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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.