IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON' BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.142 OF 2014 CONNECTED WITH CRIMINAL APPEAL NO.205 OF 2014 IN CRL. A. NO. 142/2014 BETWEEN:
1. RAMU S/O RAMAPPA AGE: 29 YEARS, OCC: DRIVER OF OMNI BEARING REGISTRATION NO.MH 04/Y-645 R/O: GUDDEKOWTHI VILLAGE, SAGAR, DIST: SHIMOGA-577401.
2. PRABHAKAR S/O JAGANNATH AGE: 27 YEARS, OCC: AGRICULTURIST, R/O: HIRALEMARURU SAGAR TALUKA, DIST: SHIMOGA-577401.
3. GANESH S/O HUCHAPPA AGE: 31 YEARS OCC: DRIVER OF TRACTOR R/O ADARANTHE VILLAGE TALUK: SAGAR DIST: SHIMOGA-577401.
[APPELLANT NO.3 IS DELETED VIDE ORDER DATED 28.3.2014] … APPELLANTS (BY SRI HASHMATH PASHA – SR. COUNSEL FOR M/S HASHMATH PASHA AND ASSOCIATES FOR APPELLANT 1 AND 2; APPELLANT NO.3 DELETED VIDE ORDER DATED 28.03.2014) AND:
THE STATE OF KARNATAKA THROUGH CIRCLE INSPECTOR OF POLICE SAGAR CIRCLE: SAGAR REPRESENTED BY STATE PUBLIC PROSECUTOR OFFICE OF THE ADVOCATE GENERAL HIGH COURT BUILDING BANGALORE-09.
… RESPONDENT (BY SRI I. S. PRAMOD CHANDRA – SPP-II) THIS CRL.A. IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:31.01.2014 PASSED BY THE PRESIDING OFFICER., FAST TRACK COURT, SAGAR IN S.C.NO.34/11 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 364(A) R/W 34 OF IPC; AND THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE, OTHER THAN IMPOSING PUNISHMENT OF DEATH. EACH ACCUSED HAS TO PAY A FINE OF RS.10,000/- AND IF THEY HAVE FAILED TO PAY THE FINE AMOUNT THEY SHOULD SUFFER ANOTHER THREE MONTHS OF SIMPLE IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 364(A) OF IPC.
IN CRL. A. NO. 205/2014 BETWEEN:
SRI GANESH S/O HUCHAPPA AGED ABOUT 28 YEARS R/O ADARANTHE VILLAGE SAGAR TALUK.
… APPELLANT (BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE) AND:
STATE OF KARNATAKA, THROUGH THE SAGAR RURAL POLICE, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001. … RESPONDENT (SRI. I.S. PRAMOD CHANDRA, SPP-II) ***** THIS CRL.A. IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:31.01.2014 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, SAGAR IN S.C.NO.34/11 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 364(A) R/W 34 OF IPC; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE, OTHER THAN IMPOSING PUNISHMENT OF DEATH. ACCUSED HAS TO PAY A FINE OF RS.10,000/- AND IF HE FAILED TO PAY THE FINE AMOUNT HE SHOULD SUFFER ANOTHER THREE MONTHS OF SIMPLE IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 364(A) OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING, THIS DAY, Dr. H.B. PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:
J U D G M E N T The Court of Fast Track, Sagar (hereinafter referred to as “Trial Court” for brevity) in its judgment dated 31.01.2014 passed in S.C.No.34/2011 convicted Accused Nos.1 and 2 (Appellants in Crl.A.No.142/ 2014) and Accused No.3 (Appellant in Crl.A.205/2014) for the offences punishable under Section 364(A) read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for brevity) and sentenced them accordingly.
Challenging the said judgment of conviction, the appellants/accused Nos.1 to 3 have preferred these appeals seeking to acquit them of the aforesaid offences.
2. The summary of the case of the prosecution is that on 7.7.2008 at about 1.55 p.m., in Melavarige village in Sagar Taluk, a boy by name M.S. Adithya – PW.2 who was minor in his age, was kidnapped by Accused Nos.1 and 2 in connivance with Accused Nos.3, 4 and 5, for a ransom. The charge-sheet was filed against five accused against the complaint for the offence punishable under Section 364-A read with Section 149 IPC and they were charged accordingly for the said offences. Since the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined 18 witnesses PW.1 to PW.18 and got marked documents from Exhibits P1 to P14 and Material Objects from MO.1 to MO.6. No witness was examined for the accused side but however, in the cross-examination of prosecution witnesses, they got marked portion of documents as Exhibit D1 and Exhibit D1(a).
3. After hearing both the sides, the Trial Court by its impugned judgment convicted Accused Nos.1 & 2 (Appellants in Crl.A.142/2014) and Accused No.3 (Appellant in Crl.A.205/2014) for the offence punishable under Section 364(A) read with Section 34 of IPC and sentenced them accordingly. However, the Trial Court acquitted Accused Nos.4 and 5 for the alleged offences.
4. It is against the said judgment of conviction, Accused Nos.1 to 3 have preferred these appeals.
5. Lower Court Records were called for and the same are placed before this Court.
6. Heard the arguments of the learned counsel for the appellants (accused Nos.1 to 3) and the learned State Public Prosecutor-II on behalf of the respondent - Police.
7. Perused the materials placed before us, including the Lower Court Records.
8. The learned Senior counsel Shri Hashmath Pasha for Accused Nos.1 and 2 (Appellants in Crl.A.142/2014) in his arguments submitted that in order to show that there was any demand for a ransom, the prosecution has utterly failed to place any cogent evidence either oral or documentary. Neither the complainant nor even the alleged kidnapped boy have anywhere whispered about the alleged demand made by Accused Nos.1 and 2 for a ransom. He further submitted that the sole eye-witness as projected by the prosecution, who is PW.3 also has been introduced in the case by the prosecution at a later stage, since his name does not find a place at the first instance in the complaint at Exhibit P.1. Stating that admittedly when the police received an information about cognizable offence, that is the alleged kidnap of a boy at 2.00 p.m. itself on 7.7.2008, but did not register the said information in their register till PW.1 is said to have lodged a written complaint at Exhibit P1 at 5.00 p.m., would itself go to raise a suspicion in the case of the prosecution, the learned Senior counsel submitted that the appeal deserves to be allowed.
9. Learned counsel for Accused No.3 (Appellant in Crl.A.205/2014) in his argument submitted that neither the complaint at Exhibit P1 nor the alleged information at Exhibit P5 said to have been given by the Headmistress, anywhere mentions about the role or involvement of Accused No.3 in the alleged crime. Apart from that, complaint at Exhibit P1 is silent about the involvement of Accused No.3. Even the alleged kidnapped boy, that is PW.2 has also nowhere mentioned about the involvement of Accused No.3. Even though the boy speaks that he heard the telephonic conversation made by the alleged kidnappers, particularly Accused Nos.1 and 2, but their conversation also did not reveal the name of Accused No.3. Learned counsel further submitted that the only witness who speaks about receiving telephonic call demanding ransom is PW.4, but the said witness has nowhere stated about to the identity of the caller. There is no material to show that at least the said witness made any attempt to know the identity of the caller. Learned counsel also submitted that the sole evidence of PW.12, the STD Booth owner that on that particular day Accused No.3 had made a call through the public telephone booth being run by the witness, by itself would not establish that the alleged call was nothing else than the call for ransom alleged to have been made to PW.4 on 7.7.2008. He states that admittedly no call details either with respect to the alleged cellphone of the accused or with respect to the alleged landline telephone of the house of PW.1 has been collected by the Investigating Officer. As such, absolutely there is no material to show either that there was call demanding ransom or that the alleged call was made by Accused No.3. Learned counsel submitted that Accused No.3 deserves to be acquitted on the above grounds.
10. In order to prove its case, as already observed above, the prosecution examined 18 witnesses from PW.1 to PW.18.
11. PW.1 M.L. Venkatagiri in his evidence has stated that he is residing in the village called Melavarige with his family, which also includes his younger brother Subbaraya and his family members, the alleged kidnapped boy Master Adithya, S/o. Subbaraya. On 7.7.2008, in the afternoon while said Adithya was returning to School after having his lunch at home at about 1.55 p.m., a red colour Maruthi Omni motor car approached him and he was kidnapped by the inmates of that car. The said information was given to him by PW.3 Manjappa who is his domestic servant. Immediately, these people searched for the missing boy in the surrounding area and simultaneously he also informed the police over telephone about the incident. Since the police asked him to lodge a written complaint, he went to the police station in the evening at about 5.30 p.m. and lodged a written complaint as per Exhibit P.1.
The witness further stated that after lodging complaint when he returned home, he was told by Vijaya (PW.4) that twice, that is at 3.05 p.m. and 3.20 p.m., she received a call to their landline telephone. At the first instance, the caller demanded for a ransom of Rs.50,00,000/- (Rupees fifty lakhs only) for release of the kidnapped boy and in the second call, the caller threatened them of dire consequences in case these people revealed about the kidnap of the boy to anyone including the police. After hearing about the ransom call through his wife, this witness once again went to the police station in the same evening and recorded his further statement giving them further details of the incident.
The witness has further stated that after registering the complaint, the police informed him at 7.00 O’ clock that the alleged kidnapped boy along with the alleged kidnappers were apprehended by them and they were detained near Gerusoppa Check Post. Immediately, the witness joined by his family members rushed to the said place and noticed that the kidnapped boy with two persons who are said to be the alleged kidnappers along with a Maruthi Omni van bearing Registration No.MH-04-Y-645 were found detained near Gerusoppa Check Post by the police. The witness also came to know that the alleged kidnappers who were apprehended at that spot were Accused No.1 (Ramu) and Accused No.2 (Prabhakar). The police seized the said Maruthi van and also a Nokia made cellphone from the possession of the accused by drawing a panchanama, for which this witness has subscribed his signature. The witness identified the panchanama at Exhibit P2, the motor car at MO.1 and the cellphone at MO.2. He has also stated that in the spot, he further came to know that in addition to the accused Ramu and Prabhakar, there were three more accused by names Ganesh, Jagadeesh and Devendra who were also involved in the alleged commission of crime.
The witness further stated that on the next day, that is on 8.7.2008, he visited the police station and identified Accused Nos.1 and 2. On 10.07.2008 on the information given by the police, once again he went to the police station taking his family members with him and identified Accused No.3 in the station. Incidentally, the said Accused No.3 Ganesh was a person known to their family, since he was working as a tractor driver with them.
PW.1 has further stated that he came to know that on 7.7.2008 Accused No.3 Ganesh joined by Accused Nos.1 and 2 Ramu and Prabhakar, hatched a plan for kidnapping Master Adithya for a ransom. Accordingly, the plan was executed by the accused in which process, Accused Nos.4 and 5 also had joined them. The said witness was subjected to a detailed cross-examination from the accused side.
12. PW.2 Master Adithya, a boy of 12 years as on the date of his evidence, has stated that on 7.7.2008 while he was returning from his house after having his lunch to his School, a Maruthi omni van with a sticker of ‘Sapthigiri picture’ pasted upon it, approached him and the person who was sitting in the rear seat of the van, on the pretext of ascertaining the location of the house of one Shri Ashoka Bhatta through this boy, dragged that boy inside that van and took him with them. On the way, they asked about the financial capacity and well being of the family of the boy. In the meantime, the inmates of the car who were two in number also were attending phone call and were conversing between themselves, through which he came to know the names of those two persons as Ramu and Prabhakar respectively. On their way in the direction of Sagar, they stopped the car in a place and attempted to remove the sticker pasted to the car noticing that the alleged incident of kidnap has come to the notice of the police. However, they could not become successful in their attempt. However, in their continuing journey, near Gerusoppa Check Post, the police stopped their car and enquired the boy. The boy revealed to the police that he was kidnapped by the inmates in the car. As such, the police detained them along with vehicle and informed the family of the boy who came to the said place and took him. The said boy also was subjected to a detailed cross-examination from the accused side. It was specifically suggested in the cross-examination to this boy that since the said boy had sustained injuries by falling on the road, the inmates of the car having seen this, took him in the car and were to taking him to hospital for his medical treatment. However, the boy denied the said suggestion.
13. PW.3 Manjappa has stated in his evidence that, since 20 years he has been working in the house of the complainant. On 7.7.2008 he had not been to his duty. On the other hand, he had been to a Bank for his personal work. While returning on his bicycle on a road leading to Kagodu of Melavarige at a distance of about 20 feet, he noticed a red colour Maruthi van coming from the other direction and on the pretext of talking to Adithya who was proceeding to School, they put him in the car and fled away from the place. He (this witness) informed the same to the family members of the boy.
The witness has further stated that subsequently, he came to know that at about 3.30 p.m. a telephone call was received by PW.4 Vijaya wherein the caller demanded for ransom. The witness also stated that on the next day, he has shown the alleged place of kidnap of the boy to the police, wherein they drew a scene of offence Panchanama as per Exhibit P.4 for which he put his signature. The witness has also stated that he knows Accused No.3 Ganesh who was working as a tractor driver with the complainant. Even in his cross- examination, the witness adhered to his original version.
14. PW.4 Vijaya, the wife of PW.1 Venkatagiri has stated that on the alleged date of incident, PW.2 Adithya, the boy since was not well, had come home for lunch in the afternoon at about 1 to 1.10 p.m. After finishing his lunch, the said boy was returning to school at 1.45 p.m. However, within a short time, PW.3 Manjappa a person working with them went there and told them that the said boy was kidnapped by some people coming in a red colour maruthi van. Immediately, PW.1, her husband informed the same to the police over phone and these people searched for the missing boy in and around the place. At about 3.05 p.m., she received a telephone call to the landline telephone connection of their house wherein the caller informed them that they were holding Adithya with them and they would put an end to his life in case the people informed about them to the police. Once again at 3.20 p.m., she received one more call from the caller wherein the caller demanded for a ransom of Rs.50,00,000/-, otherwise they would not leave. The caller is also shown to have stated that if police were alerted in the matter, they would take away the life of the boy. The witness stated that her husband at that time since had been away from the house, the moment he returned home, she informed the same to him, who once again went to police station to inform the same to the police.
The witness has further stated that on the same evening at about 7.30 p.m., the police informed them over the phone about the missing boy being found along with culprits near Gerusoppa check post. Immediately, these people went there.
The witness has further stated, on the next day in the police station, she saw Accused No.1 Ramu and Accused No.2 Prabhakar and also saw the van and identified the said vehicle. She also came to know that Accused No.3 Ganesh was also involved in the said commission of crime. She told the police about involvement of two more accused Jagadeesh and Devendra. The witness has further stated that on 10.07.2008 in the police station, she identified the said Ganesh and also a motor bike bearing Registration No.KA-15-J-8438, which motor bike was being used by said Ganesh while coming to their house. The said motor bike was marked as Exhibit P.4. The witness agreed to her version in her detailed cross-examination from the accused.
15. PW.5 Susheela Bai, the Headmistress of Government Higher Primary School, Melavarige has stated that Adithya was a student studying IV Standard in the year 2008. Though there was Mid-day Meals scheme in their School, since Adithya was not keeping well at that point of time, he was permitted to go home for lunch in the afternoon. Accordingly, on 7.7.2008, he left the school towards his home for lunch at 1.00 p.m. Though he was expected to return by 1.45 p.m., he did not return. She was waiting for him. However, she noticed passing of a red colour Maruthi van in that area.
Within two to three minutes thereafter, two people approached her and enquired her about the arrival of Adithya. Since the said Adithya had not returned from his home, those two persons left. The witness had further stated that she came to know that some people had put Adithya in their van and had taken him. Immediately, she informed the same to the family members of Adithya who also came to the school. All of them searched for the missing boy in the nearby area. In that night, she came to know that the boy was found and the kidnappers were also apprehended near Gerusoppa Check Post. She informed the details of the incident to her Block Education Officer and also gave a complaint with the respondent – police. She identified the complaint said to have been given by her at Exhibit P5 and two photographs of Master Adithya at Exhibits P6 and P7.
16. PW.6 M.G. Sridhara Bhat has stated about he being a pancha to the scene of offence Panchanama drawn as per Exhibit P4.
17. PW.7 B.T. Manjunatha, a relative of PW.1 has stated that he came to know about the incident on enquiry with PW.1 and PW.4 who are his relatives. He has stated that on the said day, he too was in the house of PW.1 while the police informed PW.1 over phone that the missing boy was traced. As such, he also joined PW.1 with family to go to Gerusoppa Check post. In the said place, he saw that police had detained Accused Nos.1 and 2 and also retained boy Adithya with them. The police had also detained a red colour maruthi van which was said to have been used in the alleged commission of the act. In the said case, in his presence, the police drew a panchanama for which he has put his signature. He has identified the car at MO.1 and a cellphone said to be seized from the possession of Accused Nos.1 and 2 at MO.2. He was also subjected to a detailed cross-examination from the accused side.
18. PW.8 M.B. Suryanarayana has spoken about he having acted as a pancha for the seizure of a Nokia make cellphone from the possession of Accused No.4 in the police station which accused is said to have appeared before the police along with the anticipatory bail order in his favour. The said cellphone was got marked as MO.3 and panchanama as Exhibit P3.
19. PW.9 Huchappa and PW.10 Shekarappa though are projected as witnesses for the seizure panchanama of Maruthi van at MO.1 in the respondent – police station and are witness to seizure mahazar as per Exhibit P8, but both of them have turned hostile and pleaded their total ignorance about the said panchanama. Prosecution could not get any support from them even after cross-examining them.
20. PW.11 Yallappa Gopali, Police Constable when on duty at Gerusoppa Check Post within the limits of Honnavara, has stated that on 7.7.2008, his higher officer informed him about a boy being kidnapped and transported in a red colour Maruthi Omni van bearing Registration No.MH-04-Y-645. Accordingly, joined by several of the staff working in the Check post, he started examining all the vehicles that were passing over through Gerusoppa check post. At about 6.30 p.m., the vehicle bearing Registration No.MH-04-Y-645 was coming from Honnavara side. When these people stopped and inspected it, they noticed two persons along with a boy in the said vehicle. When enquired, those two persons identified themselves as Ramu bin Ramappa / Accused No.1 and Prabhakara bin Jagannatha / Accused No.2. Child was identified as Adithya. When enquired, the child stated while he was going back to school after finishing his lunch, he was kidnapped by those two people who were in the van. Accordingly, these people detained the boy and Accused Nos.1 and 2 in the same place and informed the matter to thier superior, who in turn informed the Circle Police Inspector of Sagar. The said Circle Police Inspector came to the said place and drew a mahazar and took the accused and child along with him. The witness has identified Accused Nos.1 and 2 and stated that among them, Accused No.1 was driving the maruthi van and Accused No.2 was sitting in the rear seat of the vehicle. He has also identified the said vehicle at MO.1.
21. PW.12 Vijaykumar, a STD Telephone Booth Operator in Sagar has stated that he knows Accused No.3. On 7.7.2008 said Accused No.3 Ganesh had been to his telephone booth and had made call from his booth. On 10.07.2008, said Ganesh was brought by the police and they enquired him whether said accused had made telephone call from his booth for which he stated that on 7.7.2008 he had made call. The witness has also stated that when police enquired as to what the accused had talked over phone, the accused told that he had talked about kidnapping of a boy from Melavarige for a ransom of a sum of Rs.50,00,000/-. It is thereafter the police have taken Accused No.3 with them. The witness has identified one among the accused in the court hall as the one who was brought to the booth by the police.
22. PW.13 Narayanappa has stated that on 10.07.2008 when he had been to respondent – Police Station, the police had shown him a motor cycle said to be belonging to Accused No.3, who incidentally was known to him, and also a cellphone. The police seized both the articles by drawing a panchanama as per Exhibit P9. The witness has identified the article through photograph.
23. PW.14 Govindaraj T. Dasari, the then Police Sub-Inspector of Honnavara has stated that while on duty on 7.7.2008 he received a wireless message from Karwar Control Room informing that a boy was kidnapped and was taken in a red colour Maruthi Omni van, as such, the van has to be traced. Immediately, he communicated the same to Gerusoppa Out Post through phone. On the same evening at about 6.30 p.m., the Outpost staff at Gerusoppa informed him that based on suspicion they had detained a red colour omni car. Hearing the same, he went to the said outpost and saw two persons who were said to be in the said post and also a boy who was said to be along with them. The boy identified himself as Adithya and stated that he was kidnapped by other two persons in the said van. The other two persons identified themselves as Ramu (Accused No.1) and Prabhakara (Accused No.2). He informed the same to the Control Room. Thereafter, at about 9.30 – 10.00 p.m., Circle Police Inspector of Sagar Rural Police Circle also visited the spot and recorded the voluntary statement of Accused Nos.1 and 2 and seized the Maruthi Omni van and a cellphone from the possession of the accused by drawing a seizure panchanama. The witness has identified Accused Nos.1 and 2 in the court, so also the Maruthi van through its photograph at MO.1 and cellphone at MO.2.
24. PW.15 N. Manjunath, then Head Constable of respondent – Police Station has stated that he too had been to Gerusoppa Outpost on the instruction of his superior on 7.7.2008 after the boy was said to have been traced in the said police station. When he went there, he saw the Police Sub-Inspector of Honnavar Police Station and also Maruthi Omni van and two people who were in the van and alleged kidnapped boy Adithya. The Police Sub-Inspector who was present there handed over custody of the van along with the accused and the cellphone to the respondent – police, which were seized under a panchanama, for which he has subscribed his signature. He has identified it at Exhibit P2.
25. PW.16 Stanili Agenero, a Nodal Officer of Bharti Airtel Cellphone Service Provider Company has stated that based on the incoming and outgoing call register, he is able to give the details of the communication / calls made. However, the call details pertaining to the date 7.7.2008 are not available. As such, he was not able to produce them before court for the reason that as per the Regulations, the Company is expected to retain call details for an year and thereafter, they would be destroyed. Since in the instant case the alleged call pertains to the date 7.7.2008 which was more than a year, the call details were not available.
26. PW.17 J. Ramesh the Police Sub-Inspector of the respondent – Police Station has stated that on 7.7.2008 at about 5.00 p.m., the complainant Venkatagiri appeared before him and lodged a written complaint as per Exhibit P1, which was registered in their station in Crime No.219/2008 and submitted an FIR as per Exhibit P10 to the police. On the same day at about 2.00 p.m., his station has received a telephone call about the alleged kidnap of a boy from Melavarige village. The said call also was made by the complainant himself. He had transmitted the said information to their Control Room immediately, so also to the Control Rooms of neighbouring Districts. Thereafter, at about 2 or 2.15 p.m., he had been to the place from where the boy was said to have been kidnapped and after inspecting, had returned to the station. On his instructions, the complainant lodged a complaint at 5.00 p.m. as per Exhibit P1.
The witness further stated that after registering the complaint at Exhibit P1 at about 5.30 to 5.45 p.m., once again the complainant appeared before him and gave his re-statement stating that two telephone calls were received in his home demanding for a ransom of a sum of Rs.50,00,000/- and a second time threatening the inmates of the house of dire consequences in case they revealed about the alleged kidnap to the police.
The witness has further stated that on the same evening at about 7.00 O’ clock, he received a telephonic information from Honnavar Police that near Gerusoppa Check Post, a Maruthi van along with two persons and alleged kidnapped boy were apprehended. He joined by his staff and panchas rushed to the said place. There the complainant identified the kidnapped boy as Adithya. Accused Nos.1 and 2 and the motor car and cellphone used for commission of crime were taken into custody by this witness under a panchanama. He has identified the said van through its photograph at MO.1 and identified the cellphone at MO.2. He has stated that he handed over further investigation to the Circle Inspector.
27. PW.18 M. Jagadish, then Police Circle Inspector of Sagar Rural Circle has stated that on 8.7.2008 after taking up further investigation in this case from PW.17, he recorded voluntary statement of Accused Nos.1 and 2. According to this witness, both the accused have stated before him that they kidnapped Master Adithya for a ransom at the instruction of Accused No.3 Ganesh. The witness has further stated that he also recorded the statements of several of the witnesses. On 10.07.2008 joined by his staff, he arrested Accused No.3 Ganesh and recorded his voluntary statement as per Exhibit P.14. The witness has also stated that he produced Accused Nos.1 and 2 along with remand application before the court on 8.7.2008 itself and collected the panchanama at Exhibit P9. He has identified the photographs at MO.4. The witness has also stated that during the course of investigation, he seized a cellphone and a motor cycle from the possession of Accused No.3 under a panchanama. He also got Accused No.3 to the STD booth run by PW.12 and got identified Accused No.3 through the operator of the booth and ascertained that Accused No.3 had made a call from there. The witness has also stated about he apprehending Accused Nos.4 and 5 in the matter and recovering a cellphone at the instance of Accused No.4 and after completing the investigation, filing the charge-sheet against the accused in the matter.
28. From the above evidence of the witnesses, the fact which remains undisputed is that, PW.2 / Master Adithya was studying IV Standard in Government Higher Primary School at Melavarige and on the alleged date of incident, that is on 7.7.2008, he had been to his house in the afternoon at 1.00 p.m. for lunch and while he was returning to his school at about 1.45 p.m., he was taken into a Maruthi van by two unidentified persons.
29. The prosecution witnesses who speak about the alleged incident of the alleged kidnap of Master Adithya are PW-1, PW-3, PW-4, PW-5, PW-11, PW-14, PW-17 and PW-18, which excludes the alleged victim boy himself who has been examined as PW-2. Among these witnesses, PW-11, PW-14, PW-17 and PW-18 are from the Investigating Agency. Out of the remaining witnesses, we get two sets of first information said to have been given to the Police Officer i.e. PW-17 in the matter. They are PW-1 and PW-5.
30. Undisputedly, PW-1 is the senior uncle of the boy Master Adithya. PW-5 is the Head Mistress of the School where the said boy was studying at the relevant point of time. As observed above, PW-1 has stated that on the alleged date of incident, i.e. 07-07-2008 at about 1:55 p.m., PW-3 - Manjappa who had been working in their house since 20 years rushed to their house only to inform that he saw the boy Master Adithya being put into a red colour Maruthi Omni Van while the said boy was on his way to his School just a few minutes before somebody taking away the boy from the place. Immediately, PW-1 is said to have informed the Police over phone and later at 5:30 p.m., he is said to have lodged a complaint with the Police as per Ex.P1. The said fact that he informed the Police over phone immediately after receipt of the information from PW-3 – Manjappa is also corroborated by the evidence of PW-4 who is the wife of PW-1. Further, the said fact that the Station House Officer of the respondent Police was given information about the boy being kidnapped, is also confirmed by PW-17 - Police Sub-Inspector who has stated that on the same day, at 2:00 p.m., he received a telephone call from the complainant himself in that regard. Thus, irrespective of the fact of the name of PW-3 - Manjappa not being shown in the complaint, the evidence of PW-1 and PW-4 goes to show that knowledge to them about the missing boy was given by none else than PW-3 and immediately thereafter they swung into action. As such, PW-1 has informed the jurisdictional Police over phone, without delay.
31. The second stream of information said to have been reaching the Police is through PW-5. The said witness who is the Head Mistress of the School where Master Adithya was studying has also stated that while she was waiting for the return of Master Adithya from his home after lunch-break, one unidentified person approached her asking about Master Adhithya for which she stated that he had not returned. Immediately, one person told her that the boy was put into a Van by somebody and was taken away, which she immediately informed to the house of Master Adithya. She has also stated that she also lodged a complaint with the Police which she has identified at Ex.P5.
32. PW-5 does not say as to who the said informant was, who is said to have informed her about the alleged incident. However, the information about Master Adithya being put into a van and being taken away from the said place has uniformly come in the evidence of PW-1, PW-3, PW-4 and PW-5 which has not been denied or disputed from the side of the accused.
Even PW-17 - Police Sub-Inspector also has stated that after receiving the telephonic information, he went to the place. PW-18, another Investigating Officer has pleaded his ignorance about PW-17 receiving a telephonic information and a complaint from PW-5 immediately after the incident. However, the fact remains that PW-17 was informed about the alleged kidnap of Master Adithya not later than 2:00 p.m. on the alleged date of incident.
33. Though learned Senior Counsel for accused Nos.1 and 2 submitted that despite receipt of such information about the committal of a cognizable offence, PW-17- Police Sub-Inspector has neither recorded the same in his Station nor registered the said information as a crime in their Police Station, and the said question has remained unanswered throughout. The said non- registration of the alleged first information said to have been received by PW-17 over telephone at 2:00 p.m. would not, in any way, either weaken the case of the prosecution or withers away the same. On the other hand, PW-17 himself apart from stating that he had received an information over phone from none less than PW-1 about the alleged incident at 2:00 p.m., has stated that he swung into action by communicating about the same to the Control Room and alarming them in the matter. He has also stated that he asked PW-1 the senior uncle of the boy to lodge a complaint in writing in that regard. Thus, Ex.P1 came into existence at 5:00 p.m. which came to be registered with the respondent - Police.
34. According to PW-1, PW-3, PW-4 and PW-5 as at the time of alleged occurrence of incident of Master Adithya being kidnapped, none of them were aware as to the identity of the accused. It is not even to their knowledge as to how many persons were said to have been involved in the alleged commission of crime. The said alleged involvement of the accused in the commission of crime has come into light only after the said boy along with the alleged culprits are said to have been detained by Police at Gerusoppa check-post in the same evening. It is once again the evidence of PW-1 and PW-4 can be considered in that regard. Both of them have stated that on the same evening, at 7’O clock, they received information from the respondent - Police that their child Adithya was traced in a Car near Gerusoppa check-post along with two other persons who were inmates of the said Car and all of them had been detained by the Police there. Immediately, PW-1 has rushed to the said place and noticed the boy as well as the accused Nos.1 and 2. It is after enquiry made by the Police that these people came to know about the identify of accused Nos.1 and 2. Till then, even according to the prosecution, accused Nos.1 and 2 were not well acquainted persons to PW-1 and PW-4.
35. The evidence of PW-1 and PW-4 to the effect that accused Nos.1 and 2 were found taking Master Adithya with them in a red colour Maruthi Omni Van bearing Registration No. MH-04/Y-645 has been further corroborated by evidence of PW-11 - the Police Constable who also has stated that while being on duty at Gerusoppa check-post, based on the telephonic communication that a boy has been kidnapped and being transported in a red colour Maruthi Omni Van with ‘sapthagiri’ picture sticker pasted on its front side, PW-11 joined by his team started inspecting every vehicle passing through the check-post. In the said process, at about 6:30 p.m. they stopped a Maruthi Omni Van bearing Registration No.MH-04/Y-645 coming from Honnavara direction and noticed the boy in the said Van and accused Nos.1 and 2 were also there in the said Van among whom accused No.1 was driving the Van and accused No.2 was in the rear seat along with the boy. Thus, the person who speaks about noticing the boy being taken away and catching the alleged culprits red handedly along with the boy is, PW-11. His evidence not only shows that accused Nos.1 and 2 had taken Master Adithya with them, but also further strengthens the evidence of PW-5 - the Head Mistress that while she was standing outside the School waiting for return of Master Adithya, she saw a Maruthi Omni Van passing in front of their School. Further, it also corroborates the evidence of PW-3 - Manjappa that, as he was seeing, a red colour Maruthi Omni Van approached Master Adithya while he was going to the School and on the pretext of asking something with the said boy, he was put into the Van and fled away from the place.
36. The evidence of PW-14 is nothing but continuation of the incident what is narrated by PW-11. PW-14 who is the then Police Sub-Inspector of Honnavara Police Station and who was the transmitter of wireless message about the alleged kidnapping of a boy to Gerusoppa check-post has also stated that after he transmitted the information about the alleged kidnap of the boy to Gerusoppa check-post, he received an information from the said check-post about they halting a red colour Maruthi Omni Van based on suspicion. When he went there, he also noticed Master Adithya being taken by accused Nos.1 and 2 in the said red colour Maruthi Omni Van. The said witness also enquired the boy to ascertain the details of the incident. According to him, the boy told him that while he was returning to School, two inmates of the said Maruthi Van on the pretext of asking the address and location of one Sri. Ashok Bhat, kidnapped him and were taking him in the said Maruthi Van. PW-14 also stated that he enquired the two inmates of the Maruthi Van and ascertained their identity. According to him, those two persons are the present accused Nos.1 and 2. The said witness also identified the said Car through photograph at MO-1 and also identified the accused in the Court.
37. To the height of the above, the cross- examination of these witnesses made from the side of the accused requires a special attention. In none of the cross- examination of material witnesses, more particularly PW-1, PW-4 and PW-5, the accused have anywhere denied that Master Adithya was kidnapped on that particular afternoon. However, in their cross-
examination, it was attempted to elicit that accused Nos.1 and 2 or accused No. 3 (appellants herein) were in no way connected to the alleged incident. On the other hand, it was also suggested to PW-1 from the side of the accused No.3 that accused No.3 has been falsely implicated in the crime because of a dispute with him by PW-1 in respect of a tractor rent. Naturally, PW-1 has not admitted the said suggestion as true.
The accused who have not specifically denied the alleged incident in the cross-examination of PW-1, PW- 3, PW-4, and PW-5, on the contrary, have suggested to PW-17 and PW-18 in their cross-examination that Master Adithya was being taken by accused Nos. 1 and 2 in the said red colour Maruthi Omni Van for getting him a medical treatment at Talaguppa Government Hospital since he was alleged to have sustained an injury having fallen on the road while returning to his School. Specific suggestions were made from the accused Nos. 1 and 2 in the cross-examination of PW-17 and PW-18 at more than one place. Though the witnesses have not admitted the said suggestion as true, however, by making such a specific suggestion, clearly stating that accused Nos.1 and 2 were taking the said boy in the alleged red colour Maruthi Omni Van, the accused Nos.1 and 2 have admitted that, as on the alleged date, time and place of the alleged crime, the boy Master Adithya was taken by them and put into their red colour Maruthi Omni Van. Thus, it is clearly established that PW-2 – Master Adithya who was in the lawful custody of his senior uncle (PW-1) at Melavarige village while returning to his School was taken by accused Nos.1 and 2 to a different place without the knowledge or consent of the lawful guardian of that boy i.e. (PW-1).
38. The evidence of none else than the said Master Adithya himself as PW-2 also clearly and fully corroborates the evidence of other witnesses that he was kidnapped while he was returning to School on the ill-fated day in the afternoon. PW-2 though is a child, still could able to give a clear and complete picture of the incident as grasped by him being a victim of it. He has clearly stated that while he was returning to School after lunch, a red colour Maruthi Omni Van with a picture of ‘Sapthagiri’ sticker pasted on it, approached him and a person sitting in the back seat on the pretext of enquiring about the location of the house of one Sri. Ashok Bhat in that place, dragged him inside and put him in the Car and left the place.
PW-2 – Master Adithya has also stated that there were only two persons in the said Van, one was the driver and another was the one who was sitting next to him.
PW-2 has also stated that, from the conversation between the two inmates of the car, he came to know their names as Ramu and Prabhakara. The said boy has also stated that the said Van was stopped on the way near a shop at Talaguppa and he was given a banana to eat. Incidentally, in the cross-examination of PW-17 and PW-18, suggestions were made from the side of the accused to the same effect that accused Nos.1 and 2 had stopped the car to offer a banana to the boy.
39. Therefore, the evidence of PW-2 – Master Adithya who has also identified accused Nos.1 and 2 in the Court, beyond any doubt establishes that he was kidnapped by accused Nos.1 and 2 on the ill-fated day, i.e. 07-07-2008 in the afternoon at about 1:50 p.m. near his School at Melavarige village.
40. Thus, the argument of the learned SPP-II to the effect that the evidence of the prosecution witnesses clearly establishes that the accused Nos.1 and 2 have committed the offence of kidnapping of Master Adithya, requires to be accepted. Therefore, it has to be necessarily held that, the prosecution has proved beyond reasonable doubt that on 07-07-2008, at about 1:55 p.m., Master Adithya (PW-2) was kidnapped by accused Nos.1 and 2.
41. The next question that remains for consideration is whether the alleged kidnapping of Master Adithya was for a ransom and was there any involvement of accused No.3 also in the said act ?
42. In this connection, the only witness who has spoken in detail about the alleged ransom is none else than the senior aunt of Master Adithya, i.e. PW-4 - Smt. Vijaya. She in her evidence has stated that after her husband left home in search of the missing boy in the afternoon on 07-07-2008, at about 03:05 p.m., she received a telephone call to their landline telephone No.260030 wherein an unidentified anonymous caller told her that Master Adithya was in their custody and in case any information is given to Police, they would take away the life of the boy. She also stated that in another 15 minutes, i.e. at 3:20 p.m., once again one more similar call came, wherein the caller placed a demand for `50.00 lakhs otherwise, they would not set free the kidnapped boy and in case they inform the Police, they would take the life of the boy.
43. The witness has also stated that after the return of her husband i.e. PW-1, she informed the same to him who once again went to Police Station to give them the update in the matter. Thus, it is PW-4 and PW-4 alone who received the telephone call in the form of a demand for ransom. Even according to prosecution, except PW-4, no other person received any such call in the case. Admittedly, the caller neither identified PW-
4 nor disclosed his identity to the recipient of the call.
Even PW-4 also has nowhere stated that she made any attempt to know the identity of the caller, on the other hand, she herself has stated that the call was an anonymous call by an unidentified caller.
44. The respondent - Police have brought accused No.3 – Ganesh as the one who was the mastermind behind the alleged kidnap and at whose instance the call for ransom was also made. No doubt the said Ganesh was admittedly a person known to the family of PW-1, who was working as a driver of a Tractor. The basis for the complainant - Police to relate accused No.3 – Ganesh to the alleged incident is the alleged disclosure said to have been made by accused Nos.1 and 2 in their alleged voluntary statement before PW-14. However, except the say of PW-14, there is no other evidence or material to prima facie establish any nexus of accused No.3 – Ganesh in the alleged crime.
45. However, the Investigating Officer i.e. PW-17 and thereafter PW-18 have shown PW-12 - the STD booth operator as the person from whose STD booth, the accused No.3 is said to have made a call for ransom to PW-4 on the alleged date. It is also the case of the prosecution that the said STD booth operator (PW-12) has heard the said call. In that regard, the prosecution has examined PW-12. No doubt PW-12 has stated that he is running an STD booth in a town called Sagar and that he knows accused No.3 - Ganesh, he has also stated that when the said accused No.3 was brought to his shop on 10-07-2008 by the Police, he identified him as his customer who made a telephone call on 07-07-2008. Except stating that on 07-07-2008 accused No.3 had made a call from his telephone booth, the witness could not able to say as to whom accused No.3 was said to have made call and what was the gist of the call/conversation made by accused No.3. The prosecution also did not attempt to elicit those details from PW-12. Thus, the evidence of PW-12 even if it is accepted at its facial value could only show that on 07-07-2008, accused No.3 had made a call from the said telephone booth. However, the loophole existing in the said chain of establishing the link between the accused No.3 to the alleged incident even though tried to be filled through the role of PW-12, still, has remained as a loophole only. It is for the reason that even though PW-12 has stated that on 07-07-2008, accused No.3 had made a telephone call, but he has not stated at what time accused No.3 had been to his shop to make a call and to which number, he had made a call. On the other hand, PW-3–Manjappa, the alleged eye witness to the incident of kidnap himself has stated that when he had been to the house of PW-1 at 4:30 p.m. on the same day, he saw accused No.3-Ganesh in the said house after the alleged call for ransom was received by PW-4 at 3:20 p.m. on the same day. If the said call even if taken as made by accused No.3 from a public telephone booth from Sagar, still, how come he would be there at 4:30 p.m. in the house of PW-1 at Melavarige Village which is a distant place, has remained a question and unanswered.
46. Secondly, the Investigating Officer has not collected the call register which generally a public telephone booth operator is required to maintain. In the said call Register, the details of the calls made including numbers dialed would be mentioned. The said vital document the Investigating Officer has not collected.
If not the call Register details from PW-12, atleast, by furnishing the telephone number of that booth, the Investigating Officer could have collected the details of the calls made from the said booth through the service provider i.e. Bharat Sanchar Nigam Limited (BSNL) or other service provider whose telephone was used by PW-12 as a booth operator. No attempt was made by the Investigating Officer in that regard.
47. Thirdly, when it is the case of PW-4 that the call demanding ransom was received to her landline telephone bearing No.260030, the very first aspect what an Investigating Officer was required to do was to collect the details of the incoming calls to the said landline telephone number of PW-4 on that particular date. Admittedly, the Investigating Officer has not made any attempt in that regard. On the contrary, he claims to have admitted to have collected the call details said to have been made from the alleged three Mobiles said to have been recovered at the instance of accused Nos.1, 2, 3 and 4. When there was direct number available to which a telephonic call has been landed, without obtaining the incoming call details of that particular telephone number, the Investigating Officer has attempted to do a futile exercise of collecting the call details of the different Mobile numbers without even establishing any nexus with those alleged Mobile phone numbers to the incoming call received by PW-4 to her landline.
Even in the said attempt of collecting call details also, the Investigating Officer has not evinced any timely attentiveness or alertness in doing it. The result was that PW-16 - Nodal Officer of Bharatiya Airtel has promptly stated that their Company would not maintain any call detail records beyond one year from the alleged date of the call. No reasons are forthcoming from the prosecution side to the effect that when they were informed about the incident within five months of the incident on 07-07-2008 itself, what made the Investigating Officer to approach the service provider (Bharatiya Airtel) after a long lapse of time of more than an year only to receive a negative reply from them.
The result of the above latches on the part of the Investigating Officer is the non-establishing of the identity of the alleged caller demanding a ransom. Therefore, even though Master Adithya is proved to have been kidnapped by accused Nos.1 and 2, but prosecution has utterly failed to establish that the said kidnapping was for ransom and also that accused No.3 was in any way involved or connected to the alleged crime. Merely because PW-4 is said to have received a telephone call demanding a ransom, which is coincidentally after the kidnap of Master Adithya, by that itself, that too in the absence of any evidence to believe, it cannot be taken that the said ransom call was made by none else than any of the accused in the instant case. However, the Trial Court though has rightly held that the prosecution has proved beyond reasonable doubts the alleged kidnap of Master Adithya by accused Nos.1 and 2, but it was carried away by the statement of PW-4 that there was a call for ransom and without looking for any cogent evidence to establish the link between the said alleged call for ransom to the alleged acts of the accused, had straight away jumped to conclusion that the alleged call for ransom was made by accused No.3 alone and it was made on behalf of all the accused involved in the commission of crime. The said hasty conclusion of the Trial Court without properly appreciating the evidence placed before it has resulted in it pronouncing the judgment of conviction holding all the three appellants herein (accused Nos. 1 and 2 in Criminal Appeal No.142/2014 and accused No.3 in Criminal Appeal No.205/2014) guilty of the offence punishable under Section 364-A of IPC.
48. Since the prosecution could able to prove beyond reasonable doubt that Master Adithya was kidnapped on 07-07-2008 at about 1:50 p.m. by accused Nos.1 and 2 only and since it has failed to establish the involvement of accused No.3 in the said crime and also since it has failed to prove that the said act of kidnapping of the boy was for some ransom, the said judgment of conviction which is under appeal, holding all the appellants/accused Nos.1 to 3 guilty of the offence punishable under Section 364-A of IPC deserves to be set aside.
49. However, accused Nos.1 and 2 (appellant Nos.1 and 2 in Criminal Appeal No.142/2014) are to be held guilty for the offence punishable under Section 363 of IPC. At the same time, Criminal appeal No.205/2014 deserves to be allowed and accused No.3 - Ganesh deserves to be acquitted of the alleged offences against him.
Accordingly, we proceed to pass the following:-
O R D E R [i] Criminal Appeal No.142/2014 is allowed in part and Criminal Appeal No.205/2014 is allowed;
[ii] The judgment of conviction and order on sentence dated 31-01-2014, passed by the learned Presiding Officer, Fast Track Court, Sagar, in Sessions Case No.34/2011, holding all the three appellants herein (accused Nos.1 to 3) guilty of the offence punishable under Section 364-A read with Section 34 of the Indian Penal Code is hereby set aside;
[iii] All the three appellants herein, i.e. accused No.1 – Ramu S/o. Ramappa, Age: 29 years, Resident of Guddekowthi Village, Sagar, Shimoga District: 577 401; accused No.2 – Prabhakar S/o. Jagannath,Age: 27 years, Resident of Hiralemaruru, Sagar Taluka, Shimoga District – 577 401 and accused No.3 - Ganesh, S/o. Huchappa, Aged 28 years, Resident of Adaranthe village, Sagar Taluk, are hereby acquitted of the offence punishable under Section 364-A read with Section 34 of the Indian Penal Code;
[iv] However, accused No.1 - Ramu S/o.
Ramappa, and accused No.2 - Prabhakar S/o. Jagannath, (appellant Nos.1 and 2 in Criminal Appeal No.142/2014) are held guilty of the offence punishable under Section 363 of the Indian Penal Code.
[v] Heard both side regarding quantum of sentence. Considering the criminality of the guilt proved against accused Nos.1 and 2 and the nature of offence, the accused No.1 - Ramu S/o. Ramappa, and accused No.2 - Prabhakar S/o. Jagannath, (appellant Nos.1 and 2 in Criminal Appeal No.142/2014) are sentenced to undergo Simple Imprisonment for a period of six years three months and also to pay a fine of `25,000/- (Rupees Twenty Five Thousand Only) each within a period of one month from today and in case of default of payment of fine, to undergo further Simple Imprisonment for a period of three months;
The accused Nos.1 and 2 are entitled for set off under Section 428 of Code of Criminal Procedure.
Out of the total fine amount deposited by accused Nos.1 and 2, a sum of `45,000/- (Rupees Forty Five Thousand Only) shall be paid to Master M.S. Adithya (PW-2) by depositing the said sum in his name, in a Fixed Deposit in any Nationalised Bank till he attains the age of majority and to release the said amount to him after he attains the age of majority, without any further order from this Court.
The remaining fine amount in deposit shall go to the share of the State.
[vi] The accused No.3 – Ganesh, S/o. Huchappa, Aged 28 years, Resident of Adaranthe village, Sagar Taluk (appellant in Criminal Appeal No.205/2014) be released from imprisonment forthwith provided his continuation in judicial custody is not required in any other case;
The Bail bonds, if any, of accused No.3 – Ganesh, S/o. Huchappa, shall stand cancelled after the period of appeal and if no appeal is preferred by the State;
Since the accused No.3 is in judicial custody, the Registry is directed to communicate the operative portion of this judgment to the concerned Jail authorities forthwith.
The Registry is also directed to transmit a copy of this judgment along with Lower Court Records to the Trial Court without delay.
Sd/- JUDGE Sd/- JUDGE KS/BMV*