Full Judgment Text
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CASE NO.:
Appeal (crl.) 482 of 2003
PETITIONER:
A.N. Venkatesh and Anr.
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 08/08/2005
BENCH:
P. Venkatarama Reddi & P.P. Naolekar
JUDGMENT:
J U D G M E N T
P.P. NAOLEKAR, J.
This appeal is preferred by the accused A.N.
Venkatesh (A-1) and Ezaz (A-2) challenging their
convictions under Section 363 IPC (RI for 1 year),
Section 384 IPC (RI for 2 Years), Section 201 IPC
(RI for 6 months) and Section 302 IPC (Life
Imprisonment) awarded by the High Court,
reversing the order of acquittal, passed by the
Sessions Court.
In brief, the prosecution case is that on 19th of
May 1996 at about 9.00 AM, a minor boy named
Madhu left his house for going to his father’s shop.
It was vacation time for the Schools. In the
afternoon when the father, M.K. Krishnamurthy,
PW-7 returned home for lunch and enquired about
his son, as he had not come to the shop, till
evening family waited for return of the boy and
thereafter the search began. Various telephone
calls were made to the relatives and enquiries were
made from other places where the boy was
expected to have gone. Again in the next morning
search was made for Madhu but he was not traced
and as such at about 1.00 P.M. on 20th May 1996,
PW-2, M.K. Prakash, uncle of Madhu lodged the first
missing complaint in Hosadurga Police Station. The
police registered the complaint as Crime No.99/96
on the same day. Thimmanna, PW-1, another
Uncle of Madhu went to the house of Prakash,
whose house is near the house of Krishnamurthy,
PW-7. At about 2.30 PM or 2.45 PM, a telephone
call was received on Telephone No.8537 at the
house of PW-2 M.K. Prakash which was picked up
by PW-1 Thimanna. He heard one male voice
saying that he knew that they are in search of
Madhu and that Madhu is in their custody, he will
be released if the ransom amount of Rs.50,000/- is
paid. It was said that the ransom amount of
Rs.50,000/- is to be thrown in a bundle on the
tracks of the railways running between Arasikere
and Beerur before 5.00 P.M. After receipt of this
telephonic call, PW-1 immediately rushed to the
Police Station and lodged a complaint at about
3.00 PM. On this, the P.S.I. Shri B.S.
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Rajashekhar, PW-16, deputed A.S.I. Shri M.G.
Gangadharappa, PW-17. and one P.C. Constable
Rudriah to make a search of the missing boy. PW-
2, Prakash along with his brother Srinivas and the
police officials proceeded in a Taxi to Arsikere in
search of the boy. They reached Arsikere at about
5.00 PM. Thereafter enquiries were made at the
S.T.D. Booths at Arsikere for finding out from
where the call was made and to trace the person
who made the call to Hosadurga. Two STD booth
owners informed that the calls were made from
their booth to Hosadurga by two boys and one of
the S.T.D. Booth owners informed the police party
that the telephone to Hosadurga was made by two
boys from his telephone booth at about 2.30 O’
clock. Thereafter the police party along with PW-2
went to Arasikere Railway Station and proceeded
towards Beerur along the railway track. When they
proceeded about two and a half to three kilometers,
they saw two boys coming in their direction along
the railway track at about 6.30 or 6.40 PM. When
the boys reached near them, it was noticed by PW-
2 that one of them Venkatesh, A-1, is his relative.
On seeing the police party along with other persons
those two boys started running away. However,
they were chased and caught. Those accused
persons, according to PW-2, volunteered that they
had kidnapped Madhu and that they would show
the place from where the dead body can be
recovered. From there they were brought to police
station when it was about 10.00 P.M. Both the
accused persons were put up in the police lock up.
During the night intervening 20th/21st May 1996
they were interrogated and their disclosure
statements were recorded which are Exhibits P-15
and P16 in which they volunteered to take the
police and others to the place where they have
buried the dead body of Madhu. The police party
along with accused and others proceeded towards
Vedavathi river bank wherefrom dead body of
Madhu was exhumed from the sand at the bank of
the Vedavathi river from the spot pointed out by
the accused persons. The post mortem was
conducted by PW-3 Dr. Ravikar on 21st May who
found the following injuries on the body :
1. There was haemorrhage in the
sub-tutaneous tissue and in the
muscles of the neck in the region
of hyoid and thyroid cartilage;
2. There was haemorrhage in the
retro pharyngael tissue at the base
of the tongue;
3. There was sub-mucus
haemorrhage in the larynx; and
4. Sheath and intima of the carotid
artery are lacerated with effusion
of blood in the walls.
The doctor opined that the death was due to
asphyxia as a result of throttling.
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The accused persons faced trial and were
acquitted by the Sessions Court. In appeal, the
acquittal of the accused was set aside by the High
Court and they were, as aforementioned, convicted.
It is urged by the learned counsel for the
appellant that according to the prosecution the FIR
was lodged on 20.5.1996 at 1.00 P.M. by PW-2.
However, the said FIR has not disclosed any
offence. It is only a complaint regarding missing
boy Madhu and therefore it could not have been
registered as a crime. More so, the said complaint
reached the Magistrate’s Court only on 17.8.1996
and thus it gives a reasonable apprehension that
the actual complaint made on 20th of May 1996 at
1.00 P.M. contained something different than what
it contained in a complaint sent to the Magistrate
on 17th August 1996. Therefore, the whole
genesis of the prosecution case is belied and
cannot be relied upon. It is true that the
complaint Exhibit P-4 lodged by PW-2 on 20th of
May 1996 at about 1.00 P.M. was sent to the
Magistrate on 17th August 1996 but at the same
time we cannot lose sight of the fact that there
was another complaint made at 3.00 P.M. on 20th
May 1996, after receipt of the telephonic call,
demanding ransom which was sent to the
Magistrate’s Court the very next day i.e. on 21st
May 1996. It is this complaint on the basis of
which the prosecution started investigation.
While it is true that Section 157 Cr. P.C. makes it
obligatory on the Officer Incharge of the Police
Station to send the information to the Magistrate’s
Court forthwith but that does not mean and imply
to denounce and discard an otherwise positive and
trustworthy evidence on record. The first
complaint of missing person although was sent
late, in fact, has not moved the investigating
agency to real investigation except informing
various other police stations regarding
disappearance of Madhu. The complaint which
was taken note of was Exhibit P-1 which was sent
in due time to the Magistrate. Unless we find that
the evidence led by the prosecution is not reliable,
the delay in sending the first complaint would not
lead to the inference that the complaint lodged of
missing person contained some other facts that
may have revealed some other story which is not
consistent with the prosecution case.
It is then submitted by the learned counsel
for the appellant that it is wholly unnatural that
when the accused persons were arrested in
between Arasikere and Beerur and they
volunteered about having kidnapped Madhu and
buried his body under the sand, near the bank of
Vedavathi River, and that they can show the exact
place, the accused persons were not immediately
taken to that place. Instead thereof, they were
produced in the police station at about 10.00 P.M.
and on the next day morning they were taken to
the spot from where the dead body was recovered
on their pointing out the place where it was
buried. It is also argued that instead of complying
with the ransom demand as demanded by the
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kidnappers to save the boy, it looks unnatural that
the police party and relatives of the deceased
spent time in making enquiries from the STD
Booth owners about the telephone calls and
thereafter they have proceeded towards the
railway track.
PW-1 has deposed that on 20.5.1996 at
about 3.00 P.M. he and his brother, PW-2 went to
the Police Station to lodge report. PW-17, ASI M.G.
Gangadharappa has deposed that he along with
Constable and PW-2 and others went to Arsikere in
a Car and reached Arasikere by about 5.15 PM,
thereafter enquiries were made from STD booth
owners of Arasikere of the telephone call made to
Hosadurga. Two booth owners have informed
that the telephone calls were made from
their STD Booths by two boys to Hosadurga. All of
them thereafter went to the railway station and
since nothing was found at the railway station, they
proceeded along the railway track. While they were
proceeding along the railway track towards
Banawara and when they covered the distance of
about 3 Kms. they saw two boys coming towards
them. Complainant identified one of them being
his relative. The boys tried to flee but they were
chased and apprehended and were taken to the
police station where they reached at about 10.00
PM. Evidence of PW-2, M.K. Prakash, uncle of the
deceased is on the same lines except with the
addition that both the accused persons volunteered
that they had kidnapped Madhu and buried his
body near Hosadurga and they can discover the
same. From this evidence it is apparent that after
the accused persons were apprehended near the
railway track and by the time the party reached
Hosadurga, it was almost 10.00 PM. The spot
where the body of the boy was said to be buried
was the long stretch of the bank of Vedavathi River
covered with sand, where every place looks alike
and in the absence of sufficient facility of light, it
would have been difficult, rather impossible for the
accused persons to locate the place where they
have buried the dead body. Apart from this, the
Investigating Officer must be apprehensive and
justifiably, that the important piece of evidence
may be destroyed if the search party reached the
spot at the night for recovery of the dead body.
Therefore, there is nothing strange or unnatural
that the police party along with the witnesses
proceeded early in the morning next day for
recovery of the body from the spot disclosed by the
accused persons. It has come in evidence of PW-7,
father of the deceased and the Panch Witness PW-4
that the accused persons pointed out a particular
spot near the riverain from where the dead body of
Madhu was exhumed from the sand. We find that
the evidence of these witnesses does inspire
confidence and is worthy of credence. As regards
police party making inquiries at STD booth and not
rushing towards the spot where the amount was to
be paid it may be seen that the party was not
aware by that time, as to who were involved in it.
They came to apprehend the accused and not to
pay the ransom amount. It is clear from the
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evidence of I.O. PW-16 that when the complaint,
Exhibit P-1 for the demand of ransom was lodged,
he dispatched the police party along with the
complainant to Arasikere and instructed the ASI
that the accused persons be apprehended from the
place where they are supposed to collect the
ransom amount. PW-2 has also said that after
reaching Arasikere railway station, he along with
his brother and the two police officials proceeded
towards Banavara and Beerur along the railway
track in order to find out if they could get any clue
in respect of Madhu or his kidnappers. After the
boy was missing, the complaint was lodged in the
police station. The complainant also informed the
police immediately after the call for ransom was
made. Thus, it is apparent that they have decided
not to pay the ransom but apprehend the
kidnappers. With this intention, the complainant
along with the police party have reached Arasikere.
It is not surprising that they made enquiries from
the STD Booth owners whether any phone calls
were made to their knowledge to Hosadurga to
trace and identify the accused persons instead of
rushing towards the spot where the ransom amount
was to be thrown. That apart, by the time they
reached Arasikere, it was almost 5. O’ clock and it
was not possible for them to reach the spot where
the money was to be paid before 5.00 P.M. as
instructed on phone. In the circumstances, the
behaviour of the police party or that of the
complainant cannot be said to be unnatural so as to
discard their evidence.
It is contended by the learned counsel for the
appellant that when the kidnappers made a demand
for the ransom amount of Rs.50,000/-,and the
manner in which the demand was to be fulfilled,
was also indicated, in the natural course of conduct
it was expected of the police and the complainants
to have traveled by train, from Hosadurga to
Arasikere and onwards instead of travelling by road
in a motor vehicle to comply with the direction
given. The argument of the learned counsel is built
upon the premises that the complainant party had
decided to pay the ransom and to follow the instructions of
payment of ransom amount by throwing it at the identified
spot from the train. We have already discussed the
evidence of the witnesses from where we find that
the complainant party and the police have already
decided not to pay the ransom amount but to
apprehend the accused persons at the spot
indicated by them for payment of amount. When
the decision was taken there was no reason at all,
to travel by train and follow the instructions. The
course adopted by the complainants and the police
party by travelling in a vehicle was in conformity
with the decision taken by the police party and the
complainant, was in natural course of conduct.
It is further submitted by the learned counsel that
one more important aspect about M.Os 1-3 and,
more particularly, M.O.s 1 and 2 viz., the baniyan
and the pant said to be found on the dead body,
had no staines at all, in spite of the fact that when
the body of Madhu was exhumed, it was in a badly
decomposed condition, and that even the colour of
the clothes removed from the body has not
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changed, which clearly indicates that the baniyan
and the pant were subsequently planted by the
police, was not taken into consideration by the High
Court. It has come on evidence that when the dead
body was exhumed from the river bed, M.Os 1-3
were seized from the dead body. PW-3 Dr. Ravikar,
clearly stated that after the postmortem
examination was over, he handed over the dead
body along with M.Os 1-3 back to the police. PW-4
Ramakrishanappa and PW-5 B.V. Anjan Kumar who
are the panch witnesses have deposed that M.Os 1-
3 were found on the dead body. PW-7, the father
of the deceased has stated in his evidence that he
identified the dead body on the basis of the physical
description and also on the basis of the clothes
worn by the deceased. M.Os 1-3 were on the dead
body of Madhu and in this regard the spot mazhar
as per Exh.P2 was drawn up. None of these
witnesses have been cross-examined on the
question of clothes found and removed from the
dead body. Even when the question was put to the
accused, in the examination under Section 313 of
the Cr.P.C., no case has been put forth by the
accused that the alleged M.Os 1 and 2 were not
recovered from the dead body. When there is a
reliable ocular version of the witnesses which has
gone un-challenged, there is no reason as to why
these witnesses should not be believed by the
Court, merely because staines were not found on
the clothes. It may be for various reasons which
necessarily does not lead to the inference that the
clothes were not removed from the dead body. The
effort of the criminal court should not be to prowl
and to find out imaginative doubts. Unless the
doubt is of a reasonable dimension, which the
judicial mind thinks, require consideration with
objectivity, no benefit can be claimed by the
accused on the basis of some hypothetical
proposition.
The accused persons were apprehended near
the spot where the ransom amount was supposed
to be paid. The accused person’s presence at the
place where they were arrested is a strong
circumstance against the accused appellants.
There was no apparent plausible reason for their
presence alongside the railway track, loitering
around a place which is quite far away from the
place where they were residing viz., Hosadurga.
Their conduct in running away when they saw the
police party is also indicative of their guilty mind
and is an important piece of evidence showing their
conduct. No plausible explanation was given by the
accused appellants for their presence at the spot
where they were arrested, which was nearby the
place indicated in the demand for payment of the
ransom amount.
By virtue of Section 8 of the Evidence Act,
the conduct of the accused person is relevant, if
such conduct influences or is influenced by any
fact in issue or relevant fact. The evidence of the
circumstance, simplicitor, that the accused pointed
out to the police officer, the place where the dead
body of the kidnapped boy was found and on their
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pointing out the body was exhumed, would be
admissible as conduct under Section 8 irrespective
of the fact whether the statement made by the
accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27
or not as held by this Court in Prakash Chand
Vs. State (AIR 1979 SC 400). Even if we hold
that the disclosure statement made by the
accused appellants(Ex. P14 and P15) is not
admissible under Section 27 of the Evidence Act,
still it is relevant under Section 8. The evidence of
the investigating officer and PWs 1, 2, 7 and PW4
the spot mazhar witness that the accused had
taken them to the spot and pointed out the place
where the dead body was buried, is an admissible
piece of evidence under Section 8 as the conduct
of the accused. Presence of A-1 and A-2 at a place
where ransom demand was to be fulfilled and
their action of fleeing on spotting the police party
is a relevant circumstance and are admissible
under Section 8 of the Evidence Act.
The prosecution has examined PW-10, a
building contractor who has seen the accused
appellants with the deceased nearby the place from
where the dead body of Madhu was exhumed. PW-
10, Ranga Reddy has deposed that he is engaged in
construction business and he is doing that work for
the last ten years. He knew the accused appellant
and they are the residents of Hosadurga. He knew
their parents also. He also knew the deceased and
his father as also that the father of the deceased is
related to A-1. On 19.5.96 at about 11.00 A.M. he
had been to Vedavati River near Gollarahatty,
about 6 kms. away from Hosadurga, in order to
bring some sand for his construction work and at
that time he saw both the accused persons and
Madhu playing near the river bed. He did not speak
to them and he left the place thereafter. After
attending his work he went to Bangalore for his
work and returned back to Hosadurga on the night
of 20.5.96 about 11.30 P.M. He came to know
from the members of his family about the
kidnapping and murder of Madhu. Next day
morning, i.e. on 21.5.96 he went to the police
station to see the accused persons arrested and
found that the two accused appellants were the
same persons who were playing with Madhu near
the Vedavati River. From the cross-examination of
this witness nothing has been elucidated by the
defence to disbelieve the statement of PW-10. PW-
10 has visited the river belt in connection with his
business of construction which he was carrying on
for the last 10 years. He knew the parents of the
accused appellants and the accused themselves,
the parents of the deceased boy and A-1’s
relationship with the father of the deceased, and
thus it was quite natural for him not to report the
matter immediately to Madhu’s family that he saw
the boy playing with the accused appellant no.1, he
having been related to the deceased boy. There
was no apparent reason for him to approach the
family of the deceased and intimate them about his
seeing the deceased with the accused. An
argument was advanced by the counsel for the
appellant on the basis of statement of the doctor
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who has conducted the postmortem, that the
approximate time of death was 48-68 hours before
the examination of the dead body and that if this
timing is taken to be correct, then PW-10 would not
have seen the boy alive at about 11.00 A.M. on
19.5.96. The timing of death given by the doctor is
broadly an estimated time and too much reliance
cannot be placed on the time of death given by the
doctor when the dead body was decomposed and
examined after two days. We do not find any
infirmity in the statement of PW-10 to disbelieve
him. There is no apparent or specific reason for
him to implicate the accused appellants in
commission of crime. The estimated time given by
the doctor would not shatter the evidence of PW-10
who has seen the boy playing with the accused
persons before his death.
The other circumstance which prominently
shed light on the involvement of the accused
persons is the telephone call made by them from
Arasikere from the STD booth to Hosadurga. To
prove this fact the prosecution has examined three
witnesses PW-12 Renuka, PW-13 Kumar and PW-14
Krishnamurthy. PWs-12 and 13 are the STD booth
owners. Much reliance cannot be placed on the
statement of PW-12 Renuka because of the timing
at which he has stated the boys have contacted
Hosadurga on phone from his telephone booth
because there is no corresponding corroboration to
his statement of such calls having been made at
9.00 A.M. or 10.00 A.M. from his telephone booth.
But the statement of PW-13, the other STD booth
owner is corroborated by the statement of PW-14
and further the statement of PW-2, the uncle who
had received the call at Hosadurga whereby the
ransom demand was made. This is further fortified
by his lodging an FIR in the police station informing
that the ransom demand has been made. PW-13
has deposed that he was running an STD telephone
booth at B.H. Road, Arasikere. On 20.5.96 A! and
A2 had come to his telephone booth at about 2.30
P.M. and had telephoned to one telephone
no.80347 at Hosadurga, which was later on
corrected by him to be the telephone no.80537 on
STD code no.08199, which is the STD code of
Hosadurga. He has charged the bill of Rs.36.13 p.
and the entry to that effect was made in his book.
The book in which the entry has been made is not
with him since he had disposed it off along with
some newspapers. After the call was made he had
asked for the bill amount and the accused informed
him that they do not possess money and thus
unable to pay. He insisted for payment.
Thereafter, A-1 went to fetch the amount and he
made A-2 to sit in his booth. As he was busy with
another customer, he asked his neighbour, a cycle
shop owner, Krishnamurthy (PW-14) to keep a
watch over A-2 and at that time A-2 removed his
shoes and threw them towards Krishnamurthy.
PW-14 gave two slaps to A-2. Thereafter, A1
proceeded towards the house of SBM Cashier. A1
called out ’Wasim’ , S/o SBM Cashier and the
amount was later on paid by Wasim. It has also
come in evidence that Xerox copies of the book
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maintained by PW-13 was taken by the
investigating officer and tried to be produced as an
evidence. The sessions court did not permit the
same as a secondary evidence and the matter got
rested at that. The statement of this witness is
corroborated by PW-14 who held a nearby cycle
shop and who has said in his deposition before the
court that both A1 and A2 on 20.5.96 came to the
telephone booth approximately at 2.30 P.M. and he
was in his cycle shop. There was some commotion
on account of non-payment of the telephone bill by
A1 and A2 and, therefore, he went near the
telephone booth and heard A-1 and A-2 saying that
they had telephoned to Hosadurga but they do not
have money to pay. When he asked them why
they are not paying the amount, A-2 threw a shoe
towards him which landed on his right leg and he
retaliated by giving one slap to A-2. Thereafter, A1
approached SBM Cashier and the cashier’s son
came and gave the phone bill amount to PW-13.
The accused persons left the place and went
towards the bus stand. On 20.5.96 the police
officer of Hosadurga had brought both A1 and A2
and shown them to him and he identified them as
the same persons who had made the call from the
STD booth. The statement of these witnesses
establishes that about 2.30 P.M. A-1 and A-2 came
to the STD booth of PW-13 and thereafter an STD
call was made to Hosadurga. This is corroborated
by the evidence of PW-1, Thimmanna, one of the
uncles of the deceased that he received the
telephone call on telephone no.80537 on 20.5.96 at
about 3.00 P.M. This is supported by the evidence
of another uncle PW-2 MK Prakash who said that
his brother Thimmanna received a call and told him
that somebody from Arasikere had telephoned
informing that they had kidnapped the boy and are
demanding an amount of Rs.50,000/- to release the
boy. The amount is to be paid by throwing it by the
side of the railway track in between Arasikere and
Beerur. Immediate lodging of the complaint at the
police station at about 3.00 P.M. on 20.5.96 by
PW-1 informing about the ransom demand made on
the telephone, completely establishes that the
telephone call was made at about 2.30 P.M. on
20.5.96 demanding the ransom amount. The
statement of these witnesses clearly establishes
that the accused appellants have made the STD call
on 20.5.96 demanding ransom amount claiming
that they have custody of Madhu.
Various circumstances in the chain of events
established, ruled out the reasonable likelihood of
innocence of the accused. The prosecution has
been able to establish that a complaint was lodged
with the police of Madhu missing from the house,
after frantic search was made by the family
members to find out his whereabouts. The
ransom demand was made by the accused
appellants from the STD booth of PW-13 over
phone which was received by PW-1 and
immediately thereafter complaint was made in the
police station. The police party was dispatched to
Arasikere to apprehend the persons who had
telephoned. The accused appellants were arrested
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from a nearby place where the ransom demand
was to be met. There is no apparent reason for
the accused appellants to be present at the spot
where they were arrested which is far away from
the place of their residence, except for the
purpose of materializing the demand made by
them. The accused persons were taken to the
police station of Hosadurga at about 10.00 P.M.
Soon thereafter, in the morning they have taken
the police party along with the family members of
the deceased to the river bed of Vedavati river
and on their pointing out a particular spot, the
body was exhumed. Before the dead body was
found they were seen in the company of the
deceased nearby the place from where the dead
body was exhumed. Above circumstances
cumulatively taken together lead to the only
irresistible conclusion that the accused appellants
alone are the perpetrators of the crime. Each and
every incriminating circumstance has been
established by reliable and clinching evidence and
we have reached to an irresistible conclusion that
inference can be drawn from proved
circumstances that the accused appellants were
involved in the crime and are guilty. We do not
find any infirmity in the judgment of the High
Court and appreciation of the evidence led by the
prosecution by it and the inference drawn there
from. The acquittal by the trial court was rightly
held to be unjustified. For the aforesaid reasons,
we dismiss the appeal and the conviction of the
appellants is maintained.