Karnataka High Court
Suresh S/O Bhimashi Yatnal vs The State Of Karnataka on 13 January, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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CRL.A No.200115 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200115 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
SURESH
S/O BHIMASHI YATNAL
AGE: 40 YEARS,
OCC: MASON WORK,
R/O: VADDAR ONI,
NEAR ANAND HOSPITAL,
VIJAYAPURA - 586 101.
...APPELLANT
Digitally signed (BY SRI B.C.JAKA, ADVOCATE)
by SWETA
KULKARNI
AND:
Location: HIGH
COURT OF
KARNATAKA THE STATE OF KARNATAKA
THROUGH CPI OF GOLGUMBAZ CIRCLE,
AT VIJAYAPURA - 586 101.
NOW REPRESENTED BY ADDL. S.P.P.
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 107.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
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CRL.A No.200115 of 2022
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 31.12.2021 IN S.C.NO.69/2017 PASSED BY
THE II ADDL. SESSIONS JUDGE, AT VIJAYPAURA, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY ACQUIT THE
APPELLANT/ACCUSED OF THE CHARGES LEVIED AGAINST HIM
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 363,
364(A) AND 201 OF I.P.C., IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR DICTATING
JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K)
The appellant has filed this appeal against the
judgment of conviction and order of sentence dated
31.12.2021 passed in Sessions Case No.69/2017 by the
III Addl. Sessions Judge (hereinafter referred to as
'learned Sessions Judge' for short), Vijayapura, wherein
the learned Session Judge convicted the accused for the
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offences punishable under Sections 363, 364-A, 302, 201
of IPC and sentenced him to undergo rigorous
imprisonment for life and directed to pay a fine of
Rs.25,000/-, in default of payment of fine, to further
undergo simple imprisonment for a period of six months
for the offence punishable under Section 302 of IPC.
Accused is further sentenced to undergo rigorous
imprisonment for a period of three months and he is
directed to pay a fine of Rs.10,000/-, in default of
payment of fine, further directed to undergo simple
imprisonment for a period of three months for the offence
punishable under Section 363 of IPC. The accused is also
directed to undergo rigorous imprisonment for life and
imposed a fine of Rs.25,000/-, in default of payment of
fine, directed to undergo simple imprisonment for a period
six months for the offence punishable under Section 364-A
of IPC. The accused is also directed to undergo rigorous
imprisonment for a period of three years and imposed fine
of Rs.10,000/-, in default of payment of fine, directed to
undergo simple imprisonment for a period of three months
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for the offence punishable under Section 201 of IPC. It is
also directed that all the sentences shall run concurrently.
2. The brief facts which led to the trial of the
appellant-accused are as follows:
P.W.1 is the father of deceased Akshay, lodged a
complaint before the respondent-Police on 21.09.2015 as
per Ex.P.1 alleging that he was residing in the house of
one Shankar Yatnal i.e., P.W.7 on rental basis along with
his family. By avocation, he was an Auto-Rickshaw driver.
His son Akshay (now deceased in this case) was studying
in 3rd standard in Marathi School near Shivaji Circle. On
20.09.2015 at about 4.00 p.m., deceased Akshay went out
to play, following which he never returned. The
complainant's wife informed him about their missing child
over a call. Thereafter, P.W.1 along with his wife searched
for their son and found no traces of him. Upon enquiring
with the relatives at Akkalkot, Mumbai and Mannur in
Afzalpur Taluk and Malghan, they finally resorted to lodge
a missing complaint before the PSI of APMC Police Station
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as per Ex.P.1 at about 8:30 p.m. The said complaint came
to be registered in Crime No.82/2015 by the APMC Police
for the offence punishable under Section 363 of IPC as per
Ex.P.1 against unknown persons. Subsequently, on the
following day i.e., 22.09.2015, P.W.1 received a telephone
call from the kidnapper demanding a ransom of
Rs.2,00,000/- to release his son. P.W.1 divulged the said
development to the respondent-Police. P.W.11-the then
PSI respondent-Police, conducted an investigation by
analyzing the call register of the mobile number bearing
9730123593 of the complainant-P.W.1 and also analyzed
the calls he received from the kidnapper. On analyzing
CDR, P.W.11 came to know that the P.W.1 has received
ransom call from the mobile number i.e., 9743542273.
Accordingly, P.W.11 conducted investigation by finding out
the user of the said mobile and it was revealed that one
Shankar Yatnal i.e., the uncle of the accused i.e., P.W.7
was using the said mobile number. On enquiring Shankar,
he in turn revealed that the accused was residing along
with him on the first floor of the house where P.W.1 was
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residing and he further stated that the accused was using
the said mobile and that he was absconding for the last
two days i.e., from 22.09.2015. Following which the
respondent-Police apprehended the accused on
24.09.2015. On enquiry, the Police recorded the voluntary
statement of the accused as per Ex.P.18, wherein the
accused revealed that on 20.09.2015 at about 4:00 p.m.
he kidnapped the son of P.W.1 master Akshay from
Bambala Agasi and he took him to Jyoti Pipe Factory and
murdered him by assaulting. Thereafter, he disposed the
corpse by throwing it near the hill station closer to the
factory. He further revealed that he covered the corpse
with size stones and also admitted that he would show the
place of burial.
3. Thereafter, the accused led the Investigation
Officer, P.Ws.1 to 3 and the Assistant Commissioner to the
place of burial. By removing the size stones, he showed
the corpse of the son of P.W.1. Accordingly, the
respondent-Police conducted the investigation by drawing
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relevant mahazars. P.Ws.1 and 3 the parents of the
deceased identified the corpse of their son based on the
clothes he worn at the time of missing. Subsequently,
P.W.13, with the permission of the jurisdictional Magistrate
invoked Sections 364-A and 302 of IPC in the crime and
conducted further investigation. After recording the
statement of the witnesses and obtaining necessary
documents from the concerned authorities, P.W.13 laid the
charge-sheet against the accused for the offences
punishable under Sections 363, 364-A, 302 and 201 of IPC
before the committal court.
4. On committal of the case before the learned
Sessions Judge, the learned Sessions Judge having found
prima facie case against the accused, framed the charges
for the aforementioned offences. The accused pleaded not
guilty to the charges and claimed to be tried.
5. In order to prove the charges leveled against
the accused, the prosecution in total examined 13
witnesses before the Sessions Court as PW-1 to PW-13,
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marked 30 documents as Exs.P-1 to P-30 and identified 7
material objects as M.Os-1 to 7.
6. After completion of prosecution evidence, the
learned Sessions Judge read over the incriminating
evidence of the material witnesses to the accused as
stipulated under Section 313 of Cr.P.C. However, the
accused denied the same. The defence of the accused is
one of total denial and that of false implication. However,
the accused neither examined any witness nor got marked
any documents on his behalf.
7. After assessment of the oral and documentary
evidence placed before the Sessions Judge, the learned
Sessions Judge convicted the accused for the charges
leveled against him and sentenced him as stated supra.
The said judgment is challenged under this appeal.
8. We have heard the learned counsel for the
appellant Sri B.C. Jaka and learned Additional State Public
Prosecutor for the respondent-State.
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9. The primary contention of the learned counsel
for the appellant is that the judgment challenged under
this appeal suffers from perversity and illegality since the
learned Sessions Judge failed to appreciate the evidence
on record in a right perspective. He further contended
that, the prosecution has utterly failed to prove the guilt of
the accused beyond reasonable doubt as the entire case
rests on circumstantial evidence and there is not an iota of
evidence linking to the crime as relied by the prosecution.
The learned Sessions Judge convicted the accused based
on surmises and conjecture without appreciating the
evidence in right perspective. According to him, the
learned Sessions Judge convicted the accused solely based
on evidence of P.Ws.1 and 3 i.e., the father and mother of
the deceased who are the hearsay witness to the incident.
P.W.2, the Panch witness though supported the case of the
prosecution, on perusal of his evidence, the drawing of
relevant mahazars at the place of incident and also the
place where the corpse was recovered at the instance of
the accused are not drawn as per law and there is a
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contradiction in the evidence of P.W.2 and the contents of
the mahazars.
10. The learned counsel submitted that the last
seen witness P.W.4 has not comprehensively supported
the case of the prosecution and there is an inordinate
delay in recording his statement. As such, the prosecution
collectively failed to prove the circumstance of last seen
theory. Further, there are material contradictions and
omissions in the evidence of P.Ws.1 and 3 regarding their
missing child so also the participation of the accused in the
crime by demanding ransom. The mobile number
produced by P.W.1 and other information of his receiving a
ransom call by the accused is collectively not proved as
the call register produced by the prosecution is silent on
call details. In such circumstances, the learned Sessions
Judge erred while convicting the accused for the offences
punishable under Sections 364-A and 302 of IPC. Further,
he contended that the prosecution also failed to prove the
circumstance of identifying the corpse by P.Ws.1 and 3
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i.e., parents of the deceased. Since they identified the
corpse only based on the clothes i.e., the shirt and trouser
worn by the deceased on the date of missing. However, it
is the specific case of Investigating Officer and the Doctor
that the corpse was totally decomposed. In such
circumstance, the prosecution has abjectly failed to prove
the guilt of the accused. Accordingly, he prays to allow
the appeal by setting aside the impugned judgment of
conviction and order of sentence.
11. Refuting the above submissions made by the
learned counsel for the appellant, the learned Additional
SPP contends that the judgment challenged in this appeal
neither suffers from perversity nor illegality and no
exception can be taken from the judgment passed by the
Sessions Court for the reasons indicated by the Sessions
Court under the well reasoned judgment. The evidence
has also been analyzed in a great detail by the Sessions
Court. Therefore, no question of any interference is called
for with the conviction order recorded in the impugned
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judgment. By enunciating his submission, the learned
Addl. SPP argued that the evidence of P.Ws.1 and 3 i.e.,
parents of the deceased categorically established the fact
that the accused is solely responsible for the kidnap and
murder of their son Akshay. Further, the accused also
demanded ransom from P.W.1. The said aspect is
affirmatively proved by the prosecution by placing the
evidence of the call register details and also by placing the
certificate under Section 65B of the Information
Technology Act from the concerned officer of the Airtel
Company. Further, the accused himself led the Police and
P.Ws.1 to 3 and the Assistant Commissioner-P.W.12 to the
place of burial of the corpse and at his instance the corpse
of the deceased was recovered. This pivotal circumstance
has unambiguously proved the charges leveled against the
accused. He further contended that the last seen theory
under the circumstantial evidence is also proved by the
prosecution by examining P.W.4, who categorically stated
that he had seen the accused and the deceased on
20.01.2015 near the place from where the corpse was
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recovered. Albeit there is delay in recording his statement,
the said delay was adequately explained by P.W.4.
Further, the motive for the incident i.e., amount
demanded by the accused is proved by the evidence of
P.W.1 and the call details i.e., Ex.P.27. In such
circumstance, the learned Addl. SPP submitted that the
minor contradictions in the evidence of material evidence
does not go to the root of the prosecution case and the
prosecution clearly proved the guilt of the accused beyond
all reasonable doubt and the appeal deserves to be
dismissed.
12. Having heard the learned counsel for the
appellant so also the learned Addl. SPP and also after
perusal of the entire evidence on record, the points that
arise for our consideration are:
(a) Whether the judgment under this appeal
suffers from any perversity or illegality?
(b) Whether the learned Sessions Judge is
justified in convicting the accused for the
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offences punishable under Sections 363,
364(A), 302 and 201 of IPC?
13. We have independently analyzed the entire oral
and documentary evidence on record in order to
appreciate the respective contention of the learned
counsel for the parties. Before delving into analyzing the
evidence on record as stated supra, this case totally rests
upon circumstantial evidence. As per the settled position
of law laid down by the Hon'ble Apex Court way back in
the year 1993 i.e., in the case of Sarbir Singh Vs. State
of Punjab reported in 1993 Supp (3) SCC 41, the
Hon'ble Apex Court in paragraph No.6 held as under:
"6. It is said that men lie but circumstances do
not. Under the circumstances prevailing in the
society today, it is not true in many cases.
Sometimes the circumstances which are sought
to be proved against the accused for purpose of
establishing the charge are planted by the
elements hostile to the accused who find out
witnesses to fill up the gaps in the chain of
circumstances. In countries having
sophisticated modes of investigation, every
trace left behind by the culprit can be followed
and pursued immediately. Unfortunately it is
not available in many parts of this country.
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That is why Courts have insisted (i) the
circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established; (ii) all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused and
should be such as to exclude every hypothesis
but the one sought to be proved; (iii) the
circumstances should be of a conclusive nature;
and (iv) the chain of evidence should not have
any reasonable ground for a conclusion
consistent with the innocence of the accused.
14. The principles enunciated in the above case is
also reiterated in the case of Sharad Birdhichand Sarda
Vs. State of Maharashtra reported in (1984) 4 SCC
116 and Hon'ble Apex Court laid the golden principles to
prove the case based on circumstantial evidence. The said
principles also reiterated in the recent judgment of the
Hon'ble Apex Court in the case of Shankar Vs. State of
Maharashtra reported in 2023 SCC Online SC 268,
wherein the Hon'ble Apex Court has summarized the
guidelines to convict the accused in the case which are
based on circumstantial evidence.
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15. Keeping in mind the above principles, when we
analyze the evidence on record and also the circumstantial
evidence relied by the prosecution, the following aspects
are draw our consideration:
(i) The homicidal death of deceased Akshay:
In order to prove the homicidal death of the
deceased, the prosecution has relied on the
evidence of PW.9-doctor who conducted the
autopsy on the corpse of the deceased and
issued the post-mortem report as per Ex.P18.
On perusal of Ex.P18, the Doctor has
mentioned that the deceased sustained
external injuries as under:
(a) Communited fracture seen over the
occipital region extending from right
mastoid process to left mastoid
process. On further examination brain
was liquefied and large number of
larvae seen.
(b) Contusion seen over the ankle region
both right and left.
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16. After examining, P.W.9-Doctor has opined that
the death is due to 'haemorrhage and shock as a result of
blunt injury to vital organs (brain)'. PW.9 deposed in
support of contents of Ex.P18. Though the learned counsel
for the accused cross-examined PW.9 questioning that the
scientific examination was not conducted by an expert, the
Doctor stated that there is no need of such an examination
to state the cause of death. As such, there is a clear
corroboration between the testimony of PW.9 and contents
of Ex.P18. Further, the prosecution also relied on the
inquest panchanama drawn on the corpse of the deceased
as per Ex.P7 by PW.12-the then Assistant Commissioner of
Vijayapura. On perusal of Ex.P7, the same reveals that the
corpse was decomposed. The parents of the deceased i.e.,
PWs.1 and 3 identified the corpse of their son based on
the clothes found on the corpse. PW.2 is the pancha
witness for Ex.P7. He deposed that the accused showed
the place and the mahazar was drawn to that effect as per
Ex.P10 and also Ex.P7 the inquest mahazar. Further,
PWs.1 and 3 also deposed about the injuries found on the
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corpse of the deceased. Hence, a conjoint reading of the
evidence of PW.9-Doctor, PW.12-the then Assistant
Commissioner, PW.2-pancha witness for Ex.P7 and also
the evidence of PWs.1 and 3 coupled with Exs.P18, 7 and
10, we are of the considered view that the prosecution has
proved the homicidal death of the deceased Akshay
beyond reasonable doubt.
17. To connect the accused with the homicidal
death of the deceased, the prosecution relied on the
following circumstances:
(a) Missing of the deceased, lodging of complaint
by PW.1 and arrest of the accused.
18. As per the evidence of PW.1, his son Akshay
was missing from 20.09.2015 at about 9.00 a.m. and
later, he along with his wife-P.W.3 searched for their son
and were unable to find him. Hence, on the same night at
about 8:00 p.m., he visited the Police Station and lodged
the missing complaint as per Ex.P1. Based on this, the
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respondent-Police registered an FIR as per Ex.P3 for the
offence punishable under Section 363 of IPC. According to
PW.1, on the following day i.e., 21.09.2015, he received a
call from an unknown person demanding a ransom of
Rs.2,00,000/-. He stated that the kidnaper threatened
PW.1 stating that should he fail to hand over the ransom
amount he will kill his son. Following which, PW.1 informed
the same to the Police and handed over his mobile phone
to them. Accordingly, PW.11-Veena Mohan, the then PSI
conducted investigation by obtaining the call detail records
(CDR) of the mobile phone of the complainant i.e.,
9730123593. Further, PW.11 deposed before the Court
that on analyzing the CDR of the said mobile phone
number, she learnt that PW.1 received a ransom call from
the mobile bearing number 9743542273. As such, an
investigation was conducted and PW.7-Shankar Yatnal was
arrested, who is none other than the uncle of the accused.
Upon enquiry, PW.7 revealed that though the said mobile
number belonged to him, the same was taken by the
accused and he was missing since 22.09.2015. Thereafter,
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the entire CDR was obtained by PW.11 as per Ex.P27 and
PW.11 arrested the accused on 24.09.2015. On further
investigation, it is revealed that, as many as 60 calls were
received by PW.1 from the above-mentioned mobile
number within a span of 3 to 4 days demanding ransom.
After arrest of the accused, PW.11 recorded his voluntary
statement as per Ex.P18, wherein the accused confessed
to the crime and produced two mobiles as per MOs.3 and
4. On 21.01.2015, PW.1 gave his further statement before
the police as per Ex.P2 wherein he reiterated the contents
of Ex.P1 and also deposed about the confession made by
the accused before the police at his presence. As such, on
perusal of the above evidence of PWs.1, 11, 4 and 5, the
prosecution proved the circumstantial evidence of missing
of the child, lodging of complaint by PW.1, demanding of
ransom by accused and arrest of the accused.
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(b) Recovery of corpse of the deceased at the
behest of the accused.
19. According to PW12, the Assistant Commissioner
of Vijayapura and PW13-the Investigating Officer, after
arrest of the accused on 24.09.2015, his voluntary
statement recorded as per Ex.P18 and the accused reveled
that he would show the place of kidnap, burial of the
corpse of the deceased. Accordingly, P.W.22 summoned
P.W.2 the pancha to the Police Station so also P.Ws.1 and
3 i.e., the parents of the deceased and in their presence,
the accused confessed and also led all these witnesses to
the place of burial i.e., near Jyoti Pipe Factory and on
removal of the sized stones, the police found the corpse of
the deceased in a decomposed state. PWs.1 and 3
identified the corpse based on the clothes worn by him at
the time of his kidnap.
20. Further, PW.12, the Assistant Commissioner
drew the inquest panchanama on the corpse as per Ex.P7.
P.W.2 and other panchas were present. PW13-the
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Investigating Officer also drew the mahazar in the said
place as per Ex.P10. P.W.2 was very much present at the
time of drawing Ex.P10. Nevertheless, PWs.1 and 3 were
also present along with the Assistant Commissioner.
21. It is the contention of the learned counsel for
the appellant that the corpse was decomposed as per the
evidence of PW9-Doctor. As such, there is no such
possibility of identifying the corpse by PWs.1 and 3 i.e.,
the parents of the deceased. Further, he submitted that
though the blood samples were drawn from PWs.1 and 3,
there was no such DNA examination conducted by the
concerned authorities. As such, the prosecution has failed
to prove that the corpse recovered at the instance of the
accused belongs to the son of PWs.1 and 3.
22. As discussed supra, on perusal of Ex.P1 the
missing complaint lodged by PW1, wherein he has
categorically mentioned the color of the shirt and trouser
worn by the deceased at the time of missing. Later,
PWs.1 and 3 both were identified the corpse based on the
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said clothes i.e., MOs.1 and 2. On careful perusal of the
clothes mentioned in Ex.P1 and the color of MOs.1 and 2
seized under Ex.P12, there is a clear similarity. Moreover,
PWs.1 and 3 being the parents of the deceased it cannot
be presumed that the parents were unable to identify the
corpse of their son after four to five days from the date of
death though the body was in a partially decomposed
state. Nevertheless, on perusal of the inquest panchanama
Ex.P7, on question number 5, it has been answered that
the height of the corpse was 4.2 inches. The same further
clarifies that the corpse is of a male child. As such, the
contention of the learned counsel for the appellant that
PWs.1 and 3 failed to identify the corpse does not hold
much water. Further, on perusal of the evidence of P.W.22
and P.W.2, they categorically stated that the accused
volunteered before the Investigating Officer in the Police
Station and thereafter he led them to the place of burial.
As such, it is established that the said fact was exclusively
within the knowledge of the accused. The prosecution has
also placed the photographs of the corpse and the place of
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burial as per Exs.P8 and P9. As such, in our considered
opinion, the prosecution also proved the circumstance of
recovery of the corpse at the instance of accused under
Ex.P10. Further, he accused also showed the place where
he murdered deceased by dropping sized stones on him.
The Police drew mahazar of the said place as per Ex.P11.
PW.2, further stated that the Police seized the clothes
from the corpse under Ex.P12 as per MOs.1 and 2. All
these mahazars were drawn by P.W.13-the Investigating
Officer in the presence of P.W.2 and the parents of the
deceased PWs.1 and 3. Though the defence cross-
examined these witnesses at length, nothing worthwhile
has been elicited from them to discard their testimony.
The minor contradictions in respect of the time of drawing
mahazars, may not itself be construed as a ground to
disbelieve and discard the version of these witnesses.
Hence, we are of the considered view that the prosecution
has also proved the above circumstance.
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(c) Last Seen Theory:
23. Aside from the above circumstance, the
prosecution has also relied on the last scene theory i.e.,
the accused and deceased were found at the place where
the corpse was recovered on 20.09.2015 by PW4. On
perusal of the evidence of PW4, he stated that, on
20.09.2015 at about 4:00 p.m. when he was traveling to
Bijjarai Show Room near Indi Road, he found the accused
and deceased approaching the hill-top i.e., near the Jyothi
Pipe Factory. However, thereafter he went to Mumbai and
returned on 24.09.2015. Upon his return, he learnt about
the murder of the deceased. Accordingly, he stated the
same before the Police. Though, there is a delay of 4 days
in recording the statement of PW.4, the said delay has
been properly explained by PW.4 stating that, after
20.09.2015, he went to Mumbai for four days and upon his
return on 24.09.2015, he gave his statement before the
Police. Admittedly, the corpse was recovered, the place
where P.W.4 had seen the accused and deceased on
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20.09.2015. Hence, there is no reason to disbelieve the
evidence of P.W.4. As such, the prosecution also proved
the last scene theory.
(d) Motive
24. The next circumstance of the prosecution relied
is the motive for the commission of crime. As discussed
supra, PW.1 in his evidence and also in his complaint-
Ex.P1 lodged on the following date of incident i.e., on
21.09.2015, has clearly stated that his son was missing
from 20.09.2015 and thereafter, he himself and his wife
searched all the places and lodged the complaint. In his
evidence, he has stated that, on the next day i.e., on the
21.09.2015, he has received a call to his mobile phone for
a ransom of Rs.2,00,000/-. Thereby, he informed the
same to the Police and handed over the mobile phone to
them. On perusal of the evidence of PW.11, she analyzed
the call details of the said mobile phone and came to know
that the uncle of the accused was using the said mobile
phone and on inquiry of the uncle of the accused-PW7,
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came to know that the accused was the perpetrator of the
crime. Accordingly, he has been arrested by the Police.
Further, the call details of the mobile phone of P.W.1 and
the deceased was obtained by the Investigating Officer as
per Ex.P27. On perusal of Ex.P27, the same depicts that
there are multiple calls exchanged in those numbers.
Hence, the demanding of ransom by the accused is clearly
proved and it goes without saying that the accused
kidnapped the deceased for gain. As such, the motive for
the commission of the crime is also proved by the
prosecution.
25. Hence, on careful examination of all the above
circumstance coupled with the evidence of material
witnessed discussed supra clearly establishes the offences
charged against the accused i.e., for the offences
punishable under Sections 363, 364(A), 302 and 201 of
IPC.
26. In order to convict the accused for the offence
punishable under Section 364-A which are required to be
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proved by the prosecution are summarized by the Hon'ble
Apex Court in the case of the Ravi Dhingra Vs. The
State of Haryana, reported in 2023 Online SC 199 as
under:
(a) (i) Kidnapping or abduction of any person or
keeping a person in detention after such
kidnapping or abduction; and
(b) (ii) threatens to cause death or hurt to such
person, or by his conduct gives rise to a
reasonable apprehension that such person
may be put to death or hurt or;
(c) (iii) causes hurt or death to such person in
order to compel the Government or any
foreign State or any Governmental
organisation or any other person to do or
abstain from doing any act or to pay a
ransom.
(d) Thus, after establishing first condition, one
more condition has to be fulfilled since after
first condition, word used is "and". Thus, in
addition to first condition either Condition
(ii) or (iii) has to be proved, failing which
conviction under Section 364-A cannot be
sustained."
27. Applying the law summarized by the Hon'ble
Apex Court in the above case to the facts and
circumstances of this case, P.W.1 the father of the
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deceased has stated in his evidence that the accused not
only kidnapped his son but also demanded a ransom of
Rs.2,00,000/- from him through mobile phone. Further,
the accused threatened him that, if he failed to arrange
the said amount, he would kill his son. The evidence of
P.W.11, the then PSI who initially obtained the CDR from
the mobile phone belongs to P.W.1 clearly reveals that
PW.1 had received more than 60 calls from the mobile
number 9743542273 belonging to P.W.7. Further, the
evidence of P.W.7 reveals that the mobile number
9743542273 belonged to him and the said mobile was
used by the accused on the date of incident and accused
went absconding ever since. In such circumstances, the
provisions of Section 364(A) of IPC clearly complied with
in the instant case. Moreover, the prosecution successfully
proved the recovery of MOs.1 and 2 i.e., the mobile
phones at the behest of the accused based on his
voluntary statement Ex.P.18. PW2-panch witness also
deposed and validated to that effect.
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28. To further buttress the evidentiary value of the
same, we rely on the decision of the Hon'ble Apex Court in
the case of Muhammad Arif @ Ashfaq Vs State (NCT
of Delhi), reported in 2011 (13) SCC 621, wherein the
Hon'ble Apex Court in paragraph No.60 has held as under:
"60. It has come in the evidence that the
active mobile phone has two components i.e.
the mobile instrument and the SIM card. Every
mobile instrument has a unique identification
number, namely, instrument manufactured
equipment identity (for short "IMEI number").
Such SIM card could be provided by the service
providers either with cash card or post-paid card
to the subscriber and once this SIM card is
activated the number is generated which is
commonly known as mobile number. The mobile
service is operated through a main server
computer called mobile switching centre which
handles and records each and every movement
of an active mobile phone like day and time of
the call, duration of the call, calling and the
called number, location of the subscriber during
active call and the unique IMEI number of the
instrument used by the subscriber during an
active call. This mobile switching centre
manages all this through various subsystems or
sub-stations and finally with the help of
telephone towers. These towers are actually
base transreceiver stations also known as BTS.
Such BTS covers a set of cells each of them
identified by a unique cell ID. A mobile
continuously selects a cell and exchanges data
and signalling traffic with the corresponding
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BTC. Therefore, through a cell ID the location of
the active mobile instrument can be
approximated."
29. Further, in another decision of the Hon'ble Apex
Court in the case of Gajraj Vs State (NCT of Delhi),
reported in 2011 (10) SCC 675, in paragraph No.16 of
the judgment, it is held as under;
"16. The evidence produced by the
prosecution is based on one irrefutable fact,
namely, every mobile handset has an
exclusive IMEI number. No two mobile
handsets have the same IMEI number. And
every time a mobile handset is used for
making a call, besides recording the number of
the caller as well as the person called, the
IMEI numbers of the handsets used are also
recorded by the service provider. The
aforesaid factual position has to be kept in
mind while examining the prosecution
evidence."
30. By the above findings of the Hon'ble Apex Court
in the judgments, it is clear that the electronic evidence
placed by the prosecution relying on the conversation
between the mobile phones can be relied since every
mobile handset has an exclusive IMEI number. No two
mobile handsets have the same IMEI number and each
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time the mobile handset is used for making a call besides
recording the number of the caller, the person called and
the IMEI numbers of every handset are also recorded by
the service provider. Hence, the above evidence of the
CDR can be relied to connect the accused with the alleged
crime since the said evidence comes well within the ambit
of Section 8 of the Evidence Act. As held by the Hon'ble
Apex Court in the case of State (NCT of Delhi) Vs.
Navjot Sandhu, reported in (2005) 11 SCC 600. Hence,
on careful perusal of the law laid down by the Hon'ble
Apex Court in the above judgments so also the evidence
placed by the prosecution, we are of the considered view
that the prosecution has successfully laid hand of the
accused and proved that he is the perpetrator of the
crime.
31. On perusal of the overall evidence placed by the
prosecution and also the above circumstances relied by
the prosecution and considering the nature of the crime
and the manner in which it was planned and committed,
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the motive for the commission of the crime, the conduct of
the accused i.e., before demanding ransom, committing
the murder of deceased establishes his cruel act. In such
circumstances, the brutal act of the accused is proved by
the prosecution by relying on relevant circumstances of
the evidence of conclusive nature. The circumstance relied
by the prosecution discussed supra, are consistent with
the hypothesis of the guilt of the accused. Aside from the
accused, none-else have committed the murder of the
deceased for any reasons. Even otherwise, the accused
failed either to put forward or prove such defence which
would break the chain and would give a different
interpretation than that of what is pleaded by the
prosecution. In such circumstances, we are of the view
that the golden principles laid down by the Hon'ble Apex
Court in the case of Sharad stated supra and subsequent
judgments are proved and the learned Sessions Judge has
rightly convicted the accused for the charges leveled
against him. Therefore, we find no good grounds to
interfere with the judgment of conviction and order of
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sentence passed the Sessions Court. Accordingly, we
answer point No.1 in the negative and point No.2 in the
affirmative and proceed to pass the following:
ORDER
(a) The appeal is hereby dismissed.
(b) The judgment of conviction and order of
sentence dated 31.12.2021 passed in
Sessions Case No.69/2017 by the learned
III Addl. Sessions Judge, Vijaypaura is
affirmed.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
BL,MSR
