8. P.W.3 identified A-1, A-3, and A-5 during the
Test Identification Parade.
11. Learned counsel appearing on behalf of the appellants
6. The CCTV footage that was filed cannot be
considered- firstly, due to the absence of 65-B
certificate, and secondly, because the CD was
disbelieved by the Court, stating that none of the
accused were seen in the CCTV footage.
7. None of the circumstances projected by the
prosecution make out any case against the appellants.
12. On the other hand, the learned Public Prosecutor
argued that the flat was taken on rent by A-1. The burden is
on A-1 to prove the reason for the dead body being found
in the flat. Further, the accused absconded after 26.06.201.
Mere abscondance can be treated as a circumstance in the
chain of circumstances to establish the case against the
appellants.
13. Prosecution has filed the cell phone records. Though
the Investigating Officer collected the call records pertaining
to the deceased, A-6, and A-1, the location of the said cell
phone was neither found out by the Investigating Officer nor
reflected in the call records. The Nodal Officer of the service
provider was not examined before the Court. In the absence
of any certificate under Section 65-B of the Indian Evidence
Act, and the non-examination of the Nodal Officer, who had
provided the call details, the cell records cannot be looked
into.
14. Ex.P.32 is the CD filed by the prosecution to show that
accused had withdrawn the amount from the ATM. The said
CD was marked subject to objection. Admittedly, there is no
65-B certificate provided by the person who transferred the
contents of the CCTV footage onto the CD. No witness was
examined who had collected the CCTV footage or copied the
CCTV footage onto the CD.
15. The Hon'ble Supreme Court in Chandrabhan
SudamSanap v. State of Maharashtra 1, held that, in the
absence of a 65-B certificate or any other evidence requiring
certification under Section 65-B of the Indian Evidence Act,
such evidence cannot be looked into.
16. The crucial evidence that has been relied upon by the
prosecution is the evidence of P.W.3. P.W.3, in his evidence,
stated that on 17.06.2011, A-1 took the flat on a monthly
rent of Rs.4,000/- with Rs.500/- as maintenance charges. In
advance, Rs.5,000/- was paid. A-3 is the wife of A-1, A-4 is
the brother of A-1, and A-5 also resided in the same
Apartment. According to A-3 to A-5, A-1 left the house on
26.06.2011 in the afternoon, which was a Sunday. The
Police went to the Apartment on Thursday, i.e., on
30.06.2011. According to P.W.3, A-1 took the deceased to
2025 LawSuit (SC) 117
the Apartment two days before leaving the Apartment, i.e.,
24.06.2011.
17. In the cross-examination, P.W.3 stated that the
Apartment has 5 floors consisting of 17 flats. He could not
provide the details of the occupants of the flats. There is no
register for visitors and he could not give any particulars of
the persons who had visited the flat on a given day. He also
admitted that he had no prior acquaintance with A-1 but still
leased out the flat, and no lease deed was executed.
18. The test identification of A-1, A-3, and A-5 was
conducted on 01.10.2011 by P.W.5/Magistrate. The Test
Identification was conducted after a requisition was given by
P.W.11 on 17.09.2011. P.W.3 admitted that the Police have
showed him the photographs of the suspects at his
apartment before he was taken to the jail for the purpose of
identification.
19. P.W.3 did not speak specifically about the accused as to
when he found A-3 to A-5 living along with A-1. According to
P.W.3, A-1 brought the deceased to the flat on 24.06.2011. It
is not the case of P.W.3 that A-3 to A-5 were in the house
when A-1 took the deceased to the flat. It is strange that the
Investigating Officer did not take any steps to examine any of
the neighbours of the flat. The examination of neighbours or
neighouring flat owners would have lent credibility to the
version of the prosecution that A-1, A-3 to A-5 stayed in the
said flat.
20. The statement of P.W.3 that A-3 to A-5 left the flat on
23.06.2011 becomes doubtful in the background of the
admission in his cross-examination that the photographs of
the accused were shown to him prior to the test identification
parade. Admittedly, several persons stayed in the apartment
complex. A-1 had leased out the flat 10 days prior to
26.06.2011. In the background of the extent of stay and
P.W.3 not specifically speaking about A-3 and A-5 being
present in the apartment on 24.06.2011, the date on which
the alleged murder of the deceased took place, the inference
of complicity of A-3 & A-5 cannot be drawn. As assessed by
the prosecution, on the basis of the approximate time of
death given by the postmortem Doctor, the time of death was
around 24.06.2011. On that day, according to P.W.8, A-1
brought the deceased to the apartment.
21. A-1 was found in the possession of the cat card of the
deceased. An amount of Rs.50,000/- was seized from A-1,
and an amount of Rs.48,500/- was seized from A-6. A-6 had
given a cell phone to A-1 for use. A-6 was nowhere seen in
the apartment by P.W.3. There was no Test Identification
Parade in respect of A-6. However, the flat was discovered by
the police at the instance of A-6, where the dead body was
found. Only for the reason of A-6 showing the flat to the
Police, it cannot be inferred that he was complicit in
committing the murder of the deceased, especially when A-6
was not seen anywhere near the apartment where the dead
body was found.
22. The circumstances indicate that (i) A-1 had taken the
flat on rent, (ii) A-1 brought the deceased to the apartment
on 24.06.2011, (iii) A-1 was absconding from 26.06.2011,
and (iv) the cat card of the deceased was seized at the
instance of A-1, along with cash, for which no explanation
was provided.
23. The circumstances relied on by the prosecution, insofar
as A-2 and A-3 to A-6 are concerned, are doubtful. As
already discussed, the presence of A-3 to A-6 on the date of
death of the deceased was not stated by any of the witnesses.
Mere assumption that they were responsible for causing the
death solely because they were living with A-1 cannot form
basis to infer guilt of A-2, A-3 to A-6.
24. At this juncture, the learned counsel appearing for A-1
submits that none of the ingredients of Section 364-A of IPC
are made out. Section 364-A of IPC reads as under:-
"364A. Kidnapping for ransom, etc.--
Whoever kidnaps or abducts any person or keeps a
person in detention after such kidnapping or
abduction and 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 causes hurt or death to such
person in order to compel the Government or any
foreign State or international inter-governmental
organisation or any other person to do or abstain from
doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be
liable to fine."
25. P.W.3 stated that it was A-1 who had brought the
deceased to his apartment on 24.06.2011. Admittedly, the
deceased went missing from 20.06.2011. Though there is no
evidence regarding the whereabouts of the deceased from
20.06.2025 to 24.06.2025, however, the deceased was
brought to the flat on 24.06.2011 by A-1. Pursuant to the
phone calls made to P.W.1, the amounts were transferred
into the account and subsequently withdrawn. P.W.1 was
threatened, and pursuant to the said threat received over the
phone, the amount was deposited into the account.
26. The ingredients of Section 364-A of IPC are:-
(i) Any person being kidnapped, abducted, or
detained.
(ii) Threatening to cause death or hurt to such a
person.
(iii) Conducting in a manner that gives rise to
apprehension that the abducted person may be hurt or
killed.
(iv) Such act or conduct, which is deliberate with the
intent of compelling any person to pay ransom or
abstain from doing some act.
27. Admittedly, after the deceased went missing, he was
found in the company of A-1, subsequently, the dead body
was found in the flat leased out to A-1 and there was ransom
call made to P.W.1, pursuant to which, amount was
deposited. All the ingredients of Section 364-A of IPC are
made out.
28. The prosecution has laid the foundation regarding the
deceased being taken to the house rented by A-1. Since the
dead body of the deceased was found in the flat of A-1, the
burden is on A-1 to explain how the dead body was found in
his flat. Although, the general burden in a criminal case rests
on the prosecution to prove its case, however, in the present
circumstances, it shifts onto the accused under Section 106
of the Indian Evidence Act. A-1, except for denying his role in
the homicidal death of the deceased, has not placed anything
on record to discharge the burden shifted onto him.
29. Accordingly, all the offences alleged against A-1 are
confirmed.
30. In the result, Crl.A.No.1444 of 2017 is dismissed.
Criminal Appeal Nos.1219 of 2017, 1256 of 2017, 1258 of
2017 and 546 of 2020 preferred by A-6, A-2, A-5, and A-3,
respectively, are allowed. Since A-6, A-2, A-5, and A-3 are on
bail, their bail bonds shall stand cancelled.
_________________
K.SURENDER, J
_____________________
E.V.VENUGOPAL, J
Date: 13.03.2025
dv
