Karnataka High Court
M.Rajesh S/O Baburao And Anr vs The State Of Karnataka Through ... on 7 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07th DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.3702/2012
BETWEEN:
1. M.Rajesh S/o Baburao,
Age 25 years, Occ:. Receptionist in
Goldej Hospital, Hyderabad,
R/o Boodihal Camp,
Now at Hyderabad.
2. K.Rajesh S/o Papacharyalu,
Age 24 years, Occ:. Receptionist in
Goldej Hospital, Hyderabad,
R/o Chintalamori, Dist. West Godavari,
Hyderabad.
...Appellants
(By Sri Ishwaraj S.Chowdapur, Advocate)
AND:
The State of Karnataka,
(Through Sindhanur Rural Police Station),
Represented by Additional State Public Prosecutor,
2
High Court of Karnataka,
Karnataka Circuit Bench at Gulbarga.
...Respondent
(By Sri P.S.Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Code of Criminal Procedure praying to set aside the order
of conviction and sentence including fine dated 09th
November 2012 passed by the Fast Track Court Judge,
Raichur in Sessions Case No.88/2011 and acquit the
appellants from charges in the interest of justice and
equity.
This appeal coming on for hearing, this day,
PHANEENDRA J., delivered the following:
JUDGMENT
The appellants are arraigned as accused Nos.1 and 2 in S.C.No.88/2011 on the file of Presiding Officer, Fast Track Court I, at Raichur. They challenged the judgment of conviction and order of sentence passed in the above said case, wherein the learned Sessions Judge has convicted the accused persons/appellants for the offence punishable under Section 364A of Indian Penal Code (for short 'IPC') and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- each with a default sentence of simple imprisonment for three months. 3
2. The brief factual matrix that emanate from the records are that :
PW.3 one Mr.K.Raju has a son by name Guruprasad. The said boy was studying in a school at Hosalli Camp at Sindhanoor. Particularly, it is alleged that accused No.2 for sometime worked under PW.3 and thereafter he left the job and he knew about the financial capacity of PW.3. Therefore, with an intention to extract the money from PW.3 the accused No.1 hatched a conspiracy with accused No.2 to kidnap or abduct the son of PW.3, Guruprasad and accordingly infurtherance of their common intention, accused Nos.1 and 2 joined together on 02.09.2010, accused No.2 went to the school where the said Guruprasad was studying, posing himself as uncle of the said boy, he took the said boy along with him.
It is further case of the prosecution that accused Nos.1 and 2 joined hands together and they took the said boy to Mantralayam and took a room in Pramodini Lodge at Mantralayam and kept that boy in the said room. 4
It is further case of the prosecution that accused No.1 has telephoned to PW.3 demanding for ransom of Rs.15.00 lacs for the purpose of releasing of the said Guruprasad from their custody. PW.3 has received two phone calls from accused No.1 and in the meantime the boy was traced by the lodge sweeper of Pramodini Lodge and in fact he informed the police about the said boy Guruprasad being lodged in the said Pramodini lodge and he handed over the said boy to Mantralayam Police. Before PW.3 making arrangements for payment of money, he received the information from Mantralayam police to the effect that the boy was traced. Thereafter the police on the basis of the complaint lodged by PW.1 - Deepa who is the Headmistress of the said school in which Guruprasad was studying, registered a case against accused Nos.1 and 2 and investigated the case and lodged a charge sheet against the accused persons, on the ground that the accused Nos.1 and 2 have committed the offence under Section 364A of IPC, kidnapped and confined the said boy 5 Guruprasad for the purpose of extracting ransom money from PW.3.
3. On the basis of the above said charge sheet being filed the accused persons were arrested during the course of investigation. After securing them before the Court the trial Court, has framed charges against them for the offence punishable under Section 364A read with Section 34 of IPC. The prosecution in order to bring home the guilt of the accused examined as many as 17 witnesses as PWs.1 to 17 and got marked Exs.P1 to P13. Ex.D1 was also marked during the course of cross- examination of PW4 by the defence counsel. M.O.Nos.1 to 3 a pen drive and two mobile sets, were also seized during the course of investigation which are the material objects relied upon by the prosecution. After the completion of the prosecution evidence the accused persons were also examined under Section 313 of Code of Criminal Procedure. The accused persons except denying the whole case of the prosecution, they did not choose to lead any 6 defence evidence. The trial Court after hearing both side and appreciating the oral and documentary evidence on record, convicted the accused persons and sentenced them accordingly which is called in question before the Court.
4. Sri Ishwaraj S.Chowdapur learned counsel for the appellants strenuously contends before this Court that, though the prosecution attempted to produce some materials like oral and documentary evidence on record but failed to prove the guilt of the accused for the above said offence beyond reasonable doubt. He contends before this Court that the trial Court has convicted the accused persons on the basis of conjectures and surmises without any substantial proof to connect the accused persons that, they have actually kidnapped and confined the boy and demanded ransom.
5. He also submitted before this Court that the trial Court without following the procedure as contemplated under Section 65 of the Evidence Act has relied upon M.O.No.1 a pen drive and also Exs.P11 to P13, 7 which are phone call details of accused Nos.1 and 2 and as well as PW.3. By giving evasive answer the Court has tried to avoid the said procedure to be followed by the prosecution to rely upon the said documents. Therefore, if those documents are excluded from consideration nothing remains for consideration to attract Section 364A of IPC.
6. He also contended that there was enmity between accused No.2 and PW.3 because accused No.1 has made allegations during the course of the cross- examination of PW.3 that, PW.3 has made attempts to outrage the modesty of mother of accused No.1. Therefore, with such vengeance PW.3 has planned to implicate accused Nos.1 and 2. For all these reasons the learned counsel submits that, the accused persons are entitled to be acquitted.
7. Per contra the learned High Court Government Pleader contends before this Court that though there are some contradictions and omissions and irregularities during the course of investigation and lapses even during 8 the course of trial with regard to the marking of the documents. But on overall looking into the case of the prosecution, the prosecution was able to connect the accused Nos.1 and 2 to the crime. He contends that, there is sequence of events taken place right from the place and time accused No.2 who took the boy and thereafter boy was recovered and in the meantime accused No.1 made a demand of Rs.15.00 lacs and all those factual aspects have been corroborated from the evidence of the witnesses. Though here and there some lapses are there in the evidence of the prosecution witnesses but the core of the prosecution has not been disturbed. Therefore, there is no room to interfere with the judgment of conviction and order of sentence passed by the trial Court.
8. We have given our anxious consideration to the above said submissions and we have also reevaluated the evidence placed by the prosecution before the trial Court. On overall reanalysis of the entire materials on record, the points that arises for consideration for us are :- 9
i. Whether the prosecution has proved its case beyond reasonable doubt for the offence alleged against the accused under Section 364A of IPC ?
ii. Whether the trial Court has committed any serious, legal or factual error in convicting the accused persons for the offence punishable under Section 364A of IPC and sentenced them accordingly ?
9. In order to answer the above said two points, it is just and necessary to have a birds eye of view of the evidence of the prosecution witnesses and thereafter we have to consider in detail evidence of some of the relevant witnesses for the purpose of consideration of the above said provision of law.
10. PW.1 - Deepa who is Headmistress she speaks about accused No.2 taking the boy Guruprasad from her school on 02.09.2010 and thereafter PW.3 came to the school and complaining about the missing of his son. PW.2 one Ameena Banu the Class Teacher of Guruprasad, she 10 also states about the boy being taken out from the classroom by CW.4 Chandramma (a Peon) to the chamber's of the Headmistress. She also states that she also identified accused Nos.1 and 2 in the police station.
11. PW.3 is the father of the victim boy a star witness to prosecution. He deposed with regard to the missing of his son and thereafter through telephonic demand of ransom made by accused No.1 and thereafter securing his son through Mantralayam Police etc.
12. PW.4 one Mr.E.Suresh a driver of a Tractor who speaks about what happened just prior to the accused No.2 taking away the boy from the school i.e., accused Nos.1 and 2 meeting together in a railway station and he saw them together on the previous occasions. He also identified accused Nos.1 and 2 in the police station.
13. PW.5 Narendranath the Administrative Officer, of the school in which the Guruprasad was studying and he speaks about PW.3 received a phone call on his mobile when PW.3 was talking with this witness and demand 11 made by somebody a sum of Rs.15.00 lacs. PW.6 Hanumanthu is the Sweeper of a lodge by name 'Pramodini' in Mantralayam. He speaks about seeing of accused Nos.1 and 2 together in lodge keeping the said victim boy in Room No.9 and thereafter they went away from the room and boy was later handed over to Mantralayam Police. He also identifies accused Nos.1 and 2 in the police station. PW.7 Khasim Ali, is a witness to Exhibit P.2 under which a motor cycle was seized at the instance of accused No.1, but he turned hostile to the prosecution. PW.8 G.Sairamakrishna is a witness to Exhibit P.3 the spot mahazar from where accused No.2 took the boy i.e., the classroom shown by PW.1 to the police. PW.9 Basha and PW.12 Mallikarjun are the important witnesses who have stated about the accused No.1 telephoned from their coin booths on that particular relevant point of time. PW.10 S.Gangappa, Police Constable who went to a place called 'Mantralayam' on 03.09.2010 and taken custody of the victim boy from Hanumanthu, who handed over the boy to the custody of this person in Madhavaram Police 12 Station. PW.11 Sharanappa, Tahsildar who conducted the test identification parade, in which he speaks that witnesses by name Noor Ahmed, Mallikarjun, Chandramma and Satyanarayan have identified accused No.1 and 2 in the test identification parade. PW.13 one Mr.Raghu, Room boy in Maruti Gururaj lodge, he speaks about the police coming to 'Pramodini' lodge and talked with PW.6- Hanumanthu. PW.14 Govindaraj is also another witness to the seizure mahazar Exhibit P.2. He also not supported the case of the prosecution. PW.15 J.Karuneshgouda, Police Sub-Inspector who speaks about registration of a case in Crime No.253/2010 as per the complaint lodged by PW.1 Deepa under Ex.P.1 and dispatching the FIR to the Court and drawing up of spot mahazar as per Exhibit P.3 and also done the investigation. PW.16 one Mr.Satyanarayana, Watchman of the school in which victim boy Guruprasad was studying. He identified accused No.2 in the test identification parade and also identified accused No.2 before the Court. PW.17 P.Satyanarayana, Constable in 13 RPF who handed over CCTV footages to the Investigating Officer.
14. Out of the above said witnesses, the prosecution has divided its case into two major parts ;-
(i) Kidnapping or abduction of the victim boy and confining the said boy in a lodge called Pramodini in Mantralayam.
(ii) The second part leads the accused No.1 from the coin booth of PWs.9 and 12 calling upon PW.3 to pay a sum of Rs.15.00 lacs as ransom for the purpose of releasing of the boy.
15. Sofar as first part is concerned the prosecution has relied upon the evidence of PW.1 Deepa, PW.2 Ameena Banu, PW.3 K.Raju father of the victim, PW.5 Narendranath and PW.16 Satyanarayana. All these witnesses have supported the case of the prosecution. PW.1 Deepa, she unequivocally stated that on the date of the incident i.e. on 02.09.2010 at about 2.30 to 2.45 p.m. CW.4 Chandramma, Peon brought one person to her 14 chamber informing that the said person had gone to UKG class asking for Guruprasad. Said Chandramma had brought the said person to the chamber's of this witness to take permission. Along with the said person the said Chandramma also brought Guruprasad to the chamber's of this witness and she enquired the said person as to whether he is related to the said boy and the said person told that he is the uncle of Guruprasad. Infact the boy also identified the said person as his uncle and thereafter this witness permitted the said person to take the said boy and the said person went from chamber along with boy between 3.30 p.m. and 3.45 p.m. Later infact she has categorically stated that on enquiry she came to know the name of the said person as K.Rajesh, who is accused No.2 before the Court, she also identified him before the Court. She also deposed that in the evening at 6.30 p.m. the father of Guruprasad came to the school and informed that his son has not returned to the home. Thereafter, they all searched the boy in the campus, as they could not find the boy. PW.1 lodged a complaint before the police as per 15 Exhibit P.1. She categorically identified accused No.2 as the person who took the boy from the school on that particular day. Though there is some cross-examination of this particular witness on various grounds but nothing fruitful is established before the Court that this witness is deposing falsehood. Though it is suggested that she is deposing before the court for the first time that on 02.09.2010 accused No.2 took the boy. But all these suggestions have been specifically denied by this witness. But one thing to be noted that, nothing has been elicited that she is not at all the school teacher or the Headmistress of the said school and she does not know anything about the said boy Guruprasad and nothing is elicited as to what is the illwill or hatred sofar as this particular witness to depose falsehood against accused No.2.
16. The evidence of this witness is also fully corroborated by the evidence of other witness i.e., PW.2, Ameena Banu, she is the Class Teacher of the said boy 16 Guruprasad, she was very much present on 02.09.2010 and she deposed that Guruprasad was very much attended the school on that particular day and on that particular day. CW.4 Chandramma, Peon asked this witness to send Guruprasad to take that boy to the Headmistress Chamber's. Accordingly, she sent the said boy along with Chandramma to the Headmistress Chamber's. She also admits that she went to the police station on 27.09.2010 as summoned by the police and she identified accused Nos.1 and 2 in the police station. But strongly enough this witness never said along with Chandramma the accused No.1 or accused No.2 were present in the school. It creates a serious doubt as to why the accused No.1 and 2 were got identified through this witness. However, the said evidence may be an exaggeration by this witness but remaining evidence as stated by this witness is not taken away by means of this isolated sentence stated by her. Though she has stated that she is not acquainted with the father of the boy but she sent the boy along with Chandramma as per the request made by Chandramma to 17 take the boy to the Chamber's of the Headmistress PW.1 Deepa. Though it is elicited in the cross-examination with regard to the attendance register of the boy etc. but the fact remains that there is no denial in the course of cross- examination that this witness was not at all working in the said school as School Teacher of Guruprasad. But it is suggested that on that particular day Chandramma did not come to the schoolroom and took away the said Guruprasad to the Chamber's of PW.1. This suggestion clearly goes to show that she was present on that particular day but the denied fact is that she did not sent the Guruprasad to the Chamber's of PW1. Therefore, it clears out the doubt that on that particular day this witness was very much present and sent the said Guruprasad to the chamber's of PW.1, to that extent of evidence PW.1 is fully corroborated.
17. PW.5 Mr.Narendranath is an Administrator of the said school, he also categorically stated that PW.1 - Deepa has told this witness that, a person came to the 18 school and took away Guruprasad. He also states that at about 6.30 p.m. the father of the said Guruprasad, PW.3 K.Raju came to the school and informed that his son did not return to home after the school hours. Though infact they searched in the campus and they could not find the said boy. He specifically states that when PW.3 was talking with this witness at about 6.30 p.m PW.3 received a telephone call to his mobile phone and the said person who was talking in the telephone informed PW.3 that he has to pay Rs.15.00 lacs for the release of the victim boy safely. During the course of cross-examination though it is elicited with reference to the telephone conservation between PW.3 and another but sofar as witness PW.3 visiting the school at about 6.30 p.m. enquiring with regard to his son and meeting this witness Narendranath are all not disturbed during the course of cross-examination for the purpose of answering the first point. It is clear from the evidence of this witness also that PW.1 - Deepa, immediately informed these two witnesses i.e., PW.3 and as well as this witness Narendranath about some person 19 taken away the boy Guruprasad from the school in the afternoon at about 3.30 p.m. or 4.00 O'clock.
18. In support of the above witnesses, PW.16 one Mr.Satyanarayana who was also working as Watchman in the said school, also categorically stated that on 02.09.2010 the accused No.2 K.Rajesh came to their school in a blue color motorcycle and asked this witness that he want to take the boy Guruprasad from the school and thereafter this witness told him to meet the Headmistress for her permission and thereafter at about 3.45 p.m. the accused No.2 came along with Guruprasad and took the boy along with him. In the evening about 6.30 p.m. PW.3 came to the school enquiring about his son Guruprasad then only this witness came to know about kidnapping of the said boy Guruprasad from the school. Thereafter, he identified the accused No.2 before Tahasildar in test identification parade and also before the court as the person who took the said Guruprasad from the school. Again similar set of questions have been put in the 20 course of cross-examination but nothing has been elicited that this witness was not at all working in the said school on that particular date.
19. What we found from the evidence to these witnesses is that there is consistency in the evidence of these witnesses to establish that accused No.2 has actually visited the school on that particular day on a motorcycle and with the permission of PW.1 - Deepa, he took away the Guruprasad along with him.
20. When such being the case, it becomes the responsibility of the accused No.2 to explain that a false case has been foisted against him except eliciting some discrepancy with regard to the time, place on which the boy was taken by this accused nothing has been elucidate from the mouth of any witness, to discard the total case of the prosecution.
21. The prosecution has also relied upon the evidence of PW.6 one Mr.Hanumanthu, who is also an important witness examined for the purpose of establishing 21 that immediately after taking the said victim boy Guruprasad, accused Nos.1 and 2 joined together and kept that boy in Pramodini Lodge at Mantralayam. PW.6 has categorically stated that he was working as a Sweeper in Pramodini Lodge and he stated that, about one year back accused Nos.1 and 2 i.e., the accused persons present before the court went to the said lodge along with one boy, they came at 8.00 p.m. and stayed in Room No.9 on the next day about 1.00 p.m., one the accused left the said lodge at 2.00 p.m. and another accused also went away at 2.30 p.m. and boy come out from the room caught hold the legs of this witness and started weeping and he made him to eat one biscuit and he brought the said fact to the notice of his owner and as per the instructions of his owner he took the boy and handed over the said boy to Mantaralyam police. Thereafter he was summed by Sindanoor Police and showed accused Nos.1 and 2 to him and he has identified those two accused persons as the same persons who had come to his lodge along with said boy. Accused themselves in fact taken the said room and 22 they stayed there for a day along with the boy and on next day they went away from the said room.
22. In the course of cross-examination, it is elicited that he has not produced any documents as such to show that, the accused persons stayed in the said room on that particular day. He also deposed that earlier he was maintaining the said lodge on the basis of lease deed between himself and the owner. He handed over the boy to Mantralayam police in Madavaram Police station but he has not stated so in the examination-in-chief but the police have examined him to the facts as to what happended on that particular day. In the course of cross-examination, it is elicited that there is some improvement with regard to the fact that, the boy started weeping before this witness and this witness giving a biscuit to the said boy and handing over the said boy to the Mantralayam police.
23. The core of the prosecution case is that the boy was stayed in Room No.9 and this witness has handed over the said boy to the police is not destroyed, during the 23 course of cross-examination. But he says that he only saw accused Nos.1 and 2 along with boy on the next day and both the accused persons coming together along with boy leaving the said boy in the said lodge and going out from the said lodge has been categorically stated by this witness. Of course it is elicited that he has not participated in the test identification parade to identify the accused Nos.1 and 2. But there is no reason to disbelieve the evidence of this witness because he categorically identifies the accused Nos.1 and 2 before the court and he says that both those accused persons came to the said lodge on that particular day along with the boy.
24. It is suggested to this witness in the course of cross-examination that at the fear of the police he has been deposing falsehood before the Court but he denied the said suggestion. It is also suggested that he is nothing to do with 'Pramodini Lodge' that he had taken the said lodge on lease basis etc., But he reiterated in the course of cross-examination also that he was throughout in the said 24 lodge and saw accused Nos.1 and 2 on that particular date. Though there is some discrepancy in the evidence of this witness in the course of cross-examination with regard to the time at which accused Nos.1 and 2 coming to the lodge and going out of the lodge at different times. But the core of the prosecution case from this witness is that accused Nos.1 and 2 visited the said lodge along with said boy has not been totally dislodged. Therefore, we are of the opinion that the prosecution is successful in establishing that accused No.2 has kidnapped the said boy from school and accused Nos.1 and 2 somewhere joined together and took that boy to Mantralayam 'Pramodini Lodge' and kept that boy on 02.09.2010 and thereafter both the accused persons went away from the said lodge on the next date. Though some doubt arises as to whether as to why the accused persons did not confined the said boy in a locked room and left the said room open sofar as to enable the said boy to come out from the room to complain against accused or against anybody but though the prosecution has not explained this particular aspect, 25 only because of this reason, we cannot come to the conclusion that the boy was not at all taken by accused Nos.1 and 2 on that particular day. Therefore, from the above said evidence inspite of some discrepancies in the course of cross-examination and omissions and contradictions, the overall reading of the entire materials on record, it establishes that these witnesses are not interested witnesses, they are while discharging their duties as school officials and the persons who were working as a Sweeper in the lodge have deposed before the Court that at no point of time they saw accused Nos.1 and 2 earlier to the incident. Therefore, we cannot infer any hatred or illwill against accused Nos.1 and 2 is concerned. Therefore, we are of the opinion that these witnesses have to be relied upon. As such we are of the opinion that the prosecution was in successful in establishing the above said factual aspects and kidnapping of the boy from the lawful custody of PW.3.
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25. Now coming to the second limb of the prosecution case with regard to the demand of the ransom by accused No.1 sofar as PW.3 is concerned. Of course PW.3 in his evidence in detail has stated that on 02.09.2010 itself at about 6.30 p.m. or 7.00 p.m. when he went to the Chamber's of PW.5 Narendranath and talking about his son he says that he received a telephone call from somebody demanding a sum of Rs.15.00 lacs stating that, his son is in their custody and they would release the said boy safely if the said amount is paid. He also says that on the next day at about 9.00 a.m. he received one more telephone call from the same person and he again demanded the said money. Again at about 2.00 p.m. he received another call from the same person demanding the said money. He never stated anything about as to who actually called him, perhaps at that particular point of time he was not knowing who was actually called him. Subsequently on the basis of the telephone number recorded in the mobile phone of PW.3 the police able to track that, the said phone calls were made by somebody 27 from telephone booths belonging to PW.9 Basha and another belonging to PW.12 Mallikarjun. Though this witness has stated that though suggestions have been made in the course of cross-examination that, this witness had made an attempt to outrage the modesty of mother of accused No.1 and eversince this witness and accused No.1 were not in good terms, therefore, accused Nos.1 and 2 have been falsely implicated by this witness. But no materials have been placed before the court to substantiate this particular suggestion. He also says that he cannot say from which phone he received the phone call on that day and next day, as we have noted that this has been traced by the police subsequently. Therefore, from the evidence of PW.3, we cannot give to any definite conclusive finding that accused No.1 alone has made such calls. Added to above no voice test of accused No.1 was conducted nor voice of accused No.1 was got identified through PW.3. Therefore, it is just and necessary to examine the evidence of PW.9 and PW.12 to ascertain this 28 particular fact whether accused No.1 is the person who actually telephoned to PW.3 demanding the ransom.
26. PW.9 - Basha, has stated that, since 10 years he has been running a STD booth. About one year four months back prior to his deposition before the court he states that a person had come to use his telephone booth and entered the service secrete box talked with somebody and went away, 10 minutes thereafter he received a call to his telephone to the very same number and he found that it was a wrong call. He also deposed that, while going away the said stranger informed this man if anybody calls him he should not tell that it was a wrong call. 10 minutes later he received another call and that call was from Circle Inspector of Sindhanoor and asked him about his address and phone number and he gave his address and phone number. He further deposed that he told the same before the Sindhanoor Police on enquiry. 2-3 days later Sindhanoor police came to him and asked him to come to the police station and thereafter he refused to go with 29 them stating that he was busy. Therefore, he never stated in the examination-in-chief about the identification of accused No.1 that accused No.1 who was present before the court was the same person who actually telephoned on that particular day. He was treated hostile by the prosecution and thereafter in the course of cross- examination he stated that on 27.09.2010 he had been to the police station as per the request of the police and he identified the accused person who has come to his telephone booth and call was made from his telephone booth. But he never identified the said person before the court but he says he came to know about the said person from the police that he was accused No.1. He flatly denied the suggestion that accused No.1 was the same person who attended his telephone booth on that particular day and called somebody over telephone. Therefore, this witness virtually turned hostile to the prosecution to the whole extent, he never identified the accused No.1 before the court nor he had specifically stated that accused No.1 was the same person. In the course of cross-examination, 30 it is elicited that number of people would visit his telephone booth, therefore, he cannot in any manner identify anybody, he cannot remember those persons who attend his telephone booth every day. Therefore, there is no help sofar to the prosecution case is concerned from the mouth of this witness that the accused No.1 was the person actually went to the telephone booth and called PW.3.
27. One more important aspect to be noted here is that the prosecution has not explained as to why this witness was not made available for test identification parade. He never stated that he identified any of the accused persons. It is very difficult to conceive the factum that, when so many persons had been to the coin booth of this witness and when the accused persons were shown to this witness in the police station and in the police station also he says that he did not identify anybody but only on the basis of the information of the police he says that the name of accused No.1 as K.Rajesh. It is not explained 31 before the trial Court by the Investigating Officer, why he has not subjected the accused No.1 for the test identification parade by this witness. It is quite but natural when huge number of people visits the coin booth in order to identify such person who actually attended on that particular day, test identification parade would have been the best tool for identification of such person, which has not been done in this case sofar this witness is concerned. Though the trial Court has tried bend the evidence to rely upon the evidence of this witness. We are of the opinion that prima facie taking as it is the evidence of this witness it is not trustworthy for acceptance.
28. PW.12 Mallikarjun is also another owner of a telephone coin booth situated at Sindanoor bus stand. He states that about 2 years prior to his examination before the Court, in the evening hours somebody came to his telephone booth and telephoned but he don't know what was the conversation, but the said person was aged about 24-28 years. He further states that, Sindanoor Police by 32 name Gangappa came and enquired about these facts and he was summoned to the Raichur Jail along with his servant CW.6 Noor Ahmed and other persons from Guruprasad school for test identification parade. He says that he identified one person as one of the accused person who visited his telephone both. Very specifically he identified before the court accused No.2 was the person who had visited his telephone booth and talked to somebody on that particular day. But actually he wrongly identified accused No.2 but according to the prosecution accused No.1 was the person who attended his telephone booth on that particular day. In order to cover-up this discrepancy the prosecution treated this witness hostile and he was cross-examined and in the course of cross- examination it is doubtfully elicited that it may be a fact that it is the accused No.1 to whom he has identified at the time of identification parade. But he never said before the court that he can identify accused No.1 as the person who visited his coin booth box on that particular day. In the course of cross-examination very peculiarly he has again 33 turn volte face to the prosecution. He deposed that, the police had brought him to Raichur District Jail and in the Jail Tahasildar asked him to put his signature, accordingly, he has signed and he admitted that actually no test identification parade was conducted in the Jail premises and he never identified any person of the suspect of the said case but they have taken the signature and sent him back. He also specifically states that, he cannot identify anybody who were present in the Jail and he do not know other person brought by police to the Jail. He further deposed that, he was instructed by the police to identify the persons whose photographs already shown to him by the police in the jail premises. He also deposed that, he was very much afraid of the police since he has been running a cycle shop and it is admitted that he is deposing before the court as per the say of the police.
29. When this witness is cross-examined it is bounden duty of the court that not only to thoroughly examine his examination-in-chief but also the cross- 34 examination in order to ascertain the trustworthiness of such witness. If we analyse the examination and cross- examination sofar as this witness is concerned he is doubtful with regard to whether he has identified accused No.1 or accused No.2 in the Jail as stated by him in the course of examination-in-chief and as we have noticed that he never identified accused No.1 before the court. Of course in the cross-examination as we have observed that he has totally taken 'U' turn even with regard to the holding of the test identification parade and identification of accused No.1 is concerned and also the photos of accused Nos.1 and 2 already shown to him by the police and thereafter he was instructed to identify accused No.1. Therefore, when such being the case if the witnesses is shown to be used as a puppet in the hands of the police, it is very dangerous to rely upon the evidence of such witness to draw any inference with regard to the case of the prosecution.
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30. Last but not least the evidence of the Investigating Officer, to show that, he has collected some call details of accused Nos.1 and 2 from their mobiles marked at M.O.Nos.2 and 3. It is clear that there is absolutely no conversations from the mobile phones of accused Nos.1 and 2 with that of the cell phone of PW.3. Of course no accused would talk with his mobile phone so as to create evidence against himself. But fact remains that the call details of the coin booth talks has not been taken out by the police. However call details of PW.3 marked at Ex.P.3 only shows that recording of the telephone numbers of coin booths. The coin booths call details have not been taken to corroborate the some factual aspect.
31. Further added to the above the pen drive which has been marked containing the CCTV footages which only showed that accused No.2 was only with the boy in the railway station on that relevant day i.e. on 02.09.2010. There is no relevancy sofar as this pen drive 36 is concerned in order to implicate accused No.1 is concerned. Therefore, looking to the above facts and circumstances, there is no much evidence to implicate accused Nos.1 and 2. Sofar as demand made by accused No.1 through two coin booths and call details also though corroborate to some extent with that of the cell phone of PW.3 but in the absence of proof beyond reasonable doubt that accused No.1 has actually visited the coin booths of PWs.9 and 12, it is not safe to draw an inference that it was only the accused No.1 who demanded ransom from PW.3. There is no allegation whatsoever sofar as accused No.2 is concerned that he demanded any money from PW.3 at any point of time.
32. Therefore, from the above said evaluation of the evidence, we are of the opinion that the prosecution has successfully established the kidnapping and confinement of boy by accused Nos.1 and 2 on the basis of the evidence of the above said witnesses. But the prosecution has not been able to establish beyond 37 reasonable doubt that the accused No.1 or 2 have demanded any ransom from PW.3. Hence, the conviction and sentence passed by the trial Court sofar as the offence under Section 364A of IPC is concerned is not based on sufficient, reasonable evidence available on record. However, the accused persons are liable to be convicted and sentenced for the offences punishable under Sections 363 and 365 of IPC. As we are of the opinion that the boy was taken away by accused No.2 and accused Nos.1 and 2 joined together, they found together in Pramodini Lodge along with the said boy and they have not explained this particular evidence against them, that they were seen together with the victim boy. Either in the course of 313 of Code of Criminal Procedure or by means of leading any defence evidence they did not dislodge the said evidence. In the absence of any explanation as to why they have taken that boy with them, it goes without saying that the said boy was taken illegally from the custody of the lawful guardian and kept that boy in a lodge of Pramodini Lodge. 38 Hence, we answer points formulated by us accordingly and proceed to pass the following ORDER The appeal filed by the accused Nos.1 and 2 is hereby partly allowed.
The judgment of conviction and order of
sentence passed by the trial Court in
S.C.No.88/2011 dated 09.11.2012 by the
Presiding Officer, FTC-I, Raichur under Section 364A of IPC is hereby set-aside.
However, we convict the accused Nos.1 and 2 for the offence under Sections 363 and 365 of IPC and both the offences are punishable with maximum imprisonment for a period of seven years. Accordingly, we sentence the accused to undergo rigorous imprisonment for a period of seven years for the offences punishable under Sections 363 and 365 of IPC and impose a fine of Rs.10,000/- each for the above said offences, in default to undergo simple imprisonment for a period of one year. The substantive sentence of imprisonment shall only run concurrently. 39
As the learned counsel submitted before this Court that the accused persons were arrested on 27.09.2010 and from that date they are in custody, set off shall be given to the period they have undergone in the jail under Section 428 of Code of Criminal Procedure.
If the above fine amount is deposited if the remaining period of seven years has already been undergone by them and if they are not required in any other case, they shall be released after depositing of the fine amount.
Sd/-
JUDGE Sd/-
JUDGE sn