Kum Shubha @ Shubhashankar vs State Of Karnataka on 4 November, 2010

Karnataka High Court
Kum Shubha @ Shubhashankar vs State Of Karnataka on 4 November, 2010
Author: N.Ananda And A.S.Pachhapure
W 1 _

IN THE HEG-H COURT OF KARNATAKA AT BAa§J~cAig(__)__r'i;E:"' 

DATED THIS THE 04TH DAY OF NOVEMBER '2Afo~1o 3

THE HONBLE  " iv 1.
THE HONBLE 
CRIMINAL   C/W
cRL.A.Nos.:75-"£2.01  & 856/2010

cRL.A.No.72é   
BETWEEN: 1. ' 

}{l,11'1'1.ShU'{)hE1A@"vS}}}1b1}aSI13:Hkai,f *
D / o Sriv--.AB.S.'S1iani;.giranarayafi'' .
Aged about 24 Years  V  
Advocate l5y4_Pi'ofession. " _ s

R/ at No. 1414, 2'3r.c: Main. Road
Banzgisliainkari 2-'d_Stage

 v _ Ba.irigja1Qre.  ---------- ~ ...APPELLANT

 ' (By 811' Senior Advocate]

Stage of ]*I:a_1ffi':«1tai(a
By the Station House Officer

'~ .   Vivekriagéir Police Station
"  Be.nga1o1'e. ...RESPONDENT

'  Si'i.B.Vei1kat Rao, Special Public Prosecutor)

This appeal is filed under section 374(2) Cr.P.C to set aside

 H'€1'i6 jucigrneni: and order dated 13/14.07.2010 passed by the

Presiding Officer, Fast; Track {Sessions} CourE--XViI, Bangaiore



 

CRL.A.N0.'765g201O

BETWEEN:

D.Arun Vanna _y  _
S/0 N Dhanashekharan V"
Aged about 25 Years

R/0. No.45/1-1

Gayathri Illarn, Charles Carnbellfioad

Cox Town, Bangalore.  

{By Sriyuths H.C.Hanumaiah 8: as i«§;'Reddy, Ad\}oca.tes}§

AND:

State of Karnataka ~. V

By Viveknagar Police   _ 

By State Public _Pr--Qse~r.:utoir _, __.  ~  VV ~
High Court Buil_.ding~' V y   _  l 
Bangalore. "   V 4. --.    ' ...RESPONDE3NT
[By Sri. B,_VenRa,t  Special P1ibli.cVProsecutor}

'l'?l1is._appes;Et*is 'Zt"il>(3d~.71l.I"1d€'1"S(3ClZiO1'i 374(2) Cr.P.C., to set
aside the judgrrrer1t'«a1:».dl'ord*e.r of conviction and sentence dated
13/ 14.07.2010 passed" by"--...the Presiding Officer, Fast Track
{Sessions} Cour.t-X\f_ll,'._ Barrgalore City in S.C.No.314/2004
convicting the appel'lant}'accused No.1 for offences punishable
undeiiseettions 302-,V .lV20~yB, 201 IPC. The appellant/ accused No.1

 ser1"te;i1"eed'i-- to undergo life imprisonment and pay a fine of

R's..EiO,GO0/--,,1rr,defaul.t to undergo SI. for 10 months for an

 yoffeneet p'-'anistialgleyyunder section 120wB IPC.

Q;I§;I,iAiNo.7'ii{€'_/2810
__.B1"3'17.._.Z'~l«\7_P3.13E€,?' -. «
A.Ve11i{atesha.

 "S/o Anaadan
" Ry*at..No.233, 3rd Cross
 V' ' -- E'sy.app}1nahal1i Main Road
_  Nagaréapaiya, Maruti Seva Nagara,
" Bangalore. ...APPELLAN'i'

it " ' . {By Sri.T.Prakash, Advocate)

'    .ifAl5ii5EZI§l4AN'}'ii '



AND:

State by Vivek Nagai Police

Represented by its State Public Proseeutoi' 5  

[By Sri.B.Ver1kat Rao, Special Public lji'a()S€:(?1.I_1'ZA():T}""--,> 1

This appeal is filed under section '374{2}cV.£!i.PViC;.  
aside the judgment and order of conviction and -sVeri't_ence dated "

13/14.07.2010 passed by the "Piiemding "Officer; Fast Track
(Sessions) Court-XVII, Bangalore "».City_V in S.CV.No,314/2004
convicting the appeilant/accused No.12 fo*r,_ offences punishable
under sections 302, 1204-13 2.O1;V'iPC;=._V'Theappellant/accused
No.2 is sentenced to undergo life >in"i'pjrison':'rient and pay a fine of
Rs.50,000/-. in default tQ,_._unde1"go ..pS.l."'f0r"V-- 1,10" months for an
offence punishable ._under se't:tio_n"«..yi*2x0-B IIPC. Further the
appellant/accused'NcC§2 is'--_sente"nced .t0"1Ji1vJe.i'g0 life imprisonment
and pay a fine of Pjs,{jO,'OQ()_/in--._tleiault.to undergo SI. for ten
months for an olfenyce pi1nishiabie'--.ui:1deij section 302 IPC.

CRL.A.l$io'.e8VS6e[' f%9,1__QA 43:1  is
BEIWEEN; S' ._ V in
The State of Kai'riataka  be

By the 'Station House 'Officer
Viveigi-iagar Police AS--tation,

. is  --Bangalo1*e;. 1'e'p..r&esentedhy
 Specipal 1?uibiie4VPi'osecuto1' ...APPELLANT

{By'Si'i..A}3L'»fe_nhat;'Rao. Special Public Prosecutor]

ANDE-.

 '  "ii An1iiVam1a.D

., S/_o N.Dhanashekhai'an
_ 2 R/so No.45/la}, Gayathri Illarn
 Chai'les Cambell Road
 Cox Town
' Bangalore.



2. A.Ver1katesha
S / o Anandan
R/at No.233, SW5 Cross.
Byappanahalll Main Road '
Naganapalya, Maruti Seva Nagara. Bangalore.  

3. Dinesh @ Dinakaran
S / o Uttarn Prakash I
R/ at No.342, Green Park Layout 
Dodda Banasawadi ; 
Rarnamurthy Nagar Main Road. Bangalore.

4. Kum.Shubha @ Shubhashanliar "
D/ o Sn'.B.S.Shankaranarayan__  "
R/at No.14l4. 23:-<1 Main Roaq ' " ' 
Banashankari 21"? Stage". Bar1ga_lovre."'--.  AA "  ...RESPONDEN'i'S

[By Sr1'yL1ths.H.C.Hanumaiah, 'Ad;Voca"teV"'for: R-1, 'i'.Prakash,
Advocate for R-2, 'A._marjCorrea;, Advo'ca_te'fo;r R-3. C.V.Nagesh. Sr.
Advocate for     *   

7.This-app--eal.._VislfiledA'ur1der section 377 Cr.P.C., to award
sentence to accused«.n'os.1'--,._3,~ and 4 for an offence punishable
under section 302. IPC'and*--.fu'rther sentence accused nos. 1, 2 and
3 for an offence pu~_n1'sLj1abi.e under section 201 IPC and to award
death -sentence against'accused no.2 by modifying the judgment
and}-C order of c"o--n.Vi__c_t_iovn dated 13/14.07.2010 passed by the

if V'  . Pre--siding Officer, Fast Track (Sessions) Court--XViI, Bangalore City
. i1'1.,S.C._Not3-.l'4";--' 2004 convicting the respondents/ accused 1 to 4 for

'offe:1ces« pu-nislia"ole under sections 302, 120{B} and 201 IPC. The

 .res_pon'den~ts/accused l to 4 are sentenced to undergo life

ilnprisonmerrticand pay a fine of Rs.50,000/-- each. in default to
uridergo'  for ten months for an offence punishable under
section 120-13 IPC. Further. accused N02 is sentenced to undergo

 life imprisonment and pay a line of Rs.50,000/-, in default to
 uiidergo 8.1. for 10 months for an offence punislfable under

  svectioll 302 IPC.

3£¢=i¢*

These appeals having been heard and reserved for

if " fijudgnieilt on 18.10.2010. this day, NANANDA. J- pronounced the

following:

'J|



__ 6 __

JUDGMENT

Accused 1 to 4 in s.c.No.314/2004, on r1_1j¢-cf mg

Track Court XVII at Bangalore
Appeal N0s.765/2010. 774/2010,
respectivelylagainst judgmenl; pr to 3d’
for offences punishable’underaseclVicns'<.302 EPC and
conviction of accused under
sections 302. a11,%;un1shab1e under
section 201:' d l A

is filed by the State for
irr1p0siti'c')nLc'Jfc1veat'r1J'=.l;0 accused No.2 and also to set

right; ldiscrepanciesv 1"e}ating to sentence imposed on accused

«lAv'»fe'V–.lia{fe.clieard Sri ll.C.Hanumaiah, learned counsel

aldapearing accused No.1, Sri T.Prakash. learned counsel

apTpeariVn'£; for accused No.2. Sri Amar Correa, learned

-.Ac01Jndse1 appearing for accused No.3. Sri C.V.Nagesh. learned

__seni0r counsel appearing for accused No.4 and Sri B.Venkat.

N’ kg?!’ ‘;:’4\”\’ ‘E’;\v””£m(:’i1

6

a student of V~semeste1′ B.A., LL.B.. inieg1’ate-1:1’_g’cou.i’se._

Accused No.2–A.Venkatesha is the son _A

Accused No.3–Dinesh @ Dinakaraii
Uttamprakash TB. and the of
Accused No.4~Shubha @ Shuhi1gagsh.an}taf of
PW 1 0~Shankaranaraya’ri V” jg 1&2 -Vii ayaiaiishmi @
Vijaya Shankar. junior
aunt of accused’i§io’..4. VVatfeVf’cvousins. The sister
of PW14–Uttatno1*ai;a:sh,jjg. .–the wife of PW22-
N.Dhaiiasiheicaitahiiifit deceased] was the
younge”r_gsoi1 and younger brother of

PW5~B.V.Rarf1esh; ;R..iiarish is the Principal of BMS Law

Co1’ie’geEatB_a11ga1’ore ….

‘ ” tile year 2003, PWlO–B.S.Shankamarayan and

hisA”famvi1y.v«vtc”1eIhbers were residing at Door No.14i4, 23rd

Maih Banashankari H Stage, Bangalore and PW6–

“..f».}3.’Ve1&1katesha and his family members were residing at Door

~ “i\”=§o:1’A420, 23″‘ Main Road, Banashankari H Stage, Bangalore.

{U-t. W t

_9m_

During the year 2003, B.V.Girish was wo1’king:.llas a

Software Engineer in Intel Company situate at

Bangalore. The elder brother of B.V.Girish, 0

was working as an Engineer in
Bangalore. 0 it 0 V 0 K it
During third Week Vr>\lV10– 0
BS. Shankarnarayan am~1__ his 0 jg ayalaltshlni @
Vijaya Shankar approached’ and his Wife

and propose.c1fl£ [Agivjel ij’l\lo.4-Shubha @

Shubhaslhlankiai’ inge to lIl.3_”‘.l\’/”.V(l}i1’ish. PW6–B.VeI1katesh
in eorisizltatiorl and sons VlZ B.V.Girish and

PVV5–B.VRa’111esh, the marriage proposal. On

2 20, I was ‘agreed that marriage engagement shall be

.011»,_V30.:v1«V.1i:2003. Accordingly, PW10 arranged marriage

en.gagemeI’it”jjrléiring the evening of 30.11.2003 in “Udupi

[gHall”ll l3anashar1kari. During rnarriage engagement,

00 0’ l_fphot’o.gral;l)hs were taken {collectively marked as EX.P. 15) and

— was videography. PW4–Shankar was the

trilcleo/photographer. §\jf bl’-gt ‘\. £”‘v””‘l~’?\

9

LA_A£AA LA_A£AA

4. In the marriage engagement, parties

perform marriage of B.V.Girish with accusedgll\Eo.4:§_Sh”uhh’al_« it

on 11.04.2004 in GNR Kalyana::llirlaii’tapla_ at-l.l§sa_ngla1lorelI«

Before marriage engagement, _B.V.Cfi:tisl’1._ and ai;ci1sedlNo’;.4§l’–..

Shubha were moving together t;hey’=wer’e _l’elols.e each
other. Before the marr’i-age engagéjri1éVh:,_ the ‘e’1de1?s namely
parents of B.V.Gi1’ish facvfiused No.4 had

obtained COflS€{P;£L No.4 for their

5. on 28.All’i’«;’2.€1_V0;3r anti”-2§a.1.’i.2003, B.V.Girish had gone
to EMS Colle.ge’*t’o ‘accused No.4 on his scooter to

her house. On they had a walk after dinner.

Ol3i;«l._2.2003, during evening, accused No.4 asked

her for dinner to T.G.I.Friday’s Hotel [for

short, “f§”.C’;..¢lAI.:.*”E’A.Hotel”), which is located on Airport Road and

ll”-._lVl”‘nearer Intel Company, Where B.V.Girish was working.

-l3;V..Cl§irish agreed and informed his parents and also his

elder brother [PW5) about his programme with accused no.4.

f°\;_ ‘fax./\,.*~.. aka

_11w

B.V.Girish proceeded to the house of accused

her on his scooter. B.V.Girish used to wear__ya”-helniet’_while

riding scooter, on that. day. he
B.V.Girish and accused No.45’reached’..;i7(}IPfi,’.1k1ote1.’
9.00 p.m., B.V.Girish and their’
parents that they had areflleaving the
hotel to reach their house.'”t.o:oVl§_’acc’used No.4 on
his scooter to their Ring Road. When
they »VieW Point” B.V.Girish
stoppedlllhisifvisvcooiter. accused no.4 were
it was around 9.30 pm. At

that_time.”B.V.Girvish~-received fatal injuries to his head and

al.s’o’i.on_lAV.tl1e left xsidemoi” his face at the hands of an unknown

‘ .assVa.i1ani1~an.d’fell unconscious. The assailant after assaulting

‘B.V;GiriAsli..’j_\ii1it.h a steel rod ran away from that place.

Accused.’ No.4 with the help of passersby stopped a rnaruti

2 A:/.er.«.._car, driven by CW2l–Sujeshkumar, his wife {SW22-

u”Vinitha Sujesh and their child were the inmates of the car.

it “Both CW21 (‘St cw22 obliged and the injured B.V.Girish

R5. £?”\A(‘QgL:

ALLAAJA __

was shifted to the back seat of car. Accused No.4 sat on front

seat and injured B.V.Girish was admitted in

Hospital at Airport Road. Accused No.4 ;_.of«p

assault to PW29–Dr.J.N.Harsha, who at thc.e.,_releyant._time–,

was working as Casualty Medical_Cfficer’:l_in._

Hospital, Airport Road, Bangalorel.’g.A’s the.v-l%;onditiol;n.l.’ot

injured B.V.Girish was criticallillhhei was lshifted’ toflilntensive
Care Unit. Accused mcontacted PW10«

B.S.Shar1karnarayan and iiitormedb aboVutfoc_c_urrence, so also

she inforrlned: PWIO informed his wife
PW12. lPWlEI»_tooklll’ii’si« his mother and mother of

accused nol.”~’llar:.dV iieaCihe’d”bllManipal Hospital, by then PW1O

‘~ hac_i:p’il’eaEcherj_ Manlipa.l…Hospital from his office situate in Unity

‘Bui’ldingVrl’*PW$’was informed by PW29–Dr.J.N.Harsha that

BLV§Glirishl’.l–V’clia.éllA suffered fatal irijuries to his head. The

C.TScanA.ishlowed depressed fractures of skull and crush

llfainjuifyp to brain. PW29 informed PW5 that chances of

* suryiyal of B.V.Girish were remote. At about 2 a.m. during

Wi:rH1t.ei’vening night of 3/4.12.2003. parents of deceased, the

‘{‘\}( x… 5* “C653

.._–]_3—7

mother of accused No.4 and accused no.4
PW10 and PW5 stayed back in the hospit_’al–.».tj:i1.V
morning on 04.12.2003, PW6.

to Manipal Hospital. 011
doctor informed about deata””c£_ls.VV.o11¥is.h’.”:oi?1 1022003 at
I030 a.rn., PW5 V of incident
(EX.P.17] as per the accused No.4,
on the basis”o;{ Police Inspector
registeredaljiilcrimo. ptmishablc under section
30Qi~”‘1ji5i(;’ Thereafter, PW31–
lQ.n.t:he deadbody of B.V.Girish and
serlt dela’d.bo’dy:V ‘Vfor’–._bpost–n1orten1 examination to Bowring

PWll8v~–19r;Bheemapa Havanur conducted post-

‘ lmorte.r£1’reXam«ination.

H meanwhile, PW3}–K.A.Nanaiah, the

Inlvesfigating Officer had taken accused No.4, PW5 and other

” ‘w1_tnelslses to place of occurrence. Accused No.4 showed place

ofwoccurrence from Where the Investigating Officer collected

“lblood stained mud and sample mud and prepared spot:

N. t

M14”

mahazar as per EXP. 14. The Investigating Officer..continue’d&

the investigation and filed charge sheet on K it

subsequent Investigating Ofiicierm b”‘co11.,;¢u(:’Lel(:1:’ggfurther

investigation and filed supplemevritalry charg¢”

10.01.2005.

8. The homicidal death ofwaskziue injuries
dealt on his head, whichhflfracture of skull
bones and injury:A’to_ furnished by PW_18\

exarninvatiori controverted by the defence.
PW29–Dr.:Jg.’N.iHarshatV’ hadiyéégiven description of injuries

suffered by idelcveased. Therefore, case of the prosecution

fldthatl deiatii io”fi_._B.V.Girish was homicidal in nature is not in

A cannot be disputed.

9. Nv:)\2ir-are will advert to the case put forth by the

:gg.”progsecution:– It is the case of prosecution that accused No.4-
‘S_hub’ha @ Shubhashankar and accused No. l–D.AruI1 Varma

…3ziad fallen in love with each other and she was not willing to

G “J nag)» w<'£»~

TVTVIV 15 _
marry B.V.Girish, in fact she was not
B.V.Girish. Even before the date of
accused No.4 had expressed
who had visited the house. of
accused No.4 during mornitngifof 29". No.4
had requested PW8–':H..grna'."to'_sornegbhow the marriage
engagement and breakff No.4 had told
PW8 that fNo.1~D.Arun Varma
and she? " .PW8–Hema informed the
samveutov urhfovasked PW8 to keep quite as
datefof In. the circumstances, if they
were i.OVV'di'SCg1GS(:€V to others and break the marriage

=jn'gagernent, 'rep–utation of PW10 would be spoiled and

' gfhonour'reputation of family of PW1O would be ruined.

.C.)'1v*is:'j_3f).11.20O3 at 2 p.m., PW8 Visited the house of

beautification of accused no.4. When PW8 was

if 'beautifymg accused No.4 for marriage engagement, accused

No.4 cursed if B.V.Girish had died, marriage engagement

at a.

__ __

would have stopped and she could have eioped with accused
No.1 (hcrloveri.

11. it is the case of prosecution from

03.12.2003, accused 1 to 4 were in const.ant’to:u.ch’=wi’th each

other by Voice calls and they wefe exc.hain;g’in.g..sVhortVmessage 0

service (for short, ‘Si\/IS’) andthey
with the life of B.V.Girish, they had feiti asgan obstacle
for the love affair betwfe’e.n ._;’1vo_;i,a11d 4.” V

12. It is thgi. _’case”WoV£” t:Vproseic1_1V.tion;:.V0accused No.1 had

estat;)_1ished.0VVVctontacts”wljtetwe-en accused No.2 and 3 with
accused=i\io~.41. ‘rhé;£&w§r¢. constant touch with each other

bo’:-;h”by voice’ @115 and SMS caiis.

0 1 “the’~case of prosecution that on 03.12.2003 during

.’eVeni11g,’V’a.’ccused No.4 persuaded her fiance (B.V.Gir1’sh) to

tai§e..he:_r to dinner at TGIF Hotel. Even when accused No.4

in the company of her fi.ance»B.V.Girish. she was in

Atgconstant touch with accused No.1 and accused 2 to 4 were

also in constant touch with each other. They werfi contacting

$6

.__ W

each other from their mobile phones. After dinner, accused
No.4 expressed her ostensible desire to see 1and.i4ng_p of

aeroplanes from air View point situate at ring rojad.’ was

only to create an opportunity for accused by

murder of B.V.Girish. After dinner,
No.4 on his scooter on Airport R1n’gllRoad lcorinectls”vcp
Airport road intersection and l{o.:ra1nangaia:_ intersection.’
When they reached St0pped_

Accused No.4 and u:rere’A–».:’V_*seeing landing of

aeroplanesi’ standing on the footpath on
eastern. side of pre–planned, accused 1 & 2

came on da~Vscoote–r ridden by accused No.1. Accused No.2,

steellllrodfpipe came from behind B.V.Girish and

A *dTealt on the hind portion of head of B.V.Girish

al_sovAs:E.;d left side of face of B.V.Girish with a steel

rod/pipe. The injured l3.V.Girish held his head by his

w.haln«ds and collapsed. Thereafter, accused No.2 ran, jumped

lfiand sat on pillion seat of the scooter, which was ridden by

accused No.1. Accused No.1 took a U–turn and proceeded on
§\;_ Cr ‘E \ ;9x.x.1t&4,~\,
17

Wigs,

wrong side towards Airport road intersection. The incident. of
assault was witnessed by PW1.5–Thomas and_.v’~E9;W4lft3fToli

Uken. They were able to identify the assailant:alnd”V-fiat;

of the scooter in t.he light shed street: 1

were also able to identify weapon
B.V.Girish had fallen on the-._gVi’ounti_4lvvith
Accused No.4 was standing ‘a_disvtance* feet. from the
injured. PW15 and ‘tried to stop several
vehicles. CW2 who zen car stopped

his i’.he..:help driver of an autorickshaw.
shifted the of the car. Accused No.4 sat
on frontsidevvse’a_t.lof the_;car, PW15 requested CW2l to take

tl’1f;3’l1i’_}’i1I’€(I.l t.0_ll\/Ianipal Hospital situate at Airport Road. At

the. first l’i’ir1stancel,llllthe injured was examined in casualty

and later he was shifted to intensive care unit

‘Hospital. The histoiy of incident was given to

PlW29″=–Cas’uali.y Medical Officer by accused No.4. The father

AA and” e~1.der brother of the injured came to the hospital so

parents of accused No.4. After the incident. PW15–

N’ ‘ .\_U__[,’,\_-xx Jae

W 1 9 u
Thomas 8: PW16-Toli Uken had taken scootoerfof

to the house of PW15 who informed

A.S.Naveen of the incident. Pwlid and of

scooter of injured and found a 1la[:l)§.pij.;,l1l1.’1Cl»
Visiting card of injured CW30-

P.S.Radhakrishnan,. Surjeryisor of Intel
Company. CW30 carne-to PW15 and took
scooter and Later scooter and
digital However, the laptop was
retained’ as_llitWhlelonged to Intel Company.
ll’-Betore assault and after incident. of
ass_ault,lacc.us.ed–. were in constant touch with each

N04 by sending SMS to accused No.1 was

inrgrinirg» their movements till accused No.4 and

.0 reached air View point. After the incident, accused

No.4«llh¢ad sent SMS to accused No.1. Even during early

rnorning of 04.12.2003, accused No.4 had sent SMS to

accused No.1. During initiai stages the Investigating Officer

did not have any clue of assailant, he had’/recorded

{L Ef ..–1,.gA-v*~-L

E’)

__ W

statements of accused No.4 on more than onejo–cc.fas_i_on.,._The

Investigating Officer had also intcerrogatedff”§’W?ZB4g.P.8?. The

“,3! _ «_ ,,,&a,,~=(7(r:..

20

is 2 1 W
Investigating Officer also seized scooter bearing”No;IQ\§O_3=S–

978 {Black Kinetic Honda) under a mahazasrV_Aii’rx}l5.;:88.} lfroni

the house of accused No.1 S’gltL1El_lé(“5′ j;iri:_ Cdoxd 7

Investigating Officer collected 4«’pAh’ot.ograp:h..~p’,.

cassette of marriage and
B.V.Girish from On’W26:(v)I.2OO4 as
instructed by the PWIO produced
mobile phage’ covering letter as
per Ex. €PlV2′” V finvesltigating Officer. The
fl:PW22–N.Dhanashekaran to
pI’Od:1:1C6″ rnobile No.9845O 17289 belonging to
accuused’iNo:V1..:A–ccor’dingly PW22 produced mobile phone

n._umber”‘3845O 17289 with a covering let.ter as per

‘ the Investigating Officer. The Investigating

‘iOfl”icer ‘recdrded statements of witnesses and seized

inc1’inii«nat.ing materials and sent the same to Forensic

S(:–i.ence Laboratory. The Investigating Officer with the help of

A”;PW26«Jayanarasimhappa. took photographs of text of

H messages retrieved from mobile phone beari:1fi\:No.98455

<16/..\_

C» ..\_-as Z" V"

__ __

15. In order to bring home the guilt of the She».

prosecution examined PWS 1 to 33 and prodi.:c.e4diidoci1:11e:its._

as per Exs.P.l to P.11l and inaterifil objec:s’«as¢ per ‘Mos;

17. On behalf of the defence,VpDWs 1″towereV.-éxainiriedj k’

documents as per Exs.Dl to

16. In view of the iflaecusedvldd lid to 4 as
aforestated and the appeal for imposing
death penalty” points would

arise for deltermiigatilon». ‘
V1;”7.’*Whetl’i.ei’ -the prosecution has proved

tliat the «death “B;V.Girish was homicidal ?

. ‘V Vi/hevtlier” the prosecution has proved
that dii1¥ihg”t11e period between 24.11.2003
accused Nos.1 to 4 entered
‘l«V”in_to*1criininal conspiracy in Bangalore City to

_’ coiinrnit the murder of B.V.Girish and

” . thereby committed an offence under Section

120 {B} IPC ?

3. Whether the prosecution has proved

that in piirsuance of the conspiracy as

24

stated in Point No.2 on 3.12.2003. at abot_ii:.’__’__i”‘.j’

9.50 p.ir1., near Air View Point, Airpo1*t__’Ri1ig:”

Road, Bangalore

assaulted on the head ol?,A_B.V..Gii}rish A’

steel rod with an intention to cause j1:.i’;:,

death and the V -deceased

succumbed to the injuriles, t.here.by”«Accusii3d
Nos.1 to 4 co’r3i_ir;.itte.d an Vloff_€I1;Ac’e.ppunishable
under Section 302.’readWith 1..1_2o’*;(13″)’_ViPc ?

4.” 4″‘py,;aether has proved

that the knowledge

‘that’I1:l’6:’:l]jlu’I’d.éi’bl’ decepasved B.V.Girish had

beenpVc’e.:m_rnitted,u’-caused disappearance of

“evi’de11ceV commission of the offence

by”not ienforniingblthe said fact either to the

“family? “1rieir1]oers of the deceased or to the
authorities and also caused
of evidence by suppressing
and the telephonic messages and
calls with Accused Nos.1 to 3 with an

. intention to screen herself and also Accused

Nos.1 to 3 from capital punishment and
thereby conirnitted an offence punishable

under Section 201 IPC ? ;

F9 5…: k.. 9* L

‘ A’

W W

5. Whether the learned Trial Judge

appreciated the evidence in proper perspective

6. Whether the case against accuSe_d N_o~.,2xt’
falls within the category ofwtlite ra1rest3.;’areV4_’

cases to attract death penaiAty?,..e A Z

7. Whether the impngne,dV’judg1nen.t nails
for interference?

8. VVhat._4_’0″rr1er’?:

17. As already,stated,~-Accuse-d v.Noef3. have filed their

respective appiealefiigaintt-Lt the'”‘judgme’nt”of-conviction. The law is

fairly well settled fliiafiourt dealing with an appeal against a
judgment of corivVicti:on._,:’had”»t,Q..~~yeappreciate the evidence either to

agree or dltéagree. ‘findings recorded by the learned trial

‘V V’ A’ ‘ ….. .. V

’18-. 7 déeagdiion reported in AIR .1973 so 1222 [Mustaq Ahmed

Mehrned and another 1). The State of Gtgarat) at para 12,

the Supreme Court has held:

“12. The contention that, when the trial
court records a we11–reasoried judgment. then,

even though arguabie points on the question of
:*\.f 4-: ‘ -xi. Lie»-x-<€z-

25

u26_

credibility of Witnesses are raised, .’
unnecessary for the Court of appeal to “ll
all these points and record it.s..ovvn r~eas’or;L«g.r5r
agreeing with the conclusions of it
is unacceptable. The right of appeal conferregd’ on it

a convicted person gives right
the reasoning and finding’-on–..the of
evidence both oralgand by the trial
court and unless the ‘held to be
prima facie” uninjipressive” unarguable the

High ;_vvell_ go into the
points_ca_i’ivassed» Vits”reasons. Such a
goifiseat accord” Vvvith the statutory
iritendment,’fand».also”‘of gt assistance to this Court

in satitsi”actorily_tde’aling with appeals under

_ Art. tl1e’Co’nstitution.”

Aglightllovfthe legal principles enunciated in the

_abovea.decisio’n_, “we proceed to appreciate the evidence and

recorded by the trial Court to record our

‘r__findings’ojn the points formulated above.

gin the earlier paragraphs of the judgment, we have

.s _gVs_tat’.ed that the case of the prosecution that the death of

{U} ( gm»

W W

l3.V.Girish was homicidal in nature has not bee;ri”‘sei=tio:ulsly’~.

controverted by the defence: Even otherwise, _w.e

prosecution from the evidence oi:

PW.18 Dr.Bheemappa l~Iavar1u1f’_ haslproved that.f’déat};1′”crl”~»_

deceased B.V.Girish was homicidallltin ‘natij1’e.l:”

19. At the relevant the
Casualty Medical OfficerV:’oi’-lll\/lariir)al Airport Road.
P’N29~Dr.J.N.I;lai’:shfa d;:l1;§;5seal{}vl’ V. i
will 2″. Ci 0»; 10 pm. a lady
injured to the
Clasulalltv history of assault and
he elr’v’t:;old
prosecution has proved thatmdeath wast’
homicidal in nature. ‘was dueto coma as
a result of head injuries trial Judge

on proper appr*e_ciatior_1 o€f’evidenc_e~.hasj’held that death of

B.V.GiVritsVh”was hoiriicidal in nature. Therefore. We answer

Point No. :1 in a.fdfVi1irI”1~atixr.er.t’ir-. ”

Reg._Points..2 ‘toy it ‘

23$,’ Before ltadverting to the appreciation of evidence

» yaddyuced.yirsfproof of points 2 to 4 which are interlinked, it is

H tlfdvstate that the evidence adduced by the

prosecution is partly direct and partly circunistantial and

“the direct evidence and circumstantial evidence are

“‘V.in’teArtwined. Nevertheless we refer to the legal priniciples

relating to appreciation of circumstantial evidence as

SIX’ _ 5’1. x_. £7 ~-~-“Q 5

29

.._ I44–&

enunciated by the Supreme Court in the decision..re.ported’

AER 1992 so 840 (in the case of [State oft

Kumar Srivastava], at paragraph the
held:–

“9. This Court hasV;’c«r.Vtii’me out.
observed that while appre’cia_’tin’g-.circunistantial
evidence the Cou’r.tfrnu’st cautious
approach and shou_ldT’ r.eco_rdi_a only if
all the in the chain’«arel_jcovInplete pointing
to the “guilt the hypothesis
of bjeing negatived on

— rnust be taken in
evaluatingllci.’rcu’rnsta,:ntial evidence and if the
evidence reasonably capable of two

4; ‘i’r1ferences.,_V the one in favour of the accused
be accepted. The circumstance relied
=._u’p_o1’1 be found to have been fully
and the cumulative effect of all the
tac’ts.VlAs’o established must be consistent only
with the hypothesis of guilt. But this is not to

if that the prosecution must meet any and
“every hypothesis put forward by the accused
however far–fetched and fanciful it might be. Nor

does it mean that prosecution evidence must be

N ‘L. t ,t .

30

_ A444

rejected on the slightest doubt because;’thejuilawlf

permits rejection if the doubt is reaso1i.ablve’eandl *

not otherwise. _ M _V _V

22. The prosecution has reliedfpon the jfollupoimgngz f

[1]. Motive _ _ .

(ii). Close association of l_\los.ll’-tol’zi>l’lbyll’={oice
calls and SMS calls beIorellr,tl1ell”date oflllincident,
on the date of prior to the
incident and also..aft.er.the_incident’;.”

[iii]. Conduc’t’o€_t}1e accused.

[iv]. :7’r$ifece..é§.r;dé;r71.gEe »1§§’ws_ illéénld 16
(V). lR_eco_Ve13f: “pursuant to the voluntary
statements’ accused Nos.1 and 2 and at
‘ the irrstance’l’of E’:.Cdl1S€d Nos. 1 and 2.
zpla}ted”””by each of the accused as co-

-consppirators.

._ avlisevlplela of alibi put forth by Accused No. 1.

(i)l , Motive:

ll it 23.,’ “It is the case of the prosecution that Accused No.4 had

fallen in love with Accused No.1. At this juncture, we would

l like to recall at the relevant period, accust:lg}’o.4~ was a

3

fkt /–‘\_.,g_,_.”–£’.’L

3l

W32-

student of V sernestei’ of LLB Course of

Accused No.1 was a student o1’I Semester of,

the same college. These facts have

Harish who at the relevant period Waeslltvorkingt. Prin’jcipal”‘o

of BIVES College and they have been co’ntrove3rteL1:tlll1lt is the
case of the prosecutionthat were in
constant touch with each voice calls
and SMS calls» .24_ii 1 ‘t.iiI§i;.1_2_,_:0o3.

24. Front” the prosecution has

proveclxthat at’v.’th.e:”relevant_ tirne, accused No.1 was using
mobile phone 17289 and Accused No.4

was iising mobile lpvhone bearing No.98455 70337. We notice

,,i~frQn?’1 evidence that PW.1O (father of accused No-4)

*~exa’n1ined*–.aVs a-prosecution witness, has virtually turned as

def’e.nceV_vw1tn’ess to give evidence to support the defence.

was declared as hostile witness. We refer to some of

xlWthe_ significant features in the evidence of PW.lO which

__\vlould give an indication that PW.lO had more to conceal

E

and less to reveal. e/’fix A My

— 3 3 — .

25. It is not in dispute that PW.1O is a practicingfirdvocate

of Bangalore Bar from past 35 years. PWIO ‘
on 26.1.2004 he gave mobile it it
alongwith a covering letter ma1’ked;”as
Investigating Officer. PWIO the letter P’
as EX.P.2’7 and his signature has
deposed that he hadfi’a_no1;her _ phone bearing
No.9845O 15l5()’.vIt is of EX.P.27 that
on 26.01 mobile phone
bearing Nos was being used by accused
No.4 before ¥j’..VA’the””diivestigating Officer. However,

duri41′;i’g”t:ial the rrlobile phone bearing No.9845O 15150

to PW.lO, he has deposed that he is not

to ‘vsay:w*?riiet;he1* the mobile phone similar to M010 was

the”‘««0neV___*Whic’h he had given to the Police. Therefore, at the

:”‘request’vol’ the learned Public Prosecutor, PW10 was declared

has-.h.osti1e witness and was subjected to cross examination

Vb the learned Public Prosecutor. During cross examination,

after the SIM card from the mobile phone l\/10.10 was

to eréaisai «

33

‘(A4454 as

removed. after going through SIM card
deposed that MO.10 might be the mobile
had handed over to the lnvestigatinglclificeron _
During ex:amination.4in:chief, 0 ” PW; X \’

categorically admitted that on givienflto the
investigating officer 70337
which was being daugl.jfgg1i:3.”{accused No.4],
during cross–eXah?iiciatio.n for accused

No.4 has imade’, an’*– attempt to dilute his

evidence. ._During~..c’ross«e§{amination by learned counsel for
accused P’W.1VO”.has:”de’posed that during the year 2003

or “beginningV_0gof120004, his daughter (Accused No.4 ) did

Tseparate mobile phone. During 2003 and in the

PW.10 was having two mobile phone

con’nectVivoi1sA.:’ The two mobile phones which PW.10 was

0.”4’*..V:”pgosgsessing during 2003 and in the beginning of 2004 were

bearing Nos.98-450 15150 and 98455 70337. The service

00 “provider of both the mobile phones was M/s.Airtel Company

[Bharati Telecom Limited]. PW.lO has deposed all the

M .. ~m. –Em ‘

34

W LAAAAA

members of his family’ via, PWIO. his wife

daughter {Accused No.4} were using mob.ile’V”‘_:phoAn:e

No.98455 70337. We find that

admitted that he had produced ‘the’niobil§..”_pf;Vorie bearing
No.98455 70337 which daughter
(accused No.4}, during’cross’¥’ei;ai*ninVati.on bi/l learned counsel
for accused no.4 has Q6-W attempt to make
it appear that eggiollusively using mobile
phone that it was being used
by a:i’1″t”h’e’ iaffiiiyilzwz PW.lO, his wife PW.12

and accused ‘
PW,__}O_during. exa_m1nat1on–1n~chIef has deposed that

accused I to :were not known to him. However, during

, ‘rcross_–‘e>i;a1:ni’r1ation by the learned counsel for accused no.4,

diefiiosed; that his daughter (accused No.4} had

good nurnber of friends, including her junior college–rnates

it ..and her classmates. On several occasions. they were

‘ ”’_hCon’sL1lting PW. 10 relating to their studies. Accused?’ no.4 and

3:

5/c«.,»<'[-~i. ;

35

.._ 35 _
her college mates were also holding Moot in
the house of PW. 1.0. Accused No.1 had
Moot Court rehearsals. Accused .Lhel:hou:se 1.
of PW.1O on several occasio11sl.l’«.A1:;i1<e tethered
accused No.1 used to No.41.

PW.1O has deposgfi he to have
instrument with him! 11 ?§.oV’.Vlbd”receive calls from
Accused the call or PW10
would give l:NAo..<l, if she was available.
of accused No.1 calling
accuse objectionable. PW.l0 has also

given the"mo'bi.le'V-.phorle"humbcr of Accused No.1 as 98450

FW1OAlh'as——–«deposed that Accused No.4 had sent

1 {SMS} to accused no.1 through mobile

1' phone béégfifig No.98450 17289 belonging to Accused No. 1.

'~ VVNNPTN. 10 has referred the call details found in Ex.P.51, to

_de"p_ose that accused No.4 was Very much attached to

lgdeceased Girish and she had made good number of calls to

him and she had also received good number of callsmfrom the

w… . 5» x t-4'-3€z~\ '

36

W ,_

deceased after 27.10.2003. PW. 10 having refusedwto.’

mobile phone bearing no.98455 70337 during.lex.ami.nat1oij__i ‘

in~chicf, has reluctantly admitted
examination by the learned Public Prospelcutor. ” 0′ 3 it
During cross–examinationaidy. the learned: for
accused no.4, PW10 hasdpeposedit. PWIO
surrendered his mobile 70337 to
the investigating’ letter and also
questioned for which he
had phone bearing 98455
70337. Investigating Officer told

him that his mobile was.–“required to know the messages

‘~ whi._cl’i.h.ad been sent..o.r’received from said mobile phone and

that –vmightttii.ro”w_ light on the investigation of crime. PW. 10

has “deposed: that he was asked by PW3l–the investigating

Officéerx display the inbox and outbox of mobile number

3.)-9s45..5 75337 (.l\/10.10) and he operated MO. 10 and displayed

— ti:-Zebinbox and out box to PW31~ the Investigating Officer.

has deposed: on 26.1.2004, there were no messages

37

W 7777′

either in the inbox or the out box of Mo.

deposed that there were no messages and

outbox of mobile bearing No.9szi55 ‘

and if at all it is stated thatrsuch niessagesoare intthej

said instrument {lVIO.l0], conc’octe’d*.Van.c1:§faloricated.
Thus PW. 10 has pre..é’fi}pt€(lAlt_H}’}é: relying on
the printouts of texts from MO.l.O.
PW. 10 referringlto messages marked
as Exs.P§4h llthgatlthey were not found in
MO. “to:lj4»’Z:”are lcolnlcocted documents.

l*–.I’3V’V.:_l0 that he had an occasion to go
through’ the details of calls and has

pointed out seVeral__errors to show that Exs.P.50 and P51

‘ glareg n.ot»relia”ole documents. PW.]0 has deposed that PW.8

‘–gHernaViafbeautician] had never visited his house either on

date engagement or on the day prior to the date of

it ” engagement: and he does not know who she was. Thus, from

evidence of PW. .10, we find PWIO had made several

in x in r

38

444.4 444.4

attempts to distort the evidence adduced

adduced by the prosecution. As already

declared as hostile witness and he wasylsuli:qje’cAte’dl’t;ox_erossl:’

examination by the learned: _Publi’cA.lProsecutor.:l At

juncture, we deem it necessaryt’e.:lV:refe’r totheldaltesl’onlyvhich
PW. 10 was examined bei’ore tliemtrilal_0ourt. olfi”16’l.Vo6.2o05,
PW.1O was examinedfln4-clhilefll :l3y.~.:,l.lt”l:i-e_’iljlearned Public
Prosecutor. witness and
PWIO was V1*,hcellllearn.ed Public Prosecutor
and pw”‘1’O’ ~l.yc1’oss~;e:{an1ined on 5.9.2005. On

17′.l.20ll06.l._PW.l0l.’l’iuras.:_llero;:s–examined by the learned

counsel for”‘<acCL1SeidAlixlohillland on 30.01.2006, PWIO was

fL1flll€'F~~-CI'OSS~€X8.l'I1lI'1Ed by the learned counsel

"accused;"N:o'.~4. Again on 31.01.2006, PWIO was recalled

an.dll'I'urtihe.rf';'ross–examined by accused No.4» on 31.1.2006.

Thus, w"e.,_fifid that PW.l0 being the father of Accused No.4.

ll lflhlasl"attempted to preempt the prosecution from adducing

' incriininating evidence against: accused. PWl0 has made an

0' "unsuccessful attempt to make it appear that mobile bearing

I?

f\_* f’\,\”.\..4«(:’.,\ 3

39

VVWVIV __

No.98-455 7038′? was not being exclusively used

No.4.

PW.l0 in eXamination–in–:chief”‘ ha.Vir-ig-_’Vmade” a1

categorical statement that he did not7kn’o_w accusedv l’~Eons’=..4.l”*t;o’ ~_

3, PWIO during cross–examinatioTn”by the’1e_a1″n for
the accused has admiti;ed.V_that”Acctised”N o.1 twas acquainted
with accused No.4 and the house
of PW10. messages to
accused nc«’.4 ” participating in the
moot court accused no.4 in house of
PWIO. :z’PW.;_1O hostile to the case of

Pr0SeCut1°Vfi””haVSd¢Pi3’3§d~.–“dthat PW’.8 had never visited his

toflca_st StJ.”Spl.C.iiQI1 on the evidence of PW8, which will

‘be”di.scu’ssed. :in–._the later part of this judgment. Therefore,

We lfindvthuat had changed his version from time to

time not only to distort evidence adduced and yet to be

ad’ciuzceds by the prosecution but also to lay a foundation for

the’ defence. We also find from the evidence of PW. 10 that he

Vdhdvdhas relied upon the contents of Ex.P.5] to show that

3
f\,9 E 1 .9-m v da ‘

40

ii 41 NVWVVV

accused no.4 was frequently contacting deceased through

her mobile. So also. the deceased was frequently

Accused No.4 by making calls to her mobile _

70837. PW. 10 has produced seve1’alpAAdocun1e’nts–: iestablishu

the good character of his daughter aC’CLl.§’ed’ee..NQ.4-,

the good character of accused -.No.4V’1s_ i’elevae.nt’ howdvit

can be pressed into service will discussed the:Vi.ater part
of this judgment.

26. The prosecution to the constant

contacts Wand;.:econiii}Vuoicat’ionsudbetyveen accused no.1 to 4
throughgmobile. by Voice calls and SMS calls,

has relied on they c’onte_nt’s”nof Exs.P45, 47, 48, 49, 50. 51, 52

to sub-ml’ rliings.

:h’e’:”evidence of PWlO, PWIS, PWI4, we find

acc’i1sed’N0s*ji to 4 had made unsuccessful attempts to deny

that were owning and using the mobile phones bearing

4′ =.nun1nbe1’s 98450 17289 [Airtel]. 36940211 (Reliance),

l …_TEi6860795 (Reliance), 98455 70337 [Airtell respectively.

.

e _ ff.-‘
W C”‘if.«~

4i

_ M

28. From the evidence of P.W. I0 and contents of

is proved that accused No.4–Shubha was using b

bearing No.98455 70337. Froniiiiiheliievidlepce’§§:f’–1;a3gV’.2A2o§]

N.E)hanashekaran. it is proved thatll’accuseti.lA.No:.1″‘.i§daslK

possessing and using mobilei’e».:lV:.ph,one
17 289. P.W.22 has adniitted bearing
No.9845O 17 289 [Nokia possessed by
accused No.1;*he same before the
Investigatirilgw along with the covering

letter »

29. As’ .__regard«Sll phone bearing number

36860795 accused No.3, P.W.14~Uttharnprakash

i’fa’t’herl’ of accused No.3} has denied that accused No.3

t’r1eV:l,:~phone bearing No.36860795. PWI4 was

declared ‘hostile witnesses. During cross–examination by

the learned Special Public Prosecutor, PWl4 has admitted

” .AAthat_ffii1is son=i.e., accused No.3 had acquired Reliance mobile

5 .-Q
Qt. .

42

lwlexamined the said A.Ramani.

__ 54.444

phone bearing No.36860795 much against

PW14.

30. P.W.13»Bhaxrani i.e., wife ofjaccused
that her husband had acquired Reliance phlonel”;

bearing No.36860795. In vieiévfiof evidencecif Pwié and V

documentary evidence;’~.;¢fus’alH_loi;l_P:’Wi13 admit that
mobile phone bearing and used by

her husband fiacmised no.3) of.nofc-orlselquence.

31. re1ied”‘on documentary evidence
as per wh’cre.in stated that mobile phone bearing

No.80368$O’?95 VwasAA~–acq–1:tired and possessed by accused

counsel appearing for accused No.3 has

subinittedlfhalii lEx.P48 is not an electronic record and it was

notlgcnvesrated by a computer and that EXP48 is said to have
beenppissued by an Officer namely A.Rarnani on behalf of

AAl\./E1/blsiRe1iance Infocomin Ltd. The prosecution has not

On the other hand. the

R? .\w \, xx .

43

l

e44″

prosecution has reiied on the evidence of P..W.2_£4.–._L1t3yd..p

Noronha. Therefore, prosecution has fai1ed__p’to._prove the

contents of Ex.P.48. p p p p p

33. P.W.24 wa.s working as the hHea’d’A. of
Sales a.s also as Co–ordineaVt:or r§r*– hegal
Enforcement Agencies /olnfocornrn from
October 2004. Prior to working in the
said post. A. company from
October 2004 given evidence in
proof o’f__Acor1t.eAnVt’s».of._ ‘ -t

on 08.01.2004 there was a

reqiiest from Viveknagar Police Station to provide the details

V:’orV.:f:ob_i’1.fé_ phones bearing Nos.08036860795, 08036940211

and the same was provided to Viveknagar

Police byflzifs predecessor viz., A.Ra.mani. P.W.24–Naronha

:_”‘haVd_ succeeded A.Ramani. PW24 has given evidence with

*r_e1’eref11ce to the contents of Ex.P48. Therefore, P.W.24 was a

-»v.c–ompeten_t witness to depose about the contents of Ex.P48.

P.W.24~ has deposed that as per Ex.P48, mobile phone

f\2 Ex w

44

_. _.

bearing No.08036860795 was activated on 3Q§vo~a§:;o.Q’31’

postspaid connection. After 18.10.2004

pre–paid connection and this ll
name of Binakaran BU; {accused noV..,l.’v3J,.
Ramamu rthynagar Main 0 a» 0′ ~ .1
Bangalore–43. Accus’e.d the said
address. Above all. T.B., father of
Accused no and possession of

said mobile gahorivellby V

‘contents of Ex.P48 relating t.o
mobile plfione llbelaririgii?-lo.08036940211 has deposed that

this 00 mobile’ phone started as post–paid connection on

After 18.10.2004 it was shifted as a pre–paid

._ “c}3_nne’ct:io_n’.:;an.d it stands in the name of Anandan C.,

N”a.23_3; Agiipajappa Building, M.S.Nagar 19.0., Naganapalya,

as B_angalore–560 043. P.W.l7′–Anandan {father of accused

0 ‘”._llNo.’l2] has denied to have acquired the mobile phone bearing

No.0803(-3940211. PW17 was declared as hostile witness.

During cross–examination by the learned Public Prosecutor

45

_ 45 _
PWI7 has admitted that he had received
the mobile phone bearing no.0803694022.],jfl:E§?i;g?;;g;l.’_
deposed with reference to
already been produced by; his v4«predecess,o:.’.lA.ind’
Therefore, the contention of aclcttisied No.2′ ~th’atllNo.2
was not holding the meme Ne.080é.46940211

cannot be accepted.

P.W.24 phone bearing
No.0803891§3..02:§i0_,has the said mobile was
started; as ‘ p,ostt~’pa:id_conn.ection on 08.01.2003. After

01.08.2004; the dsalillpl eehheetton has been barred. The

connjection stood’ in: the name of Lakshmi, No.584,

11 Cross, Nagamma Road, Reddy Layout,

34. The learned counsel for accused Nos.2 and 3 have

fotinti teen with the Investigating Officer for not seizing the

— ttnobille phones held and possessed by accused no.2 and 3.

“Mobile phone bearing No.08036860795 was possessed and

.3
KVVV FL \.’rr./ 4.;

46

-47-

used by accused No.3 and mobile phone bearing

No.0803694021l was possessed and used by accusjed:.fN.oZ’2′.

The defence has not established the conseque–nces_iofhidnorls:A ‘

seizure of the aforestated mobile phones on

prosecution.

35. In View of the above””d.iscussioI1._ ‘hold that
prosecution has proved: that ..r11onths of October,
November and December was the

possessor and~’user.’ of No.98450l7289.

accused No.2. and user of mobile phone
bearing No,0i8O3V69.%¥Cl2lall-.accused No.3 was the possessor

and._§:ppuuse.r of “:n.Qi§:1e phone bearing No.O8036860″/5 and

‘.Aaccduse_d VANo.4A4awas the possessor and user of mobile phone

The service provider of mobile

pho’nes~–.f.h’el’d and used by accused Nos.1 and 4 was

it M/s.Airte1 and service provider of mobile phone held and

by accused Nos.2 and 3 was M/s.ReIiang_e lnfocomm

ism’ N ale ~ e »~rV»»

47

W IAAAAAA

36. The call details of mobile phone bearing

No.98450l7289 belonging to accused No.1. n.1obile’*n:lf1–on–e’

bearing No.0803694021l belonging to accused l§ue.2.. i-

phone bearing No.O8036860795 bel_ong_i_ng iesaeeaaeei

and the mobile phone bearing

accused No.4 are produced”l]:jy.V..the”vpi0secu:ti¢:;~…_as «Viper –. A’

EXs.P49, P50 and P51.

37. Sri.C.V.Nagesh, learned Senioru appearing for

Accused No.4, Sri.H.CV.l1’anuinaiah_, leafned counsel for

Accused No.1, lSsi’:T4.l3’rak.asia_, ‘learned counsel for Accused
No.2 and Siii.Amaf~ C’ofrea.;”‘~1eai’ned counsel for Accused No.3

haVe sei”i-ausly di.si1:$ultedv’the admissibility and authenticity of

V1oills.llcal’lK:history sheets marked as Exs.P.-49, 13.50 and 13.51.

col’uii’sel have contended that these documents

are demofn’si;r~ably concocted documents. The learned counsel

Tier .Accu’s–ed Nos.l to 4 have made following submissions:

.The documents have not been proved in the

. we
rnanner required by law. 5 : 5

48

II.

III.

IMEZI numbers.

__ _

Some of the entries in the phone bills indicate

both the called number and calling number are

one and the same.

PWs.24 and 25 who have

prove these documents; are not competent

give evidence in proof ofdtljlxe entries_IorLind1vin

these documents-:;: in the called
numbers have been 10 14D

and numbers::’whic,_h have never be

terrned as; ;,11.eV’mobi1e~–.co~r1nectior1 numbers. The

summary of and SMS calls bears

“‘”IM.I33I NumV_be’rs”v’Which do not correspond to

V’ rn’obi1e”‘..riumbers from which the calls had
Vidorig’inVatedr’:Which are otherwise termed as called

numbe1’s. From the evidence of PW33 the

defence has demonstrated the inaccuracy of

if} I
5&5» v L Cfgtx (

49

the corresponding columns.

50

IV. These statements of Voice calls and SMS

have not been certified in the I’r1a1″iI”ier’.i”<'f.'dC:;''L1:i.1'E:A(Vf'1.'~. "

by law. l d

In call history sheets,»_»of
double entries of the W
numbers. . d it i

38. The learned drawing our
attention to of voice calls
and SMS in mentioning of
last digit oft -of no consequence. If IMEI
number 14 digits, that would depict

theygcoriect stateuolf affairs. The learned Public Prosecutor

in the computer generated statements, in

“‘som_ccp’ia”cs:s iii-t,he columns meant. for call numbers, tower

n11rhber_s ‘are’ recorded. However, the discrepancies have to

‘begs ignored in View of the accurate recording of ll\/{El numbers

The learned Public

….l?*r0seCut.or would submit. that the double entries contained

in the statements cannot be a ground to Areject the

f\:’ _ K. Cite:

5%)

f
if
/\ g

_ _

authenticity and correctness of the state1nents;”‘The
Public Prosecutor would further V
Ex.P5l have been proved in ° V

39. Before advertirlg to,’t11′? Suififllllissiopacs
learned counsel for the partie’s;:it state the
fact that accused no; andlbusver of mobile
nurriber 9845o_ 172e9VV'(g§.ji:eiVj’__’i1;:§is by PW.22
Dhanashekaraifi;.i:i:.{fath_eriioij and it is also

evident fi’omj_2t11eV.’contenftsz:of:-the letter marked as Ex.P.44

which PW2? “Investigating Officer at the time of
SU.I’I’€I1’d’€I”‘lI”1g tlhell’ V phone bearing number 98450

1p7_’f2’89u.. The evisdevnceiof PWIO and the letter given by PW.lO

would make it explicitly clear that Accused

._ l’4Io,4’v»..¥as_ 1heV”user and possessor of mobile phone bearing

N’o.98._455:’l70337 [Air Tel). Accused No.3 {Dinesh} had

.. a_cquir–e¢d and he was the user and possessor of mobile phone

ll ‘~_lbc-aring No.368607’95 (Reliance infocomrn]. From the

evidence of PW.24, it is clear that Accused No.2 was the user

and possessor of mobile bearing No.369-402151 (Reliance 5
i” f’

7\\_.!, lik V “‘” (£f’~ ”

_. 5 2 A
infocornm}. Therefore, the identity of persons calling

persons called has been established.

40. Now, adverting to the subrrii’ssionlA.rnar1~é:lbyathe
Counsel for the accused, we hold the
proved the contents of ‘reqtrirecl by law
for the reasons stated

41. At the relevant Naronha was

working as ;thle’e1._Head._ of lViar”l:eti*ng._and Sales as also as

Coorc§Vinatoo1>..:%§’g7r Legallllfinforcement Agency (SLEA}
of s.Reliarioe”f Limited at Bangalore. PW.25

Stanley Alg”neV_lo was \5vorl”{ing as the Assistant Manager, Nodal

of. Ml/s’.Airtel (Bharathi Telecorn Limited} at

*’:”l3Ta1:gal.ore.4.”i’fiiherefore, PWs.24 and 25 could be termed as

llpersons.”vloii:et1pying responsible official positions of the

naanagement of relevant activities in terms of Section 635(8)

A of the Indian Evidence Act. PW.2-4: has given the

lgcertificate as per Ex.P.5O in relation to the print outs of call

data record of mobile phone bearing No.36860795 belonging

A

M M

to Accused No.3 Dinesh @ Dinakaran, call
relating to mobile phone bearing No.3694021
lVIr.Anandan [Father of Accused :’i\lo.’2}. it
possessed and used by Accused
call data records belonging to “Acctised A’

No.3). The certificate iS:~’ii1 confoi’In_it_v’with tlievvprovisions of

” Section 65 (B) (4) of the Act. It is in the

evidence of thatgthel sa¥id_jR«arn_ani left his services
with Reliance “[i<1Vfo:c.o'inrri«,:_Wealso that EX.P.50 is signed
by PV\f.V2h2l}V bear the signatures of
Sri.A.Ratnani§ oredecessor in the office of

PW.2»_<1~. Tiie "said._ f«.–r.l;{a;1'nani had left his services with

M,.f:$':'iReliVanrce Ini'o'co..t_ni-'n, we hold that PW.24 who was the

A successor office was competent to give evidence and there

arelno valid'j_re'asons to discard his evidence.

"At; the relevant time, PW.25 Stanley Agnelo was

it vvcrkfling as the Assistant Manager and Nodal Officer of

« .._..ii/I/s.Airtel [Bharathi Telecom Ltd.) at Bangalore. PW25 has

furnished the call data extracts of mobile phone bearing
é 'L xi, X *«–é')V.Z;'j.\ *

53

54

No.98455 70337{possessed and used by 3

mobile phone bearing No.9845O 17289 [possessed and Q

by Accused No.1]. PW25 has furnisiheddtiie S.umrnaiy_ ofcali”.

details of these numbers. PW25 has certified ca1iv_:datai~ ~.

Ex.P.51 by issuing certificate i33;»f:d.i7?.Vé3_’.;_3.VV«V’i’fhereiore,
the competency of PVV.,.25 Q16 E31-1 gummary
statements and call questioned.

PW.25 has deposed the stored in the
server and tfrie ibiadcd through computers
for gfhteretfore, we hold that the
prosecutionxdocuments in terms of Section

65 {B}

(4) of the ‘IndianA ‘¥_3yid’ence Act.

“;;:3._ decision reported in 2005(3) Crimes 87{SC) [State

Ai'(3\_F.C_,:’f Vs. Navjot Sandhu @ Afsan Guru} at

paragraph the Supreme Court considering provisions of

vVL.’Section’8:3 and 65 of the Evidence Act, has held:

“According to Section 63, secondary
evidence means and includes, among other

things, “copies made from the original _by

54

L

W LLL£L4J

mechanical processes which in thernselvesl ” A’
ensures the accuracy of the copy, and Who’ll
compared with such copies”….. Secjtioril ”
enables secondary evidence the of
a document to be adduced if the do-riginalVi_sA ‘
such a nature as not to ~bge”~easilyV’ m_ovaljl’e.
is not in dispute that’-..the._p information?
contained in the recordsv”is._Vstorepd in huge
servers which cannot and
produced’ in the vi?hatlV’the High
Court’_hi.as olfiserlveld at para”2’7’6. Hence,
printo_utsrl computers / servers
process’ certified by a
re_sponsil)lleff the service providing

Company can”l.§e.. evidence through a

_-witnes”s._who7′ can identify the signatures of

certif5/ilngv~-cffi’cer or otherwise speak to the

Eact.s’4.Db’a_sed on his personal knowledge.

of the compliance of the

requirements of Section 6513 Which is a

provision dealing with admissibility of

electronic records, there is no bar to

adducing secondary evidence under the other

provisions of the Evidence Act, namely

Sections 63 (‘SI 65. It may be thatnthe
iv. ‘\ (:ur«a–»l

55

W W

certificate containing the details in s_u’b’–‘ » A’
Section (4) of Section 65B is not fi1ed.Vi_n”‘-1;he it
instant case, but that does.-tr1o~t-rne7an ‘V
secondary evidence cannot Vbe gi\»*ei1 «event if
the law permits such ejr-‘ic1_ence”‘tQ”‘t3e giveh 2
the circumstances mentio:o§e–r:l in xtiiehtrelehxraritétvttt
provisions, namely Section.s:’t33 6539
Therefore, we hoI_d~~..Atha_t thee’-.§1oc’ur11ents marked as
Exs.P.49, 50 and 51 have iri~.ba(.:cordance with

law.

44. notice: statements that there are

double entriesh and’ int s.orne’..’i’of the entries called number and

calliiig nU.:x1bers” are_____repeated. However, this cannot be a

gr;o’t:nVd that the entire sheet down loaded from a

computer arifihiaccurate document.

.q 45. Ir1the’case of State 1.). Mohd. Afzal and others, reported

it 2o_o4′(i) Crimes 227 in paragraph 295, the Delhi High

.’ has he1d:–

2″‘:

go (:=/L-L_”L M (“E/’\ .

56

..,_referring’ to an expert evidence has held:– ‘”

_ u.

“295. The technical flaw whereby on i”our___
occasions double, entries have been recorded
explainable, in that, they are double
pertaining to the called and caller nuiitibersi;
Even otherwise as held in Ana»Marco1i-no’ _
the rhalfunction is not S1lfLflCl;¢I’1t:t,v,(‘)’C:.’a”E’}f[>
upon the capacity of the cor1’1pu’ter tolpgroeessl
information correctly. llltfidoes
any way that the capacity”-_of -the c’onip’uter} to
process, store an:d”‘~retr:T:eyetir1forrr1~ation to
generate the staternent. * * ._evidence,

was effectfléiqll, = ‘ ‘V

The -the accused referring to the
evidence of’ PW33 the call history sheets have

contended that there are discrepancies in the IMEI numbers.

scrutiny of the IMEI numbers, we find that the

the corresponding mobile numbers have

been accurately mentioned in the call data records. A

‘Division—l3ench of Delhi High Court in the case of State Vs.

” ‘Mohct. Afzal & Ors. [reported in 2004 (1) Crimes 227) while

5’
:

7 A}
,v’\..?, m. ‘

57

W58″

“92. PW–7’8, Manjula Kapur, Manager
from Seimens deposed that IMEI number
15 digit. number, the first six digits
approval code which represent the man*;i:f:act,L1:rei:lll
of the handset. The next. __two
assembly code which represent:.the Ii1odel;~–. l
next six digits are serial nurnber.of theglV1fiandset’:\\\\],.,
according to GSM spec_vil’ication”

14 digits are significant.,::a1?iid the ~ digit
according to couild be
transmitted by as zero.

Literature V_perta’iniI’1g: V specification

relevant to the code was
lEX;’PW’–7’8/’ill’ ggjlvgitness was not cross–

exan_1inedf” _ it A

Vvlearned..senvior counsel appearing for Accused No.4

‘ twouldv_sub1riit.__t.hat in Mohd. Afzai’s case, an expert was

‘e§§an1ineelV.;’p:therefore, what has been stated therein is not

applicable to the facts of the present case which we are not

, “persuaded to accept for the following reasons.

The Delhi High Court with the aid of expert opinion
has stated ll\/IE1 numbers are provided by the manufacturer

l\¥. W. 5}’ ‘””‘[€”‘ ‘

58

A _

of the instruments and that identification of theginstrn_rncntV,

by the first 14 digits of IMEI numbers is suffi_cie’nL. ‘ in

In the case on hand, we find:=.AthatAC1iscrefi+aneie’s’i.nV

IMEI numbers relate to the’ last andeV»tVh:ere are

discrepancies in the first 14 instrument
could be identified. evidence
relied upon by the proseciitiorithvtarrd been stated in
the decision pointed by

the learned’ _se1.1io_:7 co’uns’ei.’:for*a.ccu’sed no.4 cannot be taken

into consideration; _» it ‘ n 0’

46. The 0i’earned’V–_ co_nrt~se1 for accused relying on the

of I5W3’3—«”haVe contended that there are

the description of IMEI No. of mobile

bearing Ne’;9ee2155 70337 [M.O.10] and IMEI No. of mobile

5 beariiigtl’-..io.v98450 17289 [M.O. 13).

PW33 has given IMEI number of M.o.10 as

_,._3§50991605847686 and IMEI No. of M.O.13 as

350607601965518.

5 9

{K x’ «W f3_«~L 9

__ LAAALLA

We notice discrepancies are only with reference to last

digit out of 15 digits, constituting IMEI number.

48. In the discussion made supra, we have held variati.o’n_ ‘ .

in the last digit of IMEI numbers_C.an_not_–be”a:’_grotind

discredit identification of instrument an’d..vve’h_ave”also—T:1e’ih¢:l’

that IMEI numbers can be ‘C«Q.1’1SiCl€:I’€xd Vas~’V:laC:Curate3 by

comparing 14 digits. We have cross–clj1eckied:llViEI Vfnumbers
deposed by PW33 and find that

discrepancies are onlyvwitbfreference”.to”‘-last digit of IMEI

numbers. ._ Therefore’,’t psubinissilon of learned counsel for
accused cannot be accepted.’

49._{ l\’?\r’e. deem ..itlnece’ssary to state that mobiie connection

number would be registered and given by

Where as IMEI number is provided by

the””–.man’ufacturer of instrument. The instrument can be

repiaced—,”howe\rer, the mobile connection number and SIM

. l cannot be altered or varied without

..-consen’£/permission of service providing company. The

identity of calling person and called persons are established

V 4

60

VIIIWVV 61 _
by the mobile connection number and SIM numbers

registered and giver] by service provider. Above a’i1..,””»the

defence has no case that at the relevant time, accus_ed_’_1i’CJ1″

to 4 were dispossessed or had lost their mobiléjdé and: b

they were used by some other persc-Ins. ‘

50. The learned Senior couri-sel for accus’edVv.;N–o..V4has –. L’

contended that the outgoing cae1_1_stVV_f;?orx1.amobhile bearing
No.9845570337 and V inxcomingie’ :c:;i–1.%;; to mobile phone

11098455 70337.{posse:ssed. and us_ed..Vbye”‘a.ccused No.4] are

not fou__I1d, to mobile phone bearing
No.9845C) 17289 {Vpossessjediettand used by accused No.1]. It is

alsoyegjcontended in some of entries in biii relating to

vimobtiie No.98455 70337 calling number and called

“‘;1ur”r__iber’va1’e_shown as one and the same.

51.”«. 111.__”ttre«:”‘bil1 relating to mobiie bearing No.984.~5017289,

‘thee outgoing calls are recorded. As it was a prepaid
. ‘ ‘e_onnection, incoming calls are not recorded. With regard to

….second submission, we notice in some of the entries in the

« A’
i/x.-‘1 ~ ‘}»..,

61

62

bill marked at Ex.P49, the called nun1be_t*;”””acolr..i*V-.._jcalli_1ig

number are recorded as one and the same, It..i_s’~neces«sary”t0.

state that the mobile phone 0

mobile phone bearing No.9’8.{150 001010

P.W.10 and he was the regisit=e_red_p lilfhe service
provider of both moL$ile.. M/s.Airtel
Company. Therefore: a(2.c.5q;§;~t:bt_l_’..bearing No.105c
100000652 bearing numbers
9845570307 allotted to P.W.10.

entries wherein mobile
phcntg ificattngx’:’.”1§Qg;0_§34t§a70337 and 9845001510 are

recorded was a*_co’mp0site bill. PWIO has not deposed

heiwas rccciv-mg’ separate bills relating to mobile phone
‘ and 98450 01510. In the circumstances,

of the learned counsel for the accused that

the indicates the same called number and calling

” Vnuinber cannot be accepted.

Now, we advert, to the evidence adduced by the

prosecution in proof of motive put forth by the prosecution.

mt x….. t”– “-

-‘”– A 51

_ W

The prosecution has placed reliance on evidence…of..__I?}W:8~

Herna. who at the relevant time was _a.__b’eaVut:i(:i.a11 ‘bye

occupation. She is a resident
house is situate at a short distancelfrholin toll” s
Venkatesh. g p it V

53. P.W.8 has deposed; residVent”oi’ H Stage,
Banashankari, Bangalore: beautician by
occupation ui{1’1OWT1 to her. On

29. 1 .h’ad:§fisited the house of P.W.10
to apply . artistic impressions of crimson
red colour to applied Mehandi to palms of

a(;(:_§Lised No.4′.A.AtV’the: time, accused No.4 hugged PW8 and

that she was not willing to marry B.V.Girish and

;’8 to inform the same to her father [P.W. 10] to

stop the -nfiarriage engagement. Accused No.4 told P.W.8

that even after the marriage engagement also she would

it ‘~_Ve’lop’e with accused No.1 {her lover}. P.W.8 informed the

.—-r11attei’ to P.W.9–Urna Shashi [junior maternal aunt of

accused No.4]. P.W.9 told P.W.8 that the marriage
JD. .[.’-»”v~£ P»

63

AAAAA4 M

engagement has been fixed, at this juncture, if

of accused no.4 is made known. to others. of the K

family would be spoiled. PW9 told to ‘keep

P.W.8 has deposed loft”

marriage engagement} at abouyt…?.V.AO.0 she.had_y*isited the
house of P.W.1O t.o when PW8 was
beautifying accused P.W.8 that if
B.V.Girish§.vtr;sr§; died, the marriage
engagemenf;~.3g;’oulgl lltccused No.4 also told
that No.1 {her lover} and that

people «from side .– No.1 would help her. On

05._;i’2.2o03 \}iz.._._,wtwo’ days after the deat.h of B.V.Girish,

‘P.,llV’.SV.b’had:{Iisited the house of P.W.1O and told accused No.4

by accused No.4 B.V.Girish had died.

Aceusved “No.4 retorted that she had escaped from the

hi = marriagse and she could be happy for two years.

P.W.8 was subjected to extensive cross~exarr1ination.

The basic infirmities with which evidence of P.W.8 sought;

()4

.. ;t~m~z@»» –

._, ._,

to be discredited are:– the inordinate delay in recording the
statement of P.W.8. P.W.8. who had the vital inforination

did not inform the same to the parents of

B.V.Girish so also to the Investigating she:

had met the Investigating Officer {evq age’:-‘
occurrence of the incident. ‘ i t
It was also suggested to that “she”xvas very much

acquainted with given false

evidence at the instancewof1?.V1iT}’6l.’v It..~vvas.:’Vsluggested to P.W.8

that :?visited_V.”the of P.W.1O for applying

Mehandi it on and also on 30.11.2003 for

beautifying “ac’cuse’v-._:i

..1_learned~——seni0r counsel for accused No.4 would

was a planted witness. P.W.8 admits that

lshehhad information relating to murder of deceased

B.V.Girish. Even then she had kept quiet 1111 14.01.2004 on

day her statement was recorded by the investigating

‘Officer, her silence from 29.11.2003 till 14.01.2004 casts

‘ serious doubt on veracity of her evidence. The Investigating
11

: I ,
N. e1/$31. 0, (ix…-x..

‘AA_lflJ …

Officer had not given any reasons for the inordinate

recording the statement” of P.W.8 under if

55. In order to appreciate the
necessary to state that there is’ reccard
that P.W.8 was close to P.W.6–\fer1Vl:V§pateVsh.f” saine time.

it is difficult to concei”vhj:f.e€._:.”:’–tha–l_t:f “who was
aged about 67 years, had planted PW8

to prove juncture, it is
necessary td No.4~Shubha
was not The Investigating Officer
had theflfirgsti indicated that deceased

B.V.pC;;irish was assaulted by an unknown assailant. The

assailant and the persons involved in the

A”cri1«rieyfA ascertained. In fact, Shubha was

arrayed as accused No.4 on 25.01.2004, on which day she

0. h :.”v.{as arrested by the Investigating Officer.

°:The learned senior counsel for accused No.4 has

-~strenuous1y contended that P.W.8 has admitted that she had

53
R.’ -‘”\. [LN ¥(“{Z”‘

66

67

vital information relating to commission of murder of

deceased B.V.Gi1’ish. Therefore she had concea;Ie’d..:”vital

information almost for a period of one month ‘

from the date of occurrence. Therefo~re. PiW8fiis.–V.Va planted

witness.

From the evidence of P.u’W.8; we t–‘:ilat.’:’PW8 has
admitted that she vital_ i’infor’mationv”relating to
commission of murder of’7 However,

neither the flCi”; the'”d’efence had questioned

P.W.8 about £i;§’.:xi1;_é1V.mi*. c:£:L’\ tax. F’

67

L ‘WC.’-

‘A233.

J\’

fmurder case.

._ ._

deceased B.V.Girish and it was the wishf’uc;i””thiillnngll”of

accused No.4 that if deceased B.V.Girish hadV_Aldried’rA–h’efoIethe
date of engagement, the engageinientllWouldl_haVe..’stoltgped. l

Accused No.4 had told P.W».l8_thatshe’-woulcdiv-tun

accused No.1 even after the these
utterances, P.W.8 could. that deceased
B.V.Girish was done P.W.8 had
developed susnlicion :t.Q1’1g what she had
heard

in locality where accused
No.4 with accused No.4 and

was one avndifithe’ “same. She was neither a friend of

iv-‘iXl\:«~’.(-:,fA..c:1r1g;«rAshelllWas*’iVnimical towards accused No.4. PW8 is

dli’s’int’ere:3ted witness. In the circumstances. it is natural that

.l\.VaS_ hesitant to reveal to the lnvestigating Officer

wha~t’elver the information she had. It is not uncommon for a

3” VVdi’si.nterested Witness to be hesitant to become a Witness in a

We also see from the records that the

investigation had gained momentum after arrest oi’ accused

‘\.

f\.¥ , Kfljl. ‘\ F’ _”‘

68

,4

_.70__

the part of the investigating Officer in recording her
statement under section 161 Cr.P.C., cannot be a

discard her evidence.

58. The defence has made uésisuccessiiul
disprove that P.W.8 had not
29.11.2003 and 30.11.2003′. ci.é1’en¢e…Vrigiéfiérieéi ontdh
evidence of P.W.9~Unia,_Shassh’i rnaternali aunt of
accused No.4} and accused No.4.

PW10 was dec_1ared~ as V’

59. In the supra, we have held PW10 has

deposed as”if he _\s2’vviere-._0a’~vvitness for defence though he was

extéirrxinied as a for the prosecution. Therefore, the

the defence to discredit the evidence of

basis of evidence of P.W.10 cannot be

‘q_ councenanced.

0′ P.W.9 is the junior maternal aunt of accused No.4.

= has deposed that P.W.8 had not visited the house of

P.W.10 either on 29.11.2003 or 30.11.2003. PWQ being the
5} ii

70

__ M

junior maternal aunt of accused No.4 has shown her
inclination to tilt the balance in favour of accu.sjed:’:No.._4.
Thus, from the testimonies of PW9 and PW1O _
interested in accused No.4, it it”

evidence of P.W.8.

61. We find from evidence oi*P:.W .1 1–Si1ee’tha=l to it
some extent, her evidence lends’ coricééorationvto evidence of
P.W.8. At the relevant time, ‘student and her

father Dr. M.Raj.agopal_, doctor in Malya

Hospital. ._ I—Iertt’house wags’-sitiiate at II Stage, Banashankari,
Banga1ore.”PW’1 in to accused No.4. Both of them

were “c’t1I.<31'1C1'V1I'1g g'm'{,1s1£:' classes. P.W.l1 has deposed that

thVe'~.t_naid servant of PW.1O by name Kamala, PW. 11

A camel the marriage engagement of accused No.4

vv1'th _B.'V..GiArish was held on 30.11.2003. P.W.11

Acongratulated accused No.4 for her marriage engagement

v.r.ith.–'B.V.Girish over phone. At that time, accused No.4 told

___¥5.W.11 that. she was not interested in marriage. During

cross–ex.a1n1nation, the defence has made an attempt to

"E I:

7%

IVWWVV 72 _.

establish that P.W.11 was not a friend of accused Notsiéiddand

there was no maid servant by name Karnaia wo_r;ki’r1g’in: the

residence of P.W.10. P.W.11 and accused

met each other. In any event, P.W.f_1] wasjnot

of accused No.4, to whom acicsised cou1Vt:1ITgi.\V?’e

mind. The defence has founduuiault withathe–V-Inyelstigating

Officer for the delay in P”.x\/V. 1 1.

Before app_1’eciatin’g”‘ ‘tiieV’&cont_entions raised for accused

No.4 to discredit eviderace of it is necessary to

state at the relexiandtrperiod..__P«.W.11 was a student and she
was unn1a.rried. ‘She.:’1s.V.daughter of a doctor. In the

circu§rnst.ances;” there was no reason for P.W.11 either to be

the family of deceased B.V.Girish or to bear i1l~

No.4, though the family members of

deo”ease.d ‘Bn.V;Girish were known to the parents of P.W.11_.

:”‘.?Vhen ‘accused No.4 told P.W.11 that she was not interested
‘.1_n*»r.=iarry1ng deceased B.V.G1r1sh, PW.11 could have hardly

d …_thought that deceased B.V.Girish would be done to death for

such a motive. P.W.1 1 had not sprung from a tainted source
1″‘:

r\..} g, K.

.{J’%. x xi fig”.

M \L£L_AL_l

and she had no motives to falsely implicate

much less she had interest; in the success_o_f _Ap–rose1cution’.”

Therefore, we accept the evidence

62. The prosecution has relied on ti1elleViden,.ce.of

Pramod Dikshith to prove thelvlintexital oiliaccused
No.4 towards deceased college.

mate of accused No.4 in PUC.

P.W.23 was a” frtiendlpf PW.23 was

Contacting £iccLised”VNo.4″‘o:ver <p110ri,e 'and was also sending

SMS her. _ basis of such intimacy, the
investigating Officerhad l:s"L1"hjected PW23 to interrogation to

rule out the possibilitylof his involvement in commission of

murder deceased B.V.Girish.

deposed that he had spoken to accused

No.4..__pri_or* the date of her marriage engagement. PW23

‘ “came to»k_li’1ow from accused No.4 that she was not liking the
l of deceased B.V.Girish. Accused No.4 did not like
low profile life of deceased B.V.Girish as he did not like to

73

W ._

visit star restaurants / hotels, whereas accused Nq’;4″exjp.e’cted

the life style of high profile and expected.

B.V.Girish to visit top restaurants andbstar hot~¢_1s..:

No.4 had also a feeling that she was married at alveiy a

young age. P.W.23 deposed his *Co’hv;ers.ation with
accused No.4 he came .svh~e.wasH’r1otv satisfied
with her marriage engagement.’ it N N

During it has been
elicited accused No.4 and her
family PW23 had visited the
house accused No.4. In fact P.W.23

had re_ceived~» nviesysages {Ell/IS] from accused No.4 and also

‘3″~._sentj}’nicssa.gAes {Sl\/iS–l–«’to her. PM/.23 had sent e–mails to

L>;W.”lO” used to address the parents of accused No.4

as uncle antl_ aunty. The learned senior counsel for accused

No.4 liad; confronted to PW23 the e–mails as per Ex.D.42 to

A which P.W.23 had sent to P.W.10. PW23 has

it admitted the contents of Ex.D.42 to EX.D.51. In the

circumstances, it is hardly possible to accept that P.W.23

. A,
i\», us. r-~~t’*’»*~

74

W W

had grudge against accused No.4 to falsely:”‘de.p’os:el§’

accused No.4 was not willing to marry deceailsedl :.lB:;V,Gifri’shf

and accused No.4 was not happy’ her’–.Vniiarr;iage ‘

engagement. Therefore, we _ho1dl’–thlat evid,eVnc.e’ of

lends corroboration to eVidenc’e:o’f P.W.8″

63. The learned serijiorfl accused No.4
has submitted that the involvement
of the of PW23 had been.

subjected?tollfi_r1tei’rlogatio’nrby :thelv.:lnx-estigatin.g Officer. PW23
was very of his bein.g implicated in the
crime continued till PW.23 was

exa;n1’ined as”*a_V_l_w4itness before the Court. infact, PW.23 has

«volttntatfrilvikdeposed as “The Damocles sword of me being

A ._IU;ggedvlii1to thve:”case till this day was hanging on my neck”.

‘W.e’vfi’nd from the evidence of PW.23 an.d also from the

records during initial stage of investigation, the Investigating

l”‘._lOf1″‘icer having noticed the close friendship between PW.23

“and Accused No.4 and their frequent contacts over mobile
/””=,

J 5 ‘ 2?

r\?; 1″ [fix \. ~ (‘1 f’\’

75

V777V VTTTV

phones both by Voice calls and SMS calls

PW23 to interrogation. However. from th6lj”‘§vidE~ncel V’

PW23, it is explicit that he had notglilxlzeriev’idenc.e:’i§efore7the:

Court. under the threats of Police. .circtiIvnstan’ces:.ithe’~_

interrogation of PW.23 the initiai: of

investigation and the.__ s’usApi’cio.n; lllV”cntertainedV: by the
Investigating Officer pf Pw.23 in the
crime cannot VVh’is’i«e1\iidence. We also
find from the aiter the incident. he
had Visited .1aOll’t’o”‘console them for what had
happen’ed.l’ l_)ni’i.1iéfil’4″(ioniésLegit”Jcrossexainination, the learned

senior counsel ‘a.ppeari.ng.for accused No.4 had confronted to

certain e;n1’ai].s.«imarked as EX.D.42 to Ex.D.51} sent

‘b§lrl1O several days after the incident. In the

cii*curnsvtant:es.1;vlit is not possible to hold that PW.23 had

€11I]1ait’_V;aOI’ grudge against Accused No.4 to depose that

it Aclcuisedl No.4 was not interested or liking the life style of

deceased Girish and she had felt that she was getting

married at a young age. Therefore. the submission of

pg M [2~..s.’-(.’f 3..

76

_ 77 _.

learned counsel for accused no.4 that PW23 is not a

trustworthy witness cannot be accepted.

64. The conduct of accused Nos.1 to 4 on

30.11.2003, would lend substa’ntial«. &_c’orrobol’a_tion..’.t

evidence of PWs.8, 11 and 23. VOn of thedA.suII:.1na:i’y..AVof ._

calls exchanged between accus’ed”Nos. that not

only on the date of engagement;”but’~als-O since’few..days prior
to the date of engagement, ” e.t.he»re ‘Were numerous calls

between accused:AN-os.3§_’andA4;andfaccuse.d” Nos.1 and 4. The

summary of calld_e:ta.ils.dV.;i’s….fo11r1d in EX.P.49 and Ex.P.51 is
extracted Vvt’.hu.s:a A

4; ‘ ‘”l’»1ote:l _ _
A A1′ .Accused…N.o’. 1; A3 -‘-“= Accused No.3

A A A _;Ac:cu_sed No.2: A4 4” Accused No.4
A of Accused No.1 : 9845017289
Nos. of Accused No.2 = 36940211
A l\v/lobile Nos. of Accused No.3 = 36860795

Mobile Nos. of Accused No.4 fl 9845570337’

,-.

1′

5\a . 4. –

77

_. _.

Summary of calis between A3 and A4 from -4
25.11.2003 to 30.11.2003 ‘

81. Out oin lncomin 1 . Court-Exhi1b.it

N0. gfgom To Q Call type Date .T1m_e

1 A3 A4 Voicecall 25.11.21.f103?.”‘9.04’P.M… .Ex11.P;43(3)(b)’*
2 A3 A4 Voice can 25.11.2003 – 3.13.P.111…1 ‘Ex-211.P.49(3.)(11)
3 A3 A4 Voice call 25.’1-41.20031 ._€-1.1.7P.._M’;*._””~»wEx}1.P.49(6)(b)
4 A3 A4 Voice can 25.11.2003 9..13″P.’M. Exh.P.49(6)(b)
5 A3 A4 Voicegail 25.1 3.23 Exh.P.49(6)(b)
3 A3 A4 Voic0.._0a’| 25.132003… ‘-9.23 P.M. Exh.P.49(6)(b)
7 A3 A4 Voice ca11;” 25.171.»20Q32’-.1″»..9;’28PM Exh.P.49(6)(b)
3 A3 A4 V0ice.ca!.!_’=.25.~11.».2003t P.M. Exh.P.49(6)(b)
3 A3 A4.fi;W.%1./015111ca1gWl.[‘..«25~..11.20030 ‘+3.40 P.M. Exh.P.49(6)(b)
10 A3 A43, ;’3[‘3’0’V.oi0e”cal}. 27…11=.2003″””5.43 PM Exh.P.49(6)(c)
11 A3 A4171. “”‘V0.ice”ca*l-!.. “’27’.11P;2003′ 3.33 P.M. Exh.P.49(6)(c)
12 A3 .,vo1ce’-caJ1’~ 2111,2003 3.52 PM. Exh.P.49(6)(c)
13 A3 “A49”. 23031555411 27.11.2003 7.00 PM. Exh.P.49(6)(c)
14 A3 . A4 27.11.2003 7.13PM. Exh.P.49(6)(c)
15 A3 A «A4 1.”v\A11ce<4a1'1»2.I. .-27.11.2003 7.17 P.M. Exh.P.49(6)(c)
13 A3 "..A4 ' _Vt;1'ce 1.133 27.11.2003 7.13PM. Exh.P.49(6)(c)
17 A3. A4. «£1/o1'ce 1:411 27.11.2003 743 P.M. Exh.P.49(6)(c)
.13 * A4 call 23.11.2003 12.44 P.M. Exh.P.49(6)(c)
A4 — A3 Voice cail 23.11.2003 12.53 PM. Exh.P.49(4)(a)
20, ~ 3313 . Voice 0311! 23.11.2003 01.33 PM. Exh.P.49(4)(a)
21 A4 " "A3"-.9 vo1ceca11 23.11.2003 04.00 PM Exh.P.49(4)(b)
22 A3 Voice can 23.11.2003 03.53 A.M. E"""P":9j'7)('"°
0 A4 .. A3 Voicecali 29.11.2003 09.04A.M. Exh.P49(4)(c)
" A3 A4 Voice can 29.11.2003 03.07 P.M. EX"'P"fi3(7)(at°
A3 A4 Voice caii 29.11.2003 03.30 PM. E""'P'4§(7)(a'°

A3 A4 Voice Cali 29.11.2003 03.41 PM. Exh'P'A£(7)'at°

5K." x. f:'Y'""L'{£'\'

78

79w

27 A3 A4 vo1ceca11 29.11.2003 03.45 P.1.4..-E; »E.%3″.’F_?’5::;3«(7)(a *0
23 A3 A4 Voicecaél 30.11.2003 07.42 .41…Exh1.P.4’9(01;1e)
29 A3 A4 vo1ceca11 30.112003 03.431301… V,Exh.P._49′(5)(e~)..
30 A3 A4 voececau 30.11.20’0’3’* .0349 RM.” VExh«;P.49(6)(e)
31 A4 A3 Vo’1ce Catt 02.12.2003;-41..011.2111.P1.1111m;;;m :E,~;r_1_;§-‘._;=’+9(6)(f)~. —
32 A3 A4 vo1ceca11 02.12.2003 A ,_03.49’gA/1.4 = Ex’h.P.’49(8)
33 A3 A4 vo1ceca11 *02;1.2.2003~. 03.50P.111:..-..VVVExn.P.49(3)
34 A3 A4 V0103 catl 03.122003 1103.011. Exh.P.49(8)(a)

Gail summary on t?1e~~date «:5f’me:11tq~3.c1_e01’e.n’t — 3()’-010010-2003

81. Out 0in Encomin *’– 5. 1 . ” r’1Exhi it
No. gfgom *5ate«]”«~…__:.7 “me CO” 191′ b
1 A4 ‘i…..33.s111s_ 1_y__30111;.2003. 03.51A.1v1. Exh.P.51(34)
2 A4 A1_=:+” vo1ce 0a11 .30.11.2003 09.11A.1/1. 12.51130)
3 A1 -A4, “1:’0%c3’Qa£! 301121003 10.22A.1v1. P.51(94)
4 A4 _ A1 30.11.2003 10.43 A.M. P.51(34)
5 A4 -A1 0V”1’..1j~s1/13.357730.11.2003 12.49P.1v1. 951134)
3 A3 ‘*.._Ai_ ‘vAg1ge”€a’_1.1 30.11.2003 01.00 PM. P.49(6)(7)
7 A41’. A1. 31113 30.112003 02.339101. 951134)
.__A1 “*11131v1s 30.11.2003 04.04P.M. P.51(34)
*9 W,/-\3 A4. V0iceC3IJ 30.11.2003 07,423.10. Exh.P.49(6)(7)
10’…”_A311[;;A2 vo1ceca11 30.11.2003 03.223111. Exh.P.49(6)(7)
A11 HA3′ VoiceCaEJ 30.11.2003 03.29 P111. Exh.P.49(6)(?)
.2 A3 A4 V0iceCaII 30.11.2003 03.43311/1. Exh.P.49(6)(7)
A3 . A4 V0iceCaJI 30.11.2003 03.49 PM. Exh.P.49(6)(7)
._”1 11 A3 A1 3113 30.11.2003 10.53311/1. P.51(34)

5%

wggw

in the discussion made supra, we have accepted

admissibility and the authenticity of the docpumentsdpmarked _ it

as Exs.P.49 and 13.51.

65. Before adverting to the”–..exchange of

Accused Nos.3 and 4, Accused_;l_l:§l:csi}.._vand..4;:Accuvsed Nos.2
and 3, it is pertinent toA”stk1te i;lh’e._’g;.!’é?$E\ciation of Accused
No.4 with accused No,.1~ has not been
disputed so nos.3 and 1 as
maternal llllirom the evidence of
PW14 it proved that accused no.2
was a friendof However the circumstances

under”wfhich i\lo.4 came to be associated with

:No”.3’_has notlbeen explained. We emphasize on this

I to the admitted relative positions of

acc~usedv’1’Jos’.i, 3 and 4. As already stated, Accused No.1

allcotilege mate of Accused No.4 and Accused No.1 is the

-sorl maternal aunt of Accused No.3. At the relevant time,

Walccused No.4 was a student of V Semester LLB Course in

BMS College. From the evidence of PW.14 Uttamprakash,

{ya “V-~–‘ -{vim-~/’~’éz«

80

v

__ LL44;

father of accused No.3, we find that
running an autorickshaw. PW.14 has deposedyllthiat
No.3 was also running a tailorirlgilllilnstituteg’in;
estabiish this fact, Accused No.3

of Ex.D.6 which is a certificate,pjissuedv. t’o.A’c.cu:sed’ for V

having undergone tailoring cou’rs.e:’:du’ring 2001 —
December 2001 in Classlichllnsti-tulte Kanimanahalli
Main Road, BVa.nga.1_ore§.r wF’,x.D.6 is hardly
sufficient to” was running tailoring
from NGEF alongwith
Accused-_&No’.3′ shop in the name and style

‘Keethana itMobitech’.Qwlielrein they were undertaking to

repair. n1_o”t;i_1_e phAo’icies…_.”I’hus, we find that Accused No.4 who

‘student and daughter of reputed Advocate had no

academic’ ‘connection with Accused No.3 and she had no

occasionitohvget acquainted with accused No.3. The relative

“..:<pAositiyonsl of accused Nosfli and 3 would certainly lead to an

.,5,.

‘ inference that their association was an unusual association.

win the normal course. neither accused No.3 nor accused

81

c82_

No.4 had any reasons to get acquainted themse.lj\{et§\*,§,igitl:,,A

each other. Therefore, the only inierence.V’_th’at be’ it

drawn is that accused No.1 had introdu’ced7.accused_§\lo’.3 to

accused No.4. From the sun1ma1′}v?’V_of1″.call eictracts lstated’–,,

supra, we can safely infer t};vat”lAccusedl ‘No’,=3ll’kneW thel

mobile number of Accused No,V4l’,”So:’also,._Accuse’d ‘No.4 knew
the mobile phone ntimberof

66. Now, adve’1″i,ing calls as extracted

supra, we also from four days

or fiVe7day_s– of engagement, Accused Nos.3
and 4 werein constant each other by voice calls.

On 2.;5.o4,.20o:3~, ,t_h’e’first call was at 09.04 p.m. and the last

9,40 (Call No.9). The frequency of calls

A iwouldldcreate stro’ng suspicion about their conduct.

.27′.;l1.2003, the first voice call between accused

and 4 was at 5.43 p.m and the last call was at 7.49

“(Call No.17).

N 42%”

.5
is
flat’ K ‘

.j’,vH

p.m., 3.49 p.m., and 3.50 p.m.

W W

On 28.]. 1.2003, the first voice call from

to 4 was at 12.44 p.m. and Voice calls from V’

3 were at 12.53 p.m., 1.39 p.m. and 4.0’G’p.’r1_1. -S

On_29.lL2003 umzvoyg cafiwfiinn Ag¢cs§d’N§:§¢¢zL

Accused No.4 was at 8.53 a.ffi..:and fr05m_V_ No.4 to

Accused No.3 at 9.04:’ Volce “calls from
Accused No.3 to 4 at 8.07 p.m. and the

last call was as: pin. 3:

:’t11e”firslt’._”{i€)1ce call from Accused No.3
to 4 was at? follcwiegfl by Voice calls at 8.46 p.m. and
8.49

n_otice’l’rc-m«the extract of call summary details on

A 30.}V1A.2.003″l§e’v.veer1 8.51 am. and 10.53 p.m., accused No.1

‘jeachanged as many as eight voice calls and six

flnSMScfl$.

33 On 02.12.2003 accused no.4 and 3 had Voice calls at

83

.. 84 ..

67. The father and mother of accused N04 and junior

aunt of accused No.4 Viz PWIO, PW12 and PW9;_res.pecté.\}eiy,

have deposed that accused No.4 was a consenting

the marriage with B.V.Girish. She w,a.s_Very_–’19nLich’:vdeIigi1ted__ 4″

with her marriage engagement. In.fact,’eéicciiseddi’JoV.4’i”–had.i

expressed to PW.9 (her junio1’iVr’n.aterna}. _.was

very lucky to have Girish as her__wo.u1d.V he PWs.10
and 12 have deposed ‘i*€o’_..zt”‘had high regards,

love and affectiongfor B.V..C.~ir_ish ‘(vsAi1:1_cefidec’e*.;3V,sed).

68. he 1earneti;s.e:nior’veou~nsei appearing for accused No.4
referring to.gev’idenee””o:ii PW23 has contended that

on the previous. engagement and on the day of

eiigagernent, ‘accused No.4 was Very cheerful and she was

ezfstatirc

in discussion made supra, we have held that

A No.4 was in constant touch with accused Nos.1 and

Sdonflthe date of engagernent, a day prior to the date of

engagement and few days prior to the date of engagement.

C.:%.c?’r'” ml

84

*4″ —~{ 1
£V’L

M M

The conduct of accused no.4 would belie evidence.’_’e.i”__ii5\\f0,

and PW23. From the conduct of accused No.4g.__iif”is 0

her consent to the marriage and

fiance was ostensible. This is obvious~..fromb.t”he”fact’*.thatV”p

accused No.4 was in constant Acicused even
on the date of marriage the time of
engagement which took and 10.00
pm. on No.3 had
contacted There were frequent
excharigehmof Aééfiséva Nos.4 and 1. In the
circumstaneesi, .Accused No.4. her frequent

contacts with Accu’sed*–._No~s:.1 and 3 on the aforesaid dates

~”‘~,.VWot.1idi. liernd, substantiai corroboration to the evidence of

P’..ZVs.*83 that she was not wilting to marry deceased

B..”J.Girish.3ffffhese calls would demonstrate that accused

no.4 iiwaszlvevry much after accused no.1 equaiiy so accused

j”r1o.Vld”was Very much after accused no.4.

:

5 ‘ .

-j’\§ ‘W i7′”*~ ‘WK?/t. ‘

85

L44; __

70. In a decision reported in [(2010) 6 sec

Vashisht Alias Manu. Shanna Vs. State (NC_T’_o”f~–..De:l_1f1’i),_ the _p

Supreme Court has held:–

“232. A criminal trial isllnotan enoiuilfyi A’
into the conduct of an of Vany’pi;lrpose”l”‘
other than to determine hehis guilty
of the offence cliafged..’_lA In J’th_1s_i’coVnnection,
that piece of conduct to be
incrin1inatot’y.__ which ‘ -no V 3 reasonable
eXplanati:onl;i:e§t_cept . oh _the_ that he
is V. destroys the
prest1i’11p.}i’ionllxfiof can alone be

co–nside1’ed niatelriall . Q . .

In theslcasel we do not have reasonable

V. p_ explaitiationpvlor tl1’eco_nduct of Accused Nos. 1, 3 and 4 on the

afo’1’esai–ol dates” either by way of evidence elicited in the cross

examination –.olf;=the prosecution witnesses or in the evidence

‘V given” bylpafents of Accused No.4 and the father of Accused

So’ also, we do not find any explanation from the

acctised for their aforesaid conduct in their examination

” “under Section 313 C1′.P.C. (E)
* 5

lllf. ‘xi 5’*~”»’~ – 2-.

86

_.. W

7}. At this juncture, we would like to refer to thle”§u_’dg1r}ent

of the Supreme Court, reported in (2010) 6

Vashisht Alias Manu Sharma Vs, ..Str_:_tte {N”C”T’}:iéIh:i).VasV_ to 1

the necessity of the prosecution 5’pradu¢}=;- lthepeiiact

conversation between the _ accused. In this{‘deCVis=ion at’

paragraph 226 the Supreme has 1:1″e1d:l_§_’
“226. The above ‘phoVne.p:c’alfl.=details show
that the’ accusedv’ »a%;a¢ toucihl with each

otheri vvh’ich.V”resu1ted. win hcielstruction of

eviden’c_.e 13l.arhouringd Thus the finding of
,_t}q”e_ trial ‘Court. thatin the absence of what

thcvlstated to other is of no help to the

prosecution is an incorrect appreciation of

‘ ?J’§vi’d.ence onmrecord. A close association is a

imp. ortant piece of evidence in the case of

‘V cici=c:urnstantia1 evidence. The evidence of

,_*p_};cfne calls is a V€I’V relevant and admissible
” _ piece of evidence …….

(underlining supplied by us]

Therefore, from the evidence of PWs.8, 11 and 23, the

call details extracted supra and the conduct of Accused No.4

K?» R”-*~»-5-I-at. ‘

87

_88m

on the date of her engagement and also few days prior’,to’the

date of engagement, we hold that the prosecutioniilias,’Vp’r_ol%;.+9¢1

that Accused No.4 was not willing to

Accused Nos. 1 and 4 had felt

obstacle for their affair and future plans,–..

73. We also see from the in the
album as per EXP.1.l5′<–..zVt'h_at'–V_ L the marriage
engagement, accused a mobile
phone, which normal conduct.

During:’–.__a the normal conduct of
prospectililre.b1’idve/’blrid.egroo.rn would be to greet invitees and

receive “blessings. _ from elders and well~wishers for which

No.4 was not needed to hold a mobile

we hold that the prosecution has proved

the :’noti\,_-‘e’ commission of the offence. We also hold that

liiheggconsent given by accusedno.4 for her marriage with

_l£3..gV–.»Girish and her close movements with B.V.Girish and

also her opinion on B.V.Girish as expressed to her aunt were

“llostensible. At this juncture, it is necessary for us’ to state

E \W_ F» \_ \.4[.{/’

88

VVVWVV ALLJAAL

relationship with other persons and had incurred. _

to lose his life. it is not necessary for the

meet any and every hypothesis put 3 it

75. At this juncture, it is useV_fu1__to refer’ to of 2 L’

the Supreme Court, reported in 1. State
of U.P. Vs. Hart’ Prasatx’-. the Supreme
Court has he1d:«~ V . .

“2. …. flhis is’.no_tVto _sa’yVtl1at”‘even if the

witnessesare ti”1,1thffi1, the? piiosecution must

_Vrea;so1:_:ttia’t theniotive of the crime
is:”‘difi’i,cu1t matter of that, it is
neve”r’,i_ncunib_ent onflthe prosecution to prove
;*Lhe_ motiv-e_f’or’1 the crime. And often times, a
i:1″r1:j)-t.,iVt3. is intiieated to heighten the probability
,,th.3,ti.tfie&«’offence was committed by the person
7′.___\trh’o’V”tir_asV.i.,iiripe11ed by that motive. But, if the

A criiiie alleged to have been committed for a
particular motive, it is relevant to inquire

it ‘*-._whvether the pattern of the crime fits in with

the alleged motive ……

(underiining siippiied by us)

R}, E-kt-‘*4’€’~”

90

__ 91 _

76. The learned counsel for accused Nos..1 to 4 have

contended that the prosecution having alleged that vaoclused
Nos} to 4 had entered into conspiracy to do

life of B.V.Girish, has failed to adduce cog¢n_tl%-Ind’ b

evidence to establish the conduct o:’:.laccluseVd”«no1s.’Lfito.

to the incident, at. the time of incident and att.er:Vtlf1e ‘1n°c1da,en’t.. V

77. The learned Special Publiclilllarosecutor referring to the
call summary extracts a_lso_v.the”‘relative positions of
accused Nos.1 to__4 would.:subI’n1t:._thlat.acejused Nos} to 4

were closely’ .associated’with. each other, considering their
relative po’sitions,l”it tévas an unusual association and it was

incongsistent witirtheir innocence. Accused Nos]. to 4 were

closely with each other either by voice calls and

the incident, at the time of incident and

it _ aft.er’~t.he..__i’nc-i.dent.

4′ ll°~..t1’1 order to appreciate the above submissions and to

hlilghliltrght the conduct of accused Nos.l t.o 4 prior to the

incident, at the time of the incident and after the incident,

: 3

E :

. K, 3
{\\__’} _ “kw .£?’i.k.’x,{“‘_E’}’ 1_ .

9!

22 __

we deem it necessary to extract from the contents of EXP49 and
Ex.P51, voice (tails and SMS (tails exchanged betwee11″2eCcused
Nos} ‘L0 4 on 01.12.2003, 02.12.2003 and O3.12.200§§Iw..T}1sy.V’are
tabulated as here under: 0 ‘ in 0 ”

Call details on 01.12.2003 viz two days prior to 2′

Si. Outgoing incoming

NO from To Cali type }»Dat»e__ ; TAi’1f0e_ Wief

1 A3 A1 Voiceca!1!_ 01.12.2003 12i2.10.1.P;1’11§ “‘.E.xh.P.49(6)

22 A V’

A3 A2 Voice caii 1ej01..12.2003 112.13 0 240(0)

A3 A2 veiceceiiee01.12i.02003 0’1.A0 2.1111. P.49(6)

A4 Deceased ve1ee.ea1i% %0’1:.102′;2i0023’l.. 07.45910. 13.51101)

A3 A1 \v/0.icé_0a.ii”–.Qi..i2.2QO31~1509.03 PM P.49(8)
A3 A’1;….1’0V veececéii 0110.1.-12.2000 10.47 PM. P.49()

~ A4″ A1 SMS 02.12.2003 8.37 AM. P.51(05)

A1 A4 SMS 02.12.2003 i0.35A.iVE. 9.51190)
4 )

A3 ? 10.53131/1. 251190)

CD”-dO’>U’I-P-OOl’\D

A1 1111 1–0.sM2sW0″~~01.’i2.2003 10.552101. 1=.51(90)

5 111+

A41 W

(mph) _ 01.12.2003 11.51 PM. P.5i(96)

0 2′ C.a11EvdéL211.sf.;_’Q_gw1 02.12.2008 Viz one day prior to date of mcldent

Si. .0utgoEr1.g_ 0′ incoming

— No. ” fr0r”r1. ‘V ‘ To

Court
Caii type Date Time Exhibit
ref

f-‘A1 A4 SMS 02.12.2003 10.18A.i\.1. 1′->.51(00)

A4 A1 Voice call 02.12.2003 10.39 AM. P.51(96

F’; . ,5 .

ix; nee em

A3

A2

Voice

1 1.2e5A.’Mi;’1vV”. [I

A3

A1

Voice

1.1.21m.j

A4

SMS

1
E
.: _
1 .

1′ ; Q1 .1′: ‘P_.’M., ”

A4

Deceased

Voice V

01.1.? Pea? ”

A4

A3

Voice calf .

“o’cooo-~.Jc3>o1

A3

Voice can

1 3«.11:1_’AP.M7.

A4

A1

‘ srvs

3.41 PM.

_L
|’\3

A3

A2

Vo1ce’caiI ‘ P A

3.45 PM

_L
C0

A3

1 3.49 PM.

_L

-hm

A3

Voice__ca.I_i

3.50 PM.

_|.

0′!

A3

9;; _ 1./eice.’ca1i

3.54 P.M.

…L
0′)

A3

V*o.Ecé-c_aI!. ‘

4.29 PM.

_|.

“‘4

A3

A A2 _
A4 _

‘ wV01ce”c:a§~i”

4.53 PM.

SMS

5.07 PM.

A1′

5.12 PM.

SMS

5.37 PM.

A ‘-‘A4’ ‘

T51.

Voice can

5.44 PM.

3′ A2

Voice cali

6.32 PM.

A1

SMS

6.37 P.M.

N1… .. .. ..

.457 9-‘2’ N –~u<= ,5 EB

A4

SMS

6.37 PM.

;:\:> ”

A4

Voice cail

6.46 P.M.

0:

A4

Deceased

SMS

6.49 PM.

rb

A4

A1

Voice caE|

6.50 PM.

93

-9g3u

84 A4 A1 sans 04.12.2003 4.t8P.M. J. P.51(66)
05 A1 A3 vozcecau 04.12.2003 4.40P.M.:Lp.49(7)

79. In the discussion made supra, we ._:ti?..at

accused No.4 had come in contact of accused. and

who were total strangers to b””Acc.t_1s’ed the T.

maternal cousin of accused pVNo.3.v47AL::c«used was ‘alf’riend.
of accused no.3. From the ‘evidence o£._15’w.f4, dvge Vtlnd that
accused 11os.3 and V2.yvere;l’i’riends.”-.._P.W.léiiflttsmprakash

T.B. [father of accused’n.o.3)” was’ as hostile witness.

Pros:e__cuto’r, ‘that accused no.2–Venkatesh
might «be one several friends of accused No.3-

Dinesiz. alias iilfiiivnakaran. When PW14 was specifically

relationship of accused Nos.2 and 3,

I14l.”‘l1,as4Av.l.deposed that he cannot say that how his son

(a’ocus_ed -no.3] would behave with the accused no.2 in the

..t/I”.1’§:ndVs~*..circle. P.W.l4 admitted that accused No.3 was

t running an autorickshaw. In the discussion made supra, We

xhave referred to the relative positions of accused Nosl to 4.

At the risk of repetition, we state that:– at the relevant time.

\_. 5’ 1- ‘

98

__ VIIAAJIIJ

accused No.1 was a student of 1 Semester LI.,~\,.B,}_j

College of Law. The father of accused

N.Dhanashekaran was working” asu’a._ l;abour__.V lomcer and

Commissioner for Workmen .CoInpen’s._c’lltion..la;_iA l\»1ane1yé;~ V lE?I–i..s
wife Rambadevi (mother Vof::accused’*–
before the Court), wva-“s~ CVent.ra1 Bank
of India at Bangaloreland were residing in
house bea1:’i1:-tip llpftiampbell Road, Cox
Town, accused No.4 was a
lrlerwfather P.W.l0 was a reputed
lawyer in their own house bearing
No._1t4»1-l’l[“‘?.I3VT”‘* Cfl3r~oss-._blI3~:inashanka1’i Ii Stage. Accused No.2~

isAAthe——-fi1’st son of P-W’.17–Anandan who was a

X.resi_d’ent ‘ ~-house 110.233. Byappanahally Main Road,

.’ Bangalore. PW14 has admitted that accused

no.1 8 are maternal cousins. P.W.17 has deposed that

atgthe relevant time. he owned a goods transport vehicle

hӤ{lgoods tempo} and accused No.2 was helping PWl7 in

loading and unloading goods.

(gm. ‘\,. (x;m.~é;,x

99

w~l0l–~

2. accused Nos.1 and 4 and accused No.

01.12.2003 in all there were 9 calls. The”A«ti’rs?;:r.tfoi’eer»

between accused Nos.1 and 4 was ‘at”1«0.5t§ p_. the last 0 T

call was at 1 1.51 p.113… viz few min’utes_0earlie1~

80. On 02.12.2003 ie, a ta datelvfoflincident,
there were exchangeadoéf Sl\.:/i3l’§V1’1.e:tweeAn«.accusedJNos.1 to 4.
The first SMS from accused at 8.37 am. and
the last 1 was at 11.30

p.rn. We “surnrnary extract that there

were¥58 to 11.30 p.rn. between accused
nos.1 We’°a’1so.””‘notice that there were voice calls

between acc1is.e_d l\1os.1 and 4, accused Nos.1 and 3. accused

Bfiaccused No.4 and 1, accused Nos.1 and 2 and

1. On 02.12.2003, accused no.4 from

her mobile/pdhone had called I3.V.Girish twice.

0′ On the date of incident. Viz 03.12.2003 there were as

dgniany as 73 SMS calls and Voice calls between accused Nos.4

and 1, accused Nos} and 4, accused Nos.I and 2, accused

g\: (.,%j;”» ~»» £»’~C’w…r\{,r\ .
mu

awza

Nos.3 and 2, accused N083 and 1 and accused 4.

There were 4 Voice calls from accused No.4_.’*’fio

We find that the rest of the calls wle.re._b4etwe.en” . 2

and 2, accused Nosxl» and 1 and accus’ed’;Nos_.2~

82. From the evidence of VPVV

is proved that on 03:12.200i3<_Thetween and 9.30
p.m. B.V.Girish and to TGIF hotel for
dinner and were staying*ln:'the– the evidence of
P.W.12 p.m., deceased
B.V.C'y_irish No.4 from her house and took
her onhis PW5 and PW12 that they

would be goirlgufolr dinner in TGIF hotel at Airport Road.

of assault on B.V.Girish took place around

'V notice from the call history extract. that

accu.sed had contacted deceased B.V.Girish by voice

calls. 5.32 p.m., 5.33 p.m.. 6.16 p.m. and 6.25 pm.

dd ruVAceAu.sed no.3 had contacted accused No.4 at 6.01 p.m. We

.ir1otice from extract of call summary, there were voice

calls between accused Nos.l and 3&2, accused

at sex at

W 103 W

Nos.1 and 3 and accused Nos.3 and 2 bet,weei1..5.V:4¥;2'dpfina,

and 6.01 p.m. on 03.12.2003. It is clear

of P.Ws.5, pwe and PW12, on o;3.1'2'_.2o.o3_y afteifhi

accused No.4 was in the , companyu. of hye'I..A1"iahce.

}3.V.Girish. We notice from the"'caII extract that

when accused No.4 é.'V.Cinsh, she
was in constant touch SMS calls. The
first SMS was, by '1_v-.to'mafccused no.4 at 6.37
pm. the No.4 to accused
no.1 at the fléwas sent by accused No.1
to accused the repiy SMS was sent by

accused No".~4 to. Va'ccu*seVo""no.1 at 6.51 p.n1., the third SMS

by accuse~cf~No.1 to accused no.4 at 6.54 p.m. and

L' "rep1y'S;f\71,':S:'Was sent by accused No.4 to accused no.1 at

fourth SMS was sent by accused No.4 to

accused}_no.1 at 7.03 pm. and the reply SMS was sent by

1' accused No.4 to accused no} at 7.05 p.111. The fifth SMS

was sent by accused No.1 to accused no.4 at 7.12 p.m. and

"there was another SMS sent by accused no.1 to accused no.4

if
1 _g

I03

— 1 O 4 — .

at ‘7.28 pm. The reply SMS from accused no.4{to:.faccused

no.1 was at 7.37 pm. There Was a SMS ca11–~

No.1 to accused no.4 at 7.39__.p..rn_. ar;cé”’14e1{,~’13.r _

accused No.4 to accused No.1 :’was.’_’_’at’1V7.42″p.n1.x ..ViWé’11.g;1so 2

notice that there was a V ca1I*-from_
accused no.2 at 7.3S3__p.rn. 8.12 pm.
accused No.1 had pfourp E§;IVf:{.S”‘~t.fQ.Aa’ccused No.4. At 8.13
13.111. accused.«No.4:.had. No.1 and

accused itoddiaccused No.4 at 8.16

p.m:;t”‘hAt”8:.i17 had contacted her father-
P.W.1–0″ by’ .,T1::~ereafter. there were continuous
exchanges of SVMSAA*1):et*.i1ieen accused No.1 and 4 from 8.20

14 fi;r1~.–. —- Tthe frequency of exchange of SMS Varied

V fron1v..twofrnin_utes to seven minutes. There were VOiC€ calls

0′ . from No.3 to 2 at 8.39 pm. and 9.25 pm. At this

juncture. We would like to emphasis that between 6.00 p.n1.

and till the time of incident, which took place at about 9.40

or 10.00 pm. accused No.4 was in the company of her

fiance [B.V.Gin’sh). All aiong, accused No.4 was in constant

“J. F’/”‘”‘%*'”~ ‘

1 U4

–l05w

touch with accused No.1 by sending and receijvi11g;_from

accused No.1. From the exchange of accused

Nos.1 and accused no.4, the onlypinlferencep’thatV.gt§{11di’be4*

drawn is that accused No.4_waslclaridestineip:
receiving SMS from accusled::l\Z’o.l witliout notice of
B.V.Girish. Accused: by conduct that
she was deliberateljll exchanged
between from the deceased.

Above a.l1l,ll accused Nos} and 4 in
no.4 was in the company of
her (IE5 consistent with their innocence.
We p.rn., there was a Voice call from

…no.3xlto*—-acVcused no.2. We notice from the call

V extractdlslurnlnary that there was VOiC€ call from accused

.4 ptpolacczused no.4 at 9.14 p.m., which was just 30 or 40

min.ut’e_s prior to time of incident. We also see from the

hlistory of calls both the voice calls and SMS calls exchanged

between accused 1 to 4 immediately prior to the time of incident

had emanated from a tower at Domlur. which encompasses an
“a

g’ ;

5

(‘G

«_,. {Em \. \.:’?t;,. .

l ()5

–» 106 –»

area falling within a radius of 6 kms from

would lend credence to t.he case of _–prosielcut.io11A about…

movements of accused I to 3 nearer-.t’o.:th’e.place of :’isncidcnt. 0

The place of incident is covered
also notice that after am. on
04.12.2003, there callsffeither voice or
SMS amongst any of the evidence of
PW15, of accident register
extract of B.V.Girish had been
assau1t0ed’i’ he had been shifted to

Mantp all Irlofspitalf 1. 5.~”minut.es thereafter.

if The pros_e:cut.ion was not able to retrieve the texts of

<SlViS_'f0and.:'produce the computerised extract of texts of SMS

._ manually deleted from the mobile phones

of-.acc_used"0 Nos.1 and 4 before they were handed over to the

, lnves'i;igating Officer on 26.01.2004. P.W.10 has

0' 'A.p_f'e-a«t'egorical1y deposed that when he produced the mobile

phonemM.O.10 which was possessed and used by accused

No.4 before the Investigating Officer on 26.01.2004. the
,6' . 3
N pro …….

I06

-107″

inbox and outbox of M.O.1O did not contain any messages

and the inbox and outbox of 1\/1.0.10 were en1pty.vg.W_”ee.i_Vnfer

the same was the situation with M.O.13 (r11ot;)”i1’e«l.fh~e1:d5

used by accused no.1) produced by PW22<.l,l);hana.s:}1ekaran.e

[father of accused no.1) before on

26.01.2004. If the messages _referreA to abo:ve.lper'taii'1edl

any legitimate purpose, there"'w£e1'e no reasons togideiete the

messages from M.O.10' and 'lV'i1-e&reforeV,Vl'itl'ilAras for the

accused to establishfl eilthlerl¥by.__2Vci?Cssi:exan1ination of

prosecutions .x.2:irfitne.§fses':or.:b3r offering satisfactory explanation
in their 0 statenierjtsil"recorded under 313 Cr.P.C., the

legitintateiflfmirpose. for Which the accused had exchanged

calls …sincellllfew**'hours prior to the time of incident till

0 feivlvrtniiriuteslivbefore the time of incident. The abrupt

of contacts through Voice calls and SMS calls

bet.v§*e.en'«:_accused Nos.1 and 4 and other accused after the

it inci'dent till 2.10 a.m. on 04.12.2003 would reflect the most

unusual conduct of accused. 5

A

3 A
2

-108—~

84. The learned counsel for the accused hav’e;_fa~u1t

with the prosecution for not retrieving 3.D.d:'”iZ)VfvO’dluCiIig'”‘LhVQ'”‘.,,

texts of SMS. As already stated; ;the

possessed by accused Nos.;1_and iéywere in:
The mobile phone possessed”i’a:nd used’ was
handed over by her to
the Investigating also the mobile
phone possessed ‘and was handed over
by his to the Investigating
possible for the prosecution to
produce ithe teict of SMS exchanged between
accusedian~n.V.1 and no.4.

view of'”what has been held in the decision of Mann

V referred to supra, when the call data indicates

it A that were exchanges of several SMS from the mobile

phonejof accused Nos.1 and 4 and vice Versa, it was not

Vincurnbenti upon the prosecution to produce the text of SMS.

On the other hand, absence of texts of these SMS in the

inbox and outbox of mobile phones of accused Nos.1 and 4
‘2

gm: ‘ Ag g”{.-~._,~., {«{‘,”;.,_ =

–109w

would lead to an inference that the SMS by

manual operation before the mobile pho_nes”~possessed and

used by accused Nos.1 and 4 were bhanVd’egd

and 22 to the Investigating
accused no.1 and accused would
arise against their inhoxcencer” l d

86. The matter could another angle.
The conVersati_ogn-that the accused at the

crucial exchanged between the

accused atthVe’eruci>ai~.1oo*int of time were within the exclusive
knowledgeii oi” Vlihe’YVaccu*se’d. If the accused had any other

legitimate p’ur.pose be in Contact with each other at the

‘A point of time, it was for them to expiain the same

_ Court. The fact that accused N\os.1 to 4 were

in to._ucl1<:'with_ each other through their mobile phones by

.. ;V_oice~:calls and SMS calls would ciearly establish that

l "accused Nos.1 to 4 were contriving with each other prior to

the time of incident.

A} , K £23»/’L\w£r{_;\

109

– 1 1 O –

87. In Manu Sharma’s case referred to supra…at_»f§:ai;a~:iraph
228 the Supreme Court has held»

“The above phone callldetailsl-«shcm.ftl1.at”V
the accused were in touch vs}i._thlleachVA’other»»

which resulted in destruction’oflevidence;

harbouring. Thus the” oflltlie trial
court that in thexabsence xisfliat theV”sta”ted
to each other neg’);-__ to’i:.:_t:eprosecution

is an in.correct_…azafireciation”‘ofl”ex/iiflence on

record.’l’ju.’A ___t;_lose–~’:as’socia*tionfl is a Very

imi)’ortant~~:f1iece._V-of “~~evi*dence_ in the case of

__circu.t1istantia1_evidence. The evidence of

phone’ ‘C..a.lls’iis _ife.1’V–releVant and admissible
‘piece of evicl encef ” 2

underlining supplied by us}

{in ‘view ofltheldiscussion made supra and also in light

of held in the decision referred supra, we hold

that association of accused No.1 to accused no.4 was an

unusual association and their close association by voice calls

on , _and SMS calls is not consistent with their innocent conduct.

The sequence and frequency of voice calls and SMS

calls extracted supra, particularly just few hohrs before the

H0

~ 111 V

time of incident till few minutes before the tc_1’;r”1″‘1’e«l

would indicate that the accused were contac_t’ing’V–1each o’ti1er°–._

and they were in constant fiviigh to}

accomplish a well piannedyanfld welltilmed acct; 1’

88. Now, we will advert evidelr1ce::o1:’: 15 Thomas
and PW. 16 T oli Ukerryt<ho account of
the incident. PW. 15 a:i~-ye);/iéjervice man. He had
served in and retired from

the service he had settled in an area

called Bangalore. At. the relevant
time, lv.rorl%,lir;g.l"'as' an Interior Decorator and PW.16

was" a.ssociate_c1l with his business. At the relevant time,

v.ras«.._residing in Ejipura Bus Stand. He Was an artist

._ firm on a monthly salary of Rs.9,000/-.

has deposed that on 3»»12w2003 at about 9.45

A. ep'.m.f"1§'Ws.15 and 1.6 were returning on TVS Moped ridden

PW.15. PW.16 was the piiiion rider. They were coming

from Domlur to Koramangala on Air Port Ring road. \/Vhen

ii 31
, £7
5'\\} 1 L V'! K.

~ 112 –

they reached Air View point, PW.15 saw a

person with robust physique assaulting

another person with a steel rod.” “Afterl, thejllplassavult’, the 7

injured held his head with his lcopllapsed

footpath. Thereafter, the
towards the road, at that tirne;’la’Vp_:sco”oter from the side
of Airport road interselctiorn’ jumped and sat
on the pi1lion_:”of__ llthereafter the rider of

scooter tooii them fled away from that

p1acevt’tolwa.r,dfs Ai?§’port~.&i*oad intersection and scooter was

riddenxon the the road.

90. ; ‘ ” Before proceeding to appreciate evidence of PW. 15, it is

jltofibriefly describe the location and topography of

the p;a.¢eg5r occurrence, which has not been controverted by

de_fence*.A It is also shown in the sketch marked as

The road near the place of occurrence is a stretch

l’ oi7._th~e inner ring road connecting Koramangala road junction

airport road junction. The road near the place of

occurrence runs in the direction of north to south.

j -“3.

x. \ —(g f\=

— 113 *~

(Korarnangala road intersection on southern side and airport
road intersection on northern side}. It is a double 1’Voadr’With a

Centre median. The eastern portion of road ;”is’«:ri~eanii:;_. for

vehicles plying from North to South and ‘ip:ortion”of

road is meant for vehicles plyingilfrornpl.f3o’uth’_to.:

airport area (surrounded by a Compound {wall} is égituuateg

towards the eastern side of tliepillroad. Point is
situate on the Eastern ‘footp«ath_.lA juncture, we would

like to clarify this Air Viewis_-not-Vfarecognised tourist

spot either thle:7BB1:\l/iPVV.:or f1’o_rn”‘the Department of Tourism.

The persons’ whofare~l§ee,n,~of seeing landing of aeroplanes

Could seeA”the”sameAiifornistanding at Air View Point located

flasternll l’ootp–ath of the Airport ring road. The electric

‘ ,l.amp p.osts’vi.are.situate on the centre median ~w each electric

polehas ‘tVwo..s1lamps fitted to the forked and bent portions of

poles it is a well lit road.

PW.l5 has deposed; he raised hue and cried “Kyon

.c __l’»l/iaarthe Hai, Kaun Hal”. PWs.l5 and 16 stopped their

vehicle and went near the injured who had fallen on the foot

r»’–<'e

113

A
\_,. if/LL – ‘-/K ‘

wllilw

path. The injured was unconscious. A girl was ..sta.’r1di’rig atya

distance of 10 feet from the in_jured. it

incident tried to stop the Vehiclesihiplyingvon the .ifoa,e._:te” it

the deceased to the hospital, ulti.rn.at;e1y

Kumar who was travelling aloiigrwith his yvife .”CWLe.4’2fiVVstoppedV

his car. PW.15 Wi.th”the ain._&autoricksflhaw driver
shifted the deceased car and that
girl sat on tlrte requested CW.2l
to take tliie hospital situate on Airport
drloxlfedvzthe car towards Manipal
Hospital :”i7l1ereaiter, PW. 15 found that the

scooter of”the left unattended. PWs.15 and 16

that so’1–e——«one might take away the scooter and

‘ .»therefore,–15 drove the scooter of the injured and PW.l6

.’dro'{/e moped of PW. 15 and they reached the house

of Thereafter. PW.15 contacted his tenant CW.29

it iNa’»Ieen, who opened the dickey of the scooter and found a

hdydilgital diary. lap top and the visiting card of injured from

‘Hwhich they came to know that the injured was working as a

oi’
f}”‘=e.’a 92$ \. \_g,:-LM,

114

-115%

Software Engineer in Intel Company at Airport ;r’oa–«.I1.;._~ -.

contacted CW.3O Radhakrishna (Security of Intel.

Company} over phone and

CW.3O — Radhakrishna and .aCW’.I’3V1._’can1e zhoiuse of,

PW’.15 and took the scooter,’ and’.di”gi’.tal diary of the
deceased. At this juncture, tovstate that after
few days, CW.3O — over the scooter
and the digitai:««Adi’ary:=Aof M Venkatesh
[father retained by the Intel

lntel”CVompany.

92. lnve’stigating’~Cifiicer recorded the statement of

PW;.1’5..on 5.1’2._lZO()3.v’PW.15 has given the physical features

it .Qfvt’the:”‘assailant. PW. 15 has deposed that the assailant was a

gperslon Toff”darlbconaplexion with robust physique. However,

PW. 15,__vha.s:not given the physical features of rider of scooter.

it *PW.15 has identified the assailant as Accused No.2

it the rider of scooter as Accused No.1 and the girl who

standing near the deceased as Accused No.4 before the

A

5}

Trial Court. 3,\} .\w__ p,W..__(‘L?,-k .

H5

W116-

93. The defence has attacked the evidence of Pill/.15 on

several grounds. The learned counsel appearing.f”–for..Athe

accused apart from referring to several discreipanciefs

evidence of PW.15 have raised tlf_1e…fo_1low_ingi .

regarding the credibility of eviderice il7’W. I5. ‘

The learned counsel fo’r,:accused’* that
PW.l5 had limited ~oV_pport’u’nit.v lt’C.._&see ‘assailant {later

identified as accused and rider of

Who:ad1ni’ttedi3;fw%jrefu~nk11.ovrn to PW. 15. As per the evidence
of he fleeting glance of assailant and rider of

scooter. ‘lh.e_gVVVlnvestigating Officer had not held test

parade. The evidence given by PW.15

. thedock identification of accused no.1 and 2 is of

Weak ,__character. in the absence of Test identification parade

git cannot be believed. There was delay in recording

“sta.i:ement of PW. I 5 under Section 161 Cr.P.C.

2 -\~ 57’M’\’W’1;t .

ll6

e 117 —

94. The defence has sought to establish a

Police informer and PW.6 the father of

approached and requested PW;;.l5 this

case. The defence has contended
planted witnesses. K V. l V’ l V

95. Before advertinjguto thelearned counsel
for accused, we of PW.15 and
his position rel.ation7 the relatives of

deceased’. , vvafs”neie’,hlevr ‘known to accused nor

relatives of .deeeasedb.”PW;* .15 was an independent witness. He
was no’tr4_intere’-sted i~n”the success of case of prosecution.

was”a.._Vldisin.terested witness. Though it has been

‘A ‘ PW. 15 that he was a Police informer and he was

._ xvitvness in the criminal cases filed by PW.31, we

l”i”r-1d .th.at:’the suggestions are totally baseless. Considering

.. the background of the witness, we find that he had not

l’3:l’spru11g from a tainted source. PW..l5 did not have any

motives to falsely implicate the accused nor he was

I17

-«lfL8w

interested in the success of the case of p1’osecution;'”PW.15

had no acquaintance with the family members K

96. The learned counsel for the accused it

following decisions:–

1. 2007 Crl.L.J 2740 (so) (i§avi”.@ Ra$I_ichan*d1;a’n’*v2ifs;..L

State]

11. AIR 2010 so 7a2_ [Muisheerj man @”Bad’sVhah Khan

and another)

III. 2008 Crl 3636 (4tM*bét_l_1aVb’ir”fVs:. State of Delhi)

Iv. [2005 “i.]’8.()f1vv—-(_Stzite of NLP. Vs. Ghudan]

to contencl that”the” was unknown to PW. 15 and in

the; absence “o.f_:test identification parade, his evidence of

of accused 1 and 2 before the Court cannot be

case of Sidhartha Vashisht Alias Mann Sharma

~Vs__. St’dte {NCT of Delhi) reported in (2010) 6 sec 1, the

‘ ‘~_S’upi~en1e Court at paragraphs 256 to 258 has held:–

Kw £.2.».L K’ viii/.L

~ 119 —

“256. The law as it stands today is set out

the following decisions of this Court which..§;.e’:. . ~

reproduced as hereinunder:

Munshi Singh Gautam Vs. fitate of ‘

(sec pp.642~45 paras 1645; a,-19)? 1

‘”16. As was observed ceofi;ep.:,;1V

Matru Vs. State of U.i5.”5fcff”identification: tests
do not constitute. ppsubstai ill_\:J”»1i” ‘evidence.’ ‘ ‘~’I’l’iey
are primarily forp.tlfi.¢:vplur§Ql$¢.,,of helping
the investigating__ agency’ assurance

that th .ei:’ .._pf_:-ogrégss m’..th -+.;1i’e lgation into

.1il’lCv .o:ffencei¥::,3is pr.oe.eedin’g~–o’n the right lines.

idelntiificationn’—–can- only be used as

cerroborativefofvthe’statement in court. (see

_Santo.kh Sir:-:.gh–._Vls~;”ilIzhar Hussain 54) . The
necessity ‘=for____hQlding an identification parade
ijarflivse only when the accused are not

as known to the witnesses. The whole
l a test identification parade is that

witnesses who claim to have seen the culprits

atthe time of occurrence are to identify them

from the midst of other persons without any

aid or any other source. The test is done to
check upon their veracity. In other words, the

main object of holding an identification

3’\.’4. Z41 L “E,/’ L c

,su.ch_ d

wl20»-

parade, during the investigation stage, . A’

test the memory of the witnesses based’._upojn.

first impression and als_o~~Vto ei.’iabi’e’ftheV’

prosecution to decide wh.e=ther-~Aalt or

them could be cited eyewAitn.esses,v-of it the

crime. The identificati’o.n”‘~proceedings “are; in”

the nature of tests and y_Smi,(VV_2::I-i,i_fiC~E]:1″11;1y.,’ therefore,
there is no provision for and the
Evidence Act. It a test
identificatio.n conducted as
soonéas This

become:s ‘i1ecesVsary:.’:V’top: eliininate the possibility

dot to the Witnesses

prior to the*test’identification parade. This is

a ‘very c{;–mfnAonVfl”pr1ea of the accused and,

— ..therefc\re,’ the prosecution has to be cautious

to ensure”t’n—-at”there is no scope for making

V an allegation. if, however,

A “eircurnstaLnces are beyond control and there is

scnrie_.dte}ay, it cannot be said to be fatal to the

.. prosecution.

17. it is trite to say that the substantive
evidence is the evidence of identification in

court. Apart from the ciear provisions of

R7 . V 55″” 3″ “*5

5:

fix. ‘

120

it “ivden_t;ifiCvation proceedings.

e 121 —

Section 9 of the Evidence Act, the positioniri..__’__i”‘.j’
law is well settled by a catena of decisions. of

this Court. The facts, wh_ich.__establiishidjthde’

identity of the accused person:-3, ;s.re–._fe1¢vani’;.,__ it

under Section 9 of the Evidence Act._I1; ‘a

general rule, the substantive “e’»1__id’e–nc”e oi””a'” it

Witness is the statement_Vdrnade_V in court. The
evidence of mere. “iVden.tificatio.nV .of«the accused
person at the trial t.hel”firs_t.._tir.h;eVis. from its
very nat_ure_ inkierebntidty weavlccharacter.
The iftesti'”identification,

therefor_e;_,V strengthen the

Z’ ‘ ‘ tliadtw evidence. It is,

1’vaccordingl§E;»..o’hconsidered a safe rule of

p1″L!(,j161’1C€VV’t0 ‘g§ii.efa11’y1ook for corroboration of

— .. the svvornrvtestimony of witnesses in court as

to the identity of the accused who are

.Vstrang’ers to them, in the form of earlier

This rule of

prudence. however, is subject to exceptions.

.. iivhen, for example, the court is impressed by

at particular witness on those testimony it can

without such or other

The

safely rely,

corroboration. identification parades

belong to the stage of investigation. and there

fl

3\__.”. \_. 5″»-L ‘~¢/k/§’t ‘

;’\

~ 122 —

is no provision in the Code which obliges~~–thje.’__’__i’if’

investigating agency to hold or confers ‘adrighti: it

upon the accused to claim a test x

parade. They do not constitti-teePsubsltantive”-si,__

evidence and these parades..A’are ess’e’.ntiall’y ” .

governed by Section the “Code-.._V F:ai”lur’e”

to hold a test identifica_tionv_p’arade. ‘WO.1:.i_1d riot
make inadrrti_s_sible.’_VA i.VVlAe=v.idenceA it of
identification in’ decal-Lgirltf’ to be
attach6d.:tQ_ such”Vide11t_i’1ic’ation «should be a
mater of it appropriate

Cases .;:it._. rna.y4″”–accep.t the evidence of

:’lViden’ti.ficatio1ti’ _even without insisting on

:”–corro’borat:ion§ ‘Kctnta Prashad Vs. Delhi
“Vctilrdtinthclifaft Chandrappa Vs. State of
:– .. A.P.f$6, ..,VBw:i’hsén «vs. State of U.P.51 and

,R:am¢sha}arv~–s:zrtgh Vs. State QfJ & K5”).

3 v. :.4IVr;.c::H:1rbcy’an Singh Vs. State of J & K58.

thd.-L;;«gh§=VVa test identification parade was not

this Court upheld the conviction on the

xvbasis of the identification in court

corroborated by other circumstantial
evidence. In that case it was found that the

appellant and one Gurmukh Singh gwere

;\?_ ~.. /ii . ‘S

til .

ts)

M123-

absent at the time of roll call and when ~ A’

were arrested on the night of l6~l2w197’i-._theii=. ll”

rifles smelt of fresh gunpowd’er.’and: thlathtlaell

empty cartridge case which’»._wa:s’efo’uncl_lat’t.hé~’:..t,,,.

scene of offence bore _ distinctlive mlarhainlgs

showing that the bu’lv!.et’V.t»whicti–.i<illed 'che'" 1'

deceased was __fired frorri'v.._the ritle'<of the
appellant. Noticing tl;iesetc.ii<:un.'i;-stances this

Court held: (sec p.4s1,l','pe£a 4.}:'– .

Il:i.'e»VlCW:'-Qf corro'boratiVe evidence

we argument. urged

.or1"~ "of"'-Lthel "'app'e1lant that the

lviinvestiglaltititg"offi'ce"*-ought to have held an

idcntificati.on–:.'parade' and that the failure of

_ to=_1:nention the names of the two

accused'"tc.Vt_11_¢tvneighbours who came to the

scAen.e"i.mmediately after the occurrence shows

' cannot be true. As observed by
in Jadunath Singh Vs. State of

absence of test identification is not

necessarily fatal. The fact that Munshi Ram

did not disclose the names of the two accused

to the villagers only shows tht the accused
were not previously known to him and the

story that the accused referred to each other
5,

we t.~<l~;;~. I

A

('J

5)’)

w124–

by their respective names during the course

the incident contains an elerner1tiw”~~~.lt\’Ppt\/.,1.

exaggeration. The case does not rest on H

evidence of Munshi Raniwalone .-211’lvd’Zjj’_uth’e.:
corroborative circumstances to ‘h_ave, » ll it
referred to above lend enolugh’-assurance». to if l.
the implication of thela.p’pellantL” ‘f _ if A A
Malkhansingh Vs. of M.P.é§:’ (sec
pp.751~52, paras’ ”

“7. It is trite to s’ay7tl~’1atsubstantive
evidence is the.”evidenc’e._’o_f’ identification in

court. “theft” clea.r*—-provisions of

ti1el”E:3vide11lcelllAct, the position in

‘lavv is’we11:’settledeVa.]:ly _a heatena of decisions of

this Court. which establish the

identity, oftjhe accused persons, are relevant

:_t.1r1d.er Sectio–n”9 of the Evidence Act. As a

..gener_a’lv rule, the substantive evidence of a

it the statement made in court. The

evidence of mere identification of the accused

.. person at the trial for the first time is from its

very nature inherently of a weak characters.
The purpose of prior test identification,
therefore, is to test and strengthen the
trtz-stworthiness of that evidence. It is

E 5

§y\’~”l’ 4″-“§§\”‘”‘»~’\,…£””»–» \~i.’., ti/:f~\ s

~125~

accordingly considered a safe rule of

to generally look for corroboration

sworn testimony of witnesses in court “ag;.to”

identity of the accused who are s7tran.gers- at

them, in the form of earlierl7identifi’i;ati’on

proceedings. This ru1e–._or~._prudence,–._h’oWeyer'” it

is subject to e2;ceptiOn_$.,uiwhen, for “examp§e,
the court is impr_essed’_lAby. particular witness
on whose testimonylit Without
such or otlfilenf-‘”‘v:l¢orro§;.Qrationl’Vl The
identificatligolri. ltowthe stage of

investigation,”anydtiherevis n:ol’provision in the

which obliges the

:’inv’estigat1lngryageéneylto hold, or confers a right

upon the lacc”uAsed.”i0 claim a test identification

parade, Th”ey.l’dow not constitute substantive

;eVid.ence ‘a1i–d—-«’these parades are essentially

_goVerdn’ed by Section 162 of the Code of

it “C4′{i*iI1l_7li1/«’!l;l%”vl’1″”Procedure. Faiiure to hold a test

identification parade would not make

.. inadmissible the evidence of identification in

court. The weight to be attached to such.
identification should be a matter for the

courts of fact. In appropriate cases it may

5
p is.

~l26–~

accept the evidence of identification

without insisting on corroboration.”

257. Mr. Ram Jethmgalanlil ‘ll_e”e.__
placed heavy reliance on by foreign it K

authors, namely, Proof”-~o_f Guiltyby ollvargpllelet,

Williams, am Edn. Eye ._:Wl’tné:;ss
identification in “‘c:iz:fiimll5zc§ll” “by Patrilck”lM.
Wall, to urge that lliden’Litfilcat,iolnvof accused
in court. is a seri’ous:’rnattelr yixtilllelllchances
of a are “l}e1*:,r._.1:1igh. These

txextis or’lly””r’ei__tera.tfe,e What ‘the.- Various courts

.1’1″c’l.V’3T_ll’i:€’lCl’V’:{lfl7l€”‘ELI*l-Cl The View of t.he

l¥__sai._d– au’l}lceljfl1as”l.been cfuoted by this Court,

the “earliest judlgrnelztl being Shivqji Sahbrao

__Bobc”:lde’ Vs,_ b3_tci’t~é of Maharashtra” (soc

15:799. l5éu*a.§3)__. .

The evil of acquitting a guilty

‘ heartedly as a learned author

[__GlarlVille Williams in Proof of Guilt) has

” .s__a~piently observed, goes much beyond the

simple fact tht just. one guilty person has gone
unpunished. If unmerited acquittals become
general, they t.end to lead to a cynical

disregard of the law, and this in turn leads to
6”:

{V5 \V

5′:

/ZR .

–227w

a public demand for harsher
presurnptions against indicted ‘persons.’_:l’arid..
more severe punishment of…those.vvho:’.fVarle”
found guilty. Thus, too freLi;uent.laee1’t1itta1s ‘of’ it
the guilty may lead to feroleiolus pen:al_law*, V
eventually eroding the.._j’udicial’ protectionQlof”

the guiltless. For all thes’eV’reasons itis true

to say, with that it ‘a
miscarriage of from the
acquitta1_:lOf_ the’l§uilé::3V{t noatlesxs from the

conviction;5o’f.ti1Ve” innocent . ”

——– ‘lelarnedvvv-‘Solicitor General
othe3rw1’se. an adverse
inf¢rence..,_’6;ig1fi_’ ‘be drawn against the
__appellantsford’-._th’eibr refusal to join the TIP.
vv’il’i1is View-has___found favour time and again by
Court. It is pertinent to note that it is
identification which is a substantive
V pie’ce_of evidence. Therefore even where no
y conducted no preiudice can be caused
. tosthe case of the prosecution.”

(underlining supplied by us]

l #337. Therefore, the submissions of learned counsel for

accused that in the absence of the test identification parade,

ix}. 6/yl’§’\…«_., at –

I27

m128w

the evidence of clock identification given by PW_.15 is

incredible and not trustworthy, cannot be accepted;

98. The learned counsel for the accused” it

judgment of the Hon’ble S’upremleAllC’o=a,_1’t–«,AIR

2010 so 762 [Musheer Khan _@ sadsha:1_ Aiiharinndv an¢:,ae-r 1;.

State of Madhya Pradesh} had
limited opportunity to see t1;§.;;:sls.,;;p;1¢{i1:_ and also the rider of
scooter. Therefore, on which
PWs.15 had ridjerllof scooter, in the

absence of test.identification parade, his evidence of dock
identification that No.2 was the assailant and

accused,No.l “Was the rider oi” scooter cannot be accepted. In

d,eci,sioln«..rvepo1*ted in AIR 2010 SC 762, {in the case of

Badshah Khan and another :2. State of

MCirihyg1’Pfctd.esh}, the Supreme Court has held:–

“SO. It has also been held that the
evidence of the identification of accused for
the iirst time is inherently weak in character
and the Court has held that the evidence in

test identification. parade does not coristitute

128

— 129 –

substantive evidence and these parades”‘arej_~
governed by Section 152 of Code of Criminal. ”
Procedure and the weight .to”‘};3e« attach’ed:.”toll

such identification is a matter ‘

In the case on hand;l._v\:;§;ka;V’fin’d” of V
PW. 15 t.hat after the occurrence:’i1.e ‘had scooter of
deceased and had covntacted’–pVersonnel of Intel
Company throflkigh the arrival of the
security namely cw.3o-

Radha1_;ijishna1:,3:.:_;1?W1l5″ incident to him and
handed oVe1~.iVT,§-_hK–: olfwthe deceased viz. scooter.
laptopl”-an’d’_ scooter of the deceased and his
digital diazjydihadl” safely the hands of PW6 (father of
deceased]. “lh,e” ‘conduct of PW15 after the incident would

1e:id%co.1fn:borati’onv—tothe presence of PW15 at the time and

» place of Even otherwise, we do not find that PW.15

had anjwi-easonis to entangle himself as an eyewitness in a

ii”n,_1i9de1*v_cais§:;lV’ when nothing is brought in the evidence of

PWl5 show that he was a stock witness for the Police or

it hewasa hired witness by the father of the deceased. PW. 15

. \«.. ‘__.n.,,§g’».

I 2′)

130

had served in the defence of this country for a period of 20

years. From his evidence, we find that he is a publictspirited

citizen and capable of withstanding tense

due to his service background.

99. PW.l5 has deposed that he

assailant assaulting the deceased Ahwlthl _alVlv-ste;_’31~._,rCrd.

deceased after receiving blows.lheld’V..his hands his head
and collapsed. A girl distance of 10 feet

from the deceased. PW’1″5– had .s”€t_enfth.e’incident of assault

fronrpa distanlee’r-of 15-‘ feet. The assailant, after the
incident’*aoi’* assaultd canted across PWl5 and ran towards

scoiotver, the engine oi” which was kept in running condition.

scooterist came from the side of Airport road intersection

t’ook..,laa The assailant ran, jumped and sat on

the pi_:l’lio’nl’ of scooter and the scooter fled away towards

.. Airport road intersection. PW. 15 was at a distance of 50 feet
A’ ll”r–o–In the scooter. From the conduct of PW. 15, we find that he

-Thad helped Accused No.4 in shifting the deceased to Manipal

Hospital and contacted security personnel of Intel gompany

A

X

1

3’\é=_ zi;.j”x. at 51,.”

l 30

1″.

~wl32–

identity of the assailants. Power of perception

and memorising differs from man to r11a11j”*–
and also depends upon situation. It
depends upon capacity to recapitulate.iiiiihlatfl. -3′
has been seen earlier. But that.

upon the strength or t1’us’t\X}orthine&ss_;
Witnesses who have identified

the Court earlier. ….

102. The learned counsel foijaccusied have .sVubr_riitted there
was delay in 1’ecording’-tfieis–tatenj1entfof PW15 under section

161 Cr.P.C. Therefo1’e..-P’v’.7 Wasza iivitness.

103. l’Tl’he4lcontenTtiori.voll’»th’e__ldefence that there was delay in
recordin§«._tbc, sta.teAn_1entl..’i’of PW.15 cannot be accepted for

rn.o;ljevthan one ‘reason. The incident occurred at about 10.00

» on«3.»1:2:2_003 and the first information was registered at

4.12.2003 against unknown assailant. The

sta’tenie«nt”‘of PW.i5 was recorded on 5.12.2003. At this

‘ijuncture, it is relevant to state that as on 5.12.2003 none of

accused was in the frame of investigation. In fact,

l V’ ” “Accused Nos.i and 4 were also subjected to interrogation. As

:33; x pg.._..ur£% .

I32

~ 133 A~

on 05.12.2008, there was no clue about the of

Accused Nos.1 to 4. It was not a situratijonyV§yhe_reii’tl1ei'”‘__

Investigating Officer was marking ‘
witnesses to give a definite}:-hapevltohlthe
also not a situation whereltrriie» Investiga’tin-g after
framing the accusediwas Witnesses to plant
them to give a definitellsliapleito case. Therefore,
the submissiongpirnade’ for accused,
relying on in AIR 1971 SC 804
[Baletklrushlniav of Orissa}, 2004 sec {on}

2032lrvijaybneii”s_h;;{n«a§1i§i–~ Patel Vs. Navnitbhai Nathubhai

Patel and llothlers} land [1979] 2 SCR 94 [Ganesh Bhavan Patel

another vsl.’State of Maharashtra} cannot be accepted.

S ‘reported in E1979} 2 SCR 94 {Ganesh Bhavan

.lPyate1 andfailother vs. State of Maharashtra}, the Supreme

Courthas heldzw

“Such delays may not. by themselves,
amount to a serious infirmity in the
prosecution case. But they may assume such

a character if there are circumstances to

fl

E 33

–l34~e

suggest that the investigator was delibe_ra’te!yj—.:_li. 1-
marking time with a View to decide
shape to be given to the “Casey
eyewitnesses to be introd:L;ced’;iA~’iVA eat’er:i’a
circumstances whieh.y__. lend._[st1ch
significance to these “delays,
instant case, ,.whichVAl-ineVita’b.l.y lead–.to./Ethe
conclusion t.h,atd:7the’&«_ p;f_osecu;tio1’1._ story was
conceived and a-ft~er’jVgcV*od deal of
delibe.ra’tio._n, inpa highly redolent

of s’d;spi”cion~..” V

104..lv’T}:e_x: “cofd–nsel.””‘fa1’ accused have sought to
discredit. the on the ground that PW15 has
deposedlithavt Adeeceansed was assaulted by an assailant

[_later__eideVntified«acsmaccused No.2 before Court) with a steel

‘ ;V’1″Qd ._W.hereas l\/1.0.11 is a steel pipe.

.’ .105. to appreciate this submission, it is necessary

to state that external appearance of a steel rod and a steel

2 pipe is one and the same, both are elongated objects. The

only difference is steel rod is a solid mass and a steel pipe

‘ would be hollow. Therefore, when PW15 had seen” weapon of

I
A
\–»~{i£.\ (

134

W136-

her studies. Accused No.4 had seen the incident—ofi.assan1t,

which was a Cognizable offence. Thereforep,_”‘accu.sied nouéip

should have informed the policezhiat earliest; ‘-‘ifh_erefore.

evidence of PW15 cannot be _suspected forpnotpt1odgii3§*the..p

first information. . » . .-

108. The learned counsel for__acc_us.ed havecontended that

PW15 has admitted to”h:aVe’–seen:V ph.otogr.aphs of accused in
newspapers andvalso.=on.telecvisiontktsubsetluent to date of
incident. éalsiofthcttitactcused in the police
station. for accused, relying on the
decisionspérerportedtin..Aii§’i98O so 1382, (1989) 3 sec 24

and’AIR 1S3V93.._SVHCV’26vi8 have contended that the evidence of

of accused by PW15 before the Court had lost

. its sign.i’ficance’Z In Manu Sharmcfs Case, the Supreme Court

has held-test identification parade and photo identification

.. heldduring investigation wouid be only to check veracity of

‘ gdtheA’Witnesses and evidence of identification of accused before

stthe Court is the substantive evidence. Therefore, submission

of learned counsel for accused cannot be accepted.

f\_;’ \,,, €?\/\…’\— -gt.

-~ 137 M

109. Here we pause for a moment and state the reasori,s for

failure to hold test identification parade.

110. PW27~Chetana Belagere, w_ho__is

television serial had taken photographsrarid’there’

coverage of accused when they were Vproduiced beforeplli»

committal Magistrate on Th’e«.:photographs of
accused no.1 to 4V ‘l._appearedv.i.”in_p newspapers on

subsequent days. The pl1otographls”‘.of”:–accused no.1 to 4

were in telfevislion seri_ai””under the caption “Crirne
Diary”.l’.pIn._ the cilrciiiri_.slta,nces, even if test identification

parade had been, would not have gained any

5i3fii’fiCanC.€. Ind”‘th.e.«’circumstances, learned counsel for

‘ .acciise.g41l'<cvari"r1o_t find fault with the prosecution for not

lliolding identificatiion parade. Therefore the submission

of lllearnedll counsel for accused that evidence of dock

2 xidentificatiori of accused given by PW15 cannot be accepted,

6";

“has no basis. ‘ ‘ (K

; .

t(-;)’\.)”..’\” ‘\~- 1; ‘~-

137

wft38–

111. The teamed counsel for accused drawing out attention

to the evidence of PW15 would submit that

deposed that the incident was over withinftwo

Therefore, PW15 did not have to see

assailant or the rider of scooter,””viw1″Loihad:’accon;pVari1ed7the

assailant. We are not persuaded to”-accept’ ._this_’~s.uVbtnissio.n’

for the foilowing reasons»
It is manifest 7rne;d§ca1.V;ci}id.ence of PW18 and

PW29 that three or:.fou:r :b1ows»__wer_ev;deait on the head of

assailant came across
him judmpedvseat of scooter, which came from
the side of Airpo’:–‘_t road’~*’inte1’section and rider of scooter took

a__”:U:b_turin near””–t~he place of occurrence. Therefore, the

1 that the incident was over within two

‘Asecondsifs .-an embeliishment. We are yet to come across a

witness, whose evidence does not suffer from such

x Vf(§}S’£13:)€11iShI11€I1tS. which do not shake the substratum of

evidence.

5&1 (‘.”§§_/R271}:-m {AL K. M {Eh .

13$

— 139 –~

The learned counsel for accused have found4.fau.itwith

PWI5 for not chasing assailant.

PW15 has deposed that ass;1iiant«carne and 4

jumped and sat on piliion seat of and .,there.afte1r

away on the scooter. PW15 i1as..%depose_d’tha!; t’hve”‘victim of

assault after receiving,» injurieis”*on_:*hi’s.ahead’ ‘fell. PW15
was anxious to save of the circumstances,
one cannot ..€.?§:p€/Ct ifhave chased the
assailant If PW15 had shown
interest ton to hospital, that cannot be
termed’ Therefore, we cannot find

fau;1t”wi.th the c.;o’n’§1uc,§. of PW15.

iegards identification of accused No.4, there is no

. ‘-1r111;ch’VCof1trot?ersy. The defence has not disputed presence of

a§£¢as’é.g1 No.4 at the time and place of incident. PW15 has

4’ ifdentified accused No.4 before the Court, which fact has not

ljhfeen controverted by the defence.

2″‘-,

139

/’ I ,:

ixwff, …’_/,,..{j”x \.. «_ci/-4%, .

W140″

PW15 has deposed that scooter on

and rider of scooter (later identified as accuse:d~.._1 before if

Court] fled away from place of was Kinetic

Honda. However, 1′-‘W15 hasynot giye..n:’1*egistrationv

the said vehicle, as it cou«£d”i.not be ‘noticed “by him.
Therefore, we do not find any”‘reas’on:”to_ suspect the evidence

of PW15.

112. PW15. On the date
of occurrence-,.u returning from Domlur to
Eeji{5t_1ra__ f ridden by PW15. PW16 has
deposedthat by the incident; he was at a

distariee of 1’O,to’ PW16 has given physical features of

{iatedrmidentified as accused No.2 in the Court}.

A ._ -‘given the physical features of accused No.1,.

this juncture, we would like to state that the

* conduct and reaction of different witnesses would vary from

each other. The manner in which the witnesses would react

“E 53

~ 141 –~

in a given situation depends upon their guts a.nd.l_stifcnigt’li¢to

Withstand tense situation of witnessing ghastlycrilriieé.

PW16 has deposed that scooterlon lwhichassailant fled

away was a black Kinetic I»Honda4’s.co’otcr.
part of this judgment, we deal Kinetic
Honda scooter. ‘ ‘ l l l l
PW16 was an llartistlWdrl»§iri§’loii.vaarrionthly salary of
Rs.9,000/ 6 lrvith his wife in a
rented ; l
_.lPW16, we find that he had shown
reluctaricel or he was not available for the

lnizestigating u”C)f£i_ce«;: for recording his statement under

‘ V:Vl’S€Cti’9_rl.’1’3.ll.l’C1’.P.C. The statement of PW16 under section

” .l.1Gi tiras recorded on 21.02.2004.

AA j11éix.v,__”i’he learned counsel for accused apart from pointing

V discrepancies in the evidence of PWl6 have submitted

that inordinate delay in reco1″d1’ng statement: of PW16 under

‘€

39; \,… g”-1. .c 1

I41

—- 142 —

section 161 Cr.P.C., would clearly demonstrate that PW16

was a planted witness.

115. We disagree with this submission for

reasons» ._

PW16 is a native of Kerala:’Statei.A~?1and .

settled at Bangalore to eke+o”ett his’lii}eliho’od.i~f_1’t1eVVVn’iontl;–ly’

salary of PWl6 was nathuralvlthat. PW16 was
hesitant to entangle hirnselfp in a murder case.

It is probable that he.was he may lose his

abode at Ba1″1gaclo1*e.”~PW–lt3– has deposed about presence of
PWl6lr1ea1* place o.cc’t1.rrence. PWIES has deposed that after

oc§ct11’rence tool; scooter of the deceased and PW16

moped of PW15. After reaching the house of PW15,

CW30-P.S.Radhakrishnan, the Security

‘Supe_rVisorA of Entel Company through his tenant CW29-

.i VcA.S.’i\Eaveen. After arrival of the Security Officer [CW30) the

it ‘belongings of the deceased were handed over to him.

ln Vi€W of consistent evidence given by PWES about

presence of PWl6 near place of occurrence, the contention of
=’\

\… 5-E. xx’, (‘gar 1

-l43~

defence that PWIES was a planted witness

accepted. PW16 was neither interested in theggsdccesisof case V’

of prosecution nor he was ininiicalto accused 1’t.o_ av V ‘

116. We find from thefg ‘invest’i’gation thhat_i>

investigation gained its znoinentt1in._» only ~–.after Vfiarrest of
accused on 25.01.2004?’ Af’te1′{_’registration of crime, the
Investigating Officer Atreated1ae’c:’nsed No.4 as a

witness for .spot In fact; first ‘information lodged by

PW5 was of incident conveyed by
accused investigating Officer had also

1’eco1’ded=..gstatement’ ._of–..bg:’accused No.4. The process of

investigation ‘-involved” elimination of PW23~Pramod Dikshlth

acciised. Therefore, it is not possible to hold

A . thatff ‘~va.s–:”a planted witness.

li7… the evidence of PWIS, we find that his evidence

relating to identification of accused No.2 is sought to be

Algciiscredited on the ground that he had not given complete physical

H features of accused No.2. in his statement recorded under

fig
[fix-T-\ -x. 5:1-‘L. ~ stalk

M3

-144s

section 161 Cr.P.C. Accused No.2 “on

25.01.2004. ‘The statement of PW18

21.02.2004. E1” the investigating in}

concocting or giving definite s’hape’*–toll=i:he case.
PW16 as a witness, We not complete
physical features oi’:a.ccusAedVjp an olrnission in the
statement of PW16 161 Cr.P.C.

We Pwie that he had
narrated’ colleagues, probably to
seeliv it be safe for him to become
in delay in recording statement
Of, P.W16l’unders.sectiboln;ll6l Cr.P.C., cannot be a ground to

discard his evidence;

V .Vle’arned counsel for accused referring to the

lei/lildericeysilloflilz PW16 have submitted that PW16 has deposed

when the deceased was being assaulted, PWIS <3: PW16 were

llslitting on a TVS moped and PW15 had stopped moped after

passing the place of occurrence. Therefore, the evidence of

PW15 & PW16 suffers from material discrepancies.

fie:-. \ €11 x–«PEA

E44

–145+w

PW15 82 PW18 have deposed that both _QI_’_l44tlieni~;.carne

on a TVS moped. PWl5 was the rider and wjasla

rider of TVS moped. After seeingfftihe’ inc-ide.;nt.f’it._is’natu’z’all T.

that PWl5 had taken some time andfp;.1p1*’l< his

PW15 8: PW16 could not lvehiclle

unmindful of their safety. wetfcai-molt find fault
with PW15 & 'PW1£ill occurrence after
parking thepvwi-:hi–cle. ti1e'Vlldisc1'epancy in the
evidenceg'ol'lllF'_\.2\Vf Slrnoped was parked after
crossing o:c'cu:'1're1ic'e""'oi' before crossing place of
occuirencelis. consequence in View of proved fact
that both had witnessed the incident from a

.__Of lCfor feet.

_ counsel for accused have submitted that

l’ . PVV16 lent his hand to shift the injured to hospital.

it ,. Al?V.Vfl6 has deposed that he was stunned after seeing

lithe incident. PWIB has deposed that he became tense after

witnessing the incident and he continued to suffer from

tension even when he was examined before the trial Court.
:”~..

3

x

— 146 —

PWl5 was an exwserviceman. PWl5 and

bold to raise up to the situation. PWl6_.was=,aV

appears PWl6 had not come acrziossfghasftly it

past. Therefore, the evidence of that h.e”‘.t.«.va’s ftenjs.é’ands

he could not lend his hand ‘Vtorshift the_ir1jured;:toHhospital
cannot be a ground. on the other
hand it would lend assurance

118. d finds substantial
corroboration’ PW16. The conduct of
PW occurrence in safely taking the
belongin the handing over the same to the

segcurivty 0ffi’ci_als of Intel Company would not only lend

if <.corro'boration to their evidence but also demonstrates they

._ asvpublic spirited citizens.

ll9.f evidence of PWl5 is sought to be discredited on

ftlllf: ground that there has been discrepancy in the evidence

of PW15 as to whether PWl5 was holding feet or head of the

injured when the injured was shifted into the car of CW2l.
5} 53
“.7 V *\_, .C;’\V.»\” »§__;’ig’.,},X’ ”

146

– 147 –

The fact that. injured was shifted from placegof

Manipal Hospital at Airport Road in the carldriveinbily C’b,’Vvi2u1b

is not disputed.

120. In the circumstances, _fldisc1l*epancy
PW15 as to whether pw15″‘w,:}::r_’s» holding head while
shifting the injuredinto has relevance.
Therefore, we hold evidence» assailant (later
identified had assaulted on

the head’ of / pipe, thereafter rider of

scooter __[1.ater?’identified” -as accused No.1 before Court) came
on a scooter fron1″~the of Airport road intersection, took a

U-:ft1;1i’ITl, thereafter assailant (accused No.2) ran and jumped

.Vpoi1p’illlion’~.seat oimscoot.er and both of them fled away on

r«Scooter…l”i11d’s,Su’ostantial corroboration from the evidence of

Al”W16; not find any material discrepancies in the

AA pevidevnce of PW15 <3: PW16 to discredit the same. PW15 and

* did not have any oblique motives to give false evidence

F against accused 1 to 4 with whom they were unconcerned.
/'

A

f\_I'=, M… §,3's\_.L_,m,.[%..[ff\ ~

e 148 —

PW15 has admitted that before date of

had contacted the investigating Officer (PW3lli-1:axfldreddestetj,_.

his permission to take out a procession of lrifaritilvesus lands

PW31 had obliged.

121. The learned counsel ‘submit that
PWl5 was acquainted”:w_ith theIlnyesltigatinguéfficer [PW31]
before date 0f»QCcur1″,3hC.’l°;_\V..V i ll ll

PWIE3 “PV\f81 for any personal

favour, personal Work with PW3l.

If PWIS had approached
PW3l§PoiicevInspectorllof jurisdictional police station to give

prgotec.t1on ‘fo1’..proces:slon of Infant Jesus held by the Church,

said that PW15 was a stock witness of

jfuprifstjict.iVonalv”.police {Viveknagar Police}. Therefore, the

c0..nte,ntiorf of the defence that PWs.l5 and 16 are planted

AA witnesses cannot be accepted.

It is the case of the prosecution that accused Nos.l to

u 4 were arrested on 2501-2004. Accused Nos.1 and 2 gave

fi *
* r z\ .. E
3\: p.tiz*x axle am.

$48

–149~

voluntary statements and the admissible portions are

marked as Exs.P.94 and 19.95 respectiveiy. E”_W;:f3p:’1Vp:”‘has

deposed and identified the voluntary statemeiit’s 4_

Nos. 1. and 2 as per Exs.P.94 and.PA;9.5, 14_’_:an”d_V ‘ t.

led the Investigating Officer to :”i«he1’_fA1″*rpo’rt.

appears that PW.30 Mahadextx Was”-securebq; ways

Thereafter, Accused _Nos.1 arid,_2V.__toot<.:' "the Investigating
Officer and PW.3OVtoz:Lar'ite121pavV.Bushhlocated inside the

defence area and poiinited'= out That area has

barbed 'N.:os.l 2 removed a steel rod from
that bush. The officer seized it and prepared
rriahazar per. ff

_'f';EiW..hj3'().:vi\/Iahadev has deposed that at the relevant time,

:.ét'~.,,f:'CfVJ;I1'Vt..I"x':lCtOI' in BWSSB. He has identified Accused

Nos.1 and :12 before the Court. He has deposed that he had

fspeen Accused Nos.1 and 2 about one and half years prior to

if fthe.:'date of his examination before Court, near Airport ring

_.:road. PW.3O and his brother Shivaprakash were retu1'ning

from the house of their motherwin-law. it was around 2.45 or
/'"=.

5 , 3?

§\’. x. Ll/wvf-“-2” =

I 49

-l50-

3.00 plfi. The Police called PW.3O and reque’st’edV’~l5?VV 3t}~.to

be a witness. At the first instance, PW,.30:_:waVsv.l.:somewi’1atll”.,_

hesitant, but later, he agreed. ‘l’herebafter,”Ac’cused– Ta’nd7._

2 took PW.30 and the lnvestigatihng officleviflnearl
situate in a defence area afidfiboth and
took out a steel rod and sel§£ie”i§ the Police.
The bush which was Nos.1 and 2 was
within the§~d’c:Fefice barbed fence. The
police ‘EX.P.87. PW.3O attested
theta). PW.31 Naniah, the
Invevst.i§ating– also PW.26 have deposed about
the _vrecoi}’e1’y:’ of “rod from the bush shown by accused

h_6;1;,.avm1.2. —-

ci’oss–examination of PW.30, the learned

‘Wcolunsel.V’Vtf{0re:’ accused had confronted Ex.P.87 to Prove that

contenitsv of Ex.P.87 do not indicate that steel rod which was

lily-i.ng in the lantana bush was removed by accused no.1 and

The learned counsel for Accused No} and 2 relying on

the contents of FJx.P.87 have contended that the recovery
5%

f\.?. rvl» M zit» », ate} \

150

e151-

was not at the instance of accused No.1

counsel have contended that the jO1’I_l.it””>I7é:(‘;.(v)l\fE}Vl;:”yi_Ai»$1’l”£Ol1V”-.

admissible in evidence. The lea1:r1ed.,coilnsel.for the-acellsed

have contended what was recovered. that
rod in contrast to MO.11 is a learned
counsel for the accused that soon. after the
steel rod was taken ‘Was not seized and
no bloodstailrlfd-t’ wdife steel rod. The
the permission of the
concerned “enter the defence area.

124~~:’ /f1″‘1(‘3 for accused have relied on the
dec_isions~reportedA~–in’siO03 scc [Cri] 1149 (Salim Akhtar

__fl\/I0__ta x}s;~..s.tate of up.) (2008) 1 sec (ci-i) 733

‘,.l'[“?~at’ta_tiya<vl. i"a1.ias Satish Rajanna Kartalla vs. State of

* ll\2iahara–§s"iitfa), (2007) 5 sec 658 (State of M.P. vs. Nisar).

125… the law is fairly well settled that the admissibility of

2 the evidence under Section 27 of the Indian Evidence Act

relates to the fact discovered on the information volunteered

5?

I5!

–152~

by the accused. The authorship of conce~al.nf;e:n_tll.j’and

existence of such concealment \7vithir1.V_ tll1.e’,:’1XclL1si’ve

knowledge of the accused is the criteria. ‘iln.__Va.Vdecision

reported in 2005 {3} Crimes _87 [State {N.CT3:..’iT.rlA.O{ l’DVe1l,hi} v.3

Navjot Sandhu @ Afsan Gii’ru:l]’i.the Suorerne after

referring to various the judgrrient of the
Privy Council in the Vs. Emperor
[AAIR 1947 discovered relates
to the authlorsl~iii5′ exclusive knowledge of
the relevant and admissible under
section. of Act. Therefore, even if the

Investigating VOffi’cerA’–v_ha’d: removed the steel rod from the

‘~ _ ca,nnotllb’e”*said that the recovery of steel rod {M01 1]

*\vasi_not”ivnsejpursuance of voluntary statements made by

accused Nfgsfl and 2. Therefore, the decisions relied upon

” of the instant case.

by thevllearned counsel for accused are not applicable to the
Writ {\”””-‘-r’\E;’/K}/yxv \» L, 6/ El,’

el53–~

126. The Supreme Court (in the case of State

us. Navjot Sandhu @ Afsan Guru), reported it

87 at Page 151, has held:–

“There is nothing in thiis:j–udgmeVnt”whiclh.4.l’3vit
suggest that simultaneoius
than one accused do not-..at–..all enterv intd the

arena of Sectio11_._2’7′, as a pr”oposit~i.on of law.

Another case-hizsfhichy noticed
is the2_’Vcasei:.’of Rarnkishanlv’Qls:..B.ombay State
[AIR ” admissibility or

did not directly
1′-icome Vco”ns_ideration in that case.
How’eVer,.yV.’v.t.hile’–~..di’s.t:inguishing the case of
Gokuldasl ‘D\tvabrk.aldas decided by Bombay

E ‘V High aéipassing observation was made
. said case the High Court “had rightly

— a joint statement by more than one
was not contemplated by Section 27
“–We””cannot understand this observation as

it “laying down the law that information almost
simultaneously furnished by two accused in
regard to a fact discovered cannot be received

in evidence under Section 27. 1t may be

relevant to mention that in the case of
F’ ,/'”i
3

K E

–. . E. ,. I

153

w~l54w

Lachhrnan Singh vs. The State {1952 SCR

839] this Court expressed certain reservations”-.

on the correctness of the View taken by
of the High Courts discountenancing -1-

disclosures.”

127. Therefore, the submission 0-fuxlfearned V”-couizse1=;;Vs for ‘

accused that the discovery-.___ of lM.C_)’f1l c.-rill’ basis
voluntary statements made and 2 is not
admissible, cannot be.a’ecep_teci§_._. ~

128. Vv.co§in.se1’fo1«»’.t1i}a accused have contended
thatlas ‘ 1561’ __of PWs.3O and 31 a steel rod
[MO.11)lVV’w.as.V recoife_red:_”..’on the information volunteered by

Aeeuvsed Nosll ‘~and__2.and what was produced before the Trial

.A jcourtvl w.as:a~– steel pipe. Therefore, MO.l1 was not the object

~. \%rhich’v}as_ recovered at the instance of Accused Nos.1 and 2.

In’ the discussion made supra, we have clarified the

‘~ difference between a steel rod and a steel pipe.

@129. The learned counsel for Accused Nos.1 and 2 have

contended that as admitted by PW30, PW3l and PW18

.-

=’\

\.. \_,

£54

M 155 —

Drfiheemappa, MO.11~stee1 rod had no

However, in the FSL report, it is showrrV__th’at ‘§iver_ef”=__

bloodstains on the steel rod.

130. From the evidence of 118.. we[:f:’n’d

Investigating Officer had to._f_PW_:’.1 seek his
opinion as to the injuries fou’nd”.on’tVf1e&deceased” could have
been caused with an e’bje¢:”1:1;e::’M_o_§’i,13.V”‘_;?w.18 has opined
that the injt1r’ie:s*_- could have been
caused The Investigating Officer
had PW.18 as to Whether
thereizwere ii\-iO.i 1. Fronfi the examination of

E\/I.O_._11 M steel rod, and PWSI might. not have noticed

b3o:odstfa1i3,s on x’i\’/i;’O;iV1. However, this does not mean that

O =b1oo_ds–t;ain4sg_Were not noticed after forensic examination of

the Scientific Officer in the Forensic Science

Laboratory. The contention of the accused that the

iinireestigating Officer had smeared blood on M.O.11 before it

Vgwas sent to the ESL cannot. be accepted. At this juncture, we

O deem it necessaiy to state that as per the evidence of PWs.26

r I
the-‘., a. Céfug’

155

– 156 ~e

and 31 the place of rccoveiy is said to be at a _.__lCo'()

feet from the place of occurrence and towarols..the.:’n_orth’of b

the place of occurrence.

131. The learned counsel for véaccluised to,

discredit evidence of recoVei3r:lV”‘by relyi.ng”»t3n oi
PWs.l5 and 16. The.__evic1-eheefjtfpwi5tletndrwie that
accused No.2 after with a steel rod
carried it, afte<r:;sitting'_Aonb hevvdvconcealed it below
the collargoi" 1;;§ei{._:s:c1e, has been found to be
an of PWs.l5 and 16 recorded
under As per evidence of PW15 and

after thedncidient. accused No.2 ran away from the

V' 'place incident and sat on the scooter and concealed

. back beneath his co1.lar. The assailant was not

kn'own.__"to.:PWs.15 and 16. 'Therefore, We cannot attach

iiniiportance to this omission.

The learned counsel for accused have contended that

” ~ the investigating Officer had not taken the permission of the
I .

(R3: 31- “~ ‘-f”‘!/1

I56

au157~a

defence authorities to enter the defence area .«to.._.d.i_seover

MO} 3. The investigating Officer was discharginglgofficuial

duties. In the circumstances, eVen.».i.l_’_he had it 1″‘ai_ied”to’ Aobtai1″1. 1

permission of the defence autllolitiesl that” a

ground to discard his eviden_ce._relati’ng to y…Qf ii’

on the Voluntary infonnation__gfi;,~-gm by and 2.

133. From the contei’illsof«re1f)>ort_as per EX.P.39, we
find that MO_’.}.1_h steel” of blood. As the
stains grouping was not done
by the O’

184. the accused have found fault

the In’Ve_stigating Officer in not packing and sealing

soon after it was seized from the place of recovery.

._ has not relied on the blood grouping found

on and the clothes of the deceased. Therefore, the

.A inadvverteilt act of Investigating Officer in not sealing MO.11,

Ogle:-tnnot be at reason to discredit. evidence of recovery of

F M_O.1l at the instance of Accused Nos. 1 and 2.

rs’ ‘-

i
(fix.-E’ \c. {-71 ‘\,.–‘\v 6?’

e~ 158 M

135. PWJ31 the Investigating Officer has also deposed in

pursuance of the voluntary statement of

black Kinetic I-Ionda Scooter was seized or

Accused No.1. Though the investigating’; fOuffic”e,r’ has l

as a recovery, we find that the.4_peree’p_ti’on of the investigating’ ,

Officer was wrong. We find the eyidelnce, scooter had
not been concealed irrthe hxou.VsVe”‘ .a’cc.used $3011. But the
fact remains on 25.1:2f)Q6 :’i1yeatigating officer had

seized the B’ialci§..Kine_tic§ I«1~ende”eeen:e} from the house of

Acculs_ed–_No.cl1 eyeljWi.tr1esses to the occurrence namely
PWs.1S ‘arld V16’ the scooter before the trial
cegm. l V

learnedllcounsel for accused No.1 relying on the

if Dhanashekharan and DW.3 Manjuladevi

elder V__sisterAfof Accused No.1 have contended that DW.S

nManju1.a Devi was the registered owner of Kinetic I-Ionda

lS.coloter {l\/10.1] bearing No.KA 03 S 978. The scooter was

if ipurchased in the year 1997 and after her marriage in the

.: 5?

158

– 159 –

year 2000. DW.3 was staying in her husba:nd’shVV.h:_o’t;1seuin

Pudupet, Tamil Nadu. DW.3 was in possesstion and she was

using this scooter at Pudupet. » b j ‘ A L

DW.3 has deposed ofi4″2A{i;’1..200%i.”_¢:t’
pm. the Police a1ong\Nith”‘}’t.ccL1sed her
house and seized the’scoote1€ also ‘deposed that
on 24.1.2004, on of accused No.1
visited Viveliiiagar Police that Accused
No.1 was enquiry, from his wife
Shieifore the Court), he came to
knoxhfithat had been taken by the Police to

Tirupathtir t’o._s–eizA’e_ the Kinetic Honda Scooter from the

of. has deposed that on the following

heisawthe scooter near Vivekanagar Police Station and

it A a blue Kinetic Honda Scooter and it was of DX

mode’1’.3_PvW2 has deposed that the Police might have changed

” the model and colour of the scooter marked as MO. 1.

£36. The prosecution has relied on the seizure of the

scooter from the house of PW22 {father of Accused No.1} to

I59

– 160 —

prove that after the incident, accused Nos.i _a’n*dl ..had__’liled

away on a black Kinetic Honda Scooter by

accused No.1. PWs.15 and

were able to notice the registration.’lriumbe.r–“..oi::the ‘scooter.’
The evidence of PWs.l5 and
after the incident ._th’e~..placelvof incident on a
black scooter cannotlhel seizure of black
Kinetic Hond’alVLE3coo_ter§S of PW22 lends
corrobori’1tiolfi” and PWI6.

13″/’.lg_ We ‘0 evidence of DW.2 Lakshmi
Chandraslhelihar Kinetic Honda Scooter bearing

03 iivas insured with National Insurance

‘VComioariyij,”Basavanagudi Branch at Bangalore. The policy

was “bei.n_gv.l’rvenewed from time to time. The contents of

E:<.P._'38 would reveal that the Kinetic Honda Scooter bearing

_ Registration No.KA 03 S 978 was insured with National

0' fll~ns5u1'ance company at Basavanagudi Branch at Bangalore.

Ex.P.57 is the policy issued for the period from 09-09-2003

to 08~09~2004. The premium collected was Rs.498–00. From

-.;\:g :1 \. ii L “x Kéfx

J60

–l61–

the contents of EX.P.111, we find that a sum of Rs.8,000/–
was paid by the Insurance Company in respect of drainage in

relation to the accident that the vehicle had met–.– ‘had

taken the vehicle to Tamil Nadu, it looks

National Insurance Companyrhl Basava’nagu*d.i: at’,

Bangalore continued to be insurei’..of the vehiclge; As
by DW.3 the scooter was plurclaased Vin: “I993 and
her marriage was per.formed” year “$2000. In the

circurnstances, it looks irriprobable a newly wedded

xvomanlllwhile tofier husband’s house had taken the old
scooter ‘fron1_her'”u parental’ _.house and continued to have the
insurancejyoiicy .renevved7 at Bangalore. There is no evidence on

record’ to show,t__hat DW.3 had intimated the RTO at Tamil

I :v”Nad1,i’tQ’,t)I’0jVe that she had shifted the vehicle from the

H =:l$tate’ ‘ofj–Karnataka to the State of Tamil Nadu. We also

no-ticeufrorn the evidence of DW.3 that she having witnessed

the Vseizure of scooter from her house at 10.30 pm on

’24:.1.2004 by the police who in fact had taken Accused No.1

I [her younger brother] did not inform her father about the

seizure of scooter. If the police had taking accused No.1

E –

16]

~ 162 —

from Bangalore to Pudupet to the house of se.i_ied

the scooter from the house of theof

owe would have been to inform ‘father

PW.22 Dhanashekaran. P’.x’V.2_2
his wife that Accused No.1 OhadbbeenVtaitfenffbyftghe Police to
Pudupet, had not that if his son
had been talren bygthe Therefore, the
contention2_of ‘ofVfrif)Ws.2 and 3 and that
Kinetic tised by DW.3 at Pudupet
in The contention of the
defence: ‘that Officer had not seized the
scooter the-hiouse’ of Accused No.1 cannot be accepted.

iC0ntention’of”‘the defence that the Investigating Officer

O colour of the scooter does not stand to

Investigating Officer did not have any oblique

motifx}eL. to change the colour and model of the scooter as the

_identity of the scooter could not have been changed as a

scooter will be identified by its registration number,

engine number, chassis number, etc., Therefore,

[__.\_. ‘\;\.–‘V (‘£171

162

M163-

the contention of accused that the Investigating Officer had
changed the colour and model of the scooteifévtiannot be

accepted.

138. Now we refer to the conductffoi’accused :s’ufbse-qijentgtof T. V

the occurrence. The learned Seriior–._Ccunse.l appeariiigvlfor

Accused No.4 relying hthefhfu €\’/iden{:en’-iTot” PW.
Shankaranarayan, 29 Harsha,’ “-PWV 23-Pramod
Dixit would submit No.4 was
in a state of shock lPW.23 had visited

the house of accused’ to console her.

lI\’y,,fl’l§~, made supra, we have held that

I-_’W.lO’ examined as a witness for the

‘ had not only turned hostile, but also had

“given to lay foundation to the defence. We have

also.’ discussed significant features of PW.lO that he has

” “rr:a.de contradictory statement on oath. Therefore, the

Argeyildence of PW’.10 that his daughter was in a state of shock

f
[}r”;\v\r’w– 5″ LL

I63

Wf.64~–

and she was sobbing after the incident is only a se1f–serving

statement.

During cross–examinat1’on by the learnedvcot;-n’sel”‘fo1j

Accused No.4, PW29 Ha1’ShEl.:”h£%S’ f

Accused No.4 brought the injured
was in a state of shock. sobbingdand,;””‘eeping. in
order to appreciate this eVi.de;’nc_e’,”.._Vwe have_to.:§ necessarily

consider the situation vlpre\fale},rl1’t particular point of

time. The injured fatal injures to his

head. He of coma. In the circumstances,
PW.29 ‘=Dr.Harsha.A’v.ra.s–._ more concerned with the critical

cqndition of than observing the expressions and

cbizdition of accused No.4. PW23 has deposed that

was not liking the deceased. In the

cilrcurnstances, if PW.23 had seen the accused in a state of grief

AA tl1at:.cannot be a ground to hold that accused No.4 was grieved by

” t.l’1_e-A death of B.V.(}1’rish. On the other hand, the phone calls and

the SMS calls made by her to Accused No.4 in particular at 2.10

am. during the intervening night of 3/4–l2–2003 and the

f\’. \. 5% »—5{:’-‘

164

W165-

SMS calls at 6.41 a.rn. on 4.12.2003 and 6.51 a.n’1. on

4.12.2003 would lead to an inference that she.Vliw!as.V_ not

grieved by What had happened to the decease__d_man–d._’had

contacted Accused No.1 to inform «of

deceased and also to caution hirn. bThejco-nduct ofTA.ccu;se-d

No.4 in contacting Accuss-:d_4_ No.lIp_at onllthe;

intervening night of 3/ 4«l2–2C0_l3 and the early
hours of 4.12.2003 vlfliéjn l_’1er_ llanc.e’T”avas on” death bed is
totally inconsistent vv1’th’l- __l.l–~Neither Accused

No.4:norllAecu_sed:l’No hadmexclusive knowledge of these
SMS have. offeredany.._ex;d1.anation for their unnatural and

unusual conduct;

. also find from the evidence of PW29 that

.S’E&tCxIIlt§fi.+Llé_» trade by accused No.4 immediately alter the

oc’c_urre’nce<–'were not consistent. Accused No.4 had given the

xhyistolrywof assault before PW29–Dr.J.N.Harsha and she had

-..disclosed that the assault took place on the head of Girish

.. ,V_..vvith some weapon when they were witnessing the air craft

landing. From the contents of the Medico Legal Register

F

.l\.-‘. \ 5»-xv c.2257; x

165

–~l67e

15 minutes thereafter PWJO reached Manipal Hospital. PW. .10
has not deposed that when Accused No.4 <:ontacted;hhirr1 over

phone at the earliest point of time, i.e.. after the oc_c"urrene.e. * she

did not inform PW1O as to how B.V.Girish .si.1:fferedV_"'_the

injuries. As already stated, PW. 10 declaried rufitriess.' j

During cross examination by the'*.leair_ned coo.snei for'v_ACc'tised

No.4, pw.1o has come out Version that {m.._'3…1.2_–2oo3

about 9.45 p.m. his daughter, Accused Noxliiniorrnfed him over
phone that an incident_'_.oiT ass':_Vau}..t. ha.r_l'oc"e.urred on the person of
I-3.V.Girish near Air ViewV_I?oint atADomluiniéoramangala Ring Road,

a11d1jiEV1':(l,'SL!$t'}':11V_I_1Cd jinjures to his head. PWJO has
deposed Wh.en'liveiiecreifiedyhaisecond phone call from accused No.4
sheinformer1_VPW.'.1OAihafsshe had shifted B.V.Girish to Manipal

fvip§:Spflél_ . ….. .. «

' .V.h1'«~'£.1_'..,PWVj:'3:TB–_.V.Ramesh, the elder brother of deceased has

'' .deposed'.V*that on 3.12.2003 at about 10.30 p.m., he received

a piioine call from Accused No.4 who informed him that when

2 » it thedeceased and Accused No.4 were returning after dinner,

htthey had stopped the scooter near Air View Point and they

H were watching the landing of aeroplanes. that time. some

5'

!'\5- \, C7» \.-~»/ {:1

$67

–l69w

accused no.4 had expressed her desire to__;seel..>land’1nl_g’«of

aeroplanes from Air View Point around, p.m.l”

3.12.2003 and that was not g¢_na:.ne…»d;:..si;?e’.–..

evidence of PW5, we fir1d.th_at acciised
B.V-Girish at 5.32 p.m. atllllleéwofi We
could safely infer that<.i_t ._d.esi1fe of 'accused No.4 the
deceased tookpher to dinner and spent
time in the'*'saiAd:p."hote_1 lTl'hereafter, as desired
by to Airport ring road and
the landing of aeroplanes as
byl This conduct of accused No.4

w0U.ld leadil t'oV.*an.'- inference that her desire to see the

A "aero3pl.anie_1andingMf1'orn Air View Point was ostensible and

_her 'vinr:erfi1:ion was to create an opportunity for accused

A 1. to commit the murder of her fiance~B.V.Girish.

" 'We notice from the phone calls exchanged between

V._Ac_cused Nos} and 4, Accused Nos.3 and 2 and Accused

Nos.1 and 3 that they were in constant touch With each

other after the incident till 4.48 p.m. on 4.12.2003.

:-

5′:

E n

rm X. \_ ;;»;,..\_ J A

159

;i7o–

“l’hereE”ore, we hold that the subsequent. conduct of E1CCL1S€fi..’iS not

consistent with their innocence.

143. The learned counsel appearing for Accused’ l\ToS.l,ll”-2 ll
would submit that by placing relianceon the call liilstary sheet. it
cannot be inferred that there was coi1;tactll3Je’twee11_

to 4 and it is also not possible to difaw anv.inferenf:_e’ th’af,Aecused-V V L’

Nos.1 to 4 had conspired to commit the murder’ ol’lE3:.V.(l}:irish. The
learned counsel for Accuse.dfNo.-ii woulld..su_binit that Accused No.4
was candid and bold andvhif V-i(as–“‘not’>.:’willing to marry the

deceased, she wo’i:’id.’i1aVe__ expressed tl’i–e*sarne to her parents.

{This lsubmissiion .cannot be accepted in View of our
discussion and accepitanlce__of».ev-idence of PW8, PW1l and PW23 to

whom accused “11o7ri._ liad Vexlpressed that she was not willing to

” – ._ mam? B.:V’-Girish.”‘i aaaaa <4 »

l V' 'V fairly well settled that conspiracy is by and large

i–nfe–te11tiall_"_anCE, such inference has to be founded on solid facts.

Sur'i'ountling__§"circumstances, antecedents and subsequent conduct

. amonglother factors constitute relevant material. [Vide AIR 1971
l $85]. in Ma.nusl"}a1'ma's case reported in [2010] 6 SCC i. the

q _.$upren.ie Court has. held that the close association is a very

in'1portant piece of evidence in the case of Circumstantial
f'.

pas. »- 5*»-»~ .2 L

I 70

W1″/’3-~

Company, Therefore, examination o1’CW3O to
necessary to prove these uncontroverted facts; V it it

146. The learned counsel for
contended that CW2I–Sujesh._<_'Kurnarl,""who
deceased in his car from of Hlvlanipal
Hospital should havevhe*e_n M l

The fact that after of B.V.Girish,
he was injured';3n?1 heitwas '«:i}'orn:§)lVace of incident in a

car to Ioeeir disputed by the learned

counsel for .faCt, the learned counsel for accused
No.4 hasrelievd on .'the~'c:o_nduct of accused No.4 to prove that

accused No.4 raade all efforts to save the life of

'Bf./.€}i'1*iAsl1'A"ai1d her conduct was consistent with her

._i1'1i'_10Ce'11t:"e,__ V.

Ihthe circumstances, non–examination of CW2] has

caused any prejudice to the defence. Therefore, it is not

it ‘djaosslible to hold that prosecution has deliberately omitted to

l’ = ..—-examine the above witnesses. In the circumstances, what

5%
2′:

173

— 175 W

summary relating to his father–ir1–law.

summary and its enclosures are mar-ke;d…::’as”‘~s.V*x.D.f3U,u0

Ex.D.60(a) to Ex.D.60{c}.

149. On behalf of accusedV.N.o.1, lj’J_\Zl1′>Sathyapr.aliash 5.’!

Was examined to prove and ltirevatment of the
father–ir1–laW of of
PW22 Was admitted 02.12.2003 and he
was discharged««l.o.i1 time, DW1

was working _thel”–Medi’cal”Snperiristendent of HAL Hospital.

DW1l’has “thla”t_:o’n.e’T.V.Balakrishnan was admitted
in HALlHo_spital”0rl1″ and he was discharged from

th”€_§lhospita1l” 11.12.2003. Ex.D.6O is the discharge

relvating to T.V.I3alak;rishnan. Ex.D.60(a) 8: (b)

._d’ei_fi_e1c1””l(z)”2’….»V_112.2003 & E3x.D.60(c) dated 04.12.2003 would

disclose ‘examination of T.V.Balakrishnan in HAL Hospital.

During crosswexamination by the learned Public

llF?rosecutor, DWI has admitted that there are no records

l maintained in the hospital to show as to who had visited the

i’

5 3 E

Ml76w

patient namely T.V.Balakrishnan after taking pennissionpand

without taking permission. Therefore, DWI

able to state as to who had visited TV.Bala1fiishnan.:f2vhe1i

was being treated in HAL HospitaL,_

From the contents: of ltliajt”;

‘i’.V.l3alakris}inan was admitt.ed in Hospital on

02.12.2003 and discharged ca}; 1

150. Therefore?’ the and contents of
Ex.D.6O are to gnolveilthat accused No.1 was
in pig; £~IoSpitaii-_.ibci;i%veen.. sso pm. and 10.30 pm. on
O3.12.2f}0f3 has made out by accused no.1. In

the.{c’ircumst’an..ces. accused no.1 has miserably failed to

prove of alibi. Therefore, we hold that accused No.1

false plea of alibi, which provides an

additional-.1«ink in the chain of circumstances.

A The learned counsel for accused No.1, relying on

Ex.D.61 to Ex.D.64 would submit that accused No.1 had

completed Lsemester LLB. examination held during the

/
5 ‘
, \, (7L’x,. w({3;’i—E

176

~l78–~

has admitted that he knew Shubha {accused No.4») from her
childhood and she was a good girl. “[herefore;r’learned

counsel for accused No.1 and learned seriior–..ce.u_nse_l”for

accused No.4 would submit that characterrancjiiigonduct

accused 1 <3: 4 is enough to li'.hel~;_

crime. The learned counsel would ls–ubmit.pl.ifhat cori.duet"of
accused 1 & 4 as establish'ed°f.rom the evidence on record

would clearly rule o11't~tj_heir.vinvolverrient in the crime.

llorder submission, we deem it
proper to lrely"o_:n._»l'the"~}.u'dgrnent of the Supreme Court,

reportedillrnV_lAIR..'– ;t9v65"'..SC 682 (in the case of Bhagawan

Lal l"B'isiiaVn Lat and others l v. the State of

V =llla'0l1aroslitrEcL}",–'wherein the Supreme Court dealing with the

'l sections 52 to 55 of the Indian Evidence Act,

1s';.2l}';1als held»

"it is clear from the said provisions that
the evidence of general reputation and general

disposition is relevant in a criminal proceeding.

5
T\””} = . ‘:4 mi/–T\~-“~c »o:'(v’;\ ;

178

:’cleVer1*1essl:”to real traits.

~ 179 we

Under the Indian Evidence Act, u1i1’iis;-e_fVgi_i_i. it

England, evidence can be given both olflgerlieral

character and general disposit_i_on. I o1’spo;,s:tiong_

means the inherent quaivities-,.ofl’–a’

reputation means the general: credit; the
person amongst the “aiéeai
distinction between reput:at_i_on_p and ‘disposition.
A man may berA.epp:1t,edA to man, but in
reality he may have-Ia The value
of evidericc.. as ,jdis;positionVV’V of a person
depends witnesses’

perspicacivty on tlieir opportunities to

yivobserve. a as {yell as the person’s

But a

disposition oifa may be made up of many

traits; .,some good and some bad, and only

zféyidence lini’~~-regard to a particular trait with

..whic_’ri”t;he Witness is familiar would be of some

it vl.l’_W’ig–more puts the proposition in the

fol.|,loiitjng manner.

it “Whethe1′, when admitted, it should be

lgiven Weight except in a doubtful case, on

A whether it may suffice of itself to create a doubt,

is a mere question of the weight of evidence,

§’
‘~ \» {‘\”‘\, -cc

ff’!

I79

~«~182w

circumstances, we have accepted th6V….._l$«?1n’1é;a.Vjfhe

irregularities attributed to the Investigating

to root of the case of prosecution; >W’e have 1″1.;otnr’e1j’errec:§.itolthefp

extracts of texts of SMS sent
the trial Court had not the s_a’m.el
lapse on the part of ;.the Inye’stiga_tling Oflficer-~to~lupdate case
diary and applications
prepared by a1’e:”n”ot’ In any event,

defective .–inwfest_ig;atio.ri__«_by itself cannot be a ground for

acqi1’1ttal”*»xr’}i;,¢n exarnined on behalf of prosecution
havelbeen learned trial Judge and also by us
{Vida (26081 1 sec ACril’6′?’¥lL paragraph 26}.

15%’;-.E._Ti:us, we-“surn up our conclusions and findings as

‘ V lollowsi ‘–i all

lTl’re’j_pr’osecution both from oral evidence of PW8–Hema,

Plll/lull-S.hleetal Rajagopal and PW.?,3–Pramod Di:-(it and also

2 it by_thel conduct of accused No.4 and her contacts with other

Ariaccused during two days prior to date of marriage

H engagement, on the date of marriage eng6’1gemer1t and

H32

M 184 –

Accused No.2 was in the company of accused No.1.___Accused

No.1 was in constant touch with accused No.4 .10 the

movements of the deceased. Accused

home had insisted the deceased tomstop s.co’oter’_ine’ar Air View

Point on the pretext of seeing l»and_i’ng:’of.aeroplane-.__QnEy to

create an opportunity for acc1_1xsedVl\E.o.h2 to tleathdof
deceased by hitting him Acctised No.1,
who had kept scoo’t%f’:..1n immediately
after the incident and took a U-

turngthereaffter Nofilran, jumped and sat on pillion
seatVx’of.~of them fled away from place of

occurrence. V’PWE.5A’&V’PWl6 had witnessed the occurrence.

v”.’.\YY Y

evidence of i~w’l5 relating to identification of accused 1,

V = 2″an”d. before Court is credible and consistent. The evidence

llAofl’PW1’é’I__regarding identification of accused No.2 before

Courtvisvcredible and consistent. The evidence of PW15 and

~ V PW16 finds ample corroboration from medical evidence given

PW18–Dr.Bhcernappa Havanur and PW29~Dr.J.N.I~iarsha.

The weapon oflassault and manner in which bio/vvs were

is

t
f\j 4 x… {in ‘°~.4~«-I F». ~

184

~188~

Accused No.4. who was the custodian of mobilegl\lo..98455

70337 before it was produced by her father the

Investigating Officer had deleted text of

between accused .1 and other accused and i_i1erehy~vaccu’sed No.4′ j

had caused disappearance of evidence t}§”s¢§reén
accused from legal punishnie_n’t._’Accused
accused no.2 had assaulted head of thevnideceased with a
steel rod/pipe had intenfi-.onatl1y.V-_giizeazi’italsez information that the
deceased was assatiltedV_bv3:lf ‘assailant. Therefore, we
hold during” ti’1’ep:p..pe1*i:C)d and 03.12.2003.

accused 1AtoT,4,l1ad.4entei’ed into-criminal conspiracy to commit the
murder. of ~ziindpu..:’s1iance of such criinjnal conspiracy. on
O3.12.2003,.around._09..30np§rn.. accused No.4 took the deceased to Air

Point loclated on the eastern footpath of Airpoii ring road on the

it landing of aeroplanes. Accused No.4 and B.V.Girish

it were vllanding of aeroplanes by standing near Air View Point. At.

i.ir_ne.i’es’:.pi’ewplanneri by accused 1 to 4, accused No.1 brought

e1cc.u.sed.. No.2 arinerl with a steel I’0C1/ pipe on his biack Kinetir: Honda

‘ scooter. accused no.2 assauited on the head oi’ B.V.GirisIi with a steel

‘incl:/pipe: with the inteiztion and knowledge of causing his death. After

the incident. accused No.2 ran a1’1(ljLII1]p(‘d and sat on. piilion seat of the

5″‘

5’;

R’ ‘ \..,j_”m1.«(Q;’1 -4

I88

M 1 90 -W
accused No.1 was not present near place of incident. and he
was present in HAL Hospitai at the time of

prosecution cannot be found fault with a

texts of SMS messages, which i_1_1~fa_ct T if

accused 1 8: 4 even before
produced by PWIO and”fi?Wi;’2 _ fa.iiivestiigatiiigfV
Officer. The defence of Kinetic
Honda scooter was Devi

and the evidence adduced proof fact is fallacious.

V”We iéirittifindingsvflrecorded by the learned trial
Judge”._tiia.t guilty of an offence punishable
under secfio-n .30fZ.rfv;r ill IPC and accused No.4 is guilty of an

offencei’~punisha=bl«eV_ under section 201 IPC. In view of this, the

VA ‘evidence adduced by defence in proof of the character of accused

. n5o_s.l :vou”ld be irrelevant.

155. vievv of the above discussion and for the foregoing

AA reasons’. we answer points 2 to 4 in affirmative.

fl On consideration of the impugned judgrnent. we find that

__.tl’ie impugned judgment siiould have been more reasoned. The

learned trial Judge slioulcl have met all the points raised

.5;

f\_”.% ‘-~«- ft, ‘~’&££;r..

—- 1 9 1 —

by the defence. However, conclusions reached by thelearned
trial Judge and reasons assigned thereon do not__ls.i,i:ffe’1j from

any errors.

157. The State has filed Cr’imi:ja.All Appeal 2C:}’1Cl)V”.tobi’. it

sentence accused 1, 3 8: 4 for an’.offence pu_nisha.ble_.lunder

section 302 IPC and also sentleficpe accused, for
offence punishable under section ‘V2-O1 I}E’lC.'”The: State has
also sought for imposition of death to accused No.2.

158. We find from jiudgrraont, the learned trial

Judge” 1, 3 and 4 to undergo
imprisonment,ll’o§;~.cA}liie._:la1i,d,pay a fine of Rs.50,000/– each
with default sentenlcellofsimple imprisonment for a period of

for”an….offence punishable under section 120B

‘ learined trial Judge has sentenced accused No.2 to

“undergo’liltnpirilsonment for life and pay a fine of 7Rs.50,000/–,

inlldefault to undergo simple Imprisonment for a period of ten

2 it months for an offence punishable under section 302 IPC.

llltfiltccused No.4 has been sentenced to undergo simple

‘lllimprisonment for a period of three years and pay a fine of

5”:

5
f
3;”

5 /”\~– £”w*4L~

29%

~ft92~w

Rs.25,000/e with default sentence of simple in1pris–oiirn_eiit for’ a

period of six months for an offence punisliable__u”n_deriisecntion

IPC. Out of fine amount realised, a ‘off has been’ 7.

ordered to be paid to the family of
compensation. T p A» A V L

159. The learned trial “shou1.’d«~o.jr1,.<';1V€i§ sentenced
accused 1, 3 & 4 foran. under section
302 EPC, which The learned trial
Judge 4 had entered into
criminal of B.V.Girish and in
pursuanceflofVsuch -conspiracy, accused nos.1 to 4
committed ought to have sentenced

accused 1 to an offence punishable under section 302

pijx/VJ Therefore, we set right these discrepancies by

_ 'senAten:c*i.ng'accused l to 4 to undergo imprisonment for life

for an offence punishable under section 302 r/w 12013 IPC.

.. We maintain fine and default sentence imposed by the trial

if 'Court for the aforestated offences. The conviction passed by

the trial Court against accused No.4 for an offence

punishable under section 201 {PC and sentence imposed

!i
N. QB» '~–""'~'"" 'éc

I92

— 193 e

thereon are confirmed, so also payment of
the family members of the deceased: l V V

The prosecution has not soilght-..tof id-eoth
sentence to accused 1, 3 8: xyho in” ;
accused No.2 and convicted “an oflef1celllp’dnisl3§ablle under
section 302 r/w 1.2OBViP(}. Acctiéccia wereco–conspirators.

The prosecution cannot as primary
conspirators airidpsecontilaryl ‘lT§:ielprosecutio1r1 cannot
isolate accnse’d4’No:2–:’_asv ‘acts by accused No.2 were
in pursuanc*eyo:i”– entered into between accused
I to Eyen not find the case against accused
No.2 favilsunder’ ‘of the rarest of rare cases. Therefore,

in ot1_r_ co1’1sidered .View.”the’.State appeal is liable to be dismissed

‘i’or;_.f.:l1eaforestated”inodification of sentence. Hence points 6

‘ -f~1n”d= 7 z’u:e”an’swer.ed accordingly.

‘lElOQ result, we pass the following:–

ORDER

it Criminal Appeal No.765/2010 C/W Criminal Appeal

“‘1’»c1ccf/74/2010, 757/201.0 81 722/2010 filed by accused 1 to

it are dismissed. Criminal Appeal No. 856/2010 filed by the
/’i

I93

W 1 9 4 –

State is accepteci in part. The sentence ir:1poser.1..t)_’y.Ttiie trial

Court is modified as follows:-

Accused 1 to 4 are” se’r1te_n’eed:’ uiiderggo it

imprisonment for life for an oi’fenceVpti’r1_ishab’leA tir1d’er’;3éCl.iof1

302 r/W £208 IPC. The default ‘se£;tefiveé”i1hposea
by the trial Court is et;~3qiirme’d”. ‘l;h;C’Ve’e1}&viotiofi”passed by the
trial Court against aeaeused” punishable
under sectionlgfll also the sentence
imposed _.:’est of the impugned
‘to tine, compensation and set
off Lin : 428 Cr.P.C., are confirmed.
Office d–«i.rec1;efie1’v__to’~.sue’a–a back records along with a copy of

ju_e1gr1_1ent; Vlfortrhxvith.

Sdffi
ludge

Sdf3
Tudge

SNN/J1./KSM

1 ‘)4

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