Kum Shubha @ Shubhashankar vs State Of Karnataka on 4 November, 2010

[Cites 22, Cited by 0]

Karnataka High Court

Kum Shubha @ Shubhashankar vs State Of Karnataka on 4 November, 2010

Bench: N.Ananda

W 1 _

IN THE HEG-H COURT OF KARNATAKA AT BAa§J~cAig(__)__r'i;E:"' 

DATED THIS THE 04TH DAY OF NOVEMBER '2Afo~1o 3

THE HONBLE  " iv 1.
THE HONBLE 
CRIMINAL   C/W
cRL.A.Nos.:75-"£2.01  & 856/2010

cRL.A.No.72é   
BETWEEN: 1. ' 

}{l,11'1'1.ShU'{)hE1A@"vS}}}1b1}aSI13:Hkai,f *
D / o Sriv--.AB.S.'S1iani;.giranarayafi'' .
Aged about 24 Years  V  
Advocate l5y4_Pi'ofession. " _ s

R/ at No. 1414, 2'3r.c: Main. Road
Banzgisliainkari 2-'d_Stage

 v _ Ba.irigja1Qre.  ---------- ~ ...APPELLANT

 ' (By 811' Senior Advocate]

Stage of ]*I:a_1ffi':«1tai(a
By the Station House Officer

'~ .   Vivekriagéir Police Station
"  Be.nga1o1'e. ...RESPONDENT

'  Si'i.B.Vei1kat Rao, Special Public Prosecutor)

This appeal is filed under section 374(2) Cr.P.C to set aside

 H'€1'i6 jucigrneni: and order dated 13/14.07.2010 passed by the

Presiding Officer, Fast; Track {Sessions} CourE--XViI, Bangaiore



 

CRL.A.N0.'765g201O

BETWEEN:

D.Arun Vanna _y  _
S/0 N Dhanashekharan V"
Aged about 25 Years

R/0. No.45/1-1

Gayathri Illarn, Charles Carnbellﬁoad

Cox Town, Bangalore.  

{By Sriyuths H.C.Hanumaiah 8: as i«§;'Reddy, Ad\}oca.tes}§

AND:

State of Karnataka ~. V

By Viveknagar Police   _ 

By State Public _Pr--Qse~r.:utoir _, __.  ~  VV ~
High Court Buil_.ding~' V y   _  l 
Bangalore. "   V 4. --.    ' ...RESPONDE3NT
[By Sri. B,_VenRa,t  Special P1ibli.cVProsecutor}

'l'?l1is._appes;Et*is 'Zt"il>(3d~.71l.I"1d€'1"S(3ClZiO1'i 374(2) Cr.P.C., to set
aside the judgrrrer1t'«a1:».dl'ord*e.r of conviction and sentence dated
13/ 14.07.2010 passed" by"--...the Presiding Officer, Fast Track
{Sessions} Cour.t-X\f_ll,'._ Barrgalore City in S.C.No.314/2004
convicting the appel'lant}'accused No.1 for offences punishable
undeiiseettions 302-,V .lV20~yB, 201 IPC. The appellant/ accused No.1

 ser1"te;i1"eed'i-- to undergo life imprisonment and pay a fine of

R's..EiO,GO0/--,,1rr,defaul.t to undergo SI. for 10 months for an

 yoffeneet p'-'anistialgleyyunder section 120wB IPC.

Q;I§;I,iAiNo.7'ii{€'_/2810
__.B1"3'17.._.Z'~l«\7_P3.13E€,?' -. «
A.Ve11i{atesha.

 "S/o Anaadan
" Ry*at..No.233, 3rd Cross
 V' ' -- E'sy.app}1nahal1i Main Road
_  Nagaréapaiya, Maruti Seva Nagara,
" Bangalore. ...APPELLAN'i'

it " ' . {By Sri.T.Prakash, Advocate)

'    .ifAl5ii5EZI§l4AN'}'ii '



AND:

State by Vivek Nagai Police

Represented by its State Public Proseeutoi' 5  

[By Sri.B.Ver1kat Rao, Special Public lji'a()S€:(?1.I_1'ZA():T}""--,> 1

This appeal is filed under section '374{2}cV.£!i.PViC;.  
aside the judgment and order of conviction and -sVeri't_ence dated "

13/14.07.2010 passed by the "Piiemding "Officer; Fast Track
(Sessions) Court-XVII, Bangalore "».City_V in S.CV.No,314/2004
convicting the appeilant/accused No.12 fo*r,_ offences punishable
under sections 302, 1204-13 2.O1;V'iPC;=._V'Theappellant/accused
No.2 is sentenced to undergo life >in"i'pjrison':'rient and pay a fine of
Rs.50,000/-. in default tQ,_._unde1"go ..pS.l."'f0r"V-- 1,10" months for an
offence punishable ._under se't:tio_n"«..yi*2x0-B IIPC. Further the
appellant/accused'NcC§2 is'--_sente"nced .t0"1Ji1vJe.i'g0 life imprisonment
and pay a fine of Pjs,{jO,'OQ()_/in--._tleiault.to undergo SI. for ten
months for an olfenyce pi1nishiabie'--.ui:1deij section 302 IPC.

CRL.A.l$io'.e8VS6e[' f%9,1__QA 43:1  is
BEIWEEN; S' ._ V in
The State of Kai'riataka  be

By the 'Station House 'Officer
Viveigi-iagar Police AS--tation,

. is  --Bangalo1*e;. 1'e'p..r&esentedhy
 Specipal 1?uibiie4VPi'osecuto1' ...APPELLANT

{By'Si'i..A}3L'»fe_nhat;'Rao. Special Public Prosecutor]

ANDE-.

 '  "ii An1iiVam1a.D

., S/_o N.Dhanashekhai'an
_ 2 R/so No.45/la}, Gayathri Illarn
 Chai'les Cambell Road
 Cox Town
' Bangalore.



2. A.Ver1katesha
S / o Anandan
R/at No.233, SW5 Cross.
Byappanahalll Main Road '
Naganapalya, Maruti Seva Nagara. Bangalore.  

3. Dinesh @ Dinakaran
S / o Uttarn Prakash I
R/ at No.342, Green Park Layout 
Dodda Banasawadi ; 
Rarnamurthy Nagar Main Road. Bangalore.

4. Kum.Shubha @ Shubhashanliar "
D/ o Sn'.B.S.Shankaranarayan__  "
R/at No.14l4. 23:-<1 Main Roaq ' " ' 
Banashankari 21"? Stage". Bar1ga_lovre."'--.  AA "  ...RESPONDEN'i'S

[By Sr1'yL1ths.H.C.Hanumaiah, 'Ad;Voca"teV"'for: R-1, 'i'.Prakash,
Advocate for R-2, 'A._marjCorrea;, Advo'ca_te'fo;r R-3. C.V.Nagesh. Sr.
Advocate for     *   

7.This-app--eal.._VislfiledA'ur1der section 377 Cr.P.C., to award
sentence to accused«.n'os.1'--,._3,~ and 4 for an offence punishable
under section 302. IPC'and*--.fu'rther sentence accused nos. 1, 2 and
3 for an offence pu~_n1'sLj1abi.e under section 201 IPC and to award
death -sentence against'accused no.2 by modifying the judgment
and}-C order of c"o--n.Vi__c_t_iovn dated 13/14.07.2010 passed by the

if V'  . Pre--siding Officer, Fast Track (Sessions) Court--XViI, Bangalore City
. i1'1.,S.C._Not3-.l'4";--' 2004 convicting the respondents/ accused 1 to 4 for

'offe:1ces« pu-nislia"ole under sections 302, 120{B} and 201 IPC. The

 .res_pon'den~ts/accused l to 4 are sentenced to undergo life

ilnprisonmerrticand pay a fine of Rs.50,000/-- each. in default to
uridergo'  for ten months for an offence punishable under
section 120-13 IPC. Further. accused N02 is sentenced to undergo

 life imprisonment and pay a line of Rs.50,000/-, in default to
 uiidergo 8.1. for 10 months for an offence punislfable under

  svectioll 302 IPC.

3£¢=i¢*

These appeals having been heard and reserved for

if " ﬁjudgnieilt on 18.10.2010. this day, NANANDA. J- pronounced the

following:

'J|



__ 6 __

JUDGMENT

Accused 1 to 4 in s.c.No.314/2004, on r1_1j¢-cf mg Track Court XVII at Bangalore Appeal N0s.765/2010. 774/2010, respectivelylagainst judgmenl; pr to 3d' for offences punishable'underaseclVicns'<.302 EPC and conviction of accused under sections 302. a11,%;un1shab1e under section 201:' d l A is filed by the State for irr1p0siti'c')nLc'Jfc1veat'r1J'=.l;0 accused No.2 and also to set right; ldiscrepanciesv 1"e}ating to sentence imposed on accused «lAv'»fe'V--.lia{fe.clieard Sri ll.C.Hanumaiah, learned counsel aldapearing accused No.1, Sri T.Prakash. learned counsel apTpeariVn'£; for accused No.2. Sri Amar Correa, learned

-.Ac01Jndse1 appearing for accused No.3. Sri C.V.Nagesh. learned __seni0r counsel appearing for accused No.4 and Sri B.Venkat. N' kg?!' ';:'4\"\' 'E';\v""£m(:'i1 6 a student of V~semeste1' B.A., LL.B.. inieg1'ate-1:1'_g'cou.i'se._ Accused No.2--A.Venkatesha is the son _A Accused No.3--Dinesh @ Dinakaraii Uttamprakash TB. and the of Accused No.4~Shubha @ Shuhi1gagsh.an}taf of PW 1 0~Shankaranaraya'ri V" jg 1&2 -Vii ayaiaiishmi @ Vijaya Shankar. junior aunt of accused'i§io'..4. VVatfeVf'cvousins. The sister of PW14--Uttatno1*ai;a:sh,jjg. .--the wife of PW22- N.Dhaiiasiheicaitahiiifit deceased] was the younge"r_gsoi1 and younger brother of PW5~B.V.Rarf1esh; ;R..iiarish is the Principal of BMS Law Co1'ie'geEatB_a11ga1'ore ....

' " tile year 2003, PWlO--B.S.Shankamarayan and hisA"famvi1y.v«vtc"1eIhbers were residing at Door No.14i4, 23rd Maih Banashankari H Stage, Bangalore and PW6--

"..f».}3.'Ve1&1katesha and his family members were residing at Door ~ "i\"=§o:1'A420, 23"' Main Road, Banashankari H Stage, Bangalore. {U-t. W t _9m_ During the year 2003, B.V.Girish was wo1'king:.llas a Software Engineer in Intel Company situate at Bangalore. The elder brother of B.V.Girish, 0 was working as an Engineer in Bangalore. 0 it 0 V 0 K it During third Week Vr>\lV10-- 0 BS. Shankarnarayan am~1__ his 0 jg ayalaltshlni @ Vijaya Shankar approached' and his Wife and propose.c1ﬂ£ [Agivjel ij'l\lo.4-Shubha @ Shubhaslhlankiai' inge to lIl.3_"'.l\'/".V(l}i1'ish. PW6--B.VeI1katesh in eorisizltatiorl and sons VlZ B.V.Girish and PVV5--B.VRa'111esh, the marriage proposal. On

2 20, I was 'agreed that marriage engagement shall be .011»,_V30.:v1«V.1i:2003. Accordingly, PW10 arranged marriage en.gagemeI'it"jjrléiring the evening of 30.11.2003 in "Udupi [gHall"ll l3anashar1kari. During rnarriage engagement, 00 0' l_fphot'o.gral;l)hs were taken {collectively marked as EX.P. 15) and

-- was videography. PW4--Shankar was the trilcleo/photographer. §\jf bl'-gt '\. £"'v""'l~'?\ 9 LA_A£AA LA_A£AA

4. In the marriage engagement, parties perform marriage of B.V.Girish with accusedgll\Eo.4:§_Sh"uhh'al_« it on 11.04.2004 in GNR Kalyana::llirlaii'tapla_ at-l.l§sa_ngla1lorelI« Before marriage engagement, _B.V.Cfi:tisl'1._ and ai;ci1sedlNo';.4§l'--.. Shubha were moving together t;hey'=wer'e _l'elols.e each other. Before the marr'i-age engagéjri1éVh:,_ the 'e'1de1?s namely parents of B.V.Gi1'ish facvﬁused No.4 had obtained COﬂS€{P;£L No.4 for their

5. on 28.All'i'«;'2.€1_V0;3r anti"-2§a.1.'i.2003, B.V.Girish had gone to EMS Colle.ge'*t'o 'accused No.4 on his scooter to her house. On they had a walk after dinner. Ol3i;«l._2.2003, during evening, accused No.4 asked her for dinner to T.G.I.Friday's Hotel [for short, "f§".C';..¢lAI.:.*"E'A.Hotel"), which is located on Airport Road and ll"-._lVl"'nearer Intel Company, Where B.V.Girish was working.

-l3;V..Cl§irish agreed and informed his parents and also his elder brother [PW5) about his programme with accused no.4. f°\;_ 'fax./\,.*~.. aka _11w B.V.Girish proceeded to the house of accused her on his scooter. B.V.Girish used to wear__ya"-helniet'_while riding scooter, on that. day. he B.V.Girish and accused No.45'reached'..;i7(}IPﬁ,'.1k1ote1.' 9.00 p.m., B.V.Girish and their' parents that they had areﬂleaving the hotel to reach their house.'"t.o:oVl§_'acc'used No.4 on his scooter to their Ring Road. When they »VieW Point" B.V.Girish stoppedlllhisifvisvcooiter. accused no.4 were it was around 9.30 pm. At that_time."B.V.Girvish~-received fatal injuries to his head and al.s'o'i.on_lAV.tl1e left xsidemoi" his face at the hands of an unknown ' .assVa.i1ani1~an.d'fell unconscious. The assailant after assaulting 'B.V;GiriAsli..'j_\ii1it.h a steel rod ran away from that place. Accused.' No.4 with the help of passersby stopped a rnaruti 2 A:/.er.«.._car, driven by CW2l--Sujeshkumar, his wife {SW22- u"Vinitha Sujesh and their child were the inmates of the car. it "Both CW21 ('St cw22 obliged and the injured B.V.Girish R5. £?"\A('QgL:

ALLAAJA __ was shifted to the back seat of car. Accused No.4 sat on front seat and injured B.V.Girish was admitted in Hospital at Airport Road. Accused No.4 ;_.of«p assault to PW29--Dr.J.N.Harsha, who at thc.e.,_releyant._time--, was working as Casualty Medical_Cfficer':l_in._ Hospital, Airport Road, Bangalorel.'g.A's the.v-l%;onditiol;n.l.'ot injured B.V.Girish was criticallillhhei was lshifted' toﬂilntensive Care Unit. Accused mcontacted PW10« B.S.Shar1karnarayan and iiitormedb aboVutfoc_c_urrence, so also she inforrlned: PWIO informed his wife PW12. lPWlEI»_tooklll'ii'si« his mother and mother of accused nol."~'llar:.dV iieaCihe'd"bllManipal Hospital, by then PW1O '~ hac_i:p'il'eaEcherj_ Manlipa.l...Hospital from his office situate in Unity 'Bui'ldingVrl'*PW$'was informed by PW29--Dr.J.N.Harsha that BLV§Glirishl'.l--V'clia.éllA suffered fatal irijuries to his head. The C.TScanA.ishlowed depressed fractures of skull and crush llfainjuifyp to brain. PW29 informed PW5 that chances of * suryiyal of B.V.Girish were remote. At about 2 a.m. during Wi:rH1t.ei'vening night of 3/4.12.2003. parents of deceased, the '{'\}( x... 5* "C653 .._--]_3---7 mother of accused No.4 and accused no.4 PW10 and PW5 stayed back in the hospit_'al--.».tj:i1.V morning on 04.12.2003, PW6.

to Manipal Hospital. 011 doctor informed about deata""c£_ls.VV.o11¥is.h'.":oi?1 1022003 at I030 a.rn., PW5 V of incident (EX.P.17] as per the accused No.4, on the basis"o;{ Police Inspector registeredaljiilcrimo. ptmishablc under section 30Qi~"'1ji5i(;' Thereafter, PW31-- lQ.n.t:he deadbody of B.V.Girish and serlt dela'd.bo'dy:V 'Vfor'--._bpost--n1orten1 examination to Bowring PWll8v~--19r;Bheemapa Havanur conducted post- ' lmorte.r£1'reXam«ination.

H meanwhile, PW3}--K.A.Nanaiah, the Inlvesﬁgating Officer had taken accused No.4, PW5 and other " 'w1_tnelslses to place of occurrence. Accused No.4 showed place ofwoccurrence from Where the Investigating Officer collected "lblood stained mud and sample mud and prepared spot:

N. t M14"

mahazar as per EXP. 14. The Investigating Officer..continue'd& the investigation and filed charge sheet on K it subsequent Investigating Ofiicierm b"'co11.,;¢u(:'Lel(:1:'ggfurther investigation and filed supplemevritalry charg¢" 10.01.2005.

8. The homicidal death ofwaskziue injuries dealt on his head, whichhﬂfracture of skull bones and injury:A'to_ furnished by PW_18\ exarninvatiori controverted by the defence.

PW29--Dr.:Jg.'N.iHarshatV' hadiyéégiven description of injuries suffered by idelcveased. Therefore, case of the prosecution ﬂdthatl deiatii io"fi_._B.V.Girish was homicidal in nature is not in A cannot be disputed.

9. Nv:)\2ir-are will advert to the case put forth by the :gg."progsecution:-- It is the case of prosecution that accused No.4- 'S_hub'ha @ Shubhashankar and accused No. l--D.AruI1 Varma ...3ziad fallen in love with each other and she was not willing to G "J nag)» w<'£»~ TVTVIV 15 _ marry B.V.Girish, in fact she was not B.V.Girish. Even before the date of accused No.4 had expressed who had visited the house. of accused No.4 during mornitngifof 29". No.4 had requested PW8--':H..grna'."to'_sornegbhow the marriage engagement and breakff No.4 had told PW8 that fNo.1~D.Arun Varma and she? " .PW8--Hema informed the samveutov urhfovasked PW8 to keep quite as datefof In. the circumstances, if they were i.OVV'di'SCg1GS(:€V to others and break the marriage =jn'gagernent, 'rep--utation of PW10 would be spoiled and ' gfhonour'reputation of family of PW1O would be ruined. .C.)'1v*is:'j_3f).11.20O3 at 2 p.m., PW8 Visited the house of beautification of accused no.4. When PW8 was if 'beautifymg accused No.4 for marriage engagement, accused No.4 cursed if B.V.Girish had died, marriage engagement at a.

__ __ would have stopped and she could have eioped with accused No.1 (hcrloveri.

11. it is the case of prosecution from 03.12.2003, accused 1 to 4 were in const.ant'to:u.ch'=wi'th each other by Voice calls and they wefe exc.hain;g'in.g..sVhortVmessage 0 service (for short, 'Si\/IS') andthey with the life of B.V.Girish, they had feiti asgan obstacle for the love affair betwfe'e.n ._;'1vo_;i,a11d 4." V

12. It is thgi. _'case"WoV£" t:Vproseic1_1V.tion;:.V0accused No.1 had estat;)_1ished.0VVVctontacts"wljtetwe-en accused No.2 and 3 with accused=i\io~.41. 'rhé;£&w§r¢. constant touch with each other bo':-;h"by voice' @115 and SMS caiis. 0 1 "the'~case of prosecution that on 03.12.2003 during .'eVeni11g,'V'a.'ccused No.4 persuaded her fiance (B.V.Gir1'sh) to tai§e..he:_r to dinner at TGIF Hotel. Even when accused No.4 in the company of her fi.ance»B.V.Girish. she was in Atgconstant touch with accused No.1 and accused 2 to 4 were also in constant touch with each other. They werﬁ contacting $6 .__ W each other from their mobile phones. After dinner, accused No.4 expressed her ostensible desire to see 1and.i4ng_p of aeroplanes from air View point situate at ring rojad.' was only to create an opportunity for accused by murder of B.V.Girish. After dinner, No.4 on his scooter on Airport R1n'gllRoad lcorinectls"vcp Airport road intersection and l{o.:ra1nangaia:_ intersection.' When they reached St0pped_ Accused No.4 and u:rere'A--».:'V_*seeing landing of aeroplanesi' standing on the footpath on eastern. side of pre--planned, accused 1 & 2 came on da~Vscoote--r ridden by accused No.1. Accused No.2, steellllrodfpipe came from behind B.V.Girish and A *dTealt on the hind portion of head of B.V.Girish al_sovAs:E.;d left side of face of B.V.Girish with a steel rod/pipe. The injured l3.V.Girish held his head by his w.haln«ds and collapsed. Thereafter, accused No.2 ran, jumped lﬁand sat on pillion seat of the scooter, which was ridden by accused No.1. Accused No.1 took a U--turn and proceeded on §\;_ Cr 'E \ ;9x.x.1t&4,~\, 17 Wigs, wrong side towards Airport road intersection. The incident. of assault was witnessed by PW1.5--Thomas and_.v'~E9;W4lft3fToli Uken. They were able to identify the assailant:alnd"V-fiat; of the scooter in t.he light shed street: 1 were also able to identify weapon B.V.Girish had fallen on the-._gVi'ounti_4lvvith Accused No.4 was standing 'a_disvtance* feet. from the injured. PW15 and 'tried to stop several vehicles. CW2 who zen car stopped his i'.he..:help driver of an autorickshaw. shifted the of the car. Accused No.4 sat on frontsidevvse'a_t.lof the_;car, PW15 requested CW2l to take tl'1f;3'l1i'_}'i1I'€(I.l t.0_ll\/Ianipal Hospital situate at Airport Road. At the. first l'i'ir1stancel,llllthe injured was examined in casualty and later he was shifted to intensive care unit 'Hospital. The histoiy of incident was given to PlW29"=--Cas'uali.y Medical Officer by accused No.4. The father AA and" e~1.der brother of the injured came to the hospital so parents of accused No.4. After the incident. PW15-- N' ' .\_U__[,',\_-xx Jae W 1 9 u Thomas 8: PW16-Toli Uken had taken scootoerfof to the house of PW15 who informed A.S.Naveen of the incident. Pwlid and of scooter of injured and found a 1la[:l)§.pij.;,l1l1.'1Cl» Visiting card of injured CW30- P.S.Radhakrishnan,. Surjeryisor of Intel Company. CW30 carne-to PW15 and took scooter and Later scooter and digital However, the laptop was retained' as_llitWhlelonged to Intel Company. ll'-Betore assault and after incident. of ass_ault,lacc.us.ed--. were in constant touch with each N04 by sending SMS to accused No.1 was inrgrinirg» their movements till accused No.4 and .0 reached air View point. After the incident, accused No.4«llh¢ad sent SMS to accused No.1. Even during early rnorning of 04.12.2003, accused No.4 had sent SMS to accused No.1. During initiai stages the Investigating Officer did not have any clue of assailant, he had'/recorded {L Ef ..--1,.gA-v*~-L E') __ W statements of accused No.4 on more than onejo--cc.fas_i_on.,._The Investigating Officer had also intcerrogatedff"§'W?ZB4<P1'arI§c)d Dikshith, a friend and erstwhilezhlclassnrate as PW23 had frequently Vcontactedia.ccuse,d'., other mobile phone. 3 Oh if O V :4. The Investigati.ng.Officer stateinent of PW15-- Thomas on PW8--Hema on 14.01.2()O4_,~ had collected call details and {both voice calls and SMS] exchanged»»ac_cu--sed-*1 to 4 immediately before the incident! - if if if . O On accused 1 to 4 were arrested. The Officer recorded statements of accused 1 «St 2. . In of such statements, accused 1 & 2 took the It'1vest'igati:ng Officer and other witnesses near a bush situate x In Inilifary area, which Is located towards north of place of "1n_cideni.. At the instance of accused 1 8: 2, some of the police officials recovered a steel rod/pipe [M.O.11] from the bush and it was seized under a Inahazar as per E>g.P.8?. The ",3! _ «_ ,,,&a,,~=(7(r:..

20 is 2 1 W Investigating Officer also seized scooter bearing"No;IQ\§O_3=S-- 978 {Black Kinetic Honda) under a mahazasrV_Aii'rx}l5.;:88.} lfroni the house of accused No.1 S'gltL1El_lé("5' j;iri:_ Cdoxd 7 Investigating Officer collected 4«'pAh'ot.ograp:h..~p',.

cassette of marriage and B.V.Girish from On'W26:(v)I.2OO4 as instructed by the PWIO produced mobile phage' covering letter as per Ex. €PlV2'" V finvesltigating Officer. The ﬂ:PW22--N.Dhanashekaran to pI'Od:1:1C6" rnobile No.9845O 17289 belonging to accuused'iNo:V1..:A--ccor'dingly PW22 produced mobile phone n._umber"'3845O 17289 with a covering let.ter as per ' the Investigating Officer. The Investigating 'iOfl"icer 'recdrded statements of witnesses and seized inc1'inii«nat.ing materials and sent the same to Forensic S(:--i.ence Laboratory. The Investigating Officer with the help of A";PW26«Jayanarasimhappa. took photographs of text of H messages retrieved from mobile phone beari:1ﬁ\:No.98455 <16/..\_ C» ..\_-as Z" V"

__ __

15. In order to bring home the guilt of the She». prosecution examined PWS 1 to 33 and prodi.:c.e4diidoci1:11e:its._ as per Exs.P.l to P.11l and inaterifil objec:s'«as¢ per 'Mos;

17. On behalf of the defence,VpDWs 1"towereV.-éxainiriedj k' documents as per Exs.Dl to

16. In view of the iﬂaecusedvldd lid to 4 as aforestated and the appeal for imposing death penalty" points would arise for deltermiigatilon». ' V1;''7.'*Whetl'i.ei' -the prosecution has proved tliat the «death "B;V.Girish was homicidal ? . 'V Vi/hevtlier" the prosecution has proved that dii1¥ihg"t11e period between 24.11.2003 accused Nos.1 to 4 entered 'l«V"in_to*1criininal conspiracy in Bangalore City to _' coiinrnit the murder of B.V.Girish and " . thereby committed an offence under Section 120 {B} IPC ?

3. Whether the prosecution has proved that in piirsuance of the conspiracy as 24 stated in Point No.2 on 3.12.2003. at abot_ii:.'__'__i"'.j' 9.50 p.ir1., near Air View Point, Airpo1*t__'Ri1ig:"

Road, Bangalore assaulted on the head ol?,A_B.V..Gii}rish A' steel rod with an intention to cause j1:.i';:, death and the V -deceased succumbed to the injuriles, t.here.by"«Accusii3d Nos.1 to 4 co'r3i_ir;.itte.d an Vloff_€I1;Ac'e.ppunishable under Section 302.'readWith 1..1_2o'*;(13")'_ViPc ?

4." 4"'py,;aether has proved that the knowledge 'that'I1:l'6:':l]jlu'I'd.éi'bl' decepasved B.V.Girish had beenpVc'e.:m_rnitted,u'-caused disappearance of "evi'de11ceV commission of the offence by"not ienforniingblthe said fact either to the "family? "1rieir1]oers of the deceased or to the authorities and also caused of evidence by suppressing and the telephonic messages and calls with Accused Nos.1 to 3 with an . intention to screen herself and also Accused Nos.1 to 3 from capital punishment and thereby conirnitted an offence punishable under Section 201 IPC ? ;

F9 5...: k.. 9* L ' A' W W

5. Whether the learned Trial Judge appreciated the evidence in proper perspective

6. Whether the case against accuSe_d N_o~.,2xt' falls within the category ofwtlite ra1rest3.;'areV4_' cases to attract death penaiAty?,..e A Z

7. Whether the impngne,dV'judg1nen.t nails for interference?

8. VVhat._4_'0"rr1er'?:

17. As already,stated,~-Accuse-d v.Noef3. have filed their respective appiealeﬁigaintt-Lt the'"'judgme'nt"of-conviction. The law is fairly well settled ﬂiiaﬁourt dealing with an appeal against a judgment of corivVicti:on._,:'had"»t,Q..~~yeappreciate the evidence either to agree or dltéagree. 'findings recorded by the learned trial 'V V' A' ' ..... .. V '18-. 7 déeagdiion reported in AIR .1973 so 1222 [Mustaq Ahmed Mehrned and another 1). The State of Gtgarat) at para 12, the Supreme Court has held:

"12. The contention that, when the trial court records a we11--reasoried judgment. then, even though arguabie points on the question of :*\.f 4-: ' -xi. Lie»-x-<€z-

25 u26_ credibility of Witnesses are raised, .' unnecessary for the Court of appeal to "ll all these points and record it.s..ovvn r~eas'or;L«g.r5r agreeing with the conclusions of it is unacceptable. The right of appeal conferregd' on it a convicted person gives right the reasoning and finding'-on--..the of evidence both oralgand by the trial court and unless the 'held to be prima facie" uninjipressive" unarguable the High ;_vvell_ go into the points_ca_i'ivassed» Vits"reasons. Such a goiﬁseat accord" Vvvith the statutory iritendment,'fand».also"'of gt assistance to this Court in satitsi"actorily_tde'aling with appeals under _ Art. tl1e'Co'nstitution."

Aglightllovfthe legal principles enunciated in the _abovea.decisio'n_, "we proceed to appreciate the evidence and recorded by the trial Court to record our 'r__findings'ojn the points formulated above. gin the earlier paragraphs of the judgment, we have .s _gVs_tat'.ed that the case of the prosecution that the death of {U} ( gm» W W l3.V.Girish was homicidal in nature has not bee;ri"'sei=tio:ulsly'~. controverted by the defence: Even otherwise, _w.e prosecution from the evidence oi:

PW.18 Dr.Bheemappa l~Iavar1u1f'_ haslproved that.f'déat};1'"crl"~»_ deceased B.V.Girish was homicidallltin 'natij1'e.l:"

19. At the relevant the Casualty Medical OfficerV:'oi'-lll\/lariir)al Airport Road. P'N29~Dr.J.N.I;lai':shfa d;:l1;§;5seal{}vl' V. i will 2". Ci 0»; 10 pm. a lady injured to the Clasulalltv history of assault and he elr<lamiriedV'V--hiin:. was in a state of coma was 're--s-ponding. He had huge lacerated it 'V 'V the left parieto, occipital region and ll"therehigvaslllswellirig on the left eye ball. There l 'walslbhleeding through his nose. PW29 has given the details in the medico "legal register extract as per Ex.P.86. From the contents of medico legal register extract Ex.P.86 ._ __ a result of head injury sustained. PW.18 was examined by putting certain hypothetical suggestions that in3Turies'__f-olindé on B.V.Girish could have been caused by it the nature of injuries, we are suggestions are not tenable, we».>'v't:;old prosecution has proved thatmdeath wast' homicidal in nature. 'was dueto coma as a result of head injuries trial Judge on proper appr*e_ciatior_1 o€f'evidenc_e~.hasj'held that death of B.V.GiVritsVh"was hoiriicidal in nature. Therefore. We answer Point No. :1 in a.fdfVi1irI"1~atixr.er.t'ir-. "

Reg._Points..2 'toy it ' 23$,' Before ltadverting to the appreciation of evidence » yaddyuced.yirsfproof of points 2 to 4 which are interlinked, it is H tlfdvstate that the evidence adduced by the prosecution is partly direct and partly circunistantial and "the direct evidence and circumstantial evidence are "'V.in'teArtwined. Nevertheless we refer to the legal priniciples relating to appreciation of circumstantial evidence as SIX' _ 5'1. x_. £7 ~-~-"Q 5 29 .._ I44--& enunciated by the Supreme Court in the decision..re.ported' AER 1992 so 840 (in the case of [State oft Kumar Srivastava], at paragraph the held:--

"9. This Court hasV;'c«r.Vtii'me out. observed that while appre'cia_'tin'g-.circunistantial evidence the Cou'r.tfrnu'st cautious approach and shou_ldT' r.eco_rdi_a only if all the in the chain'«arel_jcovInplete pointing to the "guilt the hypothesis of bjeing negatived on

-- rnust be taken in evaluatingllci.'rcu'rnsta,:ntial evidence and if the evidence reasonably capable of two 4; 'i'r1ferences.,_V the one in favour of the accused be accepted. The circumstance relied =._u'p_o1'1 be found to have been fully and the cumulative effect of all the tac'ts.VlAs'o established must be consistent only with the hypothesis of guilt. But this is not to if that the prosecution must meet any and "every hypothesis put forward by the accused however far--fetched and fanciful it might be. Nor does it mean that prosecution evidence must be N 'L. t ,t .

30 _ A444 rejected on the slightest doubt because;'thejuilawlf permits rejection if the doubt is reaso1i.ablve'eandl * not otherwise. _ M _V _V

22. The prosecution has reliedfpon the jfollupoimgngz f [1]. Motive _ _ .

(ii). Close association of l_\los.ll'-tol'zi>l'lbyll'={oice calls and SMS calls beIorellr,tl1ell"date oflllincident, on the date of prior to the incident and also..aft.er.the_incident';." [iii]. Conduc't'o€_t}1e accused.

[iv]. :7'r$ifece..é§.r;dé;r71.gEe »1§§'ws_ illéénld 16 (V). lR_eco_Ve13f: "pursuant to the voluntary statements' accused Nos.1 and 2 and at ' the irrstance'l'of E':.Cdl1S€d Nos. 1 and 2. zpla}ted"""by each of the accused as co-

-consppirators.

._ avlisevlplela of alibi put forth by Accused No. 1.

(i)l , Motive:

ll it 23.,' "It is the case of the prosecution that Accused No.4 had fallen in love with Accused No.1. At this juncture, we would l like to recall at the relevant period, accust:lg}'o.4~ was a 3 fkt /--'\_.,g_,_."--£'.'L 3l W32- student of V sernestei' of LLB Course of Accused No.1 was a student o1'I Semester of, the same college. These facts have Harish who at the relevant period Waeslltvorkingt. Prin'jcipal"'o of BIVES College and they have been co'ntrove3rteL1:tlll1lt is the case of the prosecutionthat were in constant touch with each voice calls and SMS calls» .24_ii 1 't.iiI§i;.1_2_,_:0o3.

24. Front" the prosecution has proveclxthat at'v.'th.e:"relevant_ tirne, accused No.1 was using mobile phone 17289 and Accused No.4 was iising mobile lpvhone bearing No.98455 70337. We notice ,,i~frQn?'1 evidence that PW.1O (father of accused No-4) *~exa'n1ined*--.aVs a-prosecution witness, has virtually turned as def'e.nceV_vw1tn'ess to give evidence to support the defence.

was declared as hostile witness. We refer to some of xlWthe_ significant features in the evidence of PW.lO which __\vlould give an indication that PW.lO had more to conceal E and less to reveal. e/'fix A My

-- 3 3 -- .

25. It is not in dispute that PW.1O is a practicingﬁrdvocate of Bangalore Bar from past 35 years. PWIO ' on 26.1.2004 he gave mobile it it alongwith a covering letter ma1'ked;"as Investigating Officer. PWIO the letter P' as EX.P.2'7 and his signature has deposed that he hadﬁ'a_no1;her _ phone bearing No.9845O 15l5()'.vIt is of EX.P.27 that on 26.01 mobile phone bearing Nos was being used by accused No.4 before ¥j'..VA'the""diivestigating Officer. However, duri41';i'g"t:ial the rrlobile phone bearing No.9845O 15150 to PW.lO, he has deposed that he is not to 'vsay:w*?riiet;he1* the mobile phone similar to M010 was the"'««0neV___*Whic'h he had given to the Police. Therefore, at the :"'request'vol' the learned Public Prosecutor, PW10 was declared has-.h.osti1e witness and was subjected to cross examination Vb the learned Public Prosecutor. During cross examination, after the SIM card from the mobile phone l\/10.10 was to eréaisai « 33 '(A4454 as removed. after going through SIM card deposed that MO.10 might be the mobile had handed over to the lnvestigatinglclificeron _ During ex:amination.4in:chief, 0 " PW; X \' categorically admitted that on givienﬂto the investigating officer 70337 which was being daugl.jfgg1i:3."{accused No.4], during cross--eXah?iiciatio.n for accused No.4 has imade', an'*-- attempt to dilute his evidence. ._During~..c'ross«e§{amination by learned counsel for accused P'W.1VO".has:"de'posed that during the year 2003 or "beginningV_0gof120004, his daughter (Accused No.4 ) did Tseparate mobile phone. During 2003 and in the PW.10 was having two mobile phone con'nectVivoi1sA.:' The two mobile phones which PW.10 was

0."4'*..V:"pgosgsessing during 2003 and in the beginning of 2004 were bearing Nos.98-450 15150 and 98455 70337. The service 00 "provider of both the mobile phones was M/s.Airtel Company [Bharati Telecom Limited]. PW.lO has deposed all the M .. ~m. --Em ' 34 W LAAAAA members of his family' via, PWIO. his wife daughter {Accused No.4} were using mob.ile'V"'_:phoAn:e No.98455 70337. We find that admitted that he had produced 'the'niobil§.."_pf;Vorie bearing No.98455 70337 which daughter (accused No.4}, during'cross'¥'ei;ai*ninVati.on bi/l learned counsel for accused no.4 has Q6-W attempt to make it appear that eggiollusively using mobile phone that it was being used by a:i'1"t"h'e' iafﬁiiyilzwz PW.lO, his wife PW.12 and accused ' PW,__}O_during. exa_m1nat1on--1n~chIef has deposed that accused I to :were not known to him. However, during , 'rcross_--'e>i;a1:ni'r1ation by the learned counsel for accused no.4, diefiiosed; that his daughter (accused No.4} had good nurnber of friends, including her junior college--rnates it ..and her classmates. On several occasions. they were ' '''_hCon'sL1lting PW. 10 relating to their studies. Accused?' no.4 and 3:

5/c«.,»<'[-~i. ;

35 .._ 35 _ her college mates were also holding Moot in the house of PW. 1.0. Accused No.1 had Moot Court rehearsals. Accused .Lhel:hou:se 1. of PW.1O on several occasio11sl.l'«.A1:;i1<e tethered accused No.1 used to No.41.

PW.1O has deposgﬁ he to have instrument with him! 11 ?§.oV'.Vlbd''receive calls from Accused the call or PW10 would give l:NAo..<l, if she was available. of accused No.1 calling accuse objectionable. PW.l0 has also given the"mo'bi.le'V-.phorle"humbcr of Accused No.1 as 98450 FW1OAlh'as--------«deposed that Accused No.4 had sent 1 {SMS} to accused no.1 through mobile 1' phone béégfiﬁg No.98450 17289 belonging to Accused No. 1.

'~ VVNNPTN. 10 has referred the call details found in Ex.P.51, to _de"p_ose that accused No.4 was Very much attached to lgdeceased Girish and she had made good number of calls to him and she had also received good number of callsmfrom the w... . 5» x t-4'-3€z~\ ' 36 W ,_ deceased after 27.10.2003. PW. 10 having refusedwto.' mobile phone bearing no.98455 70337 during.lex.ami.nat1oij__i ' in~chicf, has reluctantly admitted examination by the learned Public Prospelcutor. " 0' 3 it During cross--examinationaidy. the learned: for accused no.4, PW10 hasdpeposedit. PWIO surrendered his mobile 70337 to the investigating' letter and also questioned for which he had phone bearing 98455 70337. Investigating Officer told him that his mobile was.--"required to know the messages '~ whi._cl'i.h.ad been sent..o.r'received from said mobile phone and that --vmightttii.ro"w_ light on the investigation of crime. PW. 10 has "deposed: that he was asked by PW3l--the investigating Officéerx display the inbox and outbox of mobile number

3.)-9s45..5 75337 (.l\/10.10) and he operated MO. 10 and displayed

-- ti:-Zebinbox and out box to PW31~ the Investigating Officer. has deposed: on 26.1.2004, there were no messages 37 W 7777' either in the inbox or the out box of Mo. deposed that there were no messages and outbox of mobile bearing No.9szi55 ' and if at all it is stated thatrsuch niessagesoare intthej said instrument {lVIO.l0], conc'octe'd*.Van.c1:§faloricated. Thus PW. 10 has pre..é'fi}pt€(lAlt_H}'}é: relying on the printouts of texts from MO.l.O. PW. 10 referringlto messages marked as Exs.P§4h llthgatlthey were not found in MO. "to:lj4»'Z:"are lcolnlcocted documents. l*--.I'3V'V.:_l0 that he had an occasion to go through' the details of calls and has pointed out seVeral__errors to show that Exs.P.50 and P51 ' glareg n.ot»relia"ole documents. PW.]0 has deposed that PW.8 '--gHernaViafbeautician] had never visited his house either on date engagement or on the day prior to the date of it " engagement: and he does not know who she was. Thus, from evidence of PW. .10, we find PWIO had made several in x in r 38 444.4 444.4 attempts to distort the evidence adduced adduced by the prosecution. As already declared as hostile witness and he wasylsuli:qje'cAte'dl't;ox_erossl:' examination by the learned: _Publi'cA.lProsecutor.:l At juncture, we deem it necessaryt'e.:lV:refe'r totheldaltesl'onlyvhich PW. 10 was examined bei'ore tliemtrilal_0ourt. olﬁ"16'l.Vo6.2o05, PW.1O was examinedfln4-clhilefll :l3y.~.:,l.lt"l:i-e_'iljlearned Public Prosecutor. witness and PWIO was V1*,hcellllearn.ed Public Prosecutor and pw"'1'O' ~l.yc1'oss~;e:{an1ined on 5.9.2005. On 17'.l.20ll06.l._PW.l0l.'l'iuras.:_llero;:s--examined by the learned counsel for"'<acCL1SeidAlixlohillland on 30.01.2006, PWIO was fL1flll€'F~~-CI'OSS~€X8.l'I1lI'1Ed by the learned counsel "accused;"N:o'.~4. Again on 31.01.2006, PWIO was recalled an.dll'I'urtihe.rf';'ross--examined by accused No.4» on 31.1.2006. Thus, w"e.,_ﬁﬁd that PW.l0 being the father of Accused No.4. ll lﬂhlasl"attempted to preempt the prosecution from adducing ' incriininating evidence against: accused. PWl0 has made an 0' "unsuccessful attempt to make it appear that mobile bearing I?

f\_* f'\,\".\..4«(:'.,\ 3 39 VVWVIV __ No.98-455 7038'? was not being exclusively used No.4.

PW.l0 in eXamination--in--:chief"' ha.Vir-ig-_'Vmade" a1 categorical statement that he did not7kn'o_w accusedv l'~Eons'=..4.l"*t;o' ~_ 3, PWIO during cross--examinatioTn"by the'1e_a1"n for the accused has admiti;ed.V_that"Acctised"N o.1 twas acquainted with accused No.4 and the house of PW10. messages to accused nc«'.4 " participating in the moot court accused no.4 in house of PWIO. :z'PW.;_1O hostile to the case of Pr0SeCut1°Vﬁ""haVSd¢Pi3'3§d~.--"dthat PW'.8 had never visited his toﬂca_st StJ."Spl.C.iiQI1 on the evidence of PW8, which will 'be"di.scu'ssed. :in--._the later part of this judgment. Therefore, We lfindvthuat had changed his version from time to time not only to distort evidence adduced and yet to be ad'ciuzceds by the prosecution but also to lay a foundation for the' defence. We also find from the evidence of PW. 10 that he Vdhdvdhas relied upon the contents of Ex.P.5] to show that 3 f\,9 E 1 .9-m v da ' 40 ii 41 NVWVVV accused no.4 was frequently contacting deceased through her mobile. So also. the deceased was frequently Accused No.4 by making calls to her mobile _ 70837. PW. 10 has produced seve1'alpAAdocun1e'nts--: iestablishu the good character of his daughter aC'CLl.§'ed'ee..NQ.4-, the good character of accused -.No.4V'1s_ i'elevae.nt' howdvit can be pressed into service will discussed the:Vi.ater part of this judgment.

26. The prosecution to the constant contacts Wand;.:econiii}Vuoicat'ionsudbetyveen accused no.1 to 4 throughgmobile. by Voice calls and SMS calls, has relied on they c'onte_nt's"nof Exs.P45, 47, 48, 49, 50. 51, 52 to sub-ml' rliings.

:h'e':"evidence of PWlO, PWIS, PWI4, we find acc'i1sed'N0s*ji to 4 had made unsuccessful attempts to deny that were owning and using the mobile phones bearing 4' =.nun1nbe1's 98450 17289 [Airtel]. 36940211 (Reliance), l ..._TEi6860795 (Reliance), 98455 70337 [Airtell respectively. .

e _ ff.-' W C"'if.«~ 4i _ M

28. From the evidence of P.W. I0 and contents of is proved that accused No.4--Shubha was using b bearing No.98455 70337. Froniiiiiheliievidlepce'§§:f'--1;a3gV'.2A2o§] N.E)hanashekaran. it is proved thatll'accuseti.lA.No:.1"'.i§daslK possessing and using mobilei'e».:lV:.ph,one 17 289. P.W.22 has adniitted bearing No.9845O 17 289 [Nokia possessed by accused No.1;*he same before the Investigatirilgw along with the covering letter »

29. As' .__regard«Sll phone bearing number 36860795 accused No.3, P.W.14~Uttharnprakash i'fa't'herl' of accused No.3} has denied that accused No.3 t'r1eV:l,:~phone bearing No.36860795. PWI4 was declared 'hostile witnesses. During cross--examination by the learned Special Public Prosecutor, PWl4 has admitted " .AAthat_fﬁi1is son=i.e., accused No.3 had acquired Reliance mobile 5 .-Q Qt. .

42 lwlexamined the said A.Ramani.

__ 54.444 phone bearing No.36860795 much against PW14.

30. P.W.13»Bhaxrani i.e., wife ofjaccused that her husband had acquired Reliance phlonel"; bearing No.36860795. In vieiévﬁof evidencecif Pwié and V documentary evidence;'~.;¢fus'alH_loi;l_P:'Wi13 admit that mobile phone bearing and used by her husband ﬁacmised no.3) of.nofc-orlselquence.

31. re1ied"'on documentary evidence as per wh'cre.in stated that mobile phone bearing No.80368$O'?95 VwasAA~--acq--1:tired and possessed by accused counsel appearing for accused No.3 has subinittedlfhalii lEx.P48 is not an electronic record and it was notlgcnvesrated by a computer and that EXP48 is said to have beenppissued by an Officer namely A.Rarnani on behalf of AAl\./E1/blsiRe1iance Infocomin Ltd. The prosecution has not On the other hand. the R? .\w \, xx .

43 l e44"

prosecution has reiied on the evidence of P..W.2_£4.--._L1t3yd..p Noronha. Therefore, prosecution has fai1ed__p'to._prove the contents of Ex.P.48. p p p p p

33. P.W.24 wa.s working as the hHea'd'A. of Sales a.s also as Co--ordineaVt:or r§r*-- hegal Enforcement Agencies /olnfocornrn from October 2004. Prior to working in the said post. A. company from October 2004 given evidence in proof o'f__Acor1t.eAnVt's».of._ ' -t on 08.01.2004 there was a reqiiest from Viveknagar Police Station to provide the details V:'orV.:f:ob_i'1.fé_ phones bearing Nos.08036860795, 08036940211 and the same was provided to Viveknagar Police byflzifs predecessor viz., A.Ra.mani. P.W.24--Naronha :_"'haVd_ succeeded A.Ramani. PW24 has given evidence with *r_e1'eref11ce to the contents of Ex.P48. Therefore, P.W.24 was a

-»v.c--ompeten_t witness to depose about the contents of Ex.P48. P.W.24~ has deposed that as per Ex.P48, mobile phone f\2 Ex w 44 _. _.

bearing No.08036860795 was activated on 3Q§vo~a§:;o.Q'31' postspaid connection. After 18.10.2004 pre--paid connection and this ll name of Binakaran BU; {accused noV..,l.'v3J,. Ramamu rthynagar Main 0 a» 0' ~ .1 Bangalore--43. Accus'e.d the said address. Above all. T.B., father of Accused no and possession of said mobile gahorivellby V 'contents of Ex.P48 relating t.o mobile plfione llbelaririgii?-lo.08036940211 has deposed that this 00 mobile' phone started as post--paid connection on After 18.10.2004 it was shifted as a pre--paid ._ "c}3_nne'ct:io_n'.:;an.d it stands in the name of Anandan C., N"a.23_3; Agiipajappa Building, M.S.Nagar 19.0., Naganapalya, as B_angalore--560 043. P.W.l7'--Anandan {father of accused 0 '"._llNo.'l2] has denied to have acquired the mobile phone bearing No.0803(-3940211. PW17 was declared as hostile witness. During cross--examination by the learned Public Prosecutor 45 _ 45 _ PWI7 has admitted that he had received the mobile phone bearing no.0803694022.],jﬂ:E§?i;g?;;g;l.'_ deposed with reference to already been produced by; his v4«predecess,o:.'.lA.ind' Therefore, the contention of aclcttisied No.2' ~th'atllNo.2 was not holding the meme Ne.080é.46940211 cannot be accepted.

P.W.24 phone bearing No.0803891§3..02:§i0_,has the said mobile was started; as ' p,ostt~'pa:id_conn.ection on 08.01.2003. After 01.08.2004; the dsalillpl eehheetton has been barred. The connjection stood' in: the name of Lakshmi, No.584, 11 Cross, Nagamma Road, Reddy Layout,

34. The learned counsel for accused Nos.2 and 3 have fotinti teen with the Investigating Officer for not seizing the

-- ttnobille phones held and possessed by accused no.2 and 3. "Mobile phone bearing No.08036860795 was possessed and .3 KVVV FL \.'rr./ 4.;

46 -47- used by accused No.3 and mobile phone bearing No.0803694021l was possessed and used by accusjed:.fN.oZ'2'. The defence has not established the conseque--nces_iofhidnorls:A ' seizure of the aforestated mobile phones on prosecution.

35. In View of the above""d.iscussioI1._ 'hold that prosecution has proved: that ..r11onths of October, November and December was the possessor and~'user.' of No.98450l7289. accused No.2. and user of mobile phone bearing No,0i8O3V69.%¥Cl2lall-.accused No.3 was the possessor and._§:ppuuse.r of ":n.Qi§:1e phone bearing No.O8036860"/5 and '.Aaccduse_d VANo.4A4awas the possessor and user of mobile phone The service provider of mobile pho'nes~--.f.h'el'd and used by accused Nos.1 and 4 was it M/s.Airte1 and service provider of mobile phone held and by accused Nos.2 and 3 was M/s.ReIiang_e lnfocomm ism' N ale ~ e »~rV»» 47 W IAAAAAA

36. The call details of mobile phone bearing No.98450l7289 belonging to accused No.1. n.1obile'*n:lf1--on--e' bearing No.0803694021l belonging to accused l§ue.2.. i- phone bearing No.O8036860795 bel_ong_i_ng iesaeeaaeei and the mobile phone bearing accused No.4 are produced"l]:jy.V..the"vpi0secu:ti¢:;~..._as «Viper --. A' EXs.P49, P50 and P51.

37. Sri.C.V.Nagesh, learned Senioru appearing for Accused No.4, Sri.H.CV.l1'anuinaiah_, leafned counsel for Accused No.1, lSsi':T4.l3'rak.asia_, 'learned counsel for Accused No.2 and Siii.Amaf~ C'ofrea.;"'~1eai'ned counsel for Accused No.3 haVe sei"i-ausly di.si1:$ultedv'the admissibility and authenticity of V1oills.llcal'lK:history sheets marked as Exs.P.-49, 13.50 and 13.51. col'uii'sel have contended that these documents are demofn'si;r~ably concocted documents. The learned counsel Tier .Accu's--ed Nos.l to 4 have made following submissions:

.The documents have not been proved in the . we rnanner required by law. 5 : 5 48 II.

III.

IMEZI numbers.

__ _ Some of the entries in the phone bills indicate both the called number and calling number are one and the same.

PWs.24 and 25 who have prove these documents; are not competent give evidence in proof ofdtljlxe entries_IorLind1vin these documents-:;: in the called numbers have been 10 14D and numbers::'whic,_h have never be terrned as; ;,11.eV'mobi1e~--.co~r1nectior1 numbers. The summary of and SMS calls bears "'"IM.I33I NumV_be'rs"v'Which do not correspond to V' rn'obi1e"'..riumbers from which the calls had Vidorig'inVatedr':Which are otherwise termed as called numbe1's. From the evidence of PW33 the defence has demonstrated the inaccuracy of if} I 5&5» v L Cfgtx ( 49 the corresponding columns.

50 IV. These statements of Voice calls and SMS have not been certified in the I'r1a1"iI"ier'.i''<'f.'dC:;''L1:i.1'E:A(Vf'1.'~. "

by law. l d In call history sheets,»_»of double entries of the W numbers. . d it i

38. The learned drawing our attention to of voice calls and SMS in mentioning of last digit oft -of no consequence. If IMEI number 14 digits, that would depict theygcoriect stateuolf affairs. The learned Public Prosecutor in the computer generated statements, in "'som_ccp'ia"cs:s iii-t,he columns meant. for call numbers, tower n11rhber_s 'are' recorded. However, the discrepancies have to 'begs ignored in View of the accurate recording of ll\/{El numbers The learned Public ....l?*r0seCut.or would submit. that the double entries contained in the statements cannot be a ground to Areject the f\:' _ K. Cite:

5%) f if /\ g _ _ authenticity and correctness of the state1nents;"'The Public Prosecutor would further V Ex.P5l have been proved in ° V

39. Before advertirlg to,'t11'? Suiﬁﬂlllissiopacs learned counsel for the partie's;:it state the fact that accused no; andlbusver of mobile nurriber 9845o_ 172e9VV'(g§.ji:eiVj'__'i1;:§is by PW.22 Dhanashekaraiﬁ;.i:i:.{fath_eriioij and it is also evident fi'omj_2t11eV.'contenftsz:of:-the letter marked as Ex.P.44 which PW2? "Investigating Officer at the time of SU.I'I'€I1'd'€I"'lI"1g tlhell' V phone bearing number 98450 1p7_'f2'89u.. The evisdevnceiof PWIO and the letter given by PW.lO would make it explicitly clear that Accused ._ l'4Io,4'v»..¥as_ 1heV"user and possessor of mobile phone bearing N'o.98._455:'l70337 [Air Tel). Accused No.3 {Dinesh} had .. a_cquir--e¢d and he was the user and possessor of mobile phone ll '~_lbc-aring No.368607'95 (Reliance infocomrn]. From the evidence of PW.24, it is clear that Accused No.2 was the user and possessor of mobile bearing No.369-402151 (Reliance 5 i" f' 7\\_.!, lik V "'" (£f'~ "

_. 5 2 A infocornm}. Therefore, the identity of persons calling persons called has been established.

40. Now, adverting to the subrrii'ssionlA.rnar1~é:lbyathe Counsel for the accused, we hold the proved the contents of 'reqtrirecl by law for the reasons stated

41. At the relevant Naronha was working as ;thle'e1._Head._ of lViar"l:eti*ng._and Sales as also as Coorc§Vinatoo1>..:%§'g7r Legallllﬁnforcement Agency (SLEA} of s.Reliarioe"f Limited at Bangalore. PW.25 Stanley Alg"neV_lo was \5vorl"{ing as the Assistant Manager, Nodal of. Ml/s'.Airtel (Bharathi Telecorn Limited} at *':"l3Ta1:gal.ore.4."i'ﬁiherefore, PWs.24 and 25 could be termed as llpersons."vloii:et1pying responsible official positions of the naanagement of relevant activities in terms of Section 635(8) A of the Indian Evidence Act. PW.2-4: has given the lgcertificate as per Ex.P.5O in relation to the print outs of call data record of mobile phone bearing No.36860795 belonging A M M to Accused No.3 Dinesh @ Dinakaran, call relating to mobile phone bearing No.3694021 lVIr.Anandan [Father of Accused :'i\lo.'2}. it possessed and used by Accused call data records belonging to "Acctised A' No.3). The certificate iS:~'ii1 confoi'In_it_v'with tlievvprovisions of " Section 65 (B) (4) of the Act. It is in the evidence of thatgthel sa¥id_jR«arn_ani left his services with Reliance "[i<1Vfo:c.o'inrri«,:_Wealso that EX.P.50 is signed by PV\f.V2h2l}V bear the signatures of Sri.A.Ratnani§ oredecessor in the office of PW.2»_<1~. Tiie "said._ f«.--r.l;{a;1'nani had left his services with M,.f:$':'iReliVanrce Ini'o'co..t_ni-'n, we hold that PW.24 who was the A successor ofﬁce was competent to give evidence and there arelno valid'j_re'asons to discard his evidence.

"At; the relevant time, PW.25 Stanley Agnelo was it vvcrkﬂing as the Assistant Manager and Nodal Officer of « .._..ii/I/s.Airtel [Bharathi Telecom Ltd.) at Bangalore. PW25 has furnished the call data extracts of mobile phone bearing é 'L xi, X *«--é')V.Z;'j.\ * 53 54 No.98455 70337{possessed and used by 3 mobile phone bearing No.9845O 17289 [possessed and Q by Accused No.1]. PW25 has furnisiheddtiie S.umrnaiy_ ofcali".

details of these numbers. PW25 has certified ca1iv_:datai~ ~. Ex.P.51 by issuing certiﬁcate i33;»f:d.i7?.Vé3_'.;_3.VV«V'i'fhereiore, the competency of PVV.,.25 Q16 E31-1 gummary statements and call questioned.

PW.25 has deposed the stored in the server and tfrie ibiadcd through computers for gfhteretfore, we hold that the prosecutionxdocuments in terms of Section 65 {B} (4) of the 'IndianA '¥_3yid'ence Act.

";;:3._ decision reported in 2005(3) Crimes 87{SC) [State Ai'(3\_F.C_,:'f Vs. Navjot Sandhu @ Afsan Guru} at paragraph the Supreme Court considering provisions of vVL.'Section'8:3 and 65 of the Evidence Act, has held:

"According to Section 63, secondary evidence means and includes, among other things, "copies made from the original _by 54 L W LLL£L4J mechanical processes which in thernselvesl " A' ensures the accuracy of the copy, and Who'll compared with such copies"..... Secjtioril "

enables secondary evidence the of a document to be adduced if the do-riginalVi_sA ' such a nature as not to ~bge"~easilyV' m_ovaljl'e. is not in dispute that'-..the._p information? contained in the recordsv"is._Vstorepd in huge servers which cannot and produced' in the vi?hatlV'the High Court'_hi.as olﬁserlveld at para"2'7'6. Hence, printo_utsrl computers / servers process' certified by a re_sponsil)lleff the service providing Company can"l.§e.. evidence through a _-witnes"s._who7' can identify the signatures of certif5/ilngv~-cffi'cer or otherwise speak to the Eact.s'4.Db'a_sed on his personal knowledge. of the compliance of the requirements of Section 6513 Which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 ('SI 65. It may be thatnthe iv. '\ (:ur«a--»l 55 W W certificate containing the details in s_u'b'--' » A' Section (4) of Section 65B is not fi1ed.Vi_n"'-1;he it instant case, but that does.-tr1o~t-rne7an 'V secondary evidence cannot Vbe gi\»*ei1 «event if the law permits such ejr-'ic1_ence"'tQ"'t3e giveh 2 the circumstances mentio:o§e--r:l in xtiiehtrelehxraritétvttt provisions, namely Section.s:'t33 6539 Therefore, we hoI_d~~..Atha_t thee'-.§1oc'ur11ents marked as Exs.P.49, 50 and 51 have iri~.ba(.:cordance with law.

44. notice: statements that there are double entriesh and' int s.orne'..'i'of the entries called number and calliiig nU.:x1bers" are_____repeated. However, this cannot be a gr;o't:nVd that the entire sheet down loaded from a computer ariﬁhiaccurate document. .q 45. Ir1the'case of State 1.). Mohd. Afzal and others, reported it 2o_o4'(i) Crimes 227 in paragraph 295, the Delhi High .' has he1d:--

2"':

go (:=/L-L_"L M ("E/'\ .

56 ..,_referring' to an expert evidence has held:-- '" _ u.

"295. The technical ﬂaw whereby on i"our___ occasions double, entries have been recorded explainable, in that, they are double pertaining to the called and caller nuiitibersi;

Even otherwise as held in Ana»Marco1i-no' _ the rhalfunction is not S1lfLflCl;¢I'1t:t,v,(')'C:.'a"E'}f[> upon the capacity of the cor1'1pu'ter tolpgroeessl information correctly. llltﬁdoes any way that the capacity"-_of -the c'onip'uter} to process, store an:d"'~retr:T:eyetir1forrr1~ation to generate the staternent. * * ._evidence, was effectﬂéiqll, = ' 'V The -the accused referring to the evidence of' PW33 the call history sheets have contended that there are discrepancies in the IMEI numbers. scrutiny of the IMEI numbers, we ﬁnd that the the corresponding mobile numbers have been accurately mentioned in the call data records. A 'Division---l3ench of Delhi High Court in the case of State Vs. '' 'Mohct. Afzal & Ors. [reported in 2004 (1) Crimes 227) while 5' :

7 A} ,v'\..?, m. ' 57 W58"

"92. PW--7'8, Manjula Kapur, Manager from Seimens deposed that IMEI number 15 digit. number, the first six digits approval code which represent the man*;i:f:act,L1:rei:lll of the handset. The next. __two assembly code which represent:.the Ii1odel;~--. l next six digits are serial nurnber.of theglV1fiandset':\\\\],., according to GSM spec_vil'ication"

14 digits are significant.,::a1?iid the ~ digit according to couild be transmitted by as zero.

Literature V_perta'iniI'1g: V specification relevant to the code was lEX;'PW'--7'8/'ill' ggjlvgitness was not cross-- exan_1inedf" _ it A Vvlearned..senvior counsel appearing for Accused No.4 ' twouldv_sub1riit.__t.hat in Mohd. Afzai's case, an expert was 'e§§an1ineelV.;'p:therefore, what has been stated therein is not applicable to the facts of the present case which we are not , "persuaded to accept for the following reasons. The Delhi High Court with the aid of expert opinion has stated ll\/IE1 numbers are provided by the manufacturer l\¥. W. 5}' '""'[€"' ' 58 A _ of the instruments and that identification of theginstrn_rncntV, by the first 14 digits of IMEI numbers is suffi_cie'nL. ' in In the case on hand, we find:=.AthatAC1iscreﬁ+aneie's'i.nV IMEI numbers relate to the' last andeV»tVh:ere are discrepancies in the first 14 instrument could be identified. evidence relied upon by the proseciitiorithvtarrd been stated in the decision pointed by the learned' _se1.1io_:7 co'uns'ei.':for*a.ccu'sed no.4 cannot be taken into consideration; _» it ' n 0'

46. The 0i'earned'V--_ co_nrt~se1 for accused relying on the of I5W3'3---«"haVe contended that there are the description of IMEI No. of mobile bearing Ne';9ee2155 70337 [M.O.10] and IMEI No. of mobile 5 beariiigtl'-..io.v98450 17289 [M.O. 13). PW33 has given IMEI number of M.o.10 as _,._3§50991605847686 and IMEI No. of M.O.13 as 350607601965518.

5 9 {K x' «W f3_«~L 9 __ LAAALLA We notice discrepancies are only with reference to last digit out of 15 digits, constituting IMEI number.

48. In the discussion made supra, we have held variati.o'n_ ' . in the last digit of IMEI numbers_C.an_not_--be"a:'_grotind discredit identification of instrument an'd..vve'h_ave"also---T:1e'ih¢:l' that IMEI numbers can be 'C«Q.1'1SiCl€:I'€xd Vas~'V:laC:Curate3 by comparing 14 digits. We have cross--clj1eckied:llViEI Vfnumbers deposed by PW33 and find that discrepancies are onlyvwitbfreference".to"'-last digit of IMEI numbers. ._ Therefore','t psubinissilon of learned counsel for accused cannot be accepted.'

49._{ l\'?\r'e. deem ..itlnece'ssary to state that mobiie connection number would be registered and given by Where as IMEI number is provided by the""--.man'ufacturer of instrument. The instrument can be repiaced---,"howe\rer, the mobile connection number and SIM . l cannot be altered or varied without ..-consen'£/permission of service providing company. The identity of calling person and called persons are established V 4 60 VIIIWVV 61 _ by the mobile connection number and SIM numbers registered and giver] by service provider. Above a'i1..,""»the defence has no case that at the relevant time, accus_ed_'_1i'CJ1"

to 4 were dispossessed or had lost their mobiléjdé and: b they were used by some other persc-Ins. '

50. The learned Senior couri-sel for accus'edVv.;N--o..V4has --. L' contended that the outgoing cae1_1_stVV_f;?orx1.amobhile bearing No.9845570337 and V inxcomingie' :c:;i--1.%;; to mobile phone 11098455 70337.{posse:ssed. and us_ed..Vbye"'a.ccused No.4] are not fou__I1d, to mobile phone bearing No.9845C) 17289 {Vpossessjediettand used by accused No.1]. It is alsoyegjcontended in some of entries in biii relating to vimobtiie No.98455 70337 calling number and called "';1ur"r__iber'va1'e_shown as one and the same.

51."«. 111.__"ttre«:"'bil1 relating to mobiie bearing No.984.~5017289, 'thee outgoing calls are recorded. As it was a prepaid . ' 'e_onnection, incoming calls are not recorded. With regard to ....second submission, we notice in some of the entries in the « A' i/x.-'1 ~ '}».., 61 62 bill marked at Ex.P49, the called nun1be_t*;"""acolr..i*V-.._jcalli_1ig number are recorded as one and the same, It..i_s'~neces«sary"t0. state that the mobile phone 0 mobile phone bearing No.9'8.{150 001010 P.W.10 and he was the regisit=e_red_p lilfhe service provider of both moL$ile.. M/s.Airtel Company. Therefore: a(2.c.5q;§;~t:bt_l_'..bearing No.105c 100000652 bearing numbers 9845570307 allotted to P.W.10.

entries wherein mobile phcntg iﬁcattngx':'."1§Qg;0_§34t§a70337 and 9845001510 are recorded was a*_co'mp0site bill. PWIO has not deposed heiwas rccciv-mg' separate bills relating to mobile phone ' and 98450 01510. In the circumstances, of the learned counsel for the accused that the indicates the same called number and calling " Vnuinber cannot be accepted.

Now, we advert, to the evidence adduced by the prosecution in proof of motive put forth by the prosecution. mt x..... t"-- "-

-'"-- A 51 _ W The prosecution has placed reliance on evidence...of..__I?}W:8~ Herna. who at the relevant time was _a.__b'eaVut:i(:i.a11 'bye occupation. She is a resident house is situate at a short distancelfrholin toll" s Venkatesh. g p it V

53. P.W.8 has deposed; residVent"oi' H Stage, Banashankari, Bangalore: beautician by occupation ui{1'1OWT1 to her. On

29. 1 .h'ad:§fisited the house of P.W.10 to apply . artistic impressions of crimson red colour to applied Mehandi to palms of a(;(:_§Lised No.4'.A.AtV'the: time, accused No.4 hugged PW8 and that she was not willing to marry B.V.Girish and ;'8 to inform the same to her father [P.W. 10] to stop the -nfiarriage engagement. Accused No.4 told P.W.8 that even after the marriage engagement also she would it '~_Ve'lop'e with accused No.1 {her lover}. P.W.8 informed the .----r11attei' to P.W.9--Urna Shashi [junior maternal aunt of accused No.4]. P.W.9 told P.W.8 that the marriage JD. .[.'-»"v~£ P» 63 AAAAA4 M engagement has been fixed, at this juncture, if of accused no.4 is made known. to others. of the K family would be spoiled. PW9 told to 'keep P.W.8 has deposed loft"

marriage engagement} at abouyt...?.V.AO.0 she.had_y*isited the house of P.W.1O t.o when PW8 was beautifying accused P.W.8 that if B.V.Girish§.vtr;sr§; died, the marriage engagemenf;~.3g;'oulgl lltccused No.4 also told that No.1 {her lover} and that people «from side .-- No.1 would help her. On

05._;i'2.2o03 \}iz.._._,wtwo' days after the deat.h of B.V.Girish, 'P.,llV'.SV.b'had:{Iisited the house of P.W.1O and told accused No.4 by accused No.4 B.V.Girish had died. Aceusved "No.4 retorted that she had escaped from the hi = marriagse and she could be happy for two years. P.W.8 was subjected to extensive cross~exarr1ination. The basic infirmities with which evidence of P.W.8 sought; ()4 .. ;t~m~z@»» -

._, ._, to be discredited are:-- the inordinate delay in recording the statement of P.W.8. P.W.8. who had the vital inforination did not inform the same to the parents of B.V.Girish so also to the Investigating she:

had met the Investigating Officer {evq age':-' occurrence of the incident. ' i t It was also suggested to that "she"xvas very much acquainted with given false evidence at the instancewof1?.V1iT}'6l.'v It..~vvas.:'Vsluggested to P.W.8 that :?visited_V."the of P.W.1O for applying Mehandi it on and also on 30.11.2003 for beautifying "ac'cuse'v-._:i ..1_learned~------seni0r counsel for accused No.4 would was a planted witness. P.W.8 admits that lshehhad information relating to murder of deceased B.V.Girish. Even then she had kept quiet 1111 14.01.2004 on day her statement was recorded by the investigating 'Officer, her silence from 29.11.2003 till 14.01.2004 casts ' serious doubt on veracity of her evidence. The Investigating 11 : I , N. e1/$31. 0, (ix...-x..

'AA_lﬂJ ...

Officer had not given any reasons for the inordinate recording the statement" of P.W.8 under if

55. In order to appreciate the necessary to state that there is' reccard that P.W.8 was close to P.W.6--\fer1Vl:V§pateVsh.f" saine time.

it is difficult to concei"vhj:f.e€._:.":'--tha--l_t:f "who was aged about 67 years, had planted PW8 to prove juncture, it is necessary td No.4~Shubha was not The Investigating Officer had theflfirgsti indicated that deceased B.V.pC;;irish was assaulted by an unknown assailant. The assailant and the persons involved in the A"cri1«rieyfA ascertained. In fact, Shubha was arrayed as accused No.4 on 25.01.2004, on which day she

0. h :."v.{as arrested by the Investigating Officer. °:The learned senior counsel for accused No.4 has

-~strenuous1y contended that P.W.8 has admitted that she had 53 R.' -'"\. [LN ¥("{Z"' 66 67 vital information relating to commission of murder of deceased B.V.Gi1'ish. Therefore she had concea;Ie'd..:"vital information almost for a period of one month ' from the date of occurrence. Therefo~re. PiW8ﬁis.--V.Va planted witness.

From the evidence of P.u'W.8; we t--':ilat.':'PW8 has admitted that she vital_ i'infor'mationv"relating to commission of murder of'7 However, neither the flCi"; the'"d'efence had questioned P.W.8 about £i;§'.:xi1;_é1V.mi*<§_fma::.o';1 which she had. During the period between 'o3.V1'2'.'2o'o3""a§1d 14.01.2004 the Investigating officer" had 1nterrogate'd several persons including accused Ti4.¢_.to the identity of assailant and other A*~pe«rsor1sv':invoIveVd in the commission of crime. it is neither the-.__case~ the prosecution nor the case of the defence that had witnessed the incident of assault on deceased and had direct knowledge of the persons involved in the _._clommission of crime. On the other hand, P.W.8 had heard from accused No.4 that she was not wiliing to marry i'\ >. c:£:L'\ tax. F' 67 L 'WC.'-

'A233.

J\' fmurder case.

._ ._ deceased B.V.Girish and it was the wishf'uc;i""thiillnngll"of accused No.4 that if deceased B.V.Girish hadV_Aldried'rA--h'efoIethe date of engagement, the engageinientllWouldl_haVe..'stoltgped. l Accused No.4 had told P.W».l8_thatshe'-woulcdiv-tun accused No.1 even after the these utterances, P.W.8 could. that deceased B.V.Girish was done P.W.8 had developed susnlicion :t.Q1'1g what she had heard in locality where accused No.4 with accused No.4 and was one avndiﬁthe' "same. She was neither a friend of iv-'iXl\:«~'.(-:,fA..c:1r1g;«rAshelllWas*'iVnimical towards accused No.4. PW8 is dli's'int'ere:3ted witness. In the circumstances. it is natural that .l\.VaS_ hesitant to reveal to the lnvestigating Officer wha~t'elver the information she had. It is not uncommon for a 3" VVdi'si.nterested Witness to be hesitant to become a Witness in a We also see from the records that the investigation had gained momentum after arrest oi' accused '\.

f\.¥ , Kfljl. '\ F' _"' 68 ,4 _.70__ the part of the investigating Officer in recording her statement under section 161 Cr.P.C., cannot be a discard her evidence.

58. The defence has made uésisuccessiiul disprove that P.W.8 had not 29.11.2003 and 30.11.2003'. ci.é1'en¢e...Vrigiéﬁérieéi ontdh evidence of P.W.9~Unia,_Shassh'i rnaternali aunt of accused No.4} and accused No.4.

PW10 was dec_1ared~ as V'

59. In the supra, we have held PW10 has deposed as"if he _\s2'vviere-._0a'~vvitness for defence though he was extéirrxinied as a for the prosecution. Therefore, the the defence to discredit the evidence of basis of evidence of P.W.10 cannot be 'q_ councenanced.

0' P.W.9 is the junior maternal aunt of accused No.4. = has deposed that P.W.8 had not visited the house of P.W.10 either on 29.11.2003 or 30.11.2003. PWQ being the 5} ii 70 __ M junior maternal aunt of accused No.4 has shown her inclination to tilt the balance in favour of accu.sjed:':No.._4. Thus, from the testimonies of PW9 and PW1O _ interested in accused No.4, it it"

evidence of P.W.8.

61. We find from evidence oi*P:.W .1 1--Si1ee'tha=l to it some extent, her evidence lends' coricééorationvto evidence of P.W.8. At the relevant time, 'student and her father Dr. M.Raj.agopal_, doctor in Malya Hospital. ._ I---Iertt'house wags'-sitiiate at II Stage, Banashankari, Banga1ore."PW'1 in to accused No.4. Both of them were "c't1I.<31'1C1'V1I'1g g'm'{,1s1£:' classes. P.W.l1 has deposed that thVe'~.t_naid servant of PW.1O by name Kamala, PW. 11 A camel the marriage engagement of accused No.4 vv1'th _B.'V..GiArish was held on 30.11.2003. P.W.11 Acongratulated accused No.4 for her marriage engagement v.r.ith.--'B.V.Girish over phone. At that time, accused No.4 told ___¥5.W.11 that. she was not interested in marriage. During cross--ex.a1n1nation, the defence has made an attempt to "E I:

7% IVWWVV 72 _.

establish that P.W.11 was not a friend of accused Notsiéiddand there was no maid servant by name Karnaia wo_r;ki'r1g'in: the residence of P.W.10. P.W.11 and accused met each other. In any event, P.W.f_1] wasjnot of accused No.4, to whom acicsised cou1Vt:1ITgi.\V?'e mind. The defence has founduuiault withathe--V-Inyelstigating Officer for the delay in P".x\/V. 1 1. Before app_1'eciatin'g"' 'tiieV'&cont_entions raised for accused No.4 to discredit eviderace of it is necessary to state at the relexiandtrperiod..__P«.W.11 was a student and she was unn1a.rried. 'She.:'1s.V.daughter of a doctor. In the circu§rnst.ances;" there was no reason for P.W.11 either to be the family of deceased B.V.Girish or to bear i1l~ No.4, though the family members of deo"ease.d 'Bn.V;Girish were known to the parents of P.W.11_. :"'.?Vhen 'accused No.4 told P.W.11 that she was not interested '.1_n*»r.=iarry1ng deceased B.V.G1r1sh, PW.11 could have hardly d ..._thought that deceased B.V.Girish would be done to death for such a motive. P.W.1 1 had not sprung from a tainted source 1"':

r\..} g, K. .{J'%. x xi fig".

M \L£L_AL_l and she had no motives to falsely implicate much less she had interest; in the success_o_f _Ap--rose1cution'." Therefore, we accept the evidence

62. The prosecution has relied on ti1elleViden,.ce.of Pramod Dikshith to prove thelvlintexital oiliaccused No.4 towards deceased college.

mate of accused No.4 in PUC.

P.W.23 was a" frtiendlpf PW.23 was Contacting £iccLised"VNo.4"'o:ver <p110ri,e 'and was also sending SMS her. _ basis of such intimacy, the investigating Officerhad l:s"L1"hjected PW23 to interrogation to rule out the possibilitylof his involvement in commission of murder deceased B.V.Girish.

deposed that he had spoken to accused No.4..__pri_or* the date of her marriage engagement. PW23 ' "came to»k_li'1ow from accused No.4 that she was not liking the l of deceased B.V.Girish. Accused No.4 did not like low profile life of deceased B.V.Girish as he did not like to 73 W ._ visit star restaurants / hotels, whereas accused Nq';4"exjp.e'cted the life style of high profile and expected. B.V.Girish to visit top restaurants andbstar hot~¢_1s..:

No.4 had also a feeling that she was married at alveiy a young age. P.W.23 deposed his *Co'hv;ers.ation with accused No.4 he came .svh~e.wasH'r1otv satisfied with her marriage engagement.' it N N During it has been elicited accused No.4 and her family PW23 had visited the house accused No.4. In fact P.W.23 had re_ceived~» nviesysages {Ell/IS] from accused No.4 and also '3"~._sentj}'nicssa.gAes {Sl\/iS--l--«'to her. PM/.23 had sent e--mails to L>;W."lO" used to address the parents of accused No.4 as uncle antl_ aunty. The learned senior counsel for accused No.4 liad; confronted to PW23 the e--mails as per Ex.D.42 to A which P.W.23 had sent to P.W.10. PW23 has it admitted the contents of Ex.D.42 to EX.D.51. In the circumstances, it is hardly possible to accept that P.W.23 . A, i\», us. r-~~t'*'»*~ 74 W W had grudge against accused No.4 to falsely:"'de.p'os:el§' accused No.4 was not willing to marry deceailsedl :.lB:;V,Gifri'shf and accused No.4 was not happy' her'--.Vniiarr;iage ' engagement. Therefore, we _ho1dl'--thlat evid,eVnc.e' of lends corroboration to eVidenc'e:o'f P.W.8"

63. The learned serijiorﬂ accused No.4 has submitted that the involvement of the of PW23 had been.

subjected?tollfi_r1tei'rlogatio'nrby :thelv.:lnx-estigatin.g Officer. PW23 was very of his bein.g implicated in the crime continued till PW.23 was exa;n1'ined as"*a_V_l_w4itness before the Court. infact, PW.23 has «volttntatfrilvikdeposed as "The Damocles sword of me being A ._IU;ggedvlii1to thve:"case till this day was hanging on my neck". 'W.e'vfi'nd from the evidence of PW.23 an.d also from the records during initial stage of investigation, the Investigating l"'._lOf1"'icer having noticed the close friendship between PW.23 "and Accused No.4 and their frequent contacts over mobile /""=, J 5 ' 2?

r\?; 1" [ﬁx \. ~ ('1 f'\' 75 V777V VTTTV phones both by Voice calls and SMS calls PW23 to interrogation. However. from th6lj"'§vidE~ncel V' PW23, it is explicit that he had notglilxlzeriev'idenc.e:'i§efore7the:

Court. under the threats of Police. .circtiIvnstan'ces:.ithe'~_ interrogation of PW.23 the initiai: of investigation and the.__ s'usApi'cio.n; lllV"cntertainedV: by the Investigating Officer pf Pw.23 in the crime cannot VVh'is'i«e1\iidence. We also find from the aiter the incident. he had Visited .1aOll't'o"'console them for what had happen'ed.l' l_)ni'i.1iéﬁl'4"(ioniésLegit"Jcrossexainination, the learned senior counsel 'a.ppeari.ng.for accused No.4 had confronted to certain e;n1'ai].s.«imarked as EX.D.42 to Ex.D.51} sent 'b§lrl1O several days after the incident. In the cii*curnsvtant:es.1;vlit is not possible to hold that PW.23 had €11I]1ait'_V;aOI' grudge against Accused No.4 to depose that it Aclcuisedl No.4 was not interested or liking the life style of deceased Girish and she had felt that she was getting married at a young age. Therefore. the submission of pg M [2~..s.'-(.'f 3..

76 _ 77 _.

learned counsel for accused no.4 that PW23 is not a trustworthy witness cannot be accepted.

64. The conduct of accused Nos.1 to 4 on 30.11.2003, would lend substa'ntial«. &_c'orrobol'a_tion..'.t evidence of PWs.8, 11 and 23. VOn of thedA.suII:.1na:i'y..AVof ._ calls exchanged between accus'ed"Nos. that not only on the date of engagement;"but'~als-O since'few..days prior to the date of engagement, " e.t.he»re 'Were numerous calls between accused:AN-os.3§_'andA4;andfaccuse.d" Nos.1 and 4. The summary of calld_e:ta.ils.dV.;i's....fo11r1d in EX.P.49 and Ex.P.51 is extracted Vvt'.hu.s:a A 4; ' '"l'»1ote:l _ _ A A1' .Accused...N.o'. 1; A3 -'-"= Accused No.3 A A A _;Ac:cu_sed No.2: A4 4" Accused No.4 A of Accused No.1 : 9845017289 Nos. of Accused No.2 = 36940211 A l\v/lobile Nos. of Accused No.3 = 36860795 Mobile Nos. of Accused No.4 ﬂ 9845570337' ,-.

1' 5\a . 4. -

77 _. _.

Summary of calis between A3 and A4 from -4 25.11.2003 to 30.11.2003 '

81. Out oin lncomin 1 . Court-Exhi1b.it N0. gfgom To Q Call type Date .T1m_e 1 A3 A4 Voicecall 25.11.21.f103?."'9.04'P.M... .Ex11.P;43(3)(b)'* 2 A3 A4 Voice can 25.11.2003 - 3.13.P.111...1 'Ex-211.P.49(3.)(11) 3 A3 A4 Voice call 25.'1-41.20031 ._€-1.1.7P.._M';*._""~»wEx}1.P.49(6)(b) 4 A3 A4 Voice can 25.11.2003 9..13"P.'M. Exh.P.49(6)(b) 5 A3 A4 Voicegail 25.1 3.23 Exh.P.49(6)(b) 3 A3 A4 Voic0.._0a'| 25.132003... '-9.23 P.M. Exh.P.49(6)(b) 7 A3 A4 Voice ca11;" 25.171.»20Q32'-.1"»..9;'28PM Exh.P.49(6)(b) 3 A3 A4 V0ice.ca!.!_'=.25.~11.».2003t P.M. Exh.P.49(6)(b) 3 A3 A4.ﬁ;W.%1./015111ca1gWl.['..«25~..11.20030 '+3.40 P.M. Exh.P.49(6)(b) 10 A3 A43, ;'3['3'0'V.oi0e"cal}. 27...11=.2003"""5.43 PM Exh.P.49(6)(c) 11 A3 A4171. ""'V0.ice"ca*l-!.. "'27'.11P;2003' 3.33 P.M. Exh.P.49(6)(c) 12 A3 .,vo1ce'-caJ1'~ 2111,2003 3.52 PM. Exh.P.49(6)(c) 13 A3 "A49". 23031555411 27.11.2003 7.00 PM. Exh.P.49(6)(c) 14 A3 . A4 27.11.2003 7.13PM. Exh.P.49(6)(c) 15 A3 A «A4 1."v\A11ce<4a1'1»2.I. .-27.11.2003 7.17 P.M. Exh.P.49(6)(c) 13 A3 "..A4 ' _Vt;1'ce 1.133 27.11.2003 7.13PM. Exh.P.49(6)(c) 17 A3. A4. «£1/o1'ce 1:411 27.11.2003 743 P.M. Exh.P.49(6)(c) .13 * A4 call 23.11.2003 12.44 P.M. Exh.P.49(6)(c) A4 -- A3 Voice cail 23.11.2003 12.53 PM. Exh.P.49(4)(a) 20, ~ 3313 . Voice 0311! 23.11.2003 01.33 PM. Exh.P.49(4)(a) 21 A4 " "A3"-.9 vo1ceca11 23.11.2003 04.00 PM Exh.P.49(4)(b) 22 A3 Voice can 23.11.2003 03.53 A.M. E"""P":9j'7)('"° 0 A4 .. A3 Voicecali 29.11.2003 09.04A.M. Exh.P49(4)(c) " A3 A4 Voice can 29.11.2003 03.07 P.M. EX"'P"ﬁ3(7)(at° A3 A4 Voice caii 29.11.2003 03.30 PM. E""'P'4§(7)(a'° A3 A4 Voice Cali 29.11.2003 03.41 PM. Exh'P'A£(7)'at° 5K." x. f:'Y'""L'{£'\' 78 79w 27 A3 A4 vo1ceca11 29.11.2003 03.45 P.1.4..-E; »E.%3".'F_?'5::;3«(7)(a *0 23 A3 A4 Voicecaél 30.11.2003 07.42 .41...Exh1.P.4'9(01;1e) 29 A3 A4 vo1ceca11 30.112003 03.431301... V,Exh.P._49'(5)(e~).. 30 A3 A4 voececau 30.11.20'0'3'* .0349 RM." VExh«;P.49(6)(e) 31 A4 A3 Vo'1ce Catt 02.12.2003;-41..011.2111.P1.1111m;;;m :E,~;r_1_;§-'._;='+9(6)(f)~. -- 32 A3 A4 vo1ceca11 02.12.2003 A ,_03.49'gA/1.4 = Ex'h.P.'49(8) 33 A3 A4 vo1ceca11 *02;1.2.2003~. 03.50P.111:..-..VVVExn.P.49(3) 34 A3 A4 V0103 catl 03.122003 1103.011. Exh.P.49(8)(a) Gail summary on t?1e~~date «:5f'me:11tq~3.c1_e01'e.n't -- 3()'-010010-2003

81. Out 0in Encomin *'-- 5. 1 . '' r'1Exhi it No. gfgom *5ate«]"«~...__:.7 "me CO" 191' b 1 A4 'i.....33.s111s_ 1_y__30111;.2003. 03.51A.1v1. Exh.P.51(34) 2 A4 A1_=:+" vo1ce 0a11 .30.11.2003 09.11A.1/1. 12.51130) 3 A1 -A4, "1:'0%c3'Qa£! 301121003 10.22A.1v1. P.51(94) 4 A4 _ A1 30.11.2003 10.43 A.M. P.51(34) 5 A4 -A1 0V"1'..1j~s1/13.357730.11.2003 12.49P.1v1. 951134) 3 A3 '*.._Ai_ 'vAg1ge"€a'_1.1 30.11.2003 01.00 PM. P.49(6)(7) 7 A41'. A1. 31113 30.112003 02.339101. 951134) .__A1 "*11131v1s 30.11.2003 04.04P.M. P.51(34) *9 W,/-\3 A4. V0iceC3IJ 30.11.2003 07,423.10. Exh.P.49(6)(7) 10'..."_A311[;;A2 vo1ceca11 30.11.2003 03.223111. Exh.P.49(6)(7) A11 HA3' VoiceCaEJ 30.11.2003 03.29 P111. Exh.P.49(6)(?) .2 A3 A4 V0iceCaII 30.11.2003 03.43311/1. Exh.P.49(6)(7) A3 . A4 V0iceCaJI 30.11.2003 03.49 PM. Exh.P.49(6)(7) ._"1 11 A3 A1 3113 30.11.2003 10.53311/1. P.51(34) 5% wggw in the discussion made supra, we have accepted admissibility and the authenticity of the docpumentsdpmarked _ it as Exs.P.49 and 13.51.

65. Before adverting to the"--..exchange of Accused Nos.3 and 4, Accused_;l_l:§l:csi}.._vand..4;:Accuvsed Nos.2 and 3, it is pertinent toA"stk1te i;lh'e._'g;.!'é?$E\ciation of Accused No.4 with accused No,.1~ has not been disputed so nos.3 and 1 as maternal llllirom the evidence of PW14 it proved that accused no.2 was a friendof However the circumstances under"wfhich i\lo.4 came to be associated with :No".3'_has notlbeen explained. We emphasize on this I to the admitted relative positions of acc~usedv'1'Jos'.i, 3 and 4. As already stated, Accused No.1 allcotilege mate of Accused No.4 and Accused No.1 is the

-sorl maternal aunt of Accused No.3. At the relevant time, Walccused No.4 was a student of V Semester LLB Course in BMS College. From the evidence of PW.14 Uttamprakash, {ya "V-~--' -{vim-~/'~'éz« 80 v __ LL44;

father of accused No.3, we find that running an autorickshaw. PW.14 has deposedyllthiat No.3 was also running a tailorirlgilllilnstituteg'in; estabiish this fact, Accused No.3 of Ex.D.6 which is a certificate,pjissuedv. t'o.A'c.cu:sed' for V having undergone tailoring cou'rs.e:':du'ring 2001 -- December 2001 in Classlichllnsti-tulte Kanimanahalli Main Road, BVa.nga.1_ore§.r wF',x.D.6 is hardly sufficient to" was running tailoring from NGEF alongwith Accused-_&No'.3' shop in the name and style 'Keethana itMobitech'.Qwlielrein they were undertaking to repair. n1_o"t;i_1_e phAo'icies..._."I'hus, we ﬁnd that Accused No.4 who 'student and daughter of reputed Advocate had no academic' 'connection with Accused No.3 and she had no occasionitohvget acquainted with accused No.3. The relative "..:<pAositiyonsl of accused Nosﬂi and 3 would certainly lead to an .,5,.

' inference that their association was an unusual association. win the normal course. neither accused No.3 nor accused 81 c82_ No.4 had any reasons to get acquainted themse.lj\{et§\*,§,igitl:,,A each other. Therefore, the only inierence.V'_th'at be' it drawn is that accused No.1 had introdu'ced7.accused_§\lo'.3 to accused No.4. From the sun1ma1'}v?'V_of1".call eictracts lstated'--,, supra, we can safely infer t};vat"lAccusedl 'No',=3ll'kneW thel mobile number of Accused No,V4l',"So:'also,._Accuse'd 'No.4 knew the mobile phone ntimberof

66. Now, adve'1"i,ing calls as extracted supra, we also from four days or fiVe7day_s-- of engagement, Accused Nos.3 and 4 werein constant each other by voice calls. On 2.;5.o4,.20o:3~, ,t_h'e'first call was at 09.04 p.m. and the last 9,40 (Call No.9). The frequency of calls A iwouldldcreate stro'ng suspicion about their conduct. .27'.;l1.2003, the first voice call between accused and 4 was at 5.43 p.m and the last call was at 7.49 "(Call No.17).

N 42%"

.5 is flat' K ' .j',vH p.m., 3.49 p.m., and 3.50 p.m. W W On 28.]. 1.2003, the first voice call from to 4 was at 12.44 p.m. and Voice calls from V' 3 were at 12.53 p.m., 1.39 p.m. and 4.0'G'p.'r1_1. -S On_29.lL2003 umzvoyg caﬁwﬁinn Ag¢cs§d'N§:§¢¢zL Accused No.4 was at 8.53 a.fﬁ..:and fr05m_V_ No.4 to Accused No.3 at 9.04:' Volce "calls from Accused No.3 to 4 at 8.07 p.m. and the last call was as: pin. 3:

:'t11e"firslt'._"{i€)1ce call from Accused No.3 to 4 was at? follcwiegfl by Voice calls at 8.46 p.m. and 8.49 n_otice'l'rc-m«the extract of call summary details on A 30.}V1A.2.003"l§e'v.veer1 8.51 am. and 10.53 p.m., accused No.1 'jeachanged as many as eight voice calls and six ﬂnSMScﬂ$.

33 On 02.12.2003 accused no.4 and 3 had Voice calls at 83 .. 84 ..

67. The father and mother of accused N04 and junior aunt of accused No.4 Viz PWIO, PW12 and PW9;_res.pecté.\}eiy, have deposed that accused No.4 was a consenting the marriage with B.V.Girish. She w,a.s_Very_--'19nLich':vdeIigi1ted__ 4"

with her marriage engagement. In.fact,'eéicciiseddi'JoV.4'i"--had.i expressed to PW.9 (her junio1'iVr'n.aterna}. _.was very lucky to have Girish as her__wo.u1d.V he PWs.10 and 12 have deposed 'i*€o'_..zt"'had high regards, love and affectiongfor B.V..C.~ir_ish '(vsAi1:1_ceﬁdec'e*.;3V,sed).

68. he 1earneti;s.e:nior'veou~nsei appearing for accused No.4 referring to.gev'idenee""o:ii PW23 has contended that on the previous. engagement and on the day of eiigagernent, 'accused No.4 was Very cheerful and she was ezfstatirc in discussion made supra, we have held that A No.4 was in constant touch with accused Nos.1 and Sdonﬂthe date of engagernent, a day prior to the date of engagement and few days prior to the date of engagement. C.:%.c?'r'" ml 84 *4" ---~{ 1 £V'L M M The conduct of accused no.4 would belie evidence.'_'e.i"__ii5\\f0, and PW23. From the conduct of accused No.4g.__iif"is 0 her consent to the marriage and fiance was ostensible. This is obvious~..fromb.t"he"fact'*.thatV"p accused No.4 was in constant Acicused even on the date of marriage the time of engagement which took and 10.00 pm. on No.3 had contacted There were frequent excharigehmof Aééﬁséva Nos.4 and 1. In the circumstaneesi, .Accused No.4. her frequent contacts with Accu'sed*--._No~s:.1 and 3 on the aforesaid dates ~"'~,.VWot.1idi. liernd, substantiai corroboration to the evidence of P'..ZVs.*83 that she was not wilting to marry deceased B.."J.Girish.3ffffhese calls would demonstrate that accused no.4 iiwaszlvevry much after accused no.1 equaiiy so accused j"r1o.Vld"was Very much after accused no.4. :

5 ' .

-j'\§ 'W i7'"*~ 'WK?/t. ' 85 L44; __

70. In a decision reported in [(2010) 6 sec Vashisht Alias Manu. Shanna Vs. State (NC_T'_o"f~--..De:l_1f1'i),_ the _p Supreme Court has held:--

"232. A criminal trial isllnotan enoiuilfyi A' into the conduct of an of Vany'pi;lrpose"l"' other than to determine hehis guilty of the offence cliafged..'_lA In J'th_1s_i'coVnnection, that piece of conduct to be incrin1inatot'y.__ which ' -no V 3 reasonable eXplanati:onl;i:e§t_cept . oh _the_ that he is V. destroys the prest1i'11p.}i'ionllxfiof can alone be co--nside1'ed niatelriall . Q . .

In theslcasel we do not have reasonable V. p_ explaitiationpvlor tl1'eco_nduct of Accused Nos. 1, 3 and 4 on the afo'1'esai--ol dates" either by way of evidence elicited in the cross examination --.olf;=the prosecution witnesses or in the evidence 'V given" bylpafents of Accused No.4 and the father of Accused So' also, we do not find any explanation from the acctised for their aforesaid conduct in their examination " "under Section 313 C1'.P.C. (E) * 5 lllf. 'xi 5'*~"»'~ - 2-.

86 _.. W 7}. At this juncture, we would like to refer to thle"§u_'dg1r}ent of the Supreme Court, reported in (2010) 6 Vashisht Alias Manu Sharma Vs, ..Str_:_tte {N"C"T'}:iéIh:i).VasV_ to 1 the necessity of the prosecution 5'pradu¢}=;- lthepeiiact conversation between the _ accused. In this{'deCVis=ion at' paragraph 226 the Supreme has 1:1"e1d:l_§_' "226. The above 'phoVne.p:c'alfl.=details show that the' accusedv' »a%;a¢ toucihl with each otheri vvh'ich.V"resu1ted. win hcielstruction of eviden'c_.e 13l.arhouringd Thus the finding of ,_t}q"e_ trial 'Court. thatin the absence of what thcvlstated to other is of no help to the prosecution is an incorrect appreciation of ' ?J'§vi'd.ence onmrecord. A close association is a imp. ortant piece of evidence in the case of 'V cici=c:urnstantia1 evidence. The evidence of ,_*p_};cfne calls is a V€I'V relevant and admissible " _ piece of evidence .......

(underlining supplied by us] Therefore, from the evidence of PWs.8, 11 and 23, the call details extracted supra and the conduct of Accused No.4 K?» R"-*~»-5-I-at. ' 87 _88m on the date of her engagement and also few days prior',to'the date of engagement, we hold that the prosecutioniilias,'Vp'r_ol%;.+9¢1 that Accused No.4 was not willing to Accused Nos. 1 and 4 had felt obstacle for their affair and future plans,--..

73. We also see from the in the album as per EXP.1.l5'<--..zVt'h_at'--V_ L the marriage engagement, accused a mobile phone, which normal conduct.

During:'--.__a the normal conduct of prospectililre.b1'idve/'blrid.egroo.rn would be to greet invitees and receive "blessings. _ from elders and well~wishers for which No.4 was not needed to hold a mobile we hold that the prosecution has proved the :'noti\,_-'e' commission of the offence. We also hold that liiheggconsent given by accusedno.4 for her marriage with _l£3..gV--.»Girish and her close movements with B.V.Girish and also her opinion on B.V.Girish as expressed to her aunt were "llostensible. At this juncture, it is necessary for us' to state E \W_ F» \_ \.4[.{/' 88 VVVWVV ALLJAAL relationship with other persons and had incurred. _ to lose his life. it is not necessary for the meet any and every hypothesis put 3 it

75. At this juncture, it is useV_fu1__to refer' to of 2 L' the Supreme Court, reported in 1. State of U.P. Vs. Hart' Prasatx'-. the Supreme Court has he1d:«~ V . .

"2. .... flhis is'.no_tVto _sa'yVtl1at"'even if the witnessesare ti"1,1thfﬁ1, the? piiosecution must _Vrea;so1:_:ttia't theniotive of the crime is:"'difi'i,cu1t matter of that, it is neve"r',i_ncunib_ent onﬂthe prosecution to prove ;*Lhe_ motiv-e_f'or'1 the crime. And often times, a i:1"r1:j)-t.,iVt3. is intiieated to heighten the probability ,,th.3,ti.tfie&«'offence was committed by the person 7'.___\trh'o'V"tir_asV.i.,iiripe11ed by that motive. But, if the A criiiie alleged to have been committed for a particular motive, it is relevant to inquire it '*-._whvether the pattern of the crime fits in with the alleged motive ......

(underiining siippiied by us) R}, E-kt-'*4'€'~"

90

__ 91 _

76. The learned counsel for accused Nos..1 to 4 have contended that the prosecution having alleged that vaoclused Nos} to 4 had entered into conspiracy to do life of B.V.Girish, has failed to adduce cog¢n_tl%-Ind' b evidence to establish the conduct o:':.laccluseVd"«no1s.'Lﬁto. to the incident, at. the time of incident and att.er:Vtlf1e '1n°c1da,en't.. V

77. The learned Special Publiclilllarosecutor referring to the call summary extracts a_lso_v.the"'relative positions of accused Nos.1 to__4 would.:subI'n1t:._thlat.acejused Nos} to 4 were closely' .associated'with. each other, considering their relative po'sitions,l"it tévas an unusual association and it was incongsistent witirtheir innocence. Accused Nos]. to 4 were closely with each other either by voice calls and the incident, at the time of incident and it _ aft.er'~t.he..__i'nc-i.dent. 4' ll°~..t1'1 order to appreciate the above submissions and to hlilghliltrght the conduct of accused Nos.l t.o 4 prior to the incident, at the time of the incident and after the incident, : 3 E :

. K, 3 {\\__'} _ "kw .£?'i.k.'x,{"'_E'}' 1_ . 9! 22 __ we deem it necessary to extract from the contents of EXP49 and Ex.P51, voice (tails and SMS (tails exchanged betwee11"2eCcused Nos} 'L0 4 on 01.12.2003, 02.12.2003 and O3.12.200§§Iw..T}1sy.V'are tabulated as here under: 0 ' in 0 "

Call details on 01.12.2003 viz two days prior to 2' Si. Outgoing incoming NO from To Cali type }»Dat»e__ ; TAi'1f0e_ Wief 1 A3 A1 Voiceca!1!_ 01.12.2003 12i2.10.1.P;1'11§ "'.E.xh.P.49(6) 22 A V' A3 A2 Voice caii 1ej01..12.2003 112.13 0 240(0) A3 A2 veiceceiiee01.12i.02003 0'1.A0 2.1111. P.49(6) A4 Deceased ve1ee.ea1i% %0'1:.102';2i0023'l.. 07.45910. 13.51101) A3 A1 \v/0.icé_0a.ii"--.Qi..i2.2QO31~1509.03 PM P.49(8) A3 A'1;....1'0V veececéii 0110.1.-12.2000 10.47 PM. P.49() ~ A4" A1 SMS 02.12.2003 8.37 AM. P.51(05) A1 A4 SMS 02.12.2003 i0.35A.iVE. 9.51190) 4 ) A3 ? 10.53131/1. 251190) CD"-dO'>U'I-P-OOl'\D A1 1111 1--0.sM2sW0"~~01.'i2.2003 10.552101. 1=.51(90) 5 111+ A41 W (mph) _ 01.12.2003 11.51 PM. P.5i(96) 0 2' C.a11EvdéL211.sf.;_'Q_gw1 02.12.2008 Viz one day prior to date of mcldent Si. .0utgoEr1.g_ 0' incoming

-- No. " fr0r"r1. 'V ' To Court Caii type Date Time Exhibit ref f-'A1 A4 SMS 02.12.2003 10.18A.i\.1. 1'->.51(00) A4 A1 Voice call 02.12.2003 10.39 AM. P.51(96 F'; . ,5 .

ix; nee em A3 A2 Voice 1 1.2e5A.'Mi;'1vV". [I A3 A1 Voice 1.1.21m.j A4 SMS 1 E .: _ 1 .

1' ; Q1 .1': 'P_.'M., "

A4 Deceased Voice V 01.1.? Pea? "

A4 A3 Voice calf .

"o'cooo-~.Jc3>o1 A3 Voice can 1 3«.11:1_'AP.M7.

A4 A1 ' srvs 3.41 PM.

_L |'\3 A3 A2 Vo1ce'caiI ' P A 3.45 PM _L C0 A3 1 3.49 PM.

_L

-hm A3 Voice__ca.I_i 3.50 PM.

_|.

0'! A3 9;; _ 1./eice.'ca1i 3.54 P.M. ...L 0') A3 V*o.Ecé-c_aI!. ' 4.29 PM.

_|.

"'4 A3 A A2 _ A4 _ ' wV01ce"c:a§~i"

4.53 PM.

SMS 5.07 PM.

A1' 5.12 PM.

SMS 5.37 PM.

A '-'A4' ' T51.

Voice can 5.44 PM.

3' A2 Voice cali 6.32 PM.

A1 SMS 6.37 P.M. N1... .. .. ..

.457 9-'2' N --~u<= ,5 EB A4 SMS 6.37 PM.

;:\:> "

A4 Voice cail 6.46 P.M. 0:

A4 Deceased SMS 6.49 PM.

rb A4 A1 Voice caE| 6.50 PM.

-9g3u 84 A4 A1 sans 04.12.2003 4.t8P.M. J. P.51(66) 05 A1 A3 vozcecau 04.12.2003 4.40P.M.:Lp.49(7)

79. In the discussion made supra, we ._:ti?..at accused No.4 had come in contact of accused. and who were total strangers to b""Acc.t_1s'ed the T. maternal cousin of accused pVNo.3.v47AL::c«used was 'alf'riend. of accused no.3. From the 'evidence o£._15'w.f4, dvge Vtlnd that accused 11os.3 and V2.yvere;l'i'riends."-.._P.W.léiiﬂttsmprakash T.B. [father of accused'n.o.3)" was' as hostile witness. Pros:e__cuto'r, 'that accused no.2--Venkatesh might «be one several friends of accused No.3- Dinesiz. alias iilﬁiivnakaran. When PW14 was specifically relationship of accused Nos.2 and 3, I14l."'l1,as4Av.l.deposed that he cannot say that how his son (a'ocus_ed -no.3] would behave with the accused no.2 in the ..t/I".1'§:ndVs~*..circle. P.W.l4 admitted that accused No.3 was t running an autorickshaw. In the discussion made supra, We xhave referred to the relative positions of accused Nosl to 4. At the risk of repetition, we state that:-- at the relevant time. \_. 5' 1- ' 98 __ VIIAAJIIJ accused No.1 was a student of 1 Semester LI.,~\,.B,}_j College of Law. The father of accused N.Dhanashekaran was working" asu'a._ l;abour__.V lomcer and Commissioner for Workmen .CoInpen's._c'lltion..la;_iA l\»1ane1yé;~ V lE?I--i..s wife Rambadevi (mother Vof::accused'*-- before the Court), wva-"s~ CVent.ra1 Bank of India at Bangaloreland were residing in house bea1:'i1:-tip llpftiampbell Road, Cox Town, accused No.4 was a lrlerwfather P.W.l0 was a reputed lawyer in their own house bearing No._1t4»1-l'l["'?.I3VT"'* Cﬂ3r~oss-._blI3~:inashanka1'i Ii Stage. Accused No.2~ isAAthe-------ﬁ1'st son of P-W'.17--Anandan who was a X.resi_d'ent ' ~-house 110.233. Byappanahally Main Road, .' Bangalore. PW14 has admitted that accused no.1 8 are maternal cousins. P.W.17 has deposed that atgthe relevant time. he owned a goods transport vehicle h"§{lgoods tempo} and accused No.2 was helping PWl7 in loading and unloading goods.

(gm. '\,. (x;m.~é;,x 99 w~l0l--~

2. accused Nos.1 and 4 and accused No. 01.12.2003 in all there were 9 calls. The"A«ti'rs?;:r.tfoi'eer» between accused Nos.1 and 4 was 'at"1«0.5t§ p_. the last 0 T call was at 1 1.51 p.113... viz few min'utes_0earlie1~

80. On 02.12.2003 ie, a ta datelvfoflincident, there were exchangeadoéf Sl\.:/i3l'§V1'1.e:tweeAn«.accusedJNos.1 to 4. The first SMS from accused at 8.37 am. and the last 1 was at 11.30 p.rn. We "surnrnary extract that there were¥58 to 11.30 p.rn. between accused nos.1 We'°a'1so.""'notice that there were voice calls between acc1is.e_d l\1os.1 and 4, accused Nos.1 and 3. accused Bﬁaccused No.4 and 1, accused Nos.1 and 2 and

1. On 02.12.2003, accused no.4 from her mobile/pdhone had called I3.V.Girish twice. 0' On the date of incident. Viz 03.12.2003 there were as dgniany as 73 SMS calls and Voice calls between accused Nos.4 and 1, accused Nos} and 4, accused Nos.I and 2, accused g\: (.,%j;''» ~»» £»'~C'w...r\{,r\ . mu awza Nos.3 and 2, accused N083 and 1 and accused 4. There were 4 Voice calls from accused No.4_.'*'ﬁo We find that the rest of the calls wle.re._b4etwe.en" . 2 and 2, accused Nosxl» and 1 and accus'ed';Nos_.2~

82. From the evidence of VPVV is proved that on 03:12.200i3<_Thetween and 9.30 p.m. B.V.Girish and to TGIF hotel for dinner and were staying*ln:'the-- the evidence of P.W.12 p.m., deceased B.V.C'y_irish No.4 from her house and took her onhis PW5 and PW12 that they would be goirlgufolr dinner in TGIF hotel at Airport Road. of assault on B.V.Girish took place around 'V notice from the call history extract. that accu.sed had contacted deceased B.V.Girish by voice calls. 5.32 p.m., 5.33 p.m.. 6.16 p.m. and 6.25 pm. dd ruVAceAu.sed no.3 had contacted accused No.4 at 6.01 p.m. We .ir1otice from extract of call summary, there were voice calls between accused Nos.l and 3&2, accused at sex at W 103 W Nos.1 and 3 and accused Nos.3 and 2 bet,weei1..5.V:4¥;2'dpfina, and 6.01 p.m. on 03.12.2003. It is clear of P.Ws.5, pwe and PW12, on o;3.1'2'_.2o.o3_y afteifhi accused No.4 was in the , companyu. of hye'I..A1"iahce. }3.V.Girish. We notice from the"'caII extract that when accused No.4 é.'V.Cinsh, she was in constant touch SMS calls. The first SMS was, by '1_v-.to'mafccused no.4 at 6.37 pm. the No.4 to accused no.1 at the ﬂéwas sent by accused No.1 to accused the repiy SMS was sent by accused No".~4 to. Va'ccu*seVo""no.1 at 6.51 p.n1., the third SMS by accuse~cf~No.1 to accused no.4 at 6.54 p.m. and L' "rep1y'S;f\71,':S:'Was sent by accused No.4 to accused no.1 at fourth SMS was sent by accused No.4 to accused}_no.1 at 7.03 pm. and the reply SMS was sent by 1' accused No.4 to accused no} at 7.05 p.111. The fifth SMS was sent by accused No.1 to accused no.4 at 7.12 p.m. and "there was another SMS sent by accused no.1 to accused no.4 if 1 _g I03

-- 1 O 4 -- .

at '7.28 pm. The reply SMS from accused no.4{to:.faccused no.1 was at 7.37 pm. There Was a SMS ca11--~ No.1 to accused no.4 at 7.39__.p..rn_. ar;cé"'14e1{,~'13.r _ accused No.4 to accused No.1 :'was.'_'_'at'1V7.42"p.n1.x ..ViWé'11.g;1so 2 notice that there was a V ca1I*-from_ accused no.2 at 7.3S3__p.rn. 8.12 pm. accused No.1 had pfourp E§;IVf:{.S"'~t.fQ.Aa'ccused No.4. At 8.13 13.111. accused.«No.4:.had. No.1 and accused itoddiaccused No.4 at 8.16 p.m:;t"'hAt"8:.i17 had contacted her father- P.W.1--0" by' .,T1::~ereafter. there were continuous exchanges of SVMSAA*1):et*.i1ieen accused No.1 and 4 from 8.20 14 ﬁ;r1~.--. ---- Tthe frequency of exchange of SMS Varied V fron1v..twofrnin_utes to seven minutes. There were VOiC€ calls 0' . from No.3 to 2 at 8.39 pm. and 9.25 pm. At this juncture. We would like to emphasis that between 6.00 p.n1. and till the time of incident, which took place at about 9.40 or 10.00 pm. accused No.4 was in the company of her fiance [B.V.Gin'sh). All aiong, accused No.4 was in constant "J. F'/"'"'%*'"~ ' 1 U4

--l05w touch with accused No.1 by sending and receijvi11g;_from accused No.1. From the exchange of accused Nos.1 and accused no.4, the onlypinlferencep'thatV.gt§{11di'be4* drawn is that accused No.4_waslclaridestineip:

receiving SMS from accusled::l\Z'o.l witliout notice of B.V.Girish. Accused: by conduct that she was deliberateljll exchanged between from the deceased.

Above a.l1l,ll accused Nos} and 4 in no.4 was in the company of her (IE5 consistent with their innocence. We p.rn., there was a Voice call from ...no.3xlto*----acVcused no.2. We notice from the call V extractdlslurnlnary that there was VOiC€ call from accused .4 ptpolacczused no.4 at 9.14 p.m., which was just 30 or 40 min.ut'e_s prior to time of incident. We also see from the hlistory of calls both the voice calls and SMS calls exchanged between accused 1 to 4 immediately prior to the time of incident had emanated from a tower at Domlur. which encompasses an "a g' ;

('G «_,. {Em \. \.:'?t;,. .

l ()5

--» 106 --» area falling within a radius of 6 kms from would lend credence to t.he case of _--prosielcut.io11A about... movements of accused I to 3 nearer-.t'o.:th'e.place of :'isncidcnt. 0 The place of incident is covered also notice that after am. on 04.12.2003, there callsffeither voice or SMS amongst any of the evidence of PW15, of accident register extract of B.V.Girish had been assau1t0ed'i' he had been shifted to Mantp all Irlofspitalf 1. 5.~"minut.es thereafter.

if The pros_e:cut.ion was not able to retrieve the texts of <SlViS_'f0and.:'produce the computerised extract of texts of SMS ._ manually deleted from the mobile phones of-.acc_used"0 Nos.1 and 4 before they were handed over to the , lnves'i;igating Officer on 26.01.2004. P.W.10 has 0' 'A.p_f'e-a«t'egorical1y deposed that when he produced the mobile phonemM.O.10 which was possessed and used by accused No.4 before the Investigating Officer on 26.01.2004. the ,6' . 3 N pro .......

I06

-107"

inbox and outbox of M.O.1O did not contain any messages and the inbox and outbox of 1\/1.0.10 were en1pty.vg.W_"ee.i_Vnfer the same was the situation with M.O.13 (r11ot;)"i1'e«l.fh~e1:d5 used by accused no.1) produced by PW22<.l,l);hana.s:}1ekaran.e [father of accused no.1) before on 26.01.2004. If the messages _referreA to abo:ve.lper'taii'1edl any legitimate purpose, there"'w£e1'e no reasons togideiete the messages from M.O.10' and 'lV'i1-e&reforeV,Vl'itl'ilAras for the accused to establishﬂ eilthlerl¥by.__2Vci?Cssi:exan1ination of prosecutions .x.2:irfitne.§fses':or.:b3r offering satisfactory explanation in their 0 statenierjtsil"recorded under 313 Cr.P.C., the legitintateiﬂfmirpose. for Which the accused had exchanged calls ...sincellllfew**'hours prior to the time of incident till 0 feivlvrtniiriuteslivbefore the time of incident. The abrupt of contacts through Voice calls and SMS calls bet.v§*e.en'«:_accused Nos.1 and 4 and other accused after the it inci'dent till 2.10 a.m. on 04.12.2003 would reflect the most unusual conduct of accused. 5 A 3 A 2

-108---~

84. The learned counsel for the accused hav'e;_fa~u1t with the prosecution for not retrieving 3.D.d:'"iZ)VfvO'dluCiIig'"'LhVQ'"'.,, texts of SMS. As already stated; ;the possessed by accused Nos.;1_and iéywere in:

The mobile phone possessed"i'a:nd used' was handed over by her to the Investigating also the mobile phone possessed 'and was handed over by his to the Investigating possible for the prosecution to produce ithe teict of SMS exchanged between accusedian~n.V.1 and no.4.

view of'"what has been held in the decision of Mann V referred to supra, when the call data indicates it A that were exchanges of several SMS from the mobile phonejof accused Nos.1 and 4 and vice Versa, it was not Vincurnbenti upon the prosecution to produce the text of SMS. On the other hand, absence of texts of these SMS in the inbox and outbox of mobile phones of accused Nos.1 and 4 '2 gm: ' Ag g"{.-~._,~., {«{',";.,_ =

--109w would lead to an inference that the SMS by manual operation before the mobile pho_nes"~possessed and used by accused Nos.1 and 4 were bhanVd'egd and 22 to the Investigating accused no.1 and accused would arise against their inhoxcencer" l d

86. The matter could another angle.

The conVersati_ogn-that the accused at the crucial exchanged between the accused atthVe'eruci>ai~.1oo*int of time were within the exclusive knowledgeii oi" Vlihe'YVaccu*se'd. If the accused had any other legitimate p'ur.pose be in Contact with each other at the 'A point of time, it was for them to expiain the same _ Court. The fact that accused N\os.1 to 4 were in to._ucl1<:'with_ each other through their mobile phones by .. ;V_oice~:calls and SMS calls would ciearly establish that l "accused Nos.1 to 4 were contriving with each other prior to the time of incident.

A} , K £23»/'L\w£r{_;\ 109

- 1 1 O -

87. In Manu Sharma's case referred to supra...at_»f§:ai;a~:iraph 228 the Supreme Court has held» "The above phone callldetailsl-«shcm.ftl1.at"V the accused were in touch vs}i._thlleachVA'other»» which resulted in destruction'oflevidence; harbouring. Thus the" oflltlie trial court that in thexabsence xisﬂiat theV"sta"ted to each other neg');-__ to'i:.:_t:eprosecution is an in.correct_...azaﬁreciation"'ofl"ex/iiflence on record.'l'ju.'A ___t;_lose--~':as'socia*tionfl is a Very imi)'ortant~~:f1iece._V-of "~~evi*dence_ in the case of __circu.t1istantia1_evidence. The evidence of phone' 'C..a.lls'iis _ife.1'V--releVant and admissible 'piece of evicl encef " 2 underlining supplied by us} {in 'view ofltheldiscussion made supra and also in light of held in the decision referred supra, we hold that association of accused No.1 to accused no.4 was an unusual association and their close association by voice calls on , _and SMS calls is not consistent with their innocent conduct. The sequence and frequency of voice calls and SMS calls extracted supra, particularly just few hohrs before the H0 ~ 111 V time of incident till few minutes before the tc_1';r"1"'1'e«l would indicate that the accused were contac_t'ing'V--1each o'ti1er°--._ and they were in constant ﬁviigh to} accomplish a well piannedyanﬂd welltilmed acct; 1'

88. Now, we will advert evidelr1ce::o1:': 15 Thomas and PW. 16 T oli Ukerryt<ho account of the incident. PW. 15 a:i~-ye);/iéjervice man. He had served in and retired from the service he had settled in an area called Bangalore. At. the relevant time, lv.rorl%,lir;g.l"'as' an Interior Decorator and PW.16 was" a.ssociate_c1l with his business. At the relevant time, v.ras«.._residing in Ejipura Bus Stand. He Was an artist ._ firm on a monthly salary of Rs.9,000/-. has deposed that on 3»»12w2003 at about 9.45 A. ep'.m.f"1§'Ws.15 and 1.6 were returning on TVS Moped ridden PW.15. PW.16 was the piiiion rider. They were coming from Domlur to Koramangala on Air Port Ring road. \/Vhen ii 31 , £7 5'\\} 1 L V'! K. ~ 112 -

they reached Air View point, PW.15 saw a person with robust physique assaulting another person with a steel rod." "Afterl, thejllplassavult', the 7 injured held his head with his lcopllapsed footpath. Thereafter, the towards the road, at that tirne;'la'Vp_:sco"oter from the side of Airport road interselctiorn' jumped and sat on the pi1lion_:"of__ llthereafter the rider of scooter tooii them ﬂed away from that p1acevt'tolwa.r,dfs Ai?§'port~.&i*oad intersection and scooter was riddenxon the the road.

90. ; ' " Before proceeding to appreciate evidence of PW. 15, it is jltoﬁbriefly describe the location and topography of the p;a.¢eg5r occurrence, which has not been controverted by de_fence*.A It is also shown in the sketch marked as The road near the place of occurrence is a stretch l' oi7._th~e inner ring road connecting Koramangala road junction airport road junction. The road near the place of occurrence runs in the direction of north to south. j -"3.

x. \ ---(g f\=

--- 113 *~ (Korarnangala road intersection on southern side and airport road intersection on northern side}. It is a double 1'Voadr'With a Centre median. The eastern portion of road ;"is'«:ri~eanii:;_. for vehicles plying from North to South and 'ip:ortion"of road is meant for vehicles plyingilfrornpl.f3o'uth'_to.:

airport area (surrounded by a Compound {wall} is égituuateg towards the eastern side of tliepillroad. Point is situate on the Eastern 'footp«ath_.lA juncture, we would like to clarify this Air Viewis_-not-Vfarecognised tourist spot either thle:7BB1:\l/iPVV.:or f1'o_rn"'the Department of Tourism. The persons' whofare~l§ee,n,~of seeing landing of aeroplanes Could seeA"the"sameAiifornistanding at Air View Point located flasternll l'ootp--ath of the Airport ring road. The electric ' ,l.amp p.osts'vi.are.situate on the centre median ~w each electric polehas 'tVwo..s1lamps fitted to the forked and bent portions of poles it is a well lit road.

PW.l5 has deposed; he raised hue and cried "Kyon .c __l'»l/iaarthe Hai, Kaun Hal". PWs.l5 and 16 stopped their vehicle and went near the injured who had fallen on the foot r»'--<'e 113 A \_,. if/LL - '-/K ' wllilw path. The injured was unconscious. A girl was ..sta.'r1di'rig atya distance of 10 feet from the in_jured. it incident tried to stop the Vehiclesihiplyingvon the .ifoa,e._:te" it the deceased to the hospital, ulti.rn.at;e1y Kumar who was travelling aloiigrwith his yvife ."CWLe.4'2ﬁVVstoppedV his car. PW.15 Wi.th"the ain._&autoricksﬂhaw driver shifted the deceased car and that girl sat on tlrte requested CW.2l to take tliie hospital situate on Airport drloxlfedvzthe car towards Manipal Hospital :"i7l1ereaiter, PW. 15 found that the scooter of"the left unattended. PWs.15 and 16 that so'1--e------«one might take away the scooter and ' .»therefore,--15 drove the scooter of the injured and PW.l6 .'dro'{/e moped of PW. 15 and they reached the house of Thereafter. PW.15 contacted his tenant CW.29 it iNa'»Ieen, who opened the dickey of the scooter and found a hdydilgital diary. lap top and the visiting card of injured from 'Hwhich they came to know that the injured was working as a oi' f}"'=e.'a 92$ \. \_g,:-LM, 114

-115% Software Engineer in Intel Company at Airport ;r'oa--«.I1.;._~ -. contacted CW.3O Radhakrishna (Security of Intel. Company} over phone and CW.3O -- Radhakrishna and .aCW'.I'3V1._'can1e zhoiuse of, PW'.15 and took the scooter,' and'.di"gi'.tal diary of the deceased. At this juncture, tovstate that after few days, CW.3O -- over the scooter and the digitai:««Adi'ary:=Aof M Venkatesh [father retained by the Intel lntel"CVompany.

92. lnve'stigating'~Cifiicer recorded the statement of PW;.1'5..on 5.1'2._lZO()3.v'PW.15 has given the physical features it .Qfvt'the:"'assailant. PW. 15 has deposed that the assailant was a gperslon Toff"darlbconaplexion with robust physique. However, PW. 15,__vha.s:not given the physical features of rider of scooter.

it *PW.15 has identified the assailant as Accused No.2 it the rider of scooter as Accused No.1 and the girl who standing near the deceased as Accused No.4 before the A 5} Trial Court. 3,\} .\w__ p,W..__('L?,-k . H5 W116-

93. The defence has attacked the evidence of Pill/.15 on several grounds. The learned counsel appearing.f"--for..Athe accused apart from referring to several discreipanciefs evidence of PW.15 have raised tlf_1e...fo_1low_ingi . regarding the credibility of eviderice il7'W. I5. ' The learned counsel fo'r,:accused'* that PW.l5 had limited ~oV_pport'u'nit.v lt'C.._&see 'assailant {later identiﬁed as accused and rider of Who:ad1ni'ttedi3;fw%jrefu~nk11.ovrn to PW. 15. As per the evidence of he ﬂeeting glance of assailant and rider of scooter. 'lh.e_gVVVlnvestigating Officer had not held test parade. The evidence given by PW.15 . thedock identification of accused no.1 and 2 is of Weak ,__character. in the absence of Test identification parade git cannot be believed. There was delay in recording "sta.i:ement of PW. I 5 under Section 161 Cr.P.C. 2 -\~ 57'M'\'W'1;t .

ll6 e 117 --

94. The defence has sought to establish a Police informer and PW.6 the father of approached and requested PW;;.l5 this case. The defence has contended planted witnesses. K V. l V' l V

95. Before advertinjguto thelearned counsel for accused, we of PW.15 and his position rel.ation7 the relatives of deceased'. , vvafs"neie',hlevr 'known to accused nor relatives of .deeeasedb."PW;* .15 was an independent witness. He was no'tr4_intere'-sted i~n"the success of case of prosecution. was"a.._Vldisin.terested witness. Though it has been 'A ' PW. 15 that he was a Police informer and he was ._ xvitvness in the criminal cases filed by PW.31, we l"i"r-1d .th.at:'the suggestions are totally baseless. Considering .. the background of the witness, we find that he had not l'3:l'spru11g from a tainted source. PW..l5 did not have any motives to falsely implicate the accused nor he was I17

-«lfL8w interested in the success of the case of p1'osecution;'"PW.15 had no acquaintance with the family members K

96. The learned counsel for the accused it following decisions:--

1. 2007 Crl.L.J 2740 (so) (i§avi".@ Ra$I_ichan*d1;a'n'*v2ifs;..L State]

11. AIR 2010 so 7a2_ [Muisheerj man @"Bad'sVhah Khan and another) III. 2008 Crl 3636 (4tM*bét_l_1aVb'ir"fVs:. State of Delhi) Iv. [2005 "i.]'8.()f1vv----(_Stzite of NLP. Vs. Ghudan] to contencl that"the" was unknown to PW. 15 and in the; absence "o.f_:test identification parade, his evidence of of accused 1 and 2 before the Court cannot be case of Sidhartha Vashisht Alias Mann Sharma ~Vs__. St'dte {NCT of Delhi) reported in (2010) 6 sec 1, the ' '~_S'upi~en1e Court at paragraphs 256 to 258 has held:--

Kw £.2.».L K' viii/.L ~ 119 --

"256. The law as it stands today is set out the following decisions of this Court which..§;.e':. . ~ reproduced as hereinunder:

Munshi Singh Gautam Vs. ﬁtate of ' (sec pp.642~45 paras 1645; a,-19)? 1 '"16. As was observed ceoﬁ;ep.:,;1V Matru Vs. State of U.i5."5fcff"identification: tests do not constitute. ppsubstai ill_\:J"»1i" 'evidence.' ' '~'I'l'iey are primarily forp.tlﬁ.¢:vplur§Ql$¢.,,of helping the investigating__ agency' assurance that th .ei:' .._pf_:-ogrégss m'..th -+.;1i'e lgation into .1il'lCv .o:ffencei¥::,3is pr.oe.eedin'g~--o'n the right lines. idelntiificationn'-----can- only be used as cerroborativefofvthe'statement in court. (see _Santo.kh Sir:-:.gh--._Vls~;"ilIzhar Hussain 54) . The necessity '=for____hQlding an identification parade ijarﬂivse only when the accused are not as known to the witnesses. The whole l a test identification parade is that witnesses who claim to have seen the culprits atthe time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification 3'\.'4. Z41 L "E,/' L c ,su.ch_ d wl20»-

parade, during the investigation stage, . A' test the memory of the witnesses based'._upojn. first impression and als_o~~Vto ei.'iabi'e'ftheV' prosecution to decide wh.e=ther-~Aalt or them could be cited eyewAitn.esses,v-of it the crime. The identificati'o.n"'~proceedings "are; in"

the nature of tests and y_Smi,(VV_2::I-i,i_ﬁC~E]:1"11;1y.,' therefore, there is no provision for and the Evidence Act. It a test identificatio.n conducted as soonéas This become:s 'i1ecesVsary:.':V'top: eliininate the possibility dot to the Witnesses prior to the*test'identification parade. This is a 'very c{;--mfnAonVﬂ"pr1ea of the accused and,

-- ..therefc\re,' the prosecution has to be cautious to ensure"t'n----at"there is no scope for making V an allegation. if, however, A "eircurnstaLnces are beyond control and there is scnrie_.dte}ay, it cannot be said to be fatal to the .. prosecution.

17. it is trite to say that the substantive evidence is the evidence of identification in court. Apart from the ciear provisions of R7 . V 55"" 3" "*5 5:

fix. ' 120 it "ivden_t;ifiCvation proceedings. e 121 --

Section 9 of the Evidence Act, the positioniri..__'__i"'.j' law is well settled by a catena of decisions. of this Court. The facts, wh_ich.__establiishidjthde' identity of the accused person:-3, ;s.re--._fe1¢vani';.,__ it under Section 9 of the Evidence Act._I1; 'a general rule, the substantive "e'»1__id'e--nc"e oi""a'" it Witness is the statement_Vdrnade_V in court. The evidence of mere. "iVden.tificatio.nV .of«the accused person at the trial t.hel"firs_t.._tir.h;eVis. from its very nat_ure_ inkierebntidty weavlccharacter. The iftesti'"identification, therefor_e;_,V strengthen the Z' ' ' tliadtw evidence. It is, 1'vaccordingl§E;»..o'hconsidered a safe rule of p1"L!(,j161'1C€VV't0 'g§ii.efa11'y1ook for corroboration of

-- .. the svvornrvtestimony of witnesses in court as to the identity of the accused who are .Vstrang'ers to them, in the form of earlier This rule of prudence. however, is subject to exceptions. .. iivhen, for example, the court is impressed by at particular witness on those testimony it can without such or other The safely rely, corroboration. identification parades belong to the stage of investigation. and there fl 3\__.". \_. 5"»-L '~¢/k/§'t ' ;'\ ~ 122 --

is no provision in the Code which obliges~~--thje.'__'__i'if' investigating agency to hold or confers 'adrighti: it upon the accused to claim a test x parade. They do not constitti-teePsubsltantive"-si,__ evidence and these parades..A'are ess'e'.ntiall'y " . governed by Section the "Code-.._V F:ai"lur'e"

to hold a test identifica_tionv_p'arade. 'WO.1:.i_1d riot make inadrrti_s_sible.'_VA i.VVlAe=v.idenceA it of identification in' decal-Lgirltf' to be attach6d.:tQ_ such"Vide11t_i'1ic'ation «should be a mater of it appropriate Cases .;:it._. rna.y4""--accep.t the evidence of :'lViden'ti.ficatio1ti' _even without insisting on :"--corro'borat:ion§ 'Kctnta Prashad Vs. Delhi "Vctilrdtinthclifaft Chandrappa Vs. State of :-- .. A.P.f$6, ..,VBw:i'hsén «vs. State of U.P.51 and ,R:am¢sha}arv~--s:zrtgh Vs. State QfJ & K5"). 3 v. :.4IVr;.c::H:1rbcy'an Singh Vs. State of J & K58. thd.-L;;«gh§=VVa test identification parade was not this Court upheld the conviction on the xvbasis of the identification in court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh gwere ;\?_ ~.. /ii . 'S til .

ts) M123- absent at the time of roll call and when ~ A' were arrested on the night of l6~l2w197'i-._theii=. ll"

riﬂes smelt of fresh gunpowd'er.'and: thlathtlaell empty cartridge case which'»._wa:s'efo'uncl_lat't.hé~':..t,,,. scene of offence bore _ distinctlive mlarhainlgs showing that the bu'lv!.et'V.t»whicti--.i<illed 'che'" 1' deceased was __fired frorri'v.._the ritle'<of the appellant. Noticing tl;iesetc.ii<:un.'i;-stances this Court held: (sec p.4s1,l','pe£a 4.}:'-- . Il:i.'e»VlCW:'-Qf corro'boratiVe evidence we argument. urged .or1"~ "of"'-Lthel "'app'e1lant that the lviinvestiglaltititg"offi'ce"*-ought to have held an idcntificati.on--:.'parade' and that the failure of _ to=_1:nention the names of the two accused'"tc.Vt_11_¢tvneighbours who came to the scAen.e"i.mmediately after the occurrence shows ' cannot be true. As observed by in Jadunath Singh Vs. State of absence of test identiﬁcation is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villagers only shows tht the accused were not previously known to him and the story that the accused referred to each other 5, we t.~<l~;;~. I A ('J

5)') w124--

by their respective names during the course the incident contains an elerner1tiw"~~~.lt\'Ppt\/.,1. exaggeration. The case does not rest on H evidence of Munshi Raniwalone .-211'lvd'Zjj'_uth'e.:

corroborative circumstances to 'h_ave, » ll it referred to above lend enolugh'-assurance». to if l. the implication of thela.p'pellantL" 'f _ if A A Malkhansingh Vs. of M.P.é§:' (sec pp.751~52, paras' "

"7. It is trite to s'ay7tl~'1atsubstantive evidence is the."evidenc'e._'o_f' identification in court. "theft" clea.r*----provisions of ti1el"E:3vide11lcelllAct, the position in 'lavv is'we11:'settledeVa.]:ly _a heatena of decisions of this Court. which establish the identity, oftjhe accused persons, are relevant :_t.1r1d.er Sectio--n"9 of the Evidence Act. As a ..gener_a'lv rule, the substantive evidence of a it the statement made in court. The evidence of mere identification of the accused .. person at the trial for the first time is from its very nature inherently of a weak characters. The purpose of prior test identification, therefore, is to test and strengthen the trtz-stworthiness of that evidence. It is E 5 §y\'~"l' 4"-"§§\"'"'»~'\,...£""»--» \~i.'., ti/:f~\ s ~125~ accordingly considered a safe rule of to generally look for corroboration sworn testimony of witnesses in court "ag;.to"

identity of the accused who are s7tran.gers- at them, in the form of earlierl7identifi'i;ati'on proceedings. This ru1e--._or~._prudence,--._h'oWeyer'" it is subject to e2;ceptiOn_$.,uiwhen, for "examp§e, the court is impr_essed'_lAby. particular witness on whose testimonylit Without such or otlfilenf-'"'v:l¢orro§;.Qrationl'Vl The identificatligolri. ltowthe stage of investigation,"anydtiherevis n:ol'provision in the which obliges the :'inv'estigat1lngryageéneylto hold, or confers a right upon the lacc"uAsed."i0 claim a test identification parade, Th"ey.l'dow not constitute substantive ;eVid.ence 'a1i--d----«'these parades are essentially _goVerdn'ed by Section 162 of the Code of it "C4'{i*iI1l_7li1/«'!l;l%"vl'1""Procedure. Faiiure to hold a test identification parade would not make .. inadmissible the evidence of identification in court. The weight to be attached to such. identification should be a matter for the courts of fact. In appropriate cases it may 5 p is.

~l26--~ accept the evidence of identification without insisting on corroboration."

257. Mr. Ram Jethmgalanlil 'll_e"e.__ placed heavy reliance on by foreign it K authors, namely, Proof"-~o_f Guiltyby ollvargpllelet, Williams, am Edn. Eye ._:Wl'tné:;ss identification in "'c:iz:ﬁimll5zc§ll" "by Patrilck"lM. Wall, to urge that lliden'Litfilcat,iolnvof accused in court. is a seri'ous:'rnattelr yixtilllelllchances of a are "l}e1*:,r._.1:1igh. These txextis or'lly""r'ei__tera.tfe,e What 'the.- Various courts .1'1"c'l.V'3T_ll'i:€'lCl'V':{lﬂ7l€"'ELI*l-Cl The View of t.he l¥__sai._d-- au'l}lceljfl1as"l.been cfuoted by this Court, the "earliest judlgrnelztl being Shivqji Sahbrao __Bobc":lde' Vs,_ b3_tci't~é of Maharashtra" (soc 15:799. l5éu*a.§3)__. .

The evil of acquitting a guilty ' heartedly as a learned author [__GlarlVille Williams in Proof of Guilt) has " .s__a~piently observed, goes much beyond the simple fact tht just. one guilty person has gone unpunished. If unmerited acquittals become general, they t.end to lead to a cynical disregard of the law, and this in turn leads to 6'':

{V5 \V 5':

/ZR .

--227w a public demand for harsher presurnptions against indicted 'persons.'_:l'arid.. more severe punishment of...those.vvho:'.fVarle" found guilty. Thus, too freLi;uent.laee1't1itta1s 'of' it the guilty may lead to feroleiolus pen:al_law*, V eventually eroding the.._j'udicial' protectionQlof" the guiltless. For all thes'eV'reasons itis true to say, with that it 'a miscarriage of from the acquitta1_:lOf_ the'l§uilé::3V{t noatlesxs from the conviction;5o'f.ti1Ve" innocent . "

-------- 'lelarnedvvv-'Solicitor General othe3rw1'se. an adverse inf¢rence..,_'6;ig1ﬁ_' 'be drawn against the __appellantsford'-._th'eibr refusal to join the TIP. vv'il'i1is View-has___found favour time and again by Court. It is pertinent to note that it is identiﬁcation which is a substantive V pie'ce_of evidence. Therefore even where no y conducted no preiudice can be caused . tosthe case of the prosecution." (underlining supplied by us] l #337. Therefore, the submissions of learned counsel for accused that in the absence of the test identiﬁcation parade, ix}. 6/yl'§'\...«_., at -

I27 m128w the evidence of clock identiﬁcation given by PW_.15 is incredible and not trustworthy, cannot be accepted;

98. The learned counsel for the accused" it judgment of the Hon'ble S'upremleAllC'o=a,_1't--«,AIR 2010 so 762 [Musheer Khan _@ sadsha:1_ Aiiharinndv an¢:,ae-r 1;.

State of Madhya Pradesh} had limited opportunity to see t1;§.;;:sls.,;;p;1¢{i1:_ and also the rider of scooter. Therefore, on which PWs.15 had ridjerllof scooter, in the absence of test.identiﬁcation parade, his evidence of dock identification that No.2 was the assailant and accused,No.l "Was the rider oi" scooter cannot be accepted. In d,eci,sioln«..rvepo1*ted in AIR 2010 SC 762, {in the case of Badshah Khan and another :2. State of MCirihyg1'Pfctd.esh}, the Supreme Court has held:--

"SO. It has also been held that the evidence of the identification of accused for the iirst time is inherently weak in character and the Court has held that the evidence in test identiﬁcation. parade does not coristitute 128

-- 129 -

substantive evidence and these parades"'arej_~ governed by Section 152 of Code of Criminal. "

Procedure and the weight .to"'};3e« attach'ed:."toll such identification is a matter ' In the case on hand;l._v\:;§;ka;V'fin'd" of V PW. 15 t.hat after the occurrence:'i1.e 'had scooter of deceased and had covntacted'--pVersonnel of Intel Company throﬂkigh the arrival of the security namely cw.3o-

Radha1_;ijishna1:,3:.:_;1?W1l5" incident to him and handed oVe1~.iVT,§-_hK--: olfwthe deceased viz. scooter. laptopl"-an'd'_ scooter of the deceased and his digital diazjydihadl" safely the hands of PW6 (father of deceased]. "lh,e" 'conduct of PW15 after the incident would 1e:id%co.1fn:borati'onv---tothe presence of PW15 at the time and » place of Even otherwise, we do not find that PW.15 had anjwi-easonis to entangle himself as an eyewitness in a ii"n,_1i9de1*v_cais§:;lV' when nothing is brought in the evidence of PWl5 show that he was a stock witness for the Police or it hewasa hired witness by the father of the deceased. PW. 15 . \«.. '__.n.,,§g'».

I 2') 130 had served in the defence of this country for a period of 20 years. From his evidence, we find that he is a publictspirited citizen and capable of withstanding tense due to his service background.

99. PW.l5 has deposed that he assailant assaulting the deceased Ahwlthl _alVlv-ste;_'31~._,rCrd. deceased after receiving blows.lheld'V..his hands his head and collapsed. A girl distance of 10 feet from the deceased. PW'1"5-- had .s"€t_enfth.e'incident of assault fronrpa distanlee'r-of 15-' feet. The assailant, after the incident'*aoi'* assaultd canted across PWl5 and ran towards scoiotver, the engine oi" which was kept in running condition. scooterist came from the side of Airport road intersection t'ook..,laa The assailant ran, jumped and sat on the pi_:l'lio'nl' of scooter and the scooter ﬂed away towards .. Airport road intersection. PW. 15 was at a distance of 50 feet A' ll"r--o--In the scooter. From the conduct of PW. 15, we find that he

-Thad helped Accused No.4 in shifting the deceased to Manipal Hospital and contacted security personnel of Intel gompany A X 1 3'\é=_ zi;.j"x. at 51,."

l 30 1".

~wl32--

identity of the assailants. Power of perception and memorising differs from man to r11a11j"*-- and also depends upon situation. It depends upon capacity to recapitulate.iiiiihlatﬂ. -3' has been seen earlier. But that.

upon the strength or t1'us't\X}orthine&ss_; Witnesses who have identiﬁed the Court earlier. ....

102. The learned counsel foijaccusied have .sVubr_riitted there was delay in 1'ecording'-tfieis--tatenj1entfof PW15 under section 161 Cr.P.C. Therefo1'e..-P'v'.7 Wasza iivitness.

103. l'Tl'he4lcontenTtiori.voll'»th'e__ldefence that there was delay in recordin§«._tbc, sta.teAn_1entl..'i'of PW.15 cannot be accepted for rn.o;ljevthan one 'reason. The incident occurred at about 10.00 » on«3.»1:2:2_003 and the first information was registered at 4.12.2003 against unknown assailant. The sta'tenie«nt"'of PW.i5 was recorded on 5.12.2003. At this 'ijuncture, it is relevant to state that as on 5.12.2003 none of accused was in the frame of investigation. In fact, l V' " "Accused Nos.i and 4 were also subjected to interrogation. As :33; x pg.._..ur£% .

I32 ~ 133 A~ on 05.12.2008, there was no clue about the of Accused Nos.1 to 4. It was not a situratijonyV§yhe_reii'tl1ei'"'__ Investigating Officer was marking ' witnesses to give a definite}:-hapevltohlthe also not a situation whereltrriie» Investiga'tin-g after framing the accusediwas Witnesses to plant them to give a deﬁnitellsliapleito case. Therefore, the submissiongpirnade' for accused, relying on in AIR 1971 SC 804 [Baletklrushlniav of Orissa}, 2004 sec {on} 2032lrvijaybneii"s_h;;{n«a§1i§i--~ Patel Vs. Navnitbhai Nathubhai Patel and llothlers} land [1979] 2 SCR 94 [Ganesh Bhavan Patel another vsl.'State of Maharashtra} cannot be accepted. S 'reported in E1979} 2 SCR 94 {Ganesh Bhavan .lPyate1 andfailother vs. State of Maharashtra}, the Supreme Courthas heldzw "Such delays may not. by themselves, amount to a serious infirmity in the prosecution case. But they may assume such a character if there are circumstances to fl E 33

--l34~e suggest that the investigator was delibe_ra'te!yj---.:_li. 1- marking time with a View to decide shape to be given to the "Casey eyewitnesses to be introd:L;ced';iA~'iVA eat'er:i'a circumstances whieh.y__. lend._[st1ch significance to these "delays, instant case, ,.whichVAl-ineVita'b.l.y lead--.to./Ethe conclusion t.h,atd:7the'&«_ p;f_osecu;tio1'1._ story was conceived and a-ft~er'jVgcV*od deal of delibe.ra'tio._n, inpa highly redolent of s'd;spi"cion~.." V

104..lv'T}:e_x: "cofd--nsel.""'fa1' accused have sought to discredit. the on the ground that PW15 has deposedlithavt Adeeceansed was assaulted by an assailant [_later__eideVntified«acsmaccused No.2 before Court) with a steel ' ;V'1"Qd ._W.hereas l\/1.0.11 is a steel pipe. .' .105. to appreciate this submission, it is necessary to state that external appearance of a steel rod and a steel 2 pipe is one and the same, both are elongated objects. The only difference is steel rod is a solid mass and a steel pipe ' would be hollow. Therefore, when PW15 had seen" weapon of I A \--»~{i£.\ ( 134 W136- her studies. Accused No.4 had seen the incident---ofi.assan1t, which was a Cognizable offence. Thereforep,_"'accu.sied nouéip should have informed the policezhiat earliest; '-'ifh_erefore. evidence of PW15 cannot be _suspected forpnotpt1odgii3§*the..p first information. . » . .-

108. The learned counsel for__acc_us.ed havecontended that PW15 has admitted to"h:aVe'--seen:V ph.otogr.aphs of accused in newspapers andvalso.=on.telecvisiontktsubsetluent to date of incident. éalsiofthcttitactcused in the police station. for accused, relying on the decisionspérerportedtin..Aii§'i98O so 1382, (1989) 3 sec 24 and'AIR 1S3V93.._SVHCV'26vi8 have contended that the evidence of of accused by PW15 before the Court had lost . its sign.i'ﬁcance'Z In Manu Sharmcfs Case, the Supreme Court has held-test identiﬁcation parade and photo identification .. heldduring investigation wouid be only to check veracity of ' gdtheA'Witnesses and evidence of identification of accused before stthe Court is the substantive evidence. Therefore, submission of learned counsel for accused cannot be accepted. f\_;' \,,, €?\/\...'\--- -gt.

-~ 137 M

109. Here we pause for a moment and state the reasori,s for failure to hold test identification parade.

110. PW27~Chetana Belagere, w_ho__is television serial had taken photographsrarid'there' coverage of accused when they were Vproduiced beforeplli» committal Magistrate on Th'e«.:photographs of accused no.1 to 4V 'l._appearedv.i."in_p newspapers on subsequent days. The pl1otographls"'.of":--accused no.1 to 4 were in telfevislion seri_ai""under the caption "Crirne Diary".l'.pIn._ the cilrciiiri_.slta,nces, even if test identification parade had been, would not have gained any 5i3ﬁi'fiCanC.€. Ind"'th.e.«'circumstances, learned counsel for ' .acciise.g41l'<cvari"r1o_t find fault with the prosecution for not lliolding identiﬁcatiion parade. Therefore the submission of lllearnedll counsel for accused that evidence of dock 2 xidentificatiori of accused given by PW15 cannot be accepted, 6";

"has no basis. ' ' (K ; .

t(-;)'\.)"..'\" '\~- 1; '~-

137 wft38--

111. The teamed counsel for accused drawing out attention to the evidence of PW15 would submit that deposed that the incident was over withinftwo Therefore, PW15 did not have to see assailant or the rider of scooter,""viw1"Loihad:'accon;pVari1ed7the assailant. We are not persuaded to"-accept' ._this_'~s.uVbtnissio.n' for the foilowing reasons» It is manifest 7rne;d§ca1.V;ci}id.ence of PW18 and PW29 that three or:.fou:r :b1ows»__wer_ev;deait on the head of assailant came across him judmpedvseat of scooter, which came from the side of Airpo':--'_t road'~*'inte1'section and rider of scooter took a__":U:b_turin near""--t~he place of occurrence. Therefore, the 1 that the incident was over within two 'Asecondsifs .-an embeliishment. We are yet to come across a witness, whose evidence does not suffer from such x Vf(§}S'£13:)€11iShI11€I1tS. which do not shake the substratum of evidence.

5&1 ('."§§_/R271}:-m {AL K. M {Eh . 13$

-- 139 --~ The learned counsel for accused have found4.fau.itwith PWI5 for not chasing assailant.

PW15 has deposed that ass;1iiant«carne and 4 jumped and sat on piliion seat of and .,there.afte1r away on the scooter. PW15 i1as..%depose_d'tha!; t'hve"'victim of assault after receiving,» injurieis"*on_:*hi's.ahead' 'fell. PW15 was anxious to save of the circumstances, one cannot ..€.?§:p€/Ct ifhave chased the assailant If PW15 had shown interest ton to hospital, that cannot be termed' Therefore, we cannot find fau;1t"wi.th the c.;o'n'§1uc,§. of PW15. iegards identification of accused No.4, there is no . '-1r111;ch'VCof1trot?ersy. The defence has not disputed presence of a§£¢as'é.g1 No.4 at the time and place of incident. PW15 has 4' ifdentified accused No.4 before the Court, which fact has not ljhfeen controverted by the defence. 2"'-, 139 /' I ,:

ixwff, ...'_/,,..{j"x \.. «_ci/-4%, . W140"

PW15 has deposed that scooter on and rider of scooter (later identified as accuse:d~.._1 before if Court] fled away from place of was Kinetic Honda. However, 1'-'W15 hasynot giye..n:'1*egistrationv the said vehicle, as it cou«£d"i.not be 'noticed "by him. Therefore, we do not find any"'reas'on:"to_ suspect the evidence of PW15.

112. PW15. On the date of occurrence-,.u returning from Domlur to Eeji{5t_1ra__ f ridden by PW15. PW16 has deposedthat by the incident; he was at a distariee of 1'O,to' PW16 has given physical features of {iatedrmidentified as accused No.2 in the Court}. A ._ -'given the physical features of accused No.1,. this juncture, we would like to state that the * conduct and reaction of different witnesses would vary from each other. The manner in which the witnesses would react "E 53 ~ 141 --~ in a given situation depends upon their guts a.nd.l_stifcnigt'li¢to Withstand tense situation of witnessing ghastlycrilriieé. PW16 has deposed that scooterlon lwhichassailant fled away was a black Kinetic I»Honda4's.co'otcr. part of this judgment, we deal Kinetic Honda scooter. ' ' l l l l PW16 was an llartistlWdrl»§iri§'loii.vaarrionthly salary of Rs.9,000/ 6 lrvith his wife in a rented ; l _.lPW16, we find that he had shown reluctaricel or he was not available for the lnizestigating u"C)f£i_ce«;: for recording his statement under ' V:Vl'S€Cti'9_rl.'1'3.ll.l'C1'.P.C. The statement of PW16 under section " .l.1Gi tiras recorded on 21.02.2004. AA j11éix.v,__"i'he learned counsel for accused apart from pointing V discrepancies in the evidence of PWl6 have submitted that inordinate delay in reco1"d1'ng statement: of PW16 under '€ 39; \,... g"-1. .c 1 I41

---- 142 --

section 161 Cr.P.C., would clearly demonstrate that PW16 was a planted witness.

115. We disagree with this submission for reasons» ._ PW16 is a native of Kerala:'Statei.A~?1and . settled at Bangalore to eke+o"ett his'lii}eliho'od.i~f_1't1eVVVn'iontl;--ly' salary of PWl6 was nathuralvlthat. PW16 was hesitant to entangle hirnselfp in a murder case. It is probable that he.was he may lose his abode at Ba1"1gaclo1*e."~PW--lt3-- has deposed about presence of PWl6lr1ea1* place o.cc't1.rrence. PWIES has deposed that after oc§ct11'rence tool; scooter of the deceased and PW16 moped of PW15. After reaching the house of PW15, CW30-P.S.Radhakrishnan, the Security 'Supe_rVisorA of Entel Company through his tenant CW29- .i VcA.S.'i\Eaveen. After arrival of the Security Officer [CW30) the it 'belongings of the deceased were handed over to him. ln Vi€W of consistent evidence given by PWES about presence of PWl6 near place of occurrence, the contention of ='\ \... 5-E. xx', ('gar 1

-l43~ defence that PWIES was a planted witness accepted. PW16 was neither interested in theggsdccesisof case V' of prosecution nor he was ininiicalto accused 1't.o_ av V '

116. We find from thefg 'invest'i'gation thhat_i> investigation gained its znoinentt1in._» only ~--.after Vfiarrest of accused on 25.01.2004?' Af'te1'{_'registration of crime, the Investigating Officer Atreated1ae'c:'nsed No.4 as a witness for .spot In fact; first 'information lodged by PW5 was of incident conveyed by accused investigating Officer had also 1'eco1'ded=..gstatement' ._of--..bg:'accused No.4. The process of investigation '-involved" elimination of PW23~Pramod Dikshlth acciised. Therefore, it is not possible to hold A . thatff '~va.s--:"a planted witness. li7... the evidence of PWIS, we find that his evidence relating to identification of accused No.2 is sought to be Algciiscredited on the ground that he had not given complete physical H features of accused No.2. in his statement recorded under ﬁg [fix-T-\ -x. 5:1-'L. ~ stalk M3

-144s section 161 Cr.P.C. Accused No.2 "on 25.01.2004. 'The statement of PW18 21.02.2004. E1" the investigating in} concocting or giving definite s'hape'*--toll=i:he case. PW16 as a witness, We not complete physical features oi':a.ccusAedVjp an olrnission in the statement of PW16 161 Cr.P.C.

We Pwie that he had narrated' colleagues, probably to seeliv it be safe for him to become in delay in recording statement Of, P.W16l'unders.sectiboln;ll6l Cr.P.C., cannot be a ground to discard his evidence;

V .Vle'arned counsel for accused referring to the lei/lildericeysilloflilz PW16 have submitted that PW16 has deposed when the deceased was being assaulted, PWIS <3: PW16 were llslitting on a TVS moped and PW15 had stopped moped after passing the place of occurrence. Therefore, the evidence of PW15 & PW16 suffers from material discrepancies. ﬁe:-. \ €11 x--«PEA E44

--145+w PW15 82 PW18 have deposed that both _QI_'_l44tlieni~;.carne on a TVS moped. PWl5 was the rider and wjasla rider of TVS moped. After seeingfftihe' inc-ide.;nt.f'it._is'natu'z'all T. that PWl5 had taken some time andfp;.1p1*'l< his PW15 8: PW16 could not lvehiclle unmindful of their safety. wetfcai-molt find fault with PW15 & 'PW1£ill occurrence after parking thepvwi-:hi--cle. ti1e'Vlldisc1'epancy in the evidenceg'ol'lllF'_\.2\Vf Slrnoped was parked after crossing o:c'cu:'1're1ic'e""'oi' before crossing place of occuirencelis. consequence in View of proved fact that both had witnessed the incident from a .__Of lCfor feet.

_ counsel for accused have submitted that l' . PVV16 lent his hand to shift the injured to hospital. it ,. Al?V.Vfl6 has deposed that he was stunned after seeing lithe incident. PWIB has deposed that he became tense after witnessing the incident and he continued to suffer from tension even when he was examined before the trial Court. :''~..

3 x

-- 146 --

PWl5 was an exwserviceman. PWl5 and bold to raise up to the situation. PWl6_.was=,aV appears PWl6 had not come acrziossfghasftly it past. Therefore, the evidence of that h.e"'.t.«.va's ftenjs.é'ands he could not lend his hand 'Vtorshift the_ir1jured;:toHhospital cannot be a ground. on the other hand it would lend assurance

118. d finds substantial corroboration' PW16. The conduct of PW occurrence in safely taking the belongin the handing over the same to the segcurivty 0ffi'ci_als of Intel Company would not only lend if <.corro'boration to their evidence but also demonstrates they ._ asvpublic spirited citizens.

ll9.f evidence of PWl5 is sought to be discredited on ftlllf: ground that there has been discrepancy in the evidence of PW15 as to whether PWl5 was holding feet or head of the injured when the injured was shifted into the car of CW2l. 5} 53 ".7 V *\_, .C;'\V.»\" »§__;'ig'.,},X' " 146

- 147 -

The fact that. injured was shifted from placegof Manipal Hospital at Airport Road in the carldriveinbily C'b,'Vvi2u1b is not disputed.

120. In the circumstances, _ﬂdisc1l*epancy PW15 as to whether pw15"'w,:}::r_'s» holding head while shifting the injuredinto has relevance. Therefore, we hold evidence» assailant (later identified had assaulted on the head' of / pipe, thereafter rider of scooter __[1.ater?'identified" -as accused No.1 before Court) came on a scooter fron1"~the of Airport road intersection, took a U-:ft1;1i'ITl, thereafter assailant (accused No.2) ran and jumped .Vpoi1p'illlion'~.seat oimscoot.er and both of them ﬂed away on r«Scooter...l"i11d's,Su'ostantial corroboration from the evidence of Al"W16; not find any material discrepancies in the AA pevidevnce of PW15 <3: PW16 to discredit the same. PW15 and * did not have any oblique motives to give false evidence F against accused 1 to 4 with whom they were unconcerned. /' A f\_I'=, M... §,3's\_.L_,m,.[%..[ff\ ~ e 148 --

PW15 has admitted that before date of had contacted the investigating Officer (PW3lli-1:axfldreddestetj,_. his permission to take out a procession of lrifaritilvesus lands PW31 had obliged.

121. The learned counsel 'submit that PWl5 was acquainted":w_ith theIlnyesltigatinguéfficer [PW31] before date 0f»QCcur1",3hC.'l°;_\V..V i ll ll PWIE3 "PV\f81 for any personal favour, personal Work with PW3l.

If PWIS had approached PW3l§PoiicevInspectorllof jurisdictional police station to give prgotec.t1on 'fo1'..proces:slon of Infant Jesus held by the Church, said that PW15 was a stock witness of jfuprifstjict.iVonalv".police {Viveknagar Police}. Therefore, the c0..nte,ntiorf of the defence that PWs.l5 and 16 are planted AA witnesses cannot be accepted.

It is the case of the prosecution that accused Nos.l to u 4 were arrested on 2501-2004. Accused Nos.1 and 2 gave fi * * r z\ .. E 3\: p.tiz*x axle am.

$48

--149~ voluntary statements and the admissible portions are marked as Exs.P.94 and 19.95 respectiveiy. E"_W;:f3p:'1Vp:"'has deposed and identified the voluntary statemeiit's 4_ Nos. 1. and 2 as per Exs.P.94 and.PA;9.5, 14_'_:an"d_V ' t. led the Investigating Officer to :"i«he1'_fA1"*rpo'rt. appears that PW.30 Mahadextx Was"-securebq; ways Thereafter, Accused _Nos.1 arid,_2V.__toot<.:' "the Investigating Officer and PW.3OVtoz:Lar'ite121pavV.Bushhlocated inside the defence area and poiinited'= out That area has barbed 'N.:os.l 2 removed a steel rod from that bush. The officer seized it and prepared rriahazar per. ff _'f';EiW..hj3'().:vi\/Iahadev has deposed that at the relevant time, :.ét'~.,,f:'CfVJ;I1'Vt..I"x':lCtOI' in BWSSB. He has identified Accused Nos.1 and :12 before the Court. He has deposed that he had fspeen Accused Nos.1 and 2 about one and half years prior to if fthe.:'date of his examination before Court, near Airport ring _.:road. PW.3O and his brother Shivaprakash were retu1'ning from the house of their motherwin-law. it was around 2.45 or /'"=.

5 , 3?

§\'. x. Ll/wvf-"-2" = I 49

-l50- 3.00 plfi. The Police called PW.3O and reque'st'edV'~l5?VV 3t}~.to be a witness. At the first instance, PW,.30:_:waVsv.l.:somewi'1atll".,_ hesitant, but later, he agreed. 'l'herebafter,"Ac'cused-- Ta'nd7._ 2 took PW.30 and the lnvestigatihng officleviflnearl situate in a defence area afidﬁboth and took out a steel rod and sel§£ie"i§ the Police. The bush which was Nos.1 and 2 was within the§~d'c:Fefice barbed fence. The police 'EX.P.87. PW.3O attested theta). PW.31 Naniah, the Invevst.i§ating-- also PW.26 have deposed about the _vrecoi}'e1'y:' of "rod from the bush shown by accused h_6;1;,.avm1.2. ----

ci'oss--examination of PW.30, the learned 'Wcolunsel.V'Vtf{0re:' accused had confronted Ex.P.87 to Prove that contenitsv of Ex.P.87 do not indicate that steel rod which was lily-i.ng in the lantana bush was removed by accused no.1 and The learned counsel for Accused No} and 2 relying on the contents of FJx.P.87 have contended that the recovery 5% f\.?. rvl» M zit» », ate} \ 150 e151- was not at the instance of accused No.1 counsel have contended that the jO1'I_l.it"">I7é:(';.(v)l\fE}Vl;:"yi_Ai»$1'l"£Ol1V"-. admissible in evidence. The lea1:r1ed.,coilnsel.for the-acellsed have contended what was recovered. that rod in contrast to MO.11 is a learned counsel for the accused that soon. after the steel rod was taken 'Was not seized and no bloodstailrlfd-t' wdife steel rod. The the permission of the concerned "enter the defence area.

124~~:' /f1"'1('3 for accused have relied on the dec_isions~reportedA~--in'siO03 scc [Cri] 1149 (Salim Akhtar __fl\/I0__ta x}s;~..s.tate of up.) (2008) 1 sec (ci-i) 733 ',.l'["?~at'ta_tiya<vl. i"a1.ias Satish Rajanna Kartalla vs. State of * ll\2iahara--§s"iitfa), (2007) 5 sec 658 (State of M.P. vs. Nisar).

125... the law is fairly well settled that the admissibility of 2 the evidence under Section 27 of the Indian Evidence Act relates to the fact discovered on the information volunteered 5?

I5!

--152~ by the accused. The authorship of conce~al.nf;e:n_tll.j'and existence of such concealment \7vithir1.V_ tll1.e',:'1XclL1si've knowledge of the accused is the criteria. 'iln.__Va.Vdecision reported in 2005 {3} Crimes _87 [State {N.CT3:..'iT.rlA.O{ l'DVe1l,hi} v.3 Navjot Sandhu @ Afsan Gii'ru:l]'i.the Suorerne after referring to various the judgrrient of the Privy Council in the Vs. Emperor [AAIR 1947 discovered relates to the authlorsl~iii5' exclusive knowledge of the relevant and admissible under section. of Act. Therefore, even if the Investigating VOffi'cerA'--v_ha'd: removed the steel rod from the '~ _ ca,nnotllb'e"*said that the recovery of steel rod {M01 1] *\vasi_not"ivnsejpursuance of voluntary statements made by accused Nfgsfl and 2. Therefore, the decisions relied upon " of the instant case.

by thevllearned counsel for accused are not applicable to the Writ {\"""-'-r'\E;'/K}/yxv \» L, 6/ El,' el53--~

126. The Supreme Court (in the case of State us. Navjot Sandhu @ Afsan Guru), reported it 87 at Page 151, has held:--

"There is nothing in thiis:j--udgmeVnt"whiclh.4.l'3vit suggest that simultaneoius than one accused do not-..at--..all enterv intd the arena of Sectio11_._2'7', as a pr"oposit~i.on of law. Another case-hizsfhichy noticed is the2_'Vcasei:.'of Rarnkishanlv'Qls:..B.ombay State [AIR " admissibility or did not directly 1'-icome Vco"ns_ideration in that case. How'eVer,.yV.'v.t.hile'--~..di's.t:inguishing the case of Gokuldasl 'D\tvabrk.aldas decided by Bombay E 'V High aéipassing observation was made . said case the High Court "had rightly

-- a joint statement by more than one was not contemplated by Section 27 "--We""cannot understand this observation as it "laying down the law that information almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence under Section 27. 1t may be relevant to mention that in the case of F' ,/'"i 3 K E

--. . E. ,. I 153 w~l54w Lachhrnan Singh vs. The State {1952 SCR 839] this Court expressed certain reservations"-. on the correctness of the View taken by of the High Courts discountenancing -1- disclosures."

127. Therefore, the submission 0-fuxlfearned V"-couizse1=;;Vs for ' accused that the discovery-.___ of lM.C_)'f1l c.-rill' basis voluntary statements made and 2 is not admissible, cannot be.a'ecep_teci§_._. ~

128. Vv.co§in.se1'fo1«»'.t1i}a accused have contended thatlas ' 1561' __of PWs.3O and 31 a steel rod [MO.11)lVV'w.as.V recoife_red:_"..'on the information volunteered by Aeeuvsed Nosll '~and__2.and what was produced before the Trial .A jcourtvl w.as:a~-- steel pipe. Therefore, MO.l1 was not the object ~. \%rhich'v}as_ recovered at the instance of Accused Nos.1 and 2. In' the discussion made supra, we have clarified the '~ difference between a steel rod and a steel pipe. @129. The learned counsel for Accused Nos.1 and 2 have contended that as admitted by PW30, PW3l and PW18 .-

='\ \.. \_, £54 M 155 --

Drﬁheemappa, MO.11~stee1 rod had no However, in the FSL report, it is showrrV__th'at '§iver_ef"=__ bloodstains on the steel rod.

130. From the evidence of 118.. we[:f:'n'd Investigating Officer had to._f_PW_:'.1 seek his opinion as to the injuries fou'nd".on'tVf1e&deceased" could have been caused with an e'bje¢:"1:1;e::'M_o_§'i,13.V"'_;?w.18 has opined that the injt1r'ie:s*_- could have been caused The Investigating Officer had PW.18 as to Whether thereizwere ii\-iO.i 1. Fronfi the examination of E\/I.O_._11 M steel rod, and PWSI might. not have noticed b3o:odstfa1i3,s on x'i\'/i;'O;iV1. However, this does not mean that O =b1oo_ds--t;ain4sg_Were not noticed after forensic examination of the Scientiﬁc Officer in the Forensic Science Laboratory. The contention of the accused that the iinireestigating Officer had smeared blood on M.O.11 before it Vgwas sent to the ESL cannot. be accepted. At this juncture, we O deem it necessaiy to state that as per the evidence of PWs.26 r I the-'., a. Céfug' 155

- 156 ~e and 31 the place of rccoveiy is said to be at a _.__lCo'() feet from the place of occurrence and towarols..the.:'n_orth'of b the place of occurrence.

131. The learned counsel for véaccluised to, discredit evidence of recoVei3r:lV"'by relyi.ng"»t3n oi PWs.l5 and 16. The.__evic1-eheefjtfpwi5tletndrwie that accused No.2 after with a steel rod carried it, afte<r:;sitting'_Aonb hevvdvconcealed it below the collargoi" 1;;§ei{._:s:c1e, has been found to be an of PWs.l5 and 16 recorded under As per evidence of PW15 and after thedncidient. accused No.2 ran away from the V' 'place incident and sat on the scooter and concealed . back beneath his co1.lar. The assailant was not kn'own.__"to.:PWs.15 and 16. 'Therefore, We cannot attach iiniiportance to this omission.

The learned counsel for accused have contended that " ~ the investigating Officer had not taken the permission of the I .

(R3: 31- "~ '-f"'!/1 I56 au157~a defence authorities to enter the defence area .«to.._.d.i_seover MO} 3. The investigating Officer was discharginglgofficuial duties. In the circumstances, eVen.».i.l_'_he had it 1"'ai_ied"to' Aobtai1"1. 1 permission of the defence autllolitiesl that" a ground to discard his eviden_ce._relati'ng to y...Qf ii' on the Voluntary infonnation__gﬁ;,~-gm by and 2.

133. From the contei'illsof«re1f)>ort_as per EX.P.39, we find that MO_'.}.1_h steel" of blood. As the stains grouping was not done by the O'

184. the accused have found fault the In'Ve_stigating Officer in not packing and sealing soon after it was seized from the place of recovery. ._ has not relied on the blood grouping found on and the clothes of the deceased. Therefore, the .A inadvverteilt act of Investigating Officer in not sealing MO.11, Ogle:-tnnot be at reason to discredit. evidence of recovery of F M_O.1l at the instance of Accused Nos. 1 and 2. rs' '-

i (ﬁx.-E' \c. {-71 '\,.--'\v 6?' e~ 158 M

135. PWJ31 the Investigating Officer has also deposed in pursuance of the voluntary statement of black Kinetic I-Ionda Scooter was seized or Accused No.1. Though the investigating'; fOuffic"e,r' has l as a recovery, we find that the.4_peree'p_ti'on of the investigating' , Officer was wrong. We find the eyidelnce, scooter had not been concealed irrthe hxou.VsVe"' .a'cc.used $3011. But the fact remains on 25.1:2f)Q6 :'i1yeatigating officer had seized the B'ialci§..Kine_tic§ I«1~ende"eeen:e} from the house of Acculs_ed--_No.cl1 eyeljWi.tr1esses to the occurrence namely PWs.1S 'arld V16' the scooter before the trial cegm. l V learnedllcounsel for accused No.1 relying on the if Dhanashekharan and DW.3 Manjuladevi elder V__sisterAfof Accused No.1 have contended that DW.S nManju1.a Devi was the registered owner of Kinetic I-Ionda lS.coloter {l\/10.1] bearing No.KA 03 S 978. The scooter was if ipurchased in the year 1997 and after her marriage in the .: 5?

158

- 159 -

year 2000. DW.3 was staying in her husba:nd'shVV.h:_o't;1seuin Pudupet, Tamil Nadu. DW.3 was in possesstion and she was using this scooter at Pudupet. » b j ' A L DW.3 has deposed oﬁ4"2A{i;'1..200%i."_¢:t' pm. the Police a1ong\Nith"'}'t.ccL1sed her house and seized the'scoote1€ also 'deposed that on 24.1.2004, on of accused No.1 visited Viveliiiagar Police that Accused No.1 was enquiry, from his wife Shieifore the Court), he came to knoxhﬁthat had been taken by the Police to Tirupathtir t'o._s--eizA'e_ the Kinetic Honda Scooter from the of. has deposed that on the following heisawthe scooter near Vivekanagar Police Station and it A a blue Kinetic Honda Scooter and it was of DX mode'1'.3_PvW2 has deposed that the Police might have changed " the model and colour of the scooter marked as MO. 1. £36. The prosecution has relied on the seizure of the scooter from the house of PW22 {father of Accused No.1} to I59

- 160 --

prove that after the incident, accused Nos.i _a'n*dl ..had__'liled away on a black Kinetic Honda Scooter by accused No.1. PWs.15 and were able to notice the registration.'lriumbe.r--"..oi::the 'scooter.' The evidence of PWs.l5 and after the incident ._th'e~..placelvof incident on a black scooter cannotlhel seizure of black Kinetic Hond'alVLE3coo_ter§S of PW22 lends corrobori'1tiolfi" and PWI6.

13"/'.lg_ We '0 evidence of DW.2 Lakshmi Chandraslhelihar Kinetic Honda Scooter bearing 03 iivas insured with National Insurance 'VComioariyij,"Basavanagudi Branch at Bangalore. The policy was "bei.n_gv.l'rvenewed from time to time. The contents of E:<.P._'38 would reveal that the Kinetic Honda Scooter bearing _ Registration No.KA 03 S 978 was insured with National 0' ﬂl~ns5u1'ance company at Basavanagudi Branch at Bangalore. Ex.P.57 is the policy issued for the period from 09-09-2003 to 08~09~2004. The premium collected was Rs.498--00. From

-.;\:g :1 \. ii L "x Kéfx J60

--l61--

the contents of EX.P.111, we find that a sum of Rs.8,000/-- was paid by the Insurance Company in respect of drainage in relation to the accident that the vehicle had met--.-- 'had taken the vehicle to Tamil Nadu, it looks National Insurance Companyrhl Basava'nagu*d.i: at', Bangalore continued to be insurei'..of the vehiclge; As by DW.3 the scooter was plurclaased Vin: "I993 and her marriage was per.formed" year "$2000. In the circurnstances, it looks irriprobable a newly wedded xvomanlllwhile tofier husband's house had taken the old scooter 'fron1_her'"u parental' _.house and continued to have the insurancejyoiicy .renevved7 at Bangalore. There is no evidence on record' to show,t__hat DW.3 had intimated the RTO at Tamil I :v"Nad1,i'tQ',t)I'0jVe that she had shifted the vehicle from the H =:l$tate' 'ofj--Karnataka to the State of Tamil Nadu. We also no-ticeufrorn the evidence of DW.3 that she having witnessed the Vseizure of scooter from her house at 10.30 pm on '24:.1.2004 by the police who in fact had taken Accused No.1 I [her younger brother] did not inform her father about the seizure of scooter. If the police had taking accused No.1 E -

16] ~ 162 --

from Bangalore to Pudupet to the house of se.i_ied the scooter from the house of theof owe would have been to inform 'father PW.22 Dhanashekaran. P'.x'V.2_2 his wife that Accused No.1 OhadbbeenVtaitfenffbyftghe Police to Pudupet, had not that if his son had been talren bygthe Therefore, the contention2_of 'ofVfrif)Ws.2 and 3 and that Kinetic tised by DW.3 at Pudupet in The contention of the defence: 'that Officer had not seized the scooter the-hiouse' of Accused No.1 cannot be accepted. iC0ntention'of"'the defence that the Investigating Officer O colour of the scooter does not stand to Investigating Officer did not have any oblique motifx}eL. to change the colour and model of the scooter as the _identity of the scooter could not have been changed as a scooter will be identified by its registration number, engine number, chassis number, etc., Therefore, [__.\_. '\;\.--'V ('£171 162 M163- the contention of accused that the Investigating Officer had changed the colour and model of the scooteifévtiannot be accepted.

138. Now we refer to the conductffoi'accused :s'ufbse-qijentgtof T. V the occurrence. The learned Seriior--._Ccunse.l appeariiigvlfor Accused No.4 relying hthefhfu €\'/iden{:en'-iTot" PW. Shankaranarayan, 29 Harsha,' "-PWV 23-Pramod Dixit would submit No.4 was in a state of shock lPW.23 had visited the house of accused' to console her. lI\'y,,ﬂ'l§~, made supra, we have held that I-_'W.lO' examined as a witness for the ' had not only turned hostile, but also had "given to lay foundation to the defence. We have also.' discussed significant features of PW.lO that he has " "rr:a.de contradictory statement on oath. Therefore, the Argeyildence of PW'.10 that his daughter was in a state of shock f [}r";\v\r'w-- 5" LL I63 Wf.64~--

and she was sobbing after the incident is only a se1f--serving statement.

During cross--examinat1'on by the learnedvcot;-n'sel"'fo1j Accused No.4, PW29 Ha1'ShEl.:"h£%S' f Accused No.4 brought the injured was in a state of shock. sobbingdand,;""'eeping. in order to appreciate this eVi.de;'nc_e',".._Vwe have_to.:§ necessarily consider the situation vlpre\fale},rl1't particular point of time. The injured fatal injures to his head. He of coma. In the circumstances, PW.29 '=Dr.Harsha.A'v.ra.s--._ more concerned with the critical cqndition of than observing the expressions and cbizdition of accused No.4. PW23 has deposed that was not liking the deceased. In the cilrcurnstances, if PW.23 had seen the accused in a state of grief AA tl1at:.cannot be a ground to hold that accused No.4 was grieved by " t.l'1_e-A death of B.V.(}1'rish. On the other hand, the phone calls and the SMS calls made by her to Accused No.4 in particular at 2.10 am. during the intervening night of 3/4--l2--2003 and the f\'. \. 5% »---5{:'-' 164 W165- SMS calls at 6.41 a.rn. on 4.12.2003 and 6.51 a.n'1. on 4.12.2003 would lead to an inference that she.Vliw!as.V_ not grieved by What had happened to the decease__d_man--d._'had contacted Accused No.1 to inform «of deceased and also to caution hirn. bThejco-nduct ofTA.ccu;se-d No.4 in contacting Accuss-:d_4_ No.lIp_at onllthe; intervening night of 3/ 4«l2--2C0_l3 and the early hours of 4.12.2003 vlfliéjn l_'1er_ llanc.e'T"avas on" death bed is totally inconsistent vv1'th'l- __l.l--~Neither Accused No.4:norllAecu_sed:l'No hadmexclusive knowledge of these SMS have. offeredany.._ex;d1.anation for their unnatural and unusual conduct;

. also find from the evidence of PW29 that .S'E&tCxIIlt§fi.+Llé_» trade by accused No.4 immediately alter the oc'c_urre'nce<--'were not consistent. Accused No.4 had given the xhyistolrywof assault before PW29--Dr.J.N.Harsha and she had

-..disclosed that the assault took place on the head of Girish .. ,V_..vvith some weapon when they were witnessing the air craft landing. From the contents of the Medico Legal Register F .l\.-'. \ 5»-xv c.2257; x 165

--~l67e 15 minutes thereafter PWJO reached Manipal Hospital. PW. .10 has not deposed that when Accused No.4 <:ontacted;hhirr1 over phone at the earliest point of time, i.e.. after the oc_c"urrene.e. * she did not inform PW1O as to how B.V.Girish .si.1:fferedV_"'_the injuries. As already stated, PW. 10 declaried rufitriess.' j During cross examination by the'*.leair_ned coo.snei for'v_ACc'tised No.4, pw.1o has come out Version that {m.._'3...1.2_--2oo3 about 9.45 p.m. his daughter, Accused Noxliiniorrnfed him over phone that an incident_'_.oiT ass':_Vau}..t. ha.r_l'oc"e.urred on the person of I-3.V.Girish near Air ViewV_I?oint atADomluiniéoramangala Ring Road, a11d1jiEV1':(l,'SL!$t'}':11V_I_1Cd jinjures to his head. PWJO has deposed Wh.en'liveiiecreiﬁedyhaisecond phone call from accused No.4 sheinformer1_VPW.'.1OAihafsshe had shifted B.V.Girish to Manipal fvip§:Spﬂél_ . ..... .. « ' .V.h1'«~'£.1_'..,PWVj:'3:TB--_.V.Ramesh, the elder brother of deceased has '' .deposed'.V*that on 3.12.2003 at about 10.30 p.m., he received a piioine call from Accused No.4 who informed him that when 2 » it thedeceased and Accused No.4 were returning after dinner, htthey had stopped the scooter near Air View Point and they H were watching the landing of aeroplanes. that time. some 5' !'\5- \, C7» \.-~»/ {:1 $67

--l69w accused no.4 had expressed her desire to__;seel..>land'1nl_g'«of aeroplanes from Air View Point around, p.m.l" 3.12.2003 and that was not g¢_na:.ne...»d;:..si;?e'.--.. evidence of PW5, we fir1d.th_at acciised B.V-Girish at 5.32 p.m. atllllleéwoﬁ We could safely infer that<.i_t ._d.esi1fe of 'accused No.4 the deceased tookpher to dinner and spent time in the'*'saiAd:p."hote_1 lTl'hereafter, as desired by to Airport ring road and the landing of aeroplanes as byl This conduct of accused No.4 w0U.ld leadil t'oV.*an.'- inference that her desire to see the A "aero3pl.anie_1andingMf1'orn Air View Point was ostensible and _her 'vinr:erfi1:ion was to create an opportunity for accused A 1. to commit the murder of her fiance~B.V.Girish.

" 'We notice from the phone calls exchanged between V._Ac_cused Nos} and 4, Accused Nos.3 and 2 and Accused Nos.1 and 3 that they were in constant touch With each other after the incident till 4.48 p.m. on 4.12.2003. :-

5':

E n rm X. \_ ;;»;,..\_ J A 159 ;i7o--

"l'hereE"ore, we hold that the subsequent. conduct of E1CCL1S€fi..'iS not consistent with their innocence.

143. The learned counsel appearing for Accused' l\ToS.l,ll"-2 ll would submit that by placing relianceon the call liilstary sheet. it cannot be inferred that there was coi1;tactll3Je'twee11_ to 4 and it is also not possible to difaw anv.inferenf:_e' th'af,Aecused-V V L' Nos.1 to 4 had conspired to commit the murder' ol'lE3:.V.(l}:irish. The learned counsel for Accuse.dfNo.-ii woulld..su_binit that Accused No.4 was candid and bold andvhif V-i(as--"'not'>.:'willing to marry the deceased, she wo'i:'id.'i1aVe__ expressed tl'i--e*sarne to her parents.

{This lsubmissiion .cannot be accepted in View of our discussion and accepitanlce__of».ev-idence of PW8, PW1l and PW23 to whom accused "11o7ri._ liad Vexlpressed that she was not willing to " - ._ mam? B.:V'-Girish."'i aaaaa <4 » l V' 'V fairly well settled that conspiracy is by and large i--nfe--te11tiall_"_anCE, such inference has to be founded on solid facts. Sur'i'ountling__§"circumstances, antecedents and subsequent conduct . amonglother factors constitute relevant material. [Vide AIR 1971 l $85]. in Ma.nusl"}a1'ma's case reported in [2010] 6 SCC i. the q _.$upren.ie Court has. held that the close association is a very in'1portant piece of evidence in the case of Circumstantial f'.

pas. »- 5*»-»~ .2 L I 70 W1"/'3-~ Company, Therefore, examination o1'CW3O to necessary to prove these uncontroverted facts; V it it

146. The learned counsel for contended that CW2I--Sujesh._<_'Kurnarl,""who deceased in his car from of Hlvlanipal Hospital should havevhe*e_n M l The fact that after of B.V.Girish, he was injured';3n?1 heitwas '«:i}'orn:§)lVace of incident in a car to Ioeeir disputed by the learned counsel for .faCt, the learned counsel for accused No.4 hasrelievd on .'the~'c:o_nduct of accused No.4 to prove that accused No.4 raade all efforts to save the life of 'Bf./.€}i'1*iAsl1'A"ai1d her conduct was consistent with her ._i1'1i'_10Ce'11t:"e,__ V. Ihthe circumstances, non--examination of CW2] has caused any prejudice to the defence. Therefore, it is not it 'djaosslible to hold that prosecution has deliberately omitted to l' = ..----examine the above witnesses. In the circumstances, what 5% 2':

173

-- 175 W summary relating to his father--ir1--law. summary and its enclosures are mar-ke;d...::'as"'~s.V*x.D.f3U,u0 Ex.D.60(a) to Ex.D.60{c}.

149. On behalf of accusedV.N.o.1, lj'J_\Zl1'>Sathyapr.aliash 5.'! Was examined to prove and ltirevatment of the father--ir1--laW of of PW22 Was admitted 02.12.2003 and he was discharged««l.o.i1 time, DW1 was working _thel"--Medi'cal"Snperiristendent of HAL Hospital.

DW1l'has "thla"t_:o'n.e'T.V.Balakrishnan was admitted in HALlHo_spital"0rl1" and he was discharged from th"€_§lhospita1l" 11.12.2003. Ex.D.6O is the discharge relvating to T.V.I3alak;rishnan. Ex.D.60(a) 8: (b) ._d'ei_fi_e1c1''''l(z)''2'....»V_112.2003 & E3x.D.60(c) dated 04.12.2003 would disclose 'examination of T.V.Balakrishnan in HAL Hospital. During crosswexamination by the learned Public llF?rosecutor, DWI has admitted that there are no records l maintained in the hospital to show as to who had visited the i' 5 3 E Ml76w patient namely T.V.Balakrishnan after taking pennissionpand without taking permission. Therefore, DWI able to state as to who had visited TV.Bala1ﬁishnan.:f2vhe1i was being treated in HAL HospitaL,_ From the contents: of ltliajt";

'i'.V.l3alakris}inan was admitt.ed in Hospital on 02.12.2003 and discharged ca}; 1

150. Therefore?' the and contents of Ex.D.6O are to gnolveilthat accused No.1 was in pig; £~IoSpitaii-_.ibci;i%veen.. sso pm. and 10.30 pm. on O3.12.2f}0f3 has made out by accused no.1. In the.{c'ircumst'an..ces. accused no.1 has miserably failed to prove of alibi. Therefore, we hold that accused No.1 false plea of alibi, which provides an additional-.1«ink in the chain of circumstances. A The learned counsel for accused No.1, relying on Ex.D.61 to Ex.D.64 would submit that accused No.1 had completed Lsemester LLB. examination held during the / 5 ' , \, (7L'x,. w({3;'i---E 176 ~l78--~ has admitted that he knew Shubha {accused No.4») from her childhood and she was a good girl. "[herefore;r'learned counsel for accused No.1 and learned seriior--..ce.u_nse_l"for accused No.4 would submit that characterrancjiiigonduct accused 1 <3: 4 is enough to li'.hel~;_ crime. The learned counsel would ls--ubmit.pl.ifhat cori.duet"of accused 1 & 4 as establish'ed°f.rom the evidence on record would clearly rule o11't~tj_heir.vinvolverrient in the crime. llorder submission, we deem it proper to lrely"o_:n._»l'the"~}.u'dgrnent of the Supreme Court, reportedillrnV_lAIR..'-- ;t9v65"'..SC 682 (in the case of Bhagawan Lal l"B'isiiaVn Lat and others l v. the State of V =llla'0l1aroslitrEcL}",--'wherein the Supreme Court dealing with the 'l sections 52 to 55 of the Indian Evidence Act, 1s';.2l}';1als held» "it is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding. 5 T\''''} = . ':4 mi/--T\~-"~c »o:'(v';\ ; 178 :'cleVer1*1essl:"to real traits.

~ 179 we Under the Indian Evidence Act, u1i1'iis;-e_fVgi_i_i. it England, evidence can be given both olflgerlieral character and general disposit_i_on. I o1'spo;,s:tiong_ means the inherent quaivities-,.ofl'--a' reputation means the general: credit; the person amongst the "aiéeai distinction between reput:at_i_on_p and 'disposition. A man may berA.epp:1t,edA to man, but in reality he may have-Ia The value of evidericc.. as ,jdis;positionVV'V of a person depends witnesses' perspicacivty on tlieir opportunities to yivobserve. a as {yell as the person's But a disposition oifa may be made up of many traits; .,some good and some bad, and only zféyidence lini'~~-regard to a particular trait with ..whic_'ri"t;he Witness is familiar would be of some it vl.l'_W'ig--more puts the proposition in the fol.|,loiitjng manner.

it "Whethe1', when admitted, it should be lgiven Weight except in a doubtful case, on A whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, §' '~ \» {'\"'\, -cc ff'! I79 ~«~182w circumstances, we have accepted th6V....._l$«?1n'1é;a.Vjfhe irregularities attributed to the Investigating to root of the case of prosecution; >W'e have 1"1.;otnr'e1j'errec:§.itolthefp extracts of texts of SMS sent the trial Court had not the s_a'm.el lapse on the part of ;.the Inye'stiga_tling Oflficer-~to~lupdate case diary and applications prepared by a1'e:"n"ot' In any event, defective .--inwfest_ig;atio.ri__«_by itself cannot be a ground for acqi1'1ttal"*»xr'}i;,¢n exarnined on behalf of prosecution havelbeen learned trial Judge and also by us {Vida (26081 1 sec ACril'6'?'¥lL paragraph 26}. 15%';-.E._Ti:us, we-"surn up our conclusions and findings as ' V lollowsi '--i all lTl're'j_pr'osecution both from oral evidence of PW8--Hema, Plll/lull-S.hleetal Rajagopal and PW.?,3--Pramod Di:-(it and also 2 it by_thel conduct of accused No.4 and her contacts with other Ariaccused during two days prior to date of marriage H engagement, on the date of marriage eng6'1gemer1t and H32 M 184 -

Accused No.2 was in the company of accused No.1.___Accused No.1 was in constant touch with accused No.4 .10 the movements of the deceased. Accused home had insisted the deceased tomstop s.co'oter'_ine'ar Air View Point on the pretext of seeing l»and_i'ng:'of.aeroplane-.__QnEy to create an opportunity for acc1_1xsedVl\E.o.h2 to tleathdof deceased by hitting him Acctised No.1, who had kept scoo't%f':..1n immediately after the incident and took a U-

turngthereaffter Noﬁlran, jumped and sat on pillion seatVx'of.~of them fled away from place of occurrence. V'PWE.5A'&V'PWl6 had witnessed the occurrence. v".'.\YY Y evidence of i~w'l5 relating to identiﬁcation of accused 1, V = 2"an"d. before Court is credible and consistent. The evidence llAofl'PW1'é'I__regarding identification of accused No.2 before Courtvisvcredible and consistent. The evidence of PW15 and ~ V PW16 finds ample corroboration from medical evidence given PW18--Dr.Bhcernappa Havanur and PW29~Dr.J.N.I~iarsha. The weapon oﬂassault and manner in which bio/vvs were is t f\j 4 x... {in '°~.4~«-I F». ~ 184 ~188~ Accused No.4. who was the custodian of mobilegl\lo..98455 70337 before it was produced by her father the Investigating Officer had deleted text of between accused .1 and other accused and i_i1erehy~vaccu'sed No.4' j had caused disappearance of evidence t}§"s¢§reén accused from legal punishnie_n't._'Accused accused no.2 had assaulted head of thevnideceased with a steel rod/pipe had intenﬁ-.onatl1y.V-_giizeazi'italsez information that the deceased was assatiltedV_bv3:lf 'assailant. Therefore, we hold during" ti'1'ep:p..pe1*i:C)d and 03.12.2003. accused 1AtoT,4,l1ad.4entei'ed into-criminal conspiracy to commit the murder. of ~ziindpu..:'s1iance of such criinjnal conspiracy. on O3.12.2003,.around._09..30np§rn.. accused No.4 took the deceased to Air Point loclated on the eastern footpath of Airpoii ring road on the it landing of aeroplanes. Accused No.4 and B.V.Girish it were vllanding of aeroplanes by standing near Air View Point. At. i.ir_ne.i'es':.pi'ewplanneri by accused 1 to 4, accused No.1 brought e1cc.u.sed.. No.2 arinerl with a steel I'0C1/ pipe on his biack Kinetir: Honda ' scooter. accused no.2 assauited on the head oi' B.V.GirisIi with a steel 'incl:/pipe: with the inteiztion and knowledge of causing his death. After the incident. accused No.2 ran a1'1(ljLII1]p('d and sat on. piilion seat of the 5"' 5';

R' ' \..,j_"m1.«(Q;'1 -4 I88 M 1 90 -W accused No.1 was not present near place of incident. and he was present in HAL Hospitai at the time of prosecution cannot be found fault with a texts of SMS messages, which i_1_1~fa_ct T if accused 1 8: 4 even before produced by PWIO and"fi?Wi;'2 _ fa.iiivestiigatiiigfV Officer. The defence of Kinetic Honda scooter was Devi and the evidence adduced proof fact is fallacious. V"We iéirittiﬁndingsvﬂrecorded by the learned trial Judge"._tiia.t guilty of an offence punishable under secﬁo-n .30fZ.rfv;r ill IPC and accused No.4 is guilty of an offencei'~punisha=bl«eV_ under section 201 IPC. In view of this, the VA 'evidence adduced by defence in proof of the character of accused . n5o_s.l :vou"ld be irrelevant.

155. vievv of the above discussion and for the foregoing AA reasons'. we answer points 2 to 4 in affirmative. fl On consideration of the impugned judgrnent. we find that __.tl'ie impugned judgment siiould have been more reasoned. The learned trial Judge slioulcl have met all the points raised .5;

f\_".% '-~«- ft, '~'&££;r..

---- 1 9 1 ---

by the defence. However, conclusions reached by thelearned trial Judge and reasons assigned thereon do not__ls.i,i:ffe'1j from any errors.

157. The State has ﬁled Cr'imi:ja.All Appeal 2C:}'1Cl)V".tobi'. it sentence accused 1, 3 8: 4 for an'.offence pu_nisha.ble_.lunder section 302 IPC and also sentleficpe accused, for offence punishable under section 'V2-O1 I}E'lC.'"The: State has also sought for imposition of death to accused No.2.

158. We find from jiudgrraont, the learned trial Judge" 1, 3 and 4 to undergo imprisonment,ll'o§;~.cA}liie._:la1i,d,pay a fine of Rs.50,000/-- each with default sentenlcellofsimple imprisonment for a period of for"an....offence punishable under section 120B ' learined trial Judge has sentenced accused No.2 to "undergo'liltnpirilsonment for life and pay a fine of 7Rs.50,000/--, inlldefault to undergo simple Imprisonment for a period of ten 2 it months for an offence punishable under section 302 IPC. llltﬁltccused No.4 has been sentenced to undergo simple 'lllimprisonment for a period of three years and pay a fine of 5":

f 3;"

5 /"\~-- £"w*4L~ 29% ~ft92~w Rs.25,000/e with default sentence of simple in1pris--oiirn_eiit for' a period of six months for an offence punisliable__u"n_deriisecntion IPC. Out of fine amount realised, a 'off has been' 7. ordered to be paid to the family of compensation. T p A» A V L

159. The learned trial "shou1.'d«~o.jr1,.<';1V€i§ sentenced accused 1, 3 & 4 foran. under section 302 EPC, which The learned trial Judge 4 had entered into criminal of B.V.Girish and in pursuanceﬂofVsuch -conspiracy, accused nos.1 to 4 committed ought to have sentenced accused 1 to an offence punishable under section 302 pijx/VJ Therefore, we set right these discrepancies by _ 'senAten:c*i.ng'accused l to 4 to undergo imprisonment for life for an offence punishable under section 302 r/w 12013 IPC. .. We maintain fine and default sentence imposed by the trial if 'Court for the aforestated offences. The conviction passed by the trial Court against accused No.4 for an offence punishable under section 201 {PC and sentence imposed !i N. QB» '~--""'~'"" 'éc I92

-- 193 e thereon are confirmed, so also payment of the family members of the deceased: l V V The prosecution has not soilght-..tof id-eoth sentence to accused 1, 3 8: xyho in" ; accused No.2 and convicted "an oflef1celllp'dnisl3§ablle under section 302 r/w 1.2OBViP(}. Acctiéccia wereco--conspirators.

The prosecution cannot as primary conspirators airidpsecontilaryl 'lT§:ielprosecutio1r1 cannot isolate accnse'd4'No:2--:'_asv 'acts by accused No.2 were in pursuanc*eyo:i"-- entered into between accused I to Eyen not find the case against accused No.2 favilsunder' 'of the rarest of rare cases. Therefore, in ot1_r_ co1'1sidered .View."the'.State appeal is liable to be dismissed 'i'or;_.f.:l1eaforestated"inodiﬁcation of sentence. Hence points 6 ' -f~1n"d= 7 z'u:e"an'swer.ed accordingly. 'lElOQ result, we pass the following:-- ORDER it Criminal Appeal No.765/2010 C/W Criminal Appeal "'1'»c1ccf/74/2010, 757/201.0 81 722/2010 filed by accused 1 to it are dismissed. Criminal Appeal No. 856/2010 filed by the /'i I93 W 1 9 4 -

State is accepteci in part. The sentence ir:1poser.1..t)_'y.Ttiie trial Court is modiﬁed as follows:-

Accused 1 to 4 are" se'r1te_n'eed:' uiiderggo it imprisonment for life for an oi'fenceVpti'r1_ishab'leA tir1d'er';3éCl.iof1 302 r/W £208 IPC. The default 'se£;teﬁveé"i1hposea by the trial Court is et;~3qiirme'd". 'l;h;C'Ve'e1}&viotioﬁ"passed by the trial Court against aeaeused" punishable under sectionlgfll also the sentence imposed _.:'est of the impugned 'to tine, compensation and set off Lin : 428 Cr.P.C., are confirmed. Office d--«i.rec1;eﬁe1'v__to'~.sue'a--a back records along with a copy of ju_e1gr1_1ent; Vlfortrhxvith. Sdfﬁ ludge Sdf3 Tudge SNN/J1./KSM 1 ')4

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