seen accused No.3 on 27.03.2012 at 65 S.C.No.1035/2012 night hours he had no impediment to tell before the police that it is accused No.3 Yogesh, whom he saw near Ganesh Prasad Hotel. More over, there is a doubt in respect of P.W.5 identifying that person who came near Ganesh Prasad Hotel as accused No.3. Because, in his chief evidence only he has stated that, that person had put helmet.

103. Further, the reason P.W.13 saying that it is accused No.3 who collected M.O.26 to M.O.39 and Rs.2,000/ from her is that subsequently she has identified accused No.3 in Central Prison during Test Identification Parade, which was conducted after lapse of nearly about 3½ months. It is settled principle of law that 'the Test Identification should be held as early as possible after arrest of the accused, because the impression in the mind of the witness may fade in course of time. Whenever, there is a delay in holding a Test Identification Parade, the prosecution should explain it and the absence of reasonable explanation will detract from the value of the test'. In the present case, though the order from Magistrate was obtained on 20.04.2012 the Test Identification Parade was conducted on 07.07.2012. No explanation is forth coming for delay in conducting the Test Identification Parade.

104. Further more, P.W.13 has stated in her evidence that except accused No.3 she had seen all the accused in T.V. and she had gone to police station the police have shown accused Nos.1, 2, 4 and 5 and police did not show accused No.3 on 02.04.2012. Again 66 S.C.No.1035/2012 there is a doubt in her evidence. It appears to be a due deliberations. As per her evidence the accused were already in the police station when P.W.13 had gone to police station, though she had seen the other accused except accused No.3 in T.V. this is very hard to believe because, there is no occasion for the police to hide accused No.3 as on that day. Though P.W.13 has firmly stated about handing over the gold ornaments and Rs.2,000/ to the person who came to her house on 27.03.2012. After careful appreciation of her evidence and P.W.5 I hold that there arise a serious doubt whether it is accused No.3 who received M.O.26 to M.O.39 and Rs.2,000/. With this I hold that the prosecution has failed to prove this circumstance beyond reasonable doubt.

vi. Passing of Honda City Car bearing No.KA04/P1739 through Nelamangala Bypass on 27.03.2012 at 10.55 pm.

105. The prosecution case is that after kidnapping the deceased in the Honda City Car, the car traveled through Nelamangala Bypass. It is specific contention of the prosecution that the car passed through Nelamangala Bypass in an exempted lane. The Investigating Officer has collected Ex.P155 from the concerned toll authority. By relying on Ex.P155 and by referring to the relevant entries therein, the learned Special Public Prosecutor submits that on 27.03.2012 night at about 10.55.46 pm., the Honda City Car bearing registration No.KA04/P1739, passed through 67 S.C.No.1035/2012 Nelamangala toll in an exempted VIP lane and the same matches with the time of kidnap and route of traveling of the car.

106. The defense argument in this regard is that Ex.P155 cannot be relied upon for the reason that the same is not accompanied by 65B certificate, and for another reason that there are two entries pertaining to the vehicle bearing No.1739 and in the next page also the number of this vehicle is mentioned on the same date, at about 05.03.12 pm., from Nelamangala to Bengaluru.

107. Ex.P155 contains three pages, 1st page being the covering letter and 2nd and 3rd page contain the entries. The 2 nd page consist of entires of passing of the vehicle with number 1739 on 27.03.2012 at 10.55.46 pm. The classification of the vehicle mentioned is Car/Jeep/ Van, the said vehicle is exemptedVIP vehicle and it is described as exempted VIP vehicle and no amount is collected. According to the prosecution, the vehicle has been passed through exempted lane because, accused No.1 was an advocate, by showing his Identity card he sought exemption from paying the toll fee and he further states that the said vehicle was purchased by accused No.1.

108. Per contra, it is the contention of the defense that it is false theory that has been evolved by the prosecution, no exemption is given to the advocates' vehicle in the National Highway. Moreover, the complete number is not given in the said vehicle.

S.C.No.1035/2012 Again he submits by referring to another entry at 3 rd page of Ex.P155, he says that there is no strength in the argument of the prosecution saying that the number which is mentioned as 1739 is used by accused and accused only to transport the dead body.

109. After carefully evaluating Ex.P155 and keeping in view of the points of argument, I hold that this circumstance is also not available to the prosecution for the reason that Ex.P155 has been issued by one Abdul Ajiz. He has stated in his letter that as per letter to provide information regarding passing of the vehicle bearing No.KA04/P1739, Honda City car on 27.03.2012 at 10.55.46 pm., lane No.8 Bengaluru Nelamangala side. It is further mentioned that as per the design, he is able to provide only last four digit vehicle number and they are not able to give vehicle image. It is specifically stated in Ex.P155 that they are able to give only last four digit of the vehicle number and they are unable to provide the image of the vehicle, which show that the Investigating Officer has sought the complete number of the vehicle and the image of the said vehicle at the time of passing the vehicle in the said lane. Number '1739' appears at 2nd and 3rd page of Ex.P155. The 2nd page consist of entries of the vehicle traveled from Bengaluru to Nelamangala from 27.03.2012 10.00 am., to 28.03.2012 at 5.59 am., the 3rd page consist of entries of the vehicle from 27.03.2012 at 6.00 am., to 28.03.2012 at 5.59 am., coming from Nelamangala to Bengaluru.

S.C.No.1035/2012

110. According to the prosecution this vehicle has passed through this toll at 10.55.46 pm., on 27.03.2012. However, the same document shows that the vehicle with No.1739 came on the same date at 05.03.12 am. Since the only last four digit of the vehicle number is given as per the system design as it is stated in Ex.P155, there arise a doubt whether the vehicle with number '1739' appearing at page No.2 and the vehicle No.1739 appearing at page No.3 at 05.03.12 am., on 28.03.2012 are the one and the same or the different. This is not clarified in the evidence of P.W.37the Investigating officer. In the 2nd page, it is mentioned that the vehicle is exempted VIP vehicle, in the 3 rd page it is mentioned as 'Exempted as Central and Stage Government'. The learned Special Public Prosecutor submit that several vehicles are registered with number 1739 but the initial number would vary from vehicle to vehicle. This itself is not sufficient to believe the version of the prosecution. More so, it cannot be said that the prosecution has proved Ex.P155. Because, the person who has issued this report has not been examined before this court. In the absence of the evidence of the person who has issued Ex.P155, and in the absence of certificate as required under Section 65B of the Indian Evidence Act, it cannot be said that Ex.P155 is proved. Again this circumstance also not available to the prosecution.

S.C.No.1035/2012 viii. Subsequent abscondance of accused.

111. It is further case of the prosecution that subsequent to the commission of the offence the accused fled away to Tirupathi to screen themselves. So far as this circumstance is concerned, the prosecution relies on the evidence of P.W.37, P.W.11 and the evidence of P.W.3 and P.W.4. The defense of the accused in this regard is again complete denial. During the course of the argument the learned Special Public Prosecutor submits that the prosecution has placed sufficient material to prove the abscondance. He further submitted that accused Nos.1 and 2 have shaved their head that itself show that they have gone to Tirupathi. The argument of Sri.Ranganath Reddy, counsel for accused Nos.4 and 5, is that there is no nexus between the accused going to Tirupathi and the alleged crime. The prosecution has come up with the false story. He further submits that the version of the prosecution cannot be believed at all. During the course of the argument the learned Special Public Prosecutor and the defense have referred the evidence of witnesses.

112. P.W.37 the Investigating Officer has stated that on 03.04.2012 he received information that the accused, connected to this case are coming from Tirupathi to Bengaluru. Thereafter, they have apprehended the accused and recovered money and Honda City Car, in presence of P.W.11 and P.W.12. The evidence of P.W.11Paulraj is to the effect that in the year 2012, at the call of 71 S.C.No.1035/2012 K.R. Puram police he had gone near Highway, at that time five persons were there with the police. Though this witness has turned hostile to the prosecution, in his crossexamination conducted by the learned Public Prosecutor he has admitted the recovery of money from the accused. Further, P.W.3 mother of accused No.2 stated that she came to know that her son was arrested at Tirupathi. P.W.4 Pankaja, mother of accused No.3, in her cross examination has stated that on 29.03.2012, her son Yogesh had told her that he is going to Tirupathi. It is worth to mention here that P.W.3 and P.W.4 are mothers of accused Nos.2 and 3 respectively. Both these witnesses have admitted the accused Nos.2 and 3 going to Tirupathi. By eliciting answer from P.W.3, that she came to know that her son is arrested at Tirupathi, and P.W.4 stated that her son had told her that he is going to Tirupathi, the defense has admitted that the accused had gone to Tirupathi.

113. The question that would arise is whether accused had gone to Tirupathi for absconding and to screen themselves. At this juncture, it is necessary to refer the judgment of Hon'ble Apex Court in the case of Durga Burman Roy Vs. State of Sikkim, (2014) 13 SCC 35, wherein the Hon'ble Apex Court has held that, " To abscond" means, go away secretly or illegally and hurriedly to escape from custody or avoid arrest. In the instance case the accused had told that they were from their place of work at factory to their home in other district. They were into custody from their 72 S.C.No.1035/2012 respective houses only, on the 3rd day of the incident. The Supreme Court has observed that it is difficult to hold that the accused had been absconding. Even assuming for argument sake that they were not seen at their work place after the alleged incident, it cannot be held that by itself an adverse inference is to be drawn against them'. Here in the present case, as per the evidence of P.W.4 the accused went to Tirupathi on 29.03.2012. After five days they are arrested on the disputed date i.e., on 03.04.2012. However, the fact, that remains undisputed is that the accused had gone to Tirupathi. Except the date of arrest, the defense has not disputed the fact of the accused going to Tirupathi. Under such circumstances, it has to be held that the prosecution could prove that the accused had gone to Tirupathi on 29.03.2012. Whether this abscondance is sufficient to connect the guilt of the accused has to be dealt with by taking into consideration the other circumstances.

viii. Extra judicial confession.

114. The prosecution case is that the accused No.3 has confessed before P.W.18 Dr. Sathyanarayana that the injuries were caused to him when he was hit by two wheeler of Nitish Bera while kidnapping. The prosecution places relies on the evidence of P.W.18 Dr. Sathyanarayana and Ex.P70, the wound certificate pertaining to accused No.3, issued by P.W.18.

115. P.W.18 has stated in his evidence that on 05.04.2012, in the afternoon at about 12.30 p.m., injured by name Yogesh was 73 S.C.No.1035/2012 brought by T.K. Krishna, H.C.2808. When he enquired the injured about the history of the injury, the injured told that the injury was caused due to hit by two wheeler of Nitish Bera while kidnapping him. He has issued the wound certificate as per Ex.P70. In the crossexamination, the defense could elicit that in Ex.P71the requisition submitted by the Police Inspector CCB police, it is mentioned that on 27.03.2012, the injuries caused to Yogesh at his knee, at the time of kidnapping Nitish Bera. This witness has admitted this fact. However, this witness has denied the suggestion that by looking into Ex.P71 he has issued Ex.P70 by mentioning the history of the injury as hit by two wheeler of Nitish Bera. He further denied the suggestion that the accused has not told him about history of injury.

116. The argument of learned Special Public Prosecutor is that P.W.17 is a doctor, there is no occasion for P.W.17 to lie before the court or to issue false certificate. This contention has to be appreciated in the light of the settled position of law with regard to extra judicial confession. At this juncture, it is necessary to refer the judgment of Hon'ble Apex Court in the case of Kusuma Ankamarao Vs. State of Andra Pradesh reported in AIR 2008 SC 218, wherein the Hon'ble Apex Court, in this case has held that 'one important question, with regard to extra judicial confession, to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements 74 S.C.No.1035/2012 were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession'.

117. Further, extra judicial confession to be admissible must be made voluntarily and to the person with whom he has reposed utmost confidence. In Rama Singh Vs. The State of Bihar reported in AIR 2007 SC 1218, the Hon'ble Apex Court has observed that the extra judicial confession was made by the accused to the prosecution witness while he was in police custody. Facts of this case are accused No.2 was arrested on 19th September, 2001 and on 24th and 25th September when he was taken for the LDT he was in police custody and it was at that point of time he made extra judicial confession to PW17, at which point of time police personnel went away from the scene temporarily. The Hon'ble Apex Court has held that extra judicial confession made by accused No.2 to PW17 is hit by Section 26 of the Evidence Act it having been made by accused No.2 while he was in police custody and, therefore, has to be eschewed from consideration.

118. In the present case the accused is stated to have been arrested on 03.04.2012 and he was taken to P.W.18 on 05.04.2012, through T.K. Krishna, H.C.2808. Along with him he had taken Ex.P71 issued by Police Inspector, CCB and gave it to P.W.12. The defense has placed reliance on the contents of Ex.P71. In Ex.P71 it is clearly mentioned that, in connection with this case five accused 75 S.C.No.1035/2012 were arrested, these persons have kidnapped the husband of the complainant for ransom, thereafter, they have murdered him and destroyed the evidence. It is further mentioned here that 'among those five accused, accused No.3 Yogesh @ Yogi way laid the deceased on 27.03.2012 during the night hours at that time he was hit by two wheeler of Nitish Bera and got injured. P.W.18 has admitted this contents in his evidence. It is clearly mentioned in Ex.P70 the wound certificate, on the column of history that 'hit by two wheeler of Nitish Bera while kidnapping him'.

119. The argument of learned Special Public Prosecutor is that the defense has not elicited from P.W.18 whether the police person was present at the time accused No.3 making confession statement, or issuing Ex.P70. With this he submitted that extra judicial confession made by accused No.3 is not hit by Section 26 of the Indian Evidence Act, it has to be admitted in his evidence. In the light of settled position of law and the observation made by the Hon'ble Apex Court in the aforementioned judgment, it is necessary to mention here that the accused stated to be arrested on 03.04.2012 and he was taken to police custody on 05.04.2012. However, the contention of learned Public Prosecutor cannot be accepted, for the reason that when P.W.18 has examined the accused and when accused has made this particular statement he was already in police custody. Particularly, when it is specifically stated in Ex.P70, and in the evidence of P.W.18 that he was 76 S.C.No.1035/2012 brought through police personnel. He has further stated that prior to issuing of Ex.P70, Ex.P71 was addressed to him wherein it is clearly mentioned about the history of the injury as hit by two wheeler of Nitish Bera while kidnapping him. P.W.18 is a stranger to accused No.3 when the alleged extra judicial confession was made. The accused No.3 was in police custody and he was not a free man at the time of making that particular confession. When it is so, the extra judicial confession alleged in this case cannot be admitted as the same is hit by Section 26 of the Indian Evidence Act. Merely not eliciting the presence of police at the time of issuing Ex.P70, by defense itself will not legalize the extra judicial confession. With this I hold that the circumstance of extra judicial confession is also not available to the prosecution.

ix. Recovery of incriminating articles on the disclosure made by the accused.

120. Much has been argued at length by the Special Public Prosecutor and the defense with regard to recovery of incriminating articles. The case of the prosecution in so far as this circumstance is that the accused were arrested on 03.04.2012, thereafter the Investigating Officer P.W.37 B. Balaraj has recorded the voluntary statement of the accused. The accused had given statement before P.W.37 as per Ex.P138 to Ex.P141. To prove this vital circumstance the prosecution relies on the evidence of P.W.37, P.W.8 Naveen Kumar, P.W.10Janardhana Shetty and P.W.11 77 S.C.No.1035/2012 Paul Raj and Ex.P163 to Ex.P158 and Ex.P163 CD containing the videograph of all the panchanama proceedings. The CD is a vital document and the same was played in the open court during the course of the argument in presence of Special Public Prosecutor and learned defense counsel. The learned Special Public Prosecutor has argued that P.W.37 has recovered all the incriminating articles at the instance of accused Nos.1 to 5. By referring to the evidence of witnesses and the documents and the videography he submitted that the prosecution has proved this circumstance of recovery beyond reasonable doubt.

121. Per contra, the contention of the learned defense counsel is that the recovery made in this case cannot be admissible. By placing the reliance on Ex.P163 containing videograph, the learned defense counsel has argued that the stand of the prosecution with regard to recovery of incriminating articles cannot be accepted as the same is not in confirmity with Section 27 of the Indian Evidence Act.

122. The material objects are stated to have been recovered from each accused separately. It is better to discuss the recovery of these articles from each accused separately. Before doing so it is necessary, to advert at this juncture the contention of the learned Special Public Prosecutor that the accused have led the police and pancha witnesses to the place where the dead body was thrown and at the instance of the accused the spot mahazar as per Ex.P31 was 78 S.C.No.1035/2012 drawn on 04.04.2012. The learned Special Public Prosecutor has submitted that the accused voluntarily led the police and pancha witnesses to the place where the dead body was thrown. It was within exclusive knowledge of the accused. Te same amounts to discovery of the place of throwing the dead body and the same is admissible under Section 27 of the Indian Evidence Act. The argument of Sri. Ranganath Reddy, advocate for accused Nos.4 and 5 is that the place where the dead body was found was already discovered and the dead body was already recovered from the said place by P.W.24, the police were having knowledge of the place much prior to 04.04.2012, the same cannot be held as the fact was within exclusive knowledge of the accused.

123. P.W.37 the Investigating Officer has stated that on 04.04.2012 the accused led himself and P.W.8 to the place where they had thrown the dead body. He has prepared the spot mahazar of the place shown by accused as per Ex.P31 in presence of P.W.8. In the course of crossexamination he has stated that he was knowledge of the fact that Nitish Bera has been murdered, his dead body was found in the Dabaspet police station limits. He has answered in his crossexamination that Dabaspet police have transferred the case file to Ashok Nagar police, in turn Ashok Nagar police transferred the same to CCB police. A careful perusal of the record reveals that before the case file is transferred to Ashok Nagar police, Dabaspet police had prepared the spot 79 S.C.No.1035/2012 mahazar of the place where the dead body was found as per Ex.P2 on 28.03.2012. (The photocopy of Ex.P2 is also marked as Ex.P84 through P.W.23). The place where Ex.P2 is prepared is the same at which Ex.P31 is prepared on 04.04.2012, Ex.P2 was prepared on 28.03.2012. The case file contain Ex.P2 was transferred to Investigating officer much prior to 04.04.2012. The Investigating Officer in his chief examination has stated that after receiving the case file form P.W.29 for further investigation he has gone through the progress of the investigation which was done by P.W.29. When it is so it can be inferred that P.W.37 was having knowledge about the place where the dead body was found. Under such circumstances, it cannot be held that the place which has been described in Ex.P31 i.e., where the dead body was found to which the accused alleged to have thrown the dead body was in exclusive knowledge of the accused. At this juncture, it is necessary to mention the observation made by the Hon'ble Apex Court in the case of Thimma Alias Thimma Raju vs State Of Mysore reported in 1970 (2) SCC 105, wherein the Hon'ble Apex Court at para10 of the judgment has held that 'Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary'. This 80 S.C.No.1035/2012 observation is aptly applicable to the case in hand. For the foregoing reasons and in the light of aforementioned judgment I hold that the contention of the learned Special Public Prosecutor deserves to be rejected. Accordingly it is rejected.

i) Recovery of M.O.12 Micromax Cell phone, M.O.13 Karate non chak, M.O.26 gold necklace and M.O.2 gold chain at the instance of accused No.1 on 05.04.2012.

124. P.W.37 has stated that since he had to recover the articles as per Ex.P138 the voluntary statement of accused No.1, he secured P.W.10 Janardhan Sheety, C.W.19 Abdul Waheed and explained them about the case and requested them to act as pancha at the time of recovery of all the articles. Both the pachas have agreed for the same. They went in the departmental vehicle to the place where the accused led them. The accused No.1 took them to his house, took them inside the house and also in a room adjacent to his house, took the articles from Sajja and roof and gave it to P.W.10 and recovered the same under panchanama as per Ex.P47. The argument of the learned Special Public Prosecutor is that the articles were produced by the accused No.1 which is exclusively within his knowledge. The learned defense counsel by pointing of videography at Ex.P163 the CD, submitted that this recovery of incriminating articles at the instance of the accused is not trust worthy and cannot be believed. Since video was played as it is stated herein above, from the video it is clear that the police were 81 S.C.No.1035/2012 already there in front of the house where they have stated that it is accused No.1 who took them to the said place. Much prior to the vehicle carrying accused No.1 came in front of the said house the police personnel and videographer were already there. After some time the vehicle came to the place. Before accused No.1 got down from the vehicle the police were already there in the room which was opened. A person with a writing pad in his hand was standing inside the room where the recovery was made. On an enquiry the learned Special Public Prosecutor submitted that the said person is a writer Krishna Murthy. The learned Special Public Prosecutor submits that the accused had already given voluntary statement before the police based upon the voluntary statement they must have reached the place already and entered the said room. The evidence of P.W.37 and P.W.10 are to the effect that it is the accused No.1 who took them inside the house. However, before the accused No.1 actually took them inside the room the police officials were already there. The presence of the police officials in the room where the recovery of M.O.12, M.O.13, M.O.26 and M.O.26 are effected gives an inference that the place where the articles were concealed was not within the exclusive knowledge of the accused No.1.

ii) Recovery of M.O.14 bag, M.O.15 China mobile set, M.O.16 Key bunch, M.O.17 three note book, M.O.18 wedding card and cheque, gold chain.

S.C.No.1035/2012

125. The Investigating Officer P.W.37 has stated that the accused No.2 took them to his house at Anandappa layout in Cubbon petitioner, picked up a bag containing article from large size card board box kept at Varanda and gave it to P.W.10. Thereafter, he has recovered the same under mahazar as per Ex.P.50. The videograph in respect of panchanama proceedings disclose that the accused No.2 picks up the bag from card board and removed the articles one by one and gives it to P.W.10. While he was doing so P.W.10 insisted him to pick gold chain by saying in Kannada as 'chainu yettu'. He further directs the accused No.2 to display the chain. After P.W.10 utters these words accused No.2 picks the chain from the bag and gave it to P.W.10. P.W.10 insisted him to display the chain. Thereafter accused No.2 displayed the chain and hold it for few seconds, thereafter gave it to P.W.10. It is quite surprising how P.W.10 came to know that the bag contains the gold chain. At this juncture, it is necessary to refer Ex.P139 the portion of voluntary statement of accused No.2, wherein the accused No.2 has stated that he would show the place and give the gold chain if some body accompanies him. There is no mention about other articles and it is not the case of the prosecution and it has not even come in the evidence that this voluntary statement has been recorded in presence of P.W.10 and C.W.19 Abdul Waheed. Further, the process of picking of the articles appears to be done in an artificial manner as if accused No.2 has acted at the direction of the others. Though, Sri. Ranganath Reddy, advocate 83 S.C.No.1035/2012 for accused Nos.4 and 5 vociferously submitted that this recovery cannot be admitted and it gives a clear indication that accused No.2 is inflanted, the learned Special Public Prosecutor who was very much present during this time has not made any submission except saying that he will leave this to the wisdom of the court. Looking into the videograph and process of panchanama, I hold that there arise a doubt whether these articles were within exclusive knowledge of the accused No.2, and the recovery.

iii) Recovery of Honda Activa Scooter, M.O.19 to M.O.23, M.O.29 to M.O.34 at the instance of accused No.3, M.O.7 knife, M.O.2 shirt, M.O.6 gold rings at the instance of accused No.4, and Sony Ericsson mobile & M.O.35 to M.O.39 on the disclosure made by accused No.5.

126. P.W.37 has stated that accused Nos.3 and 5 have given statement before him, as per Ex.P140 and Ex.P141 respectively. He states that on 04.04.2012 accused No.3 led himself and panch witness to Satellite Bus stop and showed Honda Activa Scooter, parked therein. He has recovered the same in presence of P.W.8 and C.W.14 under panchanama as per Ex.P23. On the same day accused No.3 took himself and P.W.10 and C.W.19 to his home and produced one hand bag containing key bunch, blue colour purse, three gold rings and three gold plated bangles and gold bracelet and one pant. He recovered the same under panchanama as per Ex.P52. It is further case of the prosecution that accused No.4 has 84 S.C.No.1035/2012 produced M.O.7knife, M.O.8 shirt, M.O.6 gold rings. He has recovered the same under panchanama as per Ex.P.52. P.W.37 has stated that he has videographed all the panchanama proceedings the same is at Ex.P163.

127. The argument of the learned Special Public Prosecutor is that the prosecution has proved its case beyond reasonable doubt as all the pancha witnesses have supported the prosecution. The defense has disputed the genuinity of recovery at the instance of accused Nos.3 to 5. The contention of the defense, firstly, is that the recovery is not in accordance with the principles enumerated under Section 27 of Indian Evidence Act. Secondly, the recovery is made in the open space as the places were easily accessible. Thirdly, the voluntary statements are not recorded in presence of panchas. Fourthly, P.W.10 is the only one witness to all panchanamas, he is a habitual pancha witness, his evidence is not reliable. Lastly, he submitted that in the absence of local and independent witnesses the seizure of incriminating articles cannot be held as proved. In reply the learned Special Public Prosecutor submitted that there is no bar to a person to act as pancha witness to series of panchanamas. It is the information which is admissible. The information includes the knowledge of the mental consciousness of the informant accused in relation to the physical object recovered. The accused have disclosed knowledge within them, it is the information given by the accused only has to be 85 S.C.No.1035/2012 considered. In the present case the Honda Activa Scooter and M.O.7knife, M.O.8 shirt and M.O.35 to M.O.39 recovered from the open space. Ex.P163 also show that these articles are recovered from an open space. According to the prosecution the Honda Activa Scooter was parked in the said place on 27.03.2012 during night hours. The same is recovered on 04.04.2012. There is a gap of nearly about 7 days.

128. The Investigating Officer has categorically stated that accused No.4 went near grassy slope, searched between the plants and picked up a shirt and a knife, and produced the same. Ex.P163 clearly show that accused No.4 has not made any effort to pick the knife, he has easily picked it up. So also, he has taken the shirt which was lying beneath the stone, the shirt was in folded state. The prosecution theory is that the shirt and knife were thrown while the vehicle carrying the accused and deceased was in motion. The way accused No.4 took these articles and the place from where he has produced these articles creates doubt in the prosecution case. There is no link between the prosecution theory and the recovery of M.O.7 and M.O.8.

129. Further, M.O.6 gold rings also recovered on the basis of the information disclosed by accused No.4. P.W.7 Shakti has supported the prosecution case. However, he has denied giving statement before the police as per Ex.D1. Ex.D1 is to the effect that accused No.4 had come with his mother. During the course of 86 S.C.No.1035/2012 the argument learned counsel for defense pointed out that Ex.P16 contains the closing date as 02.04.2012. Ex.P16 clearly shows that the account stated to have been opened by accused No.4 is closed on 02.04.2012 and M.O.6 was recovered on 07.04.2012. Though Ex.P16 show the closing date as 16.04.2012 the fact that the accused No.4 has pledged M.O.6 at P.W.7's shop is not disputed. The stand of the accused is that M.O.6 is his mother's ring. M.O.35 to M.O.39 are also recovered from place which were kept beneath the flower pots, and so many people seen in the video. With regard to contention of the defense that the two wheeler and the M.O.7, M.O.8 and M.O.35 to M.O.39 are recovered in the open space. At his juncture, it is necessary to refer some of the rulings. In Trimbak Vs. The State of Madhya Pradesh, (1954) AIR (SC) 39, the Hon'ble Apex Court did not accept the recovery holding that 'the property is said to have been taken was in the open space and easily accessible to all and sundry and that in these circumstances it was not safe to hold that the place was in the possession of the accused'. The Hon'ble Apex Court has further held that 'the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles'. In Kora Ghasi vs State of Orissa, (1983) SCC (Cri) 387, also the Hon'ble Apex Court could did not attach much importance to recovery, holding that 'So for as the recovery is concerned we cannot attach much importance to this fact as it was from an open place accessible to all. In the present case 87 S.C.No.1035/2012 also it is not safe to attach much importance to the fact of recovery of two wheeler, M.O.7, M.O.8, M.O.35 to M.O.39, as all these are recovered from an open space. Further, the manner in which the recovery is made at the instance of accused Nos.3 and 4 clearly show that the articles were not hidden but kept in the manner which might be normally kept in any average house hold.

130. Further, the defense has seriously disputed the credibility of the evidence of P.W.10 Janardhan Shetty. According to defense he is a habitual pancha witness, he has acted as pancha witness to series of panchanama and he has also acted as pancha witness in several cases. The contention of the learned Special Public Prosecutor is that there is no bar in one person acting as pancha witness in many cases and seizure of panchanama. It is not fatal to the prosecution case. In the crossexamination he dined the suggestion that he is a police informer and a habitual panch witness. However, he admits that he has deposed as pancha witness in only one case. He has further admits that 2 to 3 times he had received stolen articles from the accused. So far as this witness is concerned, the defense has exhibited two documents, the charge sheet and deposition in other cases. P.W.10 denies the suggestion that he has cooperated as pancha witness to many police stations. Ex.D8 and Ex.D9 show that he was a pancha witness to five cases. He was enquired for receiving stolen articles from the accused.

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131. It is settled principle of law that merely because the pancha witness had tendered evidence in another case, it cannot be held that on that score alone his evidence should be rejected branding him as a stock witness. In Yakub Abdul Razak Memon Vs. State of Maharashtra, reported in (2013) 13 SCC 1, the Hon'ble Apex Court has held that 'the pancha witness cannot be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not drawn inference that he was a stock witness, unless it is shown that he had acted in such capacity in a very large number of cases. The Hon'ble Apex Court has further held that the credential of the police or the pancha witness cannot be doubted, unless there is some material to prove the controversy. On the same point the Hon'ble High Court of Judicature at Bombay, in the case of Sunil @ Prashant @ Prasanna Vs. State of Maharashtra, has declined to accept the evidence of pancha witness, for the reasons that on various dates, the very same pancha witness acted as pancha eight times, the very same pancha witness has been taken the very same persons as pancha witness. Besides this fact, the pancha witness has acted as pancha in 17 to 18 cases.

132. In the present case P.W.8 also acted as pancha witness to series of panchanamas on the same day. Though P.W.10 denies that he has not acted as pancha witness in other cases. Ex.D8 and 89 S.C.No.1035/2012 Ex.D9 show that he was cited as pancha witness in 4 to 5 cases and he has been examined as pancha witness in many cases including one sessions case. Though this itself is not ground to discredit the veracity of this witness, Ex.P163 the CD, show that whole panchanama procedure is done as if it is done at the direction of P.W.10, more particularly, the recovery proceedings at the instance of accused No.2. Under such circumstances, this pancha witness cannot be considered as an independent witness.

133. Further, the defense has seriously disputed the date of arrest of the accused. According to prosecution the accused were arrested on 03.04.2012, and all the recovery of incriminating articles made subsequently. The defense stand is that the accused were actually arrested on 01.04.2012 showing the date of arrest on 03.04.2012 is an after thought process, these accused were falsely implicated. The learned Special Public Prosecutor places reliance on the date mentioned in the remand application. The defense relied upon the evidence of P.W.3, P.W.4, P.W.25 and D.W.1 to D.W.5.

134. P.W.3, mother of accused No.2, P.W.4 mother of accused No.3 have stated that the police have brought their sons to their home on 01.04.2012, and told that they have arrested them. Their evidence cannot be attached much significance. Because, the chances of both P.W.2 and P.W.3 telling lie cannot be ruled out since both P.W.2 and P.W.3 are the mothers, it is quite natural that 90 S.C.No.1035/2012 a mother always tries to protect her son. Nevertheless, their evidence cannot be discarded completely because, their stand corroborates with the evidence of other witnesses. P.W.13 Uma Bera herself has stated that on 02.04.2012, at the time of giving statement before police she has seen accused Nos.1, 2, 4 and 5 in the T.V. There is no reason to discard this evidence. Further, while crossexamining P.W.25, the Special Public Prosecutor himself has put suggestion that on 01.04.2012 night at 2.00 A.M., the police had came to his house and enquired him about Raju. The police took him to CCB police station, they shown him accused Nos.1, 2 and 5 and told their names to him. All these suggestions are admitted by P.W.25. By pressing the date suggested by Special Public Prosecutor, the defense vociferously contended that this itself shows that the accused were actually arrested on 01.04.2012. As a reply to this learned Special Public Prosecutor submits that he has suggested the date as 04.04.2012, it is due to typographical error on the part of the typist the date is wrongly typed as 01.04.2012. He gone to the extent of submitting to correct this date in the evidence of P.W.25 as 04.04.2012. This is surprise submission made by learned Special Public Prosecutor. The typing is done in the open court at the dictation of P.O. The P.O. dictates what the counsel puts to witness and what the witness deposes. There cannot be any manipulations. The submission of the learned Special Public Prosecutor in this regard cannot be accepted.

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135. Further, the documents exhibited by defense as Ex.D10 to Ex.D16 show the date of arrest as 01.04.2012. And it further shows that some of the accused are apprehended in Tirupati. No doubt these documents cannot be relied upon as they are the news papers and the news items in the news paper cannot be admitted in evidence.

136. With regard to admissibility of Ex.D10 to Ex.D16, the learned Special Public Prosecutor has placed reliance on the decisions in Laxmi Raj Shetty and another Vs. State of Tamil Nadu, (1988) 3 SCC 319, State of Haryana and others Vs. Bhajan Lal and another, 1993 (Crl.L.J. 1042). In both these judgments it has been held that 'It is now well settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported'. In Laxmi Raj Shetty and another Vs. State of Tamil Nadu, the Hon'ble Apex Court has categorically held that ' A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proof of facts reported therein. In the present case the defense contends that accused were arrested on 01.04.2012 the same has been 92 S.C.No.1035/2012 published in the newspaper at Ex.D10 to Ex.D15. Keeping this principle in view Ex.D10 to Ex.D15 are not considered as proved. However, the news items have strengthened the doubt in the prosecutions' case, created in the evidence of P.W.3, P.W.4, P.W.13 and P.W.25, with regard to actual date of arrest. For the discussion on the recovery of incriminating articles, credibility of evidence of P.W.10 and the actual date of arrest, I hold that since there is a doubt the prosecution has failed to prove this circumstance of recovery beyond reasonable doubt.

xi. Telephonic conversation between the accused with regard to proper implementation of plan, between the deceased and P.W.13, between the accused No.3 and his mother, on 27.03.2012.

137. The specific theory of the prosecution is that the accused No.1 instructed the accused No.3 over phone to collect the gold ornaments from P.W.13, deceased instructed his wife P.W.13, over phone to hand over the gold ornaments and money to accused No.3, accused No.3 had informed his mother that they are going to Tirupathi.

138. The learned Public Prosecutor contends that during the course of the investigation the Investigating Officers have collected the CDRs of the phone numbers of accused, deceased and land line number of P.W.13 from the concerned service providers, to establish the communication and to trace out the movements of the SIM cards of the deceased and the accused. To prove this 93 S.C.No.1035/2012 circumstance the prosecution relied on the evidence of P.W.29 to P.W.37 and Ex.P95 to Ex.P136(a) and Ex.P158 to Ex.P168. The learned Public Prosecutor by referring to the oral evidence of P.W.29 to P.W.37, and exhibits submitted that the prosecution has proved this circumstance beyond reasonable doubt. The defense of the accused is again denial. Now I proceed to discuss the evidence with regard to this particular circumstance.

139. P.W.29H.S. Jagadeesh who took the investigation in this case initially states that on 28.03.2012 he has received call details of mobile No.9945841837 of Nitish Bera, from Nodal Officer of Airtel company. He further states that from the said call details he came to know that the time of last outgoing call of the said number was at 10.28 p.m., on 27.03.2012. Further, P.W.37 B. Balaraj states that the accused No.1 volunteered before him that he has purchased two Uninor SIM cards with No.8550068957 and No.8550850945 from one Shanmugam. He has recovered mobile from P.W.3 Lakshminarasamma with Airtel SIM card No.9945838076, mobile phone with Tata Docomo SIM card No.8904684166, Pankaja, mother of accused No.2 and mobile phone from accused.

140. According to the Investigating Officer, deceased mobile number is 9945841837 and land line of deceased is 08041696930, mobile number of P.W.2 is 9620384800, cell phone of P.W.9 is 9343386910, 8861439008 is of P.W.5, 9945295447 is of C.W.27, 94 S.C.No.1035/2012 9036573531 is of accused No.1, 9632685513 is of accused No.2, 9945838076 is of P.W.3, 8904684166 is of P.W.4, 855335969 is of accused No.4, 9886279295 is of accused No.5 and other Uninor SIM cards Nos.8550068957 and 8550850945 are used by the accused at the relevant point of time. During the course of the investigation the Investigating Officer has obtained CDRs. of all these numbers, customer application forms. P.W.30 Stanley, Nodal Officer, Bharti Airtel, Bengaluru Division states that he has issued Subscriber Enrollment forms pertains to mobile phone bearing Nos.9945841837, 9632685513, 9945838076, 9945295447, 8861439008 and also land line bearing No.08041696930 and CDRs., from 01.03.2012 to 28.03.2012 as per Ex.P95 to Ex.P100.

141. P.W.31 Mallikarjun Thimlapur, Nodal Officer, Reliance Communication Ltd., has issued Customer Application form as per Ex.P103 and CDRs., from 01.03.2012 to 28.03.2012 pertaining to mobile No. 9343386910 as per Ex.P106. This mobile number is registered in the name of one Noor Ali. P.W.32 Prashanth, Nodal Officer, Vodafone Mobile Services Limited, has issued Customer Application form and call details as per Ex.P110 and Ex.P111, pertaining to mobile Nos.9886279295 and 9620384800. He further states that mobile No.9620384800 is registered in the name of Pushpavathi, mobile No. 9886279295 is registered in the name of accused No.5 Shashikanth. He further 95 S.C.No.1035/2012 states that he has issued certificate as required under Section 65B of the Indian Evidence Act.

142. P.W.33 Ravi Narona, Nodal Officer, Tata Tele Services Ltd., has issued Customer Application form and CDRs., as per Ex.P114 and Ex.P115 pertaining to mobile Nos. 9036573531 and 8904684166, from 01.03.2012 to 28.03.2012. He has stated that mobile No.8904684166 is registered in the name of Narayana and he does not know the name of subscriber of mobile No.9036573531. He has further stated that the subscriber of mobile No.9036573531 has stopped using this number on 09.03.2012. P.W.34 Sheshu Chilkuri, Nodal Officer, Aircel Ltd., Bengaluru Division has issued Customer Application form and CDRs., pertaining to mobile No.8553359692 which is registered in the name of Ahalya. The defense has crossexamined P.W.29 to P.W.37 with regard to competency of witnesses to issue CDRs., and issuance of certificate under Section 65B of the Indian Evidence Act.

143. Further, the Investigating Officer has produced the Google Map as per Ex.P158 to Ex.P161. Ex.P158 to Ex.P168 contains the information about the tower location. Ex.P158 pertains to mobile number of deceased Nitish Bera, Ex.P159 pertains to mobile number of accused No.1, Ex.P160 pertains to mobile number of accused No.2, Ex.P161 pertains to mobile number of accused No.3, Ex.P162 pertains to mobile number of accused No.4. P.W.37 has further stated that he has prepared Ex.P158 to 96 S.C.No.1035/2012 162 at his station on the basis of the information contained under CDR provided from the concerned service providers. He has prepared these documents in his station computer. He has further stated that from Ex.P158 to Ex.P162 he found that on 27.03.2012 all these mobile numbers were used. These documents contains the information with regard to tower location of the mobile numbers from the place where deceased Nitish Bera was kidnapped, how many times these mobile were used for communication, place and tower location of outgoing calls of these mobile numbers. He further states that all these mobile numbers traveled together from place of kidnap to the place where the dead body was found. The CDRs produced at Ex.P95 to Ex.P100, Ex.P106, Ex.P111, Ex.P114, Ex.P119, Ex.P130 and Ex.P131 to depict the communication between the aforesaid mobile numbers. So far as the specific case of the prosecution is concerned, it is the call details and CDRs and Ex.P158 to Ex.P161 which needs to be looked into. The Investigating Officer has stated in his evidence that he has prepared Ex.P158 to Ex.P162 by identifying the tower location, date and time of the movement of all the mobile numbers, on the basis of the information contained in CDRs pertaining to these mobile numbers and taken print out of the same. Ex.P158 is pertaining to the mobile number of deceased i.e., Airtel mobile No.9945841837, Airtel mobile No.9632685513 of accused No.2 Girish, Tata Docomo Mobile No.8904684166 of accused No.3, Uninor SIM No.8550068957, Airtel mobile number of accused No.2 97 S.C.No.1035/2012 is 9632685513. Among these numbers, deceased mobile number and Uninor mobile number 8550068957, and accused No.2' mobile No.9632685513 have traveled together from the place where the deceased was kidnapped, and the place where the dead body was found.

144. It is necessary to discuss firstly about Uninor mobile No.8550068957. As per Ex.P133the Customer Application form pertaining to this mobile number, this mobile number is registered in the name of P.W.20 Kiran Rao. As discussed while discussing the circumstance of preparation, this Uninor SIM number along with another SIM No.8550850945 were purchased by forging the signature of P.W.20 Kiran Rao. The prosecution theory is that Uninor moible No. 8550068957 is used by accused No.1 at the relevant point of time. The reason for prosecution to contend that this mobile number is used by accused No.1 is that, IMEI number of the mobile device from which the SIM was operated is the same which is recovered from the accused No.1. The prosecution has already failed to prove the circumstance of purchase of these SIM cards by accused No.1 and the SIM cards does not stand in the name of accused No.1. Under such circumstances there is no strength in the contention of the prosecution that this SIM No.8550068957 is used by accused No.1. The only contention that is available to the prosecution is that this SIM card is inserted in the mobile hand set i.e., recovered on the disclosure made by the 98 S.C.No.1035/2012 accused No.1. The prosecution has failed to prove the recovery of M.O.4 on the disclosure made by accused No.1.

145. SIM card No.9632685513, stated to have been used by accused No.2, is registered in the name of P.W.3 Lakshmi Narasamma, mother of accused No.2. There is a possibility that this number is purchased by mother of accused No.2 and used by accused No.2. Ex.P159 - the route map prepared and produced by the Investigating Officer clearly shows the movement of this SIM card from K.R. Pet to Dabaspet. It is necessary to mention here that Ex.P159 is prepared on the basis of CDRs issued by P.W.30. It is further necessary to mention here that P.W.30 who has issued these CDRs has stated in his evidence that he has not issued the Certificate as required under Section 65B of the Indian Evidence Act. At this juncture, with regard to necessity of Certificate under Section 65B of the Indian Evidence Act, it is necessary to refer the judgment of the Hon'ble Apex Court in the case Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal reported in (2020) 4 SCC online SC 571, wherein the Hon'ble Apex Court has held that 'secondary evidence must mandatorily be coupled with 65B Certificate. Here in the present case P.W.30 has not produced the certificate. Though, admittedly the CDRs produced by him are the secondary document, as they are generated and printed out from the electronic device maintained in the office of P.W.30. Here in the present case, it is P.W.30 who has issued the CDR document 99 S.C.No.1035/2012 taken from the electronic device. The said document is a secondary evidence the same needs to be coupled with 65B certificate. In the absence of such certificate the secondary evidence is not admissible in the light of aforementioned judgment.

146. Further, as per the prosecution theory the accused Nos.1 to 4 have traveled together with deceased. P.W.37 has produced Ex.P161 to show the movement of SIM card No.855335969 of accused No.4. When the prosecution contends that accused No.4 was also with other accused, at the relevant point of time, his SIM should have also traveled at the same route. Ex.P161 does not show such direction. The prosecution has come up with a theory that accused No.4 had thrown the SIM card, thereafter he did not trace it. If it is so Ex.P162 should contain the direction from the place of alleged kidnap to the place where the SIM card was thrown. In the absence of this SIM the prosecution theory in this regard cannot be believed. More so, Ex.P158 to Ex.P161 cannot be relied upon as the same are prepared on the basis of inadmissible document. With this, I hold that this circumstance is also not available to the complainant.

147. The learned Special Public Prosecutor has relied on the judgment of Hon'ble Apex Court in the case of State (N.C.T) of Delhi) Vs. Navjot Sandhu, reported in 2005 (Crime) 1715. I have gone through this judgment. With great respect to the observation made by the Hon'ble Apex Court in the said judgment, 100 S.C.No.1035/2012 I hold that the observation made in the said judgment are not applicable to the present case, for reason that in the said judgment, the Hon'ble Apex Court has evaluated the call details, mobile number, and the IMEI of the instrument used to operate the mobile number. The Hon'ble Apex Court has considered the telephonic conversation taken place between the accused minutes before the attack. The Hon'ble Apex court has given a specific finding that phone number was operated with the instrument having specific IMEI number, that was recovered from the accused. The same finding has been given by the Apex court in respect of other mobile number used by the accused before the attack. In the present case though CDRs show the date and timings of the calls between the mobile number, and the IMEI numbers is also mentioned, none of the SIM card particularly Uninor SIM cards are not registered in the names of accused. Though the prosecution has successfully shown that there was frequent call exchange between the phone number, more particularly Uninor mobile No.8550068957 stated to have been used by accused No.1, Airtel mobile No.9632685513 stated to have been used by accused No.2 and another Uninor SIM No.8550850945 stated to have been used by accused No.3, the device which were used to operate the mobile numbers are not recovered from the accused. Even if one of the device which is used to operate the Uninor SIM No.8550068957 stated to have been recovered from accused No.1, the same is not proved by the prosecution. With this, I hold that since there arise a doubt in a 101 S.C.No.1035/2012 prosecution case, so far as this circumstance is concerned, the observation made by the Hon'ble Apex Court in the aforementioned judgment is not applicable to the prosecution case.

148. The prosecution has attached much significance to the recovery of incriminating material at the instance of the accused. From the foregoing discussion on the recovery it is already concluded that there is a doubt in the prosecution case in this regard. It is settled position of law that the recovery by itself would not be sufficient to bring home the charges. At this juncture, it is necessary to refer the judgment passed by the Hon'ble High Court of Karnataka in the case of Smt. Kanchan Vs. Ramachandraiah and others, ILR 2016 KAR 3401, where under the Hon'ble High Court has held that 'though circumstantial evidence coupled with the recovery of incriminating material from the possession of the accused would certainly bring home the charges, it would necessary first of all, to establish the circumstantial evidence. Recovery by itself would not be sufficient to bring home the charges. This is the settled legal position'.

149. In the present case the evidence placed by the prosecution are inconsistent, there are several discrepancies and contradictions in the prosecution's case. These inconsistencies, discrepancies and contradictions are not intrinsic, they are material they go to the root of the prosecution's case. Let me now discuss these aspects now.

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150. The prosecution places at most reliance on the Test Identification Parade. It is necessary to mention here that Test Identification Parade is primarily meant for the purpose of helping the investigation agency with an assurance that their progress with the investigation proceedings on the right line. Identification parade is a tool of investigation and used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that the persons named accused in the case are actually the culprits. Further, the identification should be held as early as possible after the arrest of the accused. Whenever there is a delay in holding a test identification, the prosecution should explain it, and the absence of a reasonable explanation will detract from the value of the test.

151. In the present case according to the prosecution the accused were arrested on 03.04.2012, the order for conducting Test Identification parade was obtained on 20.04.2012. The Test Identification Parade was conducted on 07.07.2012. There is inordinate delay in conducting the Test Identification Parade. Further, before conducting the Test Identification Parade the recovery was effected at the instance of the accused in the open space without covering his face. Further more, P.W.5 one of the witness to Test Identification parade has stated that when he saw accused No.3 he had worn helmet, this being the case identifying accused No.3 during Test Identification Parade, by P.W.5 cannot be 103 S.C.No.1035/2012 accepted. For all these reasons, I hold that conducting Test Identification Parade in the present case assume no significance.

152. Further, it is specific case of the prosecution that accused have stabbed the deceased at his neck with M.O.7knife, assaulted him on his head with M.O.13 karate non chak and strangulated him with the help of M.O.13. P.W.14Dr.Rudramurthy has stated in his crossexamination that, the injuries found on the neck are not caused by M.O.7, there is no mark on the neck which shows the use of M.O.13karate non chak, there is no possibility that the injuries found on the neck could be occurred from M.O.7. Further, though M.O.7 and M.O.13 were sent to FSL for examination and M.O.7 was subjected to chemical examination, the blood group on M.O.7 was not traced, as it is stated by P.W.17Dr. Malathi. Hence, it cannot be inferred from the evidence of P.W.14 that M.O.7 and M.O.13 are used for committing the crime. Hence the recovery of these articles are insignificant and cannot be considered at all. Further more, P.W.14 has answered that the death of deceased might have occurred prior to 72 hours since postmortem. Postmortem was conducted on 29.03.2012, from 11.30 AM., to 12.30, P.W.14 has not stated the time since death even in postmortem report and in his evidence, for the reason that the body was kept in cold storage. Though he has not stated the time since death, he admits that approximate time since death is 72 hours. However, the specific case of the prosecution is that the deceased 104 S.C.No.1035/2012 was murdered in the intervening night of 27.03.2012 and 28.03.2012. If the evidence of P.W.14 with regard to time since death is considered, the death of deceased must have occurred in the night of 24.03.2012. There is no nexus between the prosecution theory and medical and forensic evidence. With this I hold that all these inconsistencies, discrepancies are material. They are not trivial to ignore. They go to the root of the prosecution case and raise serious doubt in the case of the prosecution with regard to involvement of the accused in the alleged crime.

153. For the foregoing reasons it can be held that, the prosecution has failed to establish the circumstance conclusively. The facts and evidence put forth by the prosecution are not consistent with the hypothesis of guilt of the accused. The circumstance are not of a conclusive nature and tendency. The circumstance do not form a complete chain to hold that within all human possibility the crime has been committed by accused and none else. Consequently it cannot be said that the prosecution has proved the case against the accused beyond all reasonable doubt.

154. The learned Special Public Prosecutor has placed reliance on umpteen number of decisions to contend that the prosecution has proved the case against the accused beyond reasonable doubt. Some of the decisions are already referred in the judgment. The decisions which are not referred need to be discussed.

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155. The decision in Radha Mohan Singh @ Lal Saheb & others Vs. State of U.P., (2006) 2 SCC 450 and in State of Rajasthan Vs. Ramesh, (2015) 17 SCC 673 are relied to contend that the death of Nitish Bera is homicidal. Though the defense has disputed the nature of the death, considering the external injuries found on the dead body and the place and the position how the dead body was lying, it has been held that unless there is a human intervention such position could not occur. More over, the defense had not disputed the death as homicidal seriously hence these decisions are not discussed. Further, in Radha Mohan's case, the Hon'ble Apex Court has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependent on a careful scrutiny thereof. In the present case some of the witnesses are treated as hostile and are crossexamined. The evidence of these witnesses are scrupulously considered while discussing the different circumstances.

156. With regard to establishing motive, last seen theory, a joint disclosure or simultaneous disclosure, discovery of fact and recovery, the learned Special Public Prosecutor has placed reliance on the decisions of Hon'ble Apex Court in the case of Kishore 106 S.C.No.1035/2012 Bhadke Vs. State of Maharashtra, (2017) 3 SCC 760, Pandurang Kalu Patil and another Vs. State of Maharashtra, 2002 Crl.L.J. 1007, Charandas Swami Vs. State of Gujarat & others, (2017) 7 SCC 177. The decision in Kishore Bhadke case is the appeal preferred by the accused against the order of the conviction. The Apex Court has mainly discussed the motive and the recovery in this case. The motive in Kishore Bhadke was the land dispute. Based on the evidence of two witnesses i.e., PW.1 and PW.15 the trial court recorded the conviction. The defense of the accused was that no documentary evidence to buttress the factum of land dispute between deceased and accused No.1 have been brought on record. The trial court and the High Court had found that the absence of documentary evidence and absence of suit between the parties, regarding such transaction was not fatal. The oral evidence on record was enough. This view has been upheld by the Hon'ble Apex court. This is not the situation in the present case. The motive alleged in the present case is that the accused were addicted to bad vices, to fulfill their illegal needs they kidnapped deceased for ransom, thereafter murdered him. So far as the alleged motive is concerned absolutely there is no iota of evidence. Even the motive could not be gathered from the surrounding circumstance. The motive alleged in this case is very feeble. Hence, the observation of Hon'ble Apex Court cannot be made applicable to the case in hand.

107

S.C.No.1035/2012

157. In the same judgment the Hon'ble Apex Court has at para 33 to 36 discussed about the joint and simultaneous disclosure and recovery thereof. The learned Special Public Prosecutor has highlighted this to contend that Ex.P31 the spot mahazar drawn at the place pointed out by the accused, is proved, the same is discovery of place where the dead body was thrown. In Kishore Bhadke case, the dead body of deceased was discovered on the basis of the voluntary statement of both accused Nos.2 and 3. The disclosure was made by them separately in quick succession, and it was a joint disclosure and joint discovery. This was the defense of the accused. In the present case also the place where the dead body was thrown was pointed by the accused Nos.1, 2 and 4 and at their instance Ex.P31 was prepared. The stand of the learned Special Public Prosecutor has been rejected not on the ground that it was a joint disclosure or joint discovery, but on the ground that the said place was already discovered by P.W.24. P.W.24 had already prepared Ex.P2 (Ex.P84) the spot mahazar on 29.03.2012, and Ex.P31 was prepared on 04.04.2012 by P.W.37, before that the case file was transferred from Dabaspet police to CCB police, and there is evidence to the effect that P.W.37 had knowledge of the said place and he had gone through the entire case file. It is the fact which was already discovered. The circumstance in the present case is entirely different from Kishore Bhadke case. The decision in Pandurang Kalu Patil is also not applicable to the present case. Because in this case, the Hon'ble Apex Court has observed that it is 108 S.C.No.1035/2012 the place where the knife was hidden was admissible as the same was within exclusive knowledge of the accused. In the present case the process of recovery is not accepted because the recovery was effected from an open space and the articles were not hidden but kept in the manner which might be normally kept in any average house hold.

158. The learned Special Public Prosecutor has also placed reliance on a decision in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1. In this case the presence of accused at the scene of crime was proved through some of the prosecution witnesses in this case, the same was corroborated by the documentary evidence. There was evidence regarding actual incident and use of weapon in that case. Such circumstances are not there in the present case. Hence, the decision is not applicable to the case in hand.

159. The prosecution has placed reliance on the decision in Nana Keshav Legad Vs. State of Maharashtra, (2013) 12 SCC 721, to demolish the argument of the defense that PW.10 is a stock witness. In this case pancha witness who supported the recovery of incriminating material in a series of panchanama was shown to have deposed as pancha witness in some other case. The Hon'ble Apex Court has upheld the findings of the trial court that merely because the said witness has tendered evidence in another case, it cannot be held that on that score alone his evidence should be 109 S.C.No.1035/2012 rejected. The same view is taken by the Hon'ble Apex Court in Yakub Abdul Razak Memon's case, which is already referred.

However, in this case the Hon'ble Apex Court has held that unless it is shown that he had acted in such capacity in large number of case, he cannot be branded as stock witness. In the present case P.W.10 has acted panch witness in many cases including one sessions case. In the present case his evidence is doubted not because he has tendered evidence in other case, because his evidence in crossexamination, and looking into the videograph contained in Ex.P163.

160. The learned Special Public Prosecutor has also relied on decisions in Sucha Singh Vs. State of Haryana, (2013) 14 SCC 552, Pawan Kumar @ Monu Mittal Vs. State of Uttar Pradesh, (2015) 7 SCC 148, State of Himachal Pradesh Vs. Raj Kumar, (2018) 2 SCC 69. All these three cases were filed against the order of conviction. In all these three cases the circumstances were proved. The High Courts and the Hon'ble Apex Court have upheld the order of conviction. The facts and evidence of these cases are entirely different from the case in hand. The observation made therein are not applicable to the case in hand.

161. The decisions in O. Ayyar Thavar and another Vs. State, 2013 AIR SCW 3688, Yogesh Singh vs Mahabeer Singh and others, (2017) 11 SCC 195, are also referred by learne 110 S.C.No.1035/2012 Special Public Prosecutor. In these two cases the principle laid down is that the guilt of the accused must be proved beyond all reasonable doubt. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. This is a settled law. This principle has been laid down in the case of State of U.P. Vs. Krishna Gopal, (1988) 4 SCC 302.

However, in the case in hand, the doubts, inconsistencies, particularly the preparation with regard to purchase of car which still stands in the name of P.W.26, purchase of SIM cards, none is registered in the name of accused, recovery, actual date of arrest are all not merely doubts. They are reasonable doubts, which the prosecution has failed to explain. Another contradictory evidence that remained unanswered by the prosecution is that M.O.16 the key bunch is claimed by both P.W.13 and P.W.15. P.W.13 states that the key bunch is of her husband's shop. P.W.15 states that he had kept it in his bag along with other articles which was stolen. Again this raises serious doubt in the prosecution's case with regard to receiving of M.O.16 key bunch and stealing of bag of P.W.15, by the accused. So, with this discussion it has to be concluded that point Nos.2 to 7 are answered in the 'Negative'.

162. Point No.8: In view of the negative findings given on point Nos.2 to 7, I hold that all these doubts enure to the benefit of the accused persons. They are entitled for acquittal. In the result, I proceed to pass the following. 111 S.C.No.1035/2012 ORDER Acting under Section 235(1) of Cr.P.C., accused No.1 to 5 are acquitted for the offence punishable under Sections 120(B), 364(A), 384, 302, 201, 404 r/w Section 34 IPC.

The bail bonds of the accused Nos.1, 2, 4 and 5 and that of their surety, executed as per the order of this court, in compliance of Section 437A Cr.P.C., shall remain in force for a period of six months as mandated under Section 437A of Cr.P.C.

Accused No.3 is set at liberty forthwith, if he is not required in any other case.

Accused No.3 shall execute a personal bonds in a sum of Rs.1,00,000/ with one surety for the likesum, undertaking to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against this judgment. Such bail 112 S.C.No.1035/2012 bonds and surety bonds shall be in force for a period of six months as mandated under Section 437A of Cr.P.C.

Note: Office is hereby directed to preserve entire case file along with M.O.1 to M.O.47 in connection with absconding accused.

(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 22nd day of October, 2021).

(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.



                            ANNEXURE

LIST OF WITNESSES              EXAMINED         ON    BEHALF       OF
PROSECUTION:

PW1                     Dayanidhi
PW2                     Manjunatha Rao
PW3                     Lakshmi Narasamma
PW4                     Pankaja
PW5                     Suresh
PW6                     Santhosh
PW7                     Shakthi
PW8                     Naveen Kumar
PW9                     Mithun Malik
                   113
                                 S.C.No.1035/2012




PW10   Janardhana Shetty
PW11   Paul Raj
PW12   Babu
PW13   Uma Bera
PW14   Dr. Rudramurthy
PW15   Murtaza T. Taambawala
PW16   Subbarama Reddy
PW17   Malathi
PW18   Dr. Sathyanarayana B.S.
PW19   N.S. Thippeswamy
PW20   Kiran Rao
PW21   Sanjeeva
PW22   Anil Kumar
PW23   Farooq Pasha M.G.
PW24   Dr. S. Prakash
PW25   Chethan
PW26   Wasik Fayaz Ahamed
PW27   Chandrappa
PW28   N.R. Sakri
PW29   H.S. Jagadeesha
PW30   Stanely
PW31   Mallikarjuna Thimmapur
PW32   Prashanth
PW33   Ravi Narona
PW34   Sheshu Chilkuri
PW35   Sumar. R
PW36   V. Jagan Mohan Rao
                                 114
                                                     S.C.No.1035/2012




PW37                   B. Balaraj
PW38                   Suresh Babu. S.S



LIST OF DOCUMENTS               MARKED       ON    BEHALF        OF
PROSECUTION:

Ex.P1              Complaint dated 28.03.2012
Ex.P1(a)           Signature of PW.1
Ex.P1(b)           Signature of PW.23
Ex.P2              Spot mahazar dated 28.03.2012

Ex.P2(a)           Signature of PW.1
Exs.P3 to 5        Three receipts

Ex.P3(a) to 5(a) Receipts containing the signature of PW1 Ex.P6 Inquest mahaza dated 29.03.2012 Ex.P6(a) Signature of PW.2 Ex.P6(b) Signature of PW.24 Ex.P7 Particulars given by AIRTEL company for purchasing of SIM card Nos.9632685513 and 9945838076 pertaining to PW.3 Ex.P7(a) Signature of PW.30 Exs.P8 & 9 Two separate application Forms for purchasing of SIM cards by PW.3 Ex.P8(a) Signature of PW.3 Ex.P9(a) Signature of PW.3 Ex.P10 Mahazar regarding seizure of mobile & SIM card No.9945838076 of PW.3 Ex.P10(a) Signature of PW.3 Ex.P10(b) Signature of PW.10 115 S.C.No.1035/2012 Ex.P10(c) Signature of PW.37 Ex.P11 Portion of statement given before I.O. dated 08.04.2012 Ex.P11(a) Portion of statement given before I.O. dated 08.04.2012 Ex.P11(b) Portion of statement given before I.O. dated 08.04.2012 Ex.P12 Document shown with photo of PW.4 Pankaja Ex.P12(a) Signature of PW.4 Ex.P13 Seizure mahazar dated 08.04.2012 Ex.P13(a) Signature of PW.4 Ex.P13(b) Signature of PW.10 Ex.P13(c) Signature of PW.37 Ex.P14 Portion of statement given before I.O. dated 08.04.2012 Ex.P14(a) Portion of statement given before I.O. dated 08.04.2012 Ex.P14(b) Portion of statement given before I.O. dated 08.04.2012 Ex.P14(c) Portion of statement given before I.O. dated 08.04.2012 Ex.P14(d) Portion of statement given before I.O. dated 08.04.2012 Ex.P15 Statement of PW.6 given before I.O Ex.P16 Scan copy of application of accused No.4 Michel John Ex.P16(a) Signature of PW.7 Ex.P17 Xerox copy of PAN card of accused No.4 Ex.P17(a) Signature of PW.7 116 S.C.No.1035/2012 Ex.P18 Receipt Ex.P18(a) Signature of PW.7 Ex.P19 Seizure mahazar dated 07.04.2012 Ex.P19(a) Signature of PW.7 Ex.P19(b) Signature of PW.7 Ex.P19(c) Signature of PW.7 Ex.P20 Photo copy of seizure mahazar dated 07.04.2012 Ex.P21 Xerox copy of Ration card Ex.P22 Xerox copy of Voter ID Ex.P22(a) Signature of PW.7 Ex.P23 Seizure mahazar dated 04.04.2012 Ex.P23(a) Signature of PW.8 Ex.P23(b) Signature of PW.37 Exs.P24 to 26 Photos regarding seizure mahazar Ex.P27 Mahazar dated 04.04.2012 Ex.P27(a) Signature of PW.8 Ex.P27(b) Signature of PW.37 Exs.P28 to 30 Photographs of spot mahazar Ex.P31 Mahazar dated 04.04.2012 Ex.P31(a) Signature of PW.8 Ex.P31(b) Signature of PW.37 Exs.P32 to 36 Photographs of mahazar Ex.P37 Seizure mahazar dated 04.04.2012 Ex.P37(a) Signature of PW.8 Ex.P37(b) Signature of PW.37 Exs.P38 to 40 Photographs of mahazar dated 04.04.2012 Ex.P41 Mahazar drawn in the house of accused No.4 regarding seizure of mobile, ring, shirt 117 S.C.No.1035/2012 Ex.P41(a) Signature of PW.8 Ex.P41(b) Signature of PW.37 Exs.P42 to 44 Photographs of seizure mahazar dated 06.04.2012 Ex.P45 Mahazar dated 06.04.2012 Ex.P45(a) Signature of PW.8 Ex.P45(b) Signature of PW.37 Ex.P46 Seizure Mahazar dated 06.04.2012 Ex.P46(a) Signature of PW.8 Ex.P46(b) Signature of PW.37 Ex.P47 Seizure Mahazar dated 05.04.2012 Ex.P47(a) Signature of PW.10 Ex.P47(b) Signature of PW.37 Exs.P48 & 49 Photographs of seizure mahazar dated 05.04.2012 Ex.P50 Seizure Mahazar dated 05.04.2012 Ex.P50(a) Signature of PW.10 Ex.P50(b) Signature of PW.37 Ex.P51 Photographs of seizure mahazar dated 05.04.2012 Ex.P52 Seizure Mahazar dated 05.04.2012 Ex.P52(a) Signature of PW.10 Exs.P53 & 54 Photographs of seizure mahazar dated 05.04.2012 Ex.P55 Seizure Mahazar dated 05.04.2012 Ex.P55(a) Signature of PW.10 Ex.P55(b) Signature of PW.37 Exs.P56 & 57 Photographs of seizure mahazar dated 05.04.2012 Ex.P58 Seizure Mahazar dated 05.04.2012 Ex.P58(a) Signature of PW.11 Ex.P58(b) Signature of PW.12 118 S.C.No.1035/2012 Ex.P58(c) Signature of PW.37 Exs.P59 & 60 Photographs of seizure mahazar dated 03.04.2012 Ex.P61 Complaint lodged by PW.13 before Ashok Nagar police station dated 28.03.2012 Ex.P61(a) Signature of PW.13 Ex.P61(b) Signature of PW.27 Ex.P62 Spot Mahazar dated 28.03.2012 Ex.P62(a) Signature of PW.13 Ex.P63 Postmortem report dated 29.03.2012 Ex.P63(a) Signature of PW.14 Ex.P63(b) Signature of PW.24 Ex.P64 Opinion letter given by PW.14 Ex.P64(a) Signature of PW.14 Ex.P64(b) Signature of PW.37 Ex.P65 Complaint given by PW.15 dated 17.02.2012 Ex.P66 Acknowledgment of Police complaint dated 17.02.2012 Ex.P67 Letter of ING Bank issued by PW.16 Ex.P67(a) Signature of PW.16 Ex.P68 Forensic Lab report given by PW.17 Ex.P68(a) Signature of PW.17 Ex.P68(b) Signature of PW.37 Ex.P69 Requisition letter Ex.P70 Wound certificate given by PW.18 Ex.P70(a) Signature of PW.18 Ex.P70(b) Signature of PW.37 Ex.P71 Requisition Letter 119 S.C.No.1035/2012 Ex.P72 Sketch Ex.P72(a) Signature of PW.19 Ex.P73 Office covering letter Ex.P73(a) Signature of PW.37 Ex.P73(b) Signature of PW.24 Ex.P74 P.F. No.54/2012 Ex.P74(a) Signature of PW.22 Ex.P74(b) Signature of PW.37 Ex.P75 R.C. book of Honda City car Ex.P76 Car Delivery note Ex.P77 Car document Ex.P77(a) Signature of PW.26 Ex.P78 Transfer of Insurance form Ex.P78(a) Signature of PW.26 Ex.P79 Issuance of Clearance certificate Ex.P79(a) Signature of PW.26 Ex.P80 Form No.29 Ex.P81 Form No.30 Ex.P81(a) & (b) Signature of PW.26 Ex.P82 Portion of statement through PW.22 Ex.P82(a) to (f) Signature of PW.22 Ex.P83 FIR, Dabaspet police station Ex.P83(a) Signature of PW.23 Ex.P84 Spot mahazar dated 28.03.2012 Ex.P84(a) Signature of PW.24 Ex.P85 Request letter given by PW.24 to preserve dead body in mortuary 120 S.C.No.1035/2012 Ex.P86 Inquest report Ex.P86(a) Signature of PW.24 Ex.P87 PF report (P.F.No.21/2012) Ex.P87(a) Signature of PW.24 Exs.P88 & 89 Photographs of spot of the dead body Ex.P90 P.F.No.25/2012 in Crime No.64/2012 of Dobaspet police station Ex.P90(a) Signature of PW.24 Ex.P91 Requisition letter Ex.P91(a) Signature of PW.24 Ex.P92 Application u/S.451 & 457 Ex.P93 Portion of statement of PW.25 Ex.P93(a) & (b) Signature of PW.25 Ex.P94 Xerox copy of FIR dated 28.03.2012 Ex.P94(a) Signature of PW.27 Ex.P95 CDR pertaining to mobile No.9945841837 Ex.P96 CDR pertaining to mobile No.9632685513 Ex.P97 CDR pertaining to mobile No.9945838076 Ex.P98 CDR pertaining to mobile No.9945295447 Ex.P99 CDR pertaining to mobile No.8861439008 Ex.P100 CDR pertaining to Landline No.08041696930 Ex.P101 Certificate pertaining to CDRs. Issued by PW.30 Ex.P102 Covering letter Ex.P102(a) Signature of PW.31 Ex.P103 to 105 Customers' Activation form Ex.P106 CDR dated 01.03.2012 121 S.C.No.1035/2012 Ex.P106(1) to Signature of PW.31 (49) Ex.P107 Covering letter Ex.P107(a) Signature of PW.31 Ex.P108 Letter of confirmation Ex.P108(a) Signature of PW.31 Ex.P109 Customer's activation form Ex.P109(a) Signature of PW.32 Ex.P110 CDR pertaining to mobile No.9886279295 Ex.P110(a) & (b) Signature of PW.32 Ex.P111 CDR pertaining to mobile No.9620384800 Ex.P111(a) & (b) Signature of PW.32 Ex.P112 65B Certificate Ex.P112(a) Signature of PW.32 Ex.P113 CDR pertaining to Cell phone No.9036573531 Ex.P113(a) Signature of PW.33 Ex.P114 CDR pertaining to mobile No.8904648166 Ex.P114(a) Signature of PW.33 Ex.P115 CDR for the period from 01.03.2012 to 08.03.2012 Ex.P116 Confirmation letter given by PW.33 Ex.P116(a) Signature of PW.33 Exs.P117 Information about cell phone No.8553359692 Ex.P117(a) Signature of PW.34 Exs.P118 Original copy of activation form pertaining to Cell phone No.8553359692 Ex.P118(a) Signature of PW.34 Ex.P119 Certified copy of CDR pertaining to mobile No.8553359692 122 S.C.No.1035/2012 Ex.P119(a) Signature of PW.34 Ex.P120 Ex.P119 CDR pertaining to Tower location Ex.P120(a) Signature of PW.34 Ex.P121 65B Certificate Ex.P121(a) Signature of PW.34 Ex.P122 Intimation letter to Tata Teleservices Ex.P123 & 124 Intimation letter Ex.P125 Information about Identification parade Ex.P125(a) Signature of PW.35 Ex.P126 Algorthym list of identification parade Ex.P126(a) Signature of PW.35 Exs.P127 to 129 Proceedings of Test Identification parade Ex.P127(a) Signature of PW.35 Ex.P127(b) Signature of PW.13 Ex.P128(a) Signature of PW.35 Ex.P128(b) Signature of PW.5 Ex.P129(a) Signature of PW.35 Ex.P129(b) Signature of PW.9 Ex.P130 CDR pertaining to mobile No.8550068957 Ex.P131 CDR pertaining to mobile No.8550068945 Ex.P132 Covering Letter Ex.P133 & 134 Customer Application Forms Ex.P135 & 136 65B Certificate Ex.P136(a) Signature of PW.36 Ex.P137 PF No.37/2012 123 S.C.No.1035/2012 Ex.P138 Voluntary statement of accused No.1 Ex.P138(a) & (b) Signature of PW.37 Ex.P139 Voluntary statement of accused No.2 Ex.P139(a) & (b) Signature of PW.37 Ex.P140 Voluntary statement of accused No.3 Ex.P140(a) & (b) Signature of PW.37 Ex.P141 Voluntary statement of accused No.4 Ex.P141(a) & (b) Signature of PW.37 Ex.P142 Seizure mahazar PF No.41/2012 Ex.P142(a) Signature of PW.37 Ex.P143 Seized articles Ex.P143(a) Signature of PW.37 Ex.P144 PF No.45/2012 Ex.P144(a) Signature of PW.37 Ex.P145 PF No.46/2012 Ex.P145(a) Signature of PW.37 Ex.P146 PF No.47/2012 Ex.P146(a) Signature of PW.37 Ex.P147 PF No.48/2012 Ex.P147(a) Signature of PW.37 Ex.P148 PF No.41/2012 Ex.P148(a) Signature of PW.37 Ex.P149 PF No.50/2012 Ex.P149(a) Signature of PW.37 Ex.P150 PF No.53/2012 Ex.P150(a) Signature of PW.37 Ex.P151 PF No.52/2012 124 S.C.No.1035/2012 Ex.P151(a) Signature of PW.37 Ex.P152 PF No.55/2012 Ex.P152(a) Signature of PW.37 Ex.P153 Customer Application Form pertaining to mobile No.9945841837 Ex.P154 Customer Application Form pertaining to mobile No.9945295447 Ex.P155 Covering letter Ex.P155(a) Signature of PW.37 Ex.P156 Form B relating to Honda Activa Scooter Ex.P156(a) Signature of PW.37 Ex.P157 Form B relating to Honda City car Ex.P157(a) Signature of PW.37 Ex.P158 Google map - tower location pertaining to mobile No.9945141837 Ex.P159 Google map tower location pertaining to mobile No.8550068957 Ex.P160 Google map - tower location pertaining to mobile No.9632685513 Ex.P161 Google map tower location pertaining to mobile No.8550850945 Ex.P162 Google map tower location pertaining to mobile No.8553359692 Ex.P163 Soft copy Ex.P164 65B Certificate pertaining to Google map of tower location Ex.P164(a) Signature of PW.38 Ex.P164(b) Signature of PW.37 Ex.P165 Google Map 125 S.C.No.1035/2012 Ex.P165(a) Signature of P.W.37 Ex.P166 CDR's showing the communication between accused No.2 Girish to accused No.4 Michael John CDR extract of Uninor Ex.P166(a) Signature of P.W.37 Ex.P167 CDR extract communication between accused No.2 Girish to accused No.3 Yogesh Ex.P167(a) Signature of P.W.37 Ex.P168 Communication between accused No.4 to accused No.1 & 2 and CDR extracts of Uninor Ex.P168(a) Signature of P.W.37 Ex.P169 CDR extract of communication between accused No.3 Yogesh and accused No.1 & 2 Ex.P169(a) Signature of P.W.37 LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENSE: DW1 Sudharshan Channagihalli DW2 Jagadeesh Angadi DW3 Munnegowda DW4 M.V. Chaithanya LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENSE: Ex.D1 Portion of 161 statement of PW.7 Ex.D2 Inquest report relevant portion Ex.D3 Relevant portion of further 161 statement of PW13 126 S.C.No.1035/2012 Ex.D5 Vakalath nama filed by PW13 before High Court of Karnataka in Crl.Pet.No.5631/2013 through Special Public Prosecutor Ex.D6 Order in Crl.Pet.No.5631/2013 filed by PW13 before High Court of Karnataka for cancellation of bail marked by PW13 Ex.D7 Relevant portion of 161 statement of PW25 & PW22 Ex.D8 Order sheet in CC No.37752/2010 Ex.D9 Deposition in SC No.744/2001 Ex.D10 Vijaya Karnataka Daily Newspaper dated 02.04.2012 Ex.D10(a) Relevant portion of Ex.D10 marked by DW1 Ex.D11 Vijaya Karnataka Daily Newspaper dated 04.04.2012 Ex.D11(a) Relevant portion of Ex.D11 Ex.D12 Prajavani Kannada Daily Newspaper dated 03.04.2012 Ex.D12(a) First sheet relevant portion Ex.D12(b) Relevant portion in page 3(b) Ex.D13 Prajavani Kannada Daily Newspaper dated 04.04.2012 Ex.D13(a) Relevant portion in page 2 Ex.D14 Deccan Herald English Daily Newspaper dated 04.04.2012 Ex.D14(a) Relevant portion in page 3 Ex.D15 Press note marked by DW2 Ex.D16 RTI application filed before Commissioner of Police dated 23.09.2019 by DW4 127 S.C.No.1035/2012 Ex.D17 Endorsement given by Commissioner of Police Ex.D18 Endorsement issued by CCB Ex.D19 Certified copy of the Press Note issued by the Commissioner of Police office to DW4.

Note: Ex.D2 to Ex.D6 are got marked by defense through PW13 in her crossexamination.

Through over sight Sl.No. Ex.D4 is skipped. There is no document numbered as Ex.D4.


LIST OF MATERIAL OBJECTS MARKED:

MO.1        Blood stained soil
MO.2        Sample soil
MO.3        Chilly powder
MO.4        Motorola Mobile Phone with SIM card
MO.5        One pant
MO.6        Gold ring 8.9 grams
MO.7        Knife
MO.8        White/ blue Shirt
MO.9        Gold Ring
MO.10       Samsung Duos Mobile phone
MO.11       Black colour Tshirt
MO.12       Mobile phone
MO.12A      White cloth cover (packed mobile phone)
MO.13       Karate non chak
MO.13A      White cloth cover (packed karate nan chak)
MO.14       Bag
MO.15       Mobile phone
MO.15A      White cloth cover
                                 128
                                                     S.C.No.1035/2012




MO.16         Key bunch

MO.17         3 Note books
MO.18         Invitation card, Cheque book, Practical
              Guide
MO.19         Big purse containing 11 keys
MO.20         Blue purse containing 6 keys
MO.21         Key bunch containing 11 Keys
MO.22         Key bunch containing 6 Keys
MO.23         Blue Pant
MO.23A        White cloth cover (packed blue pant)
MO.24         Mobile phone
MO.24A        White cloth cover
MO.25         LG Mobile phone
MO.25A        White cloth cover
MO.26         Gold necklace
MO.27         Gold coin 10 grams
MO.28         Gold chain Halo design
MO.29         Gold Finger ring (big size)
MO.30         Gold Finger ring (small size)
MO.31         Gold Finger ring (small size)
MO.32         Karimani child bracelet
MO.33         Plastic gold coated bangles
MO.34         Plastic gold coated bangles
MO.35 to 39   5 pair of gold earrings
MO.40         Rs.2,000/ cash
MO.41         Black pant
MO.42         2 Amnlets
MO.43         Red thread
MO.44         Wrist thread
                         129
                                             S.C.No.1035/2012




MO.45   Kotak Bank Cheque book
MO.46   ING Vysya Bank Cheque book
MO.47   Chilly powder dipped in the cotton




                        (SUBHASH SANKAD)
                  LXV Addl. City Civil & Sessions Judge,
                               Bengaluru.

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