http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10

CASE NO.:

Appeal (crl.) 482 of 2003

PETITIONER:

A.N. Venkatesh and Anr.

RESPONDENT:

State of Karnataka

DATE OF JUDGMENT: 08/08/2005

BENCH:

P. Venkatarama Reddi & P.P. Naolekar

JUDGMENT:

J U D G M E N T

P.P. NAOLEKAR, J.

This appeal is preferred by the accused A.N.

Venkatesh (A-1) and Ezaz (A-2) challenging their

convictions under Section 363 IPC (RI for 1 year),

Section 384 IPC (RI for 2 Years), Section 201 IPC

(RI for 6 months) and Section 302 IPC (Life

Imprisonment) awarded by the High Court,

reversing the order of acquittal, passed by the

Sessions Court.

In brief, the prosecution case is that on 19th of

May 1996 at about 9.00 AM, a minor boy named

Madhu left his house for going to his father's shop.

It was vacation time for the Schools. In the

afternoon when the father, M.K. Krishnamurthy,

PW-7 returned home for lunch and enquired about

his son, as he had not come to the shop, till

evening family waited for return of the boy and

thereafter the search began. Various telephone

calls were made to the relatives and enquiries were

made from other places where the boy was

expected to have gone. Again in the next morning

search was made for Madhu but he was not traced

and as such at about 1.00 P.M. on 20th May 1996,

PW-2, M.K. Prakash, uncle of Madhu lodged the first

missing complaint in Hosadurga Police Station. The

police registered the complaint as Crime No.99/96

on the same day. Thimmanna, PW-1, another

Uncle of Madhu went to the house of Prakash,

whose house is near the house of Krishnamurthy,

PW-7. At about 2.30 PM or 2.45 PM, a telephone

call was received on Telephone No.8537 at the

house of PW-2 M.K. Prakash which was picked up

by PW-1 Thimanna. He heard one male voice

saying that he knew that they are in search of

Madhu and that Madhu is in their custody, he will

be released if the ransom amount of Rs.50,000/- is

paid. It was said that the ransom amount of

Rs.50,000/- is to be thrown in a bundle on the

tracks of the railways running between Arasikere

and Beerur before 5.00 P.M. After receipt of this

telephonic call, PW-1 immediately rushed to the

Police Station and lodged a complaint at about

3.00 PM. On this, the P.S.I. Shri B.S.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10

Rajashekhar, PW-16, deputed A.S.I. Shri M.G.

Gangadharappa, PW-17. and one P.C. Constable

Rudriah to make a search of the missing boy. PW-

2, Prakash along with his brother Srinivas and the

police officials proceeded in a Taxi to Arsikere in

search of the boy. They reached Arsikere at about

5.00 PM. Thereafter enquiries were made at the

S.T.D. Booths at Arsikere for finding out from

where the call was made and to trace the person

who made the call to Hosadurga. Two STD booth

owners informed that the calls were made from

their booth to Hosadurga by two boys and one of

the S.T.D. Booth owners informed the police party

that the telephone to Hosadurga was made by two

boys from his telephone booth at about 2.30 O'

clock. Thereafter the police party along with PW-2

went to Arasikere Railway Station and proceeded

towards Beerur along the railway track. When they

proceeded about two and a half to three kilometers,

they saw two boys coming in their direction along

the railway track at about 6.30 or 6.40 PM. When

the boys reached near them, it was noticed by PW-

2 that one of them Venkatesh, A-1, is his relative.

On seeing the police party along with other persons

those two boys started running away. However,

they were chased and caught. Those accused

persons, according to PW-2, volunteered that they

had kidnapped Madhu and that they would show

the place from where the dead body can be

recovered. From there they were brought to police

station when it was about 10.00 P.M. Both the

accused persons were put up in the police lock up.

During the night intervening 20th/21st May 1996

they were interrogated and their disclosure

statements were recorded which are Exhibits P-15

and P16 in which they volunteered to take the

police and others to the place where they have

buried the dead body of Madhu. The police party

along with accused and others proceeded towards

Vedavathi river bank wherefrom dead body of

Madhu was exhumed from the sand at the bank of

the Vedavathi river from the spot pointed out by

the accused persons. The post mortem was

conducted by PW-3 Dr. Ravikar on 21st May who

found the following injuries on the body :

1. There was haemorrhage in the

sub-tutaneous tissue and in the

muscles of the neck in the region

of hyoid and thyroid cartilage;

2. There was haemorrhage in the

retro pharyngael tissue at the base

of the tongue;

3. There was sub-mucus

haemorrhage in the larynx; and

4. Sheath and intima of the carotid

artery are lacerated with effusion

of blood in the walls.

The doctor opined that the death was due to

asphyxia as a result of throttling.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10

The accused persons faced trial and were

acquitted by the Sessions Court. In appeal, the

acquittal of the accused was set aside by the High

Court and they were, as aforementioned, convicted.

It is urged by the learned counsel for the

appellant that according to the prosecution the FIR

was lodged on 20.5.1996 at 1.00 P.M. by PW-2.

However, the said FIR has not disclosed any

offence. It is only a complaint regarding missing

boy Madhu and therefore it could not have been

registered as a crime. More so, the said complaint

reached the Magistrate's Court only on 17.8.1996

and thus it gives a reasonable apprehension that

the actual complaint made on 20th of May 1996 at

1.00 P.M. contained something different than what

it contained in a complaint sent to the Magistrate

on 17th August 1996. Therefore, the whole

genesis of the prosecution case is belied and

cannot be relied upon. It is true that the

complaint Exhibit P-4 lodged by PW-2 on 20th of

May 1996 at about 1.00 P.M. was sent to the

Magistrate on 17th August 1996 but at the same

time we cannot lose sight of the fact that there

was another complaint made at 3.00 P.M. on 20th

May 1996, after receipt of the telephonic call,

demanding ransom which was sent to the

Magistrate's Court the very next day i.e. on 21st

May 1996. It is this complaint on the basis of

which the prosecution started investigation.

While it is true that Section 157 Cr. P.C. makes it

obligatory on the Officer Incharge of the Police

Station to send the information to the Magistrate's

Court forthwith but that does not mean and imply

to denounce and discard an otherwise positive and

trustworthy evidence on record. The first

complaint of missing person although was sent

late, in fact, has not moved the investigating

agency to real investigation except informing

various other police stations regarding

disappearance of Madhu. The complaint which

was taken note of was Exhibit P-1 which was sent

in due time to the Magistrate. Unless we find that

the evidence led by the prosecution is not reliable,

the delay in sending the first complaint would not

lead to the inference that the complaint lodged of

missing person contained some other facts that

may have revealed some other story which is not

consistent with the prosecution case.

It is then submitted by the learned counsel

for the appellant that it is wholly unnatural that

when the accused persons were arrested in

between Arasikere and Beerur and they

volunteered about having kidnapped Madhu and

buried his body under the sand, near the bank of

Vedavathi River, and that they can show the exact

place, the accused persons were not immediately

taken to that place. Instead thereof, they were

produced in the police station at about 10.00 P.M.

and on the next day morning they were taken to

the spot from where the dead body was recovered

on their pointing out the place where it was

buried. It is also argued that instead of complying

with the ransom demand as demanded by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10

kidnappers to save the boy, it looks unnatural that

the police party and relatives of the deceased

spent time in making enquiries from the STD

Booth owners about the telephone calls and

thereafter they have proceeded towards the

railway track.

PW-1 has deposed that on 20.5.1996 at

about 3.00 P.M. he and his brother, PW-2 went to

the Police Station to lodge report. PW-17, ASI M.G.

Gangadharappa has deposed that he along with

Constable and PW-2 and others went to Arsikere in

a Car and reached Arasikere by about 5.15 PM,

thereafter enquiries were made from STD booth

owners of Arasikere of the telephone call made to

Hosadurga. Two booth owners have informed

that the telephone calls were made from

their STD Booths by two boys to Hosadurga. All of

them thereafter went to the railway station and

since nothing was found at the railway station, they

proceeded along the railway track. While they were

proceeding along the railway track towards

Banawara and when they covered the distance of

about 3 Kms. they saw two boys coming towards

them. Complainant identified one of them being

his relative. The boys tried to flee but they were

chased and apprehended and were taken to the

police station where they reached at about 10.00

PM. Evidence of PW-2, M.K. Prakash, uncle of the

deceased is on the same lines except with the

addition that both the accused persons volunteered

that they had kidnapped Madhu and buried his

body near Hosadurga and they can discover the

same. From this evidence it is apparent that after

the accused persons were apprehended near the

railway track and by the time the party reached

Hosadurga, it was almost 10.00 PM. The spot

where the body of the boy was said to be buried

was the long stretch of the bank of Vedavathi River

covered with sand, where every place looks alike

and in the absence of sufficient facility of light, it

would have been difficult, rather impossible for the

accused persons to locate the place where they

have buried the dead body. Apart from this, the

Investigating Officer must be apprehensive and

justifiably, that the important piece of evidence

may be destroyed if the search party reached the

spot at the night for recovery of the dead body.

Therefore, there is nothing strange or unnatural

that the police party along with the witnesses

proceeded early in the morning next day for

recovery of the body from the spot disclosed by the

accused persons. It has come in evidence of PW-7,

father of the deceased and the Panch Witness PW-4

that the accused persons pointed out a particular

spot near the riverain from where the dead body of

Madhu was exhumed from the sand. We find that

the evidence of these witnesses does inspire

confidence and is worthy of credence. As regards

police party making inquiries at STD booth and not

rushing towards the spot where the amount was to

be paid it may be seen that the party was not

aware by that time, as to who were involved in it.

They came to apprehend the accused and not to

pay the ransom amount. It is clear from the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10

evidence of I.O. PW-16 that when the complaint,

Exhibit P-1 for the demand of ransom was lodged,

he dispatched the police party along with the

complainant to Arasikere and instructed the ASI

that the accused persons be apprehended from the

place where they are supposed to collect the

ransom amount. PW-2 has also said that after

reaching Arasikere railway station, he along with

his brother and the two police officials proceeded

towards Banavara and Beerur along the railway

track in order to find out if they could get any clue

in respect of Madhu or his kidnappers. After the

boy was missing, the complaint was lodged in the

police station. The complainant also informed the

police immediately after the call for ransom was

made. Thus, it is apparent that they have decided

not to pay the ransom but apprehend the

kidnappers. With this intention, the complainant

along with the police party have reached Arasikere.

It is not surprising that they made enquiries from

the STD Booth owners whether any phone calls

were made to their knowledge to Hosadurga to

trace and identify the accused persons instead of

rushing towards the spot where the ransom amount

was to be thrown. That apart, by the time they

reached Arasikere, it was almost 5. O' clock and it

was not possible for them to reach the spot where

the money was to be paid before 5.00 P.M. as

instructed on phone. In the circumstances, the

behaviour of the police party or that of the

complainant cannot be said to be unnatural so as to

discard their evidence.

It is contended by the learned counsel for the

appellant that when the kidnappers made a demand

for the ransom amount of Rs.50,000/-,and the

manner in which the demand was to be fulfilled,

was also indicated, in the natural course of conduct

it was expected of the police and the complainants

to have traveled by train, from Hosadurga to

Arasikere and onwards instead of travelling by road

in a motor vehicle to comply with the direction

given. The argument of the learned counsel is built

upon the premises that the complainant party had

decided to pay the ransom and to follow the instructions of

payment of ransom amount by throwing it at the identified

spot from the train. We have already discussed the

evidence of the witnesses from where we find that

the complainant party and the police have already

decided not to pay the ransom amount but to

apprehend the accused persons at the spot

indicated by them for payment of amount. When

the decision was taken there was no reason at all,

to travel by train and follow the instructions. The

course adopted by the complainants and the police

party by travelling in a vehicle was in conformity

with the decision taken by the police party and the

complainant, was in natural course of conduct.

It is further submitted by the learned counsel that

one more important aspect about M.Os 1-3 and,

more particularly, M.O.s 1 and 2 viz., the baniyan

and the pant said to be found on the dead body,

had no staines at all, in spite of the fact that when

the body of Madhu was exhumed, it was in a badly

decomposed condition, and that even the colour of

the clothes removed from the body has not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10

changed, which clearly indicates that the baniyan

and the pant were subsequently planted by the

police, was not taken into consideration by the High

Court. It has come on evidence that when the dead

body was exhumed from the river bed, M.Os 1-3

were seized from the dead body. PW-3 Dr. Ravikar,

clearly stated that after the postmortem

examination was over, he handed over the dead

body along with M.Os 1-3 back to the police. PW-4

Ramakrishanappa and PW-5 B.V. Anjan Kumar who

are the panch witnesses have deposed that M.Os 1-

3 were found on the dead body. PW-7, the father

of the deceased has stated in his evidence that he

identified the dead body on the basis of the physical

description and also on the basis of the clothes

worn by the deceased. M.Os 1-3 were on the dead

body of Madhu and in this regard the spot mazhar

as per Exh.P2 was drawn up. None of these

witnesses have been cross-examined on the

question of clothes found and removed from the

dead body. Even when the question was put to the

accused, in the examination under Section 313 of

the Cr.P.C., no case has been put forth by the

accused that the alleged M.Os 1 and 2 were not

recovered from the dead body. When there is a

reliable ocular version of the witnesses which has

gone un-challenged, there is no reason as to why

these witnesses should not be believed by the

Court, merely because staines were not found on

the clothes. It may be for various reasons which

necessarily does not lead to the inference that the

clothes were not removed from the dead body. The

effort of the criminal court should not be to prowl

and to find out imaginative doubts. Unless the

doubt is of a reasonable dimension, which the

judicial mind thinks, require consideration with

objectivity, no benefit can be claimed by the

accused on the basis of some hypothetical

proposition.

The accused persons were apprehended near

the spot where the ransom amount was supposed

to be paid. The accused person's presence at the

place where they were arrested is a strong

circumstance against the accused appellants.

There was no apparent plausible reason for their

presence alongside the railway track, loitering

around a place which is quite far away from the

place where they were residing viz., Hosadurga.

Their conduct in running away when they saw the

police party is also indicative of their guilty mind

and is an important piece of evidence showing their

conduct. No plausible explanation was given by the

accused appellants for their presence at the spot

where they were arrested, which was nearby the

place indicated in the demand for payment of the

ransom amount.

By virtue of Section 8 of the Evidence Act,

the conduct of the accused person is relevant, if

such conduct influences or is influenced by any

fact in issue or relevant fact. The evidence of the

circumstance, simplicitor, that the accused pointed

out to the police officer, the place where the dead

body of the kidnapped boy was found and on their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10

pointing out the body was exhumed, would be

admissible as conduct under Section 8 irrespective

of the fact whether the statement made by the

accused contemporaneously with or antecedent to

such conduct falls within the purview of Section 27

or not as held by this Court in Prakash Chand

Vs. State (AIR 1979 SC 400). Even if we hold

that the disclosure statement made by the

accused appellants(Ex. P14 and P15) is not

admissible under Section 27 of the Evidence Act,

still it is relevant under Section 8. The evidence of

the investigating officer and PWs 1, 2, 7 and PW4

the spot mazhar witness that the accused had

taken them to the spot and pointed out the place

where the dead body was buried, is an admissible

piece of evidence under Section 8 as the conduct

of the accused. Presence of A-1 and A-2 at a place

where ransom demand was to be fulfilled and

their action of fleeing on spotting the police party

is a relevant circumstance and are admissible

under Section 8 of the Evidence Act.

The prosecution has examined PW-10, a

building contractor who has seen the accused

appellants with the deceased nearby the place from

where the dead body of Madhu was exhumed. PW-

10, Ranga Reddy has deposed that he is engaged in

construction business and he is doing that work for

the last ten years. He knew the accused appellant

and they are the residents of Hosadurga. He knew

their parents also. He also knew the deceased and

his father as also that the father of the deceased is

related to A-1. On 19.5.96 at about 11.00 A.M. he

had been to Vedavati River near Gollarahatty,

about 6 kms. away from Hosadurga, in order to

bring some sand for his construction work and at

that time he saw both the accused persons and

Madhu playing near the river bed. He did not speak

to them and he left the place thereafter. After

attending his work he went to Bangalore for his

work and returned back to Hosadurga on the night

of 20.5.96 about 11.30 P.M. He came to know

from the members of his family about the

kidnapping and murder of Madhu. Next day

morning, i.e. on 21.5.96 he went to the police

station to see the accused persons arrested and

found that the two accused appellants were the

same persons who were playing with Madhu near

the Vedavati River. From the cross-examination of

this witness nothing has been elucidated by the

defence to disbelieve the statement of PW-10. PW-

10 has visited the river belt in connection with his

business of construction which he was carrying on

for the last 10 years. He knew the parents of the

accused appellants and the accused themselves,

the parents of the deceased boy and A-1's

relationship with the father of the deceased, and

thus it was quite natural for him not to report the

matter immediately to Madhu's family that he saw

the boy playing with the accused appellant no.1, he

having been related to the deceased boy. There

was no apparent reason for him to approach the

family of the deceased and intimate them about his

seeing the deceased with the accused. An

argument was advanced by the counsel for the

appellant on the basis of statement of the doctor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10

who has conducted the postmortem, that the

approximate time of death was 48-68 hours before

the examination of the dead body and that if this

timing is taken to be correct, then PW-10 would not

have seen the boy alive at about 11.00 A.M. on

19.5.96. The timing of death given by the doctor is

broadly an estimated time and too much reliance

cannot be placed on the time of death given by the

doctor when the dead body was decomposed and

examined after two days. We do not find any

infirmity in the statement of PW-10 to disbelieve

him. There is no apparent or specific reason for

him to implicate the accused appellants in

commission of crime. The estimated time given by

the doctor would not shatter the evidence of PW-10

who has seen the boy playing with the accused

persons before his death.

The other circumstance which prominently

shed light on the involvement of the accused

persons is the telephone call made by them from

Arasikere from the STD booth to Hosadurga. To

prove this fact the prosecution has examined three

witnesses PW-12 Renuka, PW-13 Kumar and PW-14

Krishnamurthy. PWs-12 and 13 are the STD booth

owners. Much reliance cannot be placed on the

statement of PW-12 Renuka because of the timing

at which he has stated the boys have contacted

Hosadurga on phone from his telephone booth

because there is no corresponding corroboration to

his statement of such calls having been made at

9.00 A.M. or 10.00 A.M. from his telephone booth.

But the statement of PW-13, the other STD booth

owner is corroborated by the statement of PW-14

and further the statement of PW-2, the uncle who

had received the call at Hosadurga whereby the

ransom demand was made. This is further fortified

by his lodging an FIR in the police station informing

that the ransom demand has been made. PW-13

has deposed that he was running an STD telephone

booth at B.H. Road, Arasikere. On 20.5.96 A! and

A2 had come to his telephone booth at about 2.30

P.M. and had telephoned to one telephone

no.80347 at Hosadurga, which was later on

corrected by him to be the telephone no.80537 on

STD code no.08199, which is the STD code of

Hosadurga. He has charged the bill of Rs.36.13 p.

and the entry to that effect was made in his book.

The book in which the entry has been made is not

with him since he had disposed it off along with

some newspapers. After the call was made he had

asked for the bill amount and the accused informed

him that they do not possess money and thus

unable to pay. He insisted for payment.

Thereafter, A-1 went to fetch the amount and he

made A-2 to sit in his booth. As he was busy with

another customer, he asked his neighbour, a cycle

shop owner, Krishnamurthy (PW-14) to keep a

watch over A-2 and at that time A-2 removed his

shoes and threw them towards Krishnamurthy.

PW-14 gave two slaps to A-2. Thereafter, A1

proceeded towards the house of SBM Cashier. A1

called out 'Wasim' , S/o SBM Cashier and the

amount was later on paid by Wasim. It has also

come in evidence that Xerox copies of the book

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10

maintained by PW-13 was taken by the

investigating officer and tried to be produced as an

evidence. The sessions court did not permit the

same as a secondary evidence and the matter got

rested at that. The statement of this witness is

corroborated by PW-14 who held a nearby cycle

shop and who has said in his deposition before the

court that both A1 and A2 on 20.5.96 came to the

telephone booth approximately at 2.30 P.M. and he

was in his cycle shop. There was some commotion

on account of non-payment of the telephone bill by

A1 and A2 and, therefore, he went near the

telephone booth and heard A-1 and A-2 saying that

they had telephoned to Hosadurga but they do not

have money to pay. When he asked them why

they are not paying the amount, A-2 threw a shoe

towards him which landed on his right leg and he

retaliated by giving one slap to A-2. Thereafter, A1

approached SBM Cashier and the cashier's son

came and gave the phone bill amount to PW-13.

The accused persons left the place and went

towards the bus stand. On 20.5.96 the police

officer of Hosadurga had brought both A1 and A2

and shown them to him and he identified them as

the same persons who had made the call from the

STD booth. The statement of these witnesses

establishes that about 2.30 P.M. A-1 and A-2 came

to the STD booth of PW-13 and thereafter an STD

call was made to Hosadurga. This is corroborated

by the evidence of PW-1, Thimmanna, one of the

uncles of the deceased that he received the

telephone call on telephone no.80537 on 20.5.96 at

about 3.00 P.M. This is supported by the evidence

of another uncle PW-2 MK Prakash who said that

his brother Thimmanna received a call and told him

that somebody from Arasikere had telephoned

informing that they had kidnapped the boy and are

demanding an amount of Rs.50,000/- to release the

boy. The amount is to be paid by throwing it by the

side of the railway track in between Arasikere and

Beerur. Immediate lodging of the complaint at the

police station at about 3.00 P.M. on 20.5.96 by

PW-1 informing about the ransom demand made on

the telephone, completely establishes that the

telephone call was made at about 2.30 P.M. on

20.5.96 demanding the ransom amount. The

statement of these witnesses clearly establishes

that the accused appellants have made the STD call

on 20.5.96 demanding ransom amount claiming

that they have custody of Madhu.

Various circumstances in the chain of events

established, ruled out the reasonable likelihood of

innocence of the accused. The prosecution has

been able to establish that a complaint was lodged

with the police of Madhu missing from the house,

after frantic search was made by the family

members to find out his whereabouts. The

ransom demand was made by the accused

appellants from the STD booth of PW-13 over

phone which was received by PW-1 and

immediately thereafter complaint was made in the

police station. The police party was dispatched to

Arasikere to apprehend the persons who had

telephoned. The accused appellants were arrested

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

from a nearby place where the ransom demand

was to be met. There is no apparent reason for

the accused appellants to be present at the spot

where they were arrested which is far away from

the place of their residence, except for the

purpose of materializing the demand made by

them. The accused persons were taken to the

police station of Hosadurga at about 10.00 P.M.

Soon thereafter, in the morning they have taken

the police party along with the family members of

the deceased to the river bed of Vedavati river

and on their pointing out a particular spot, the

body was exhumed. Before the dead body was

found they were seen in the company of the

deceased nearby the place from where the dead

body was exhumed. Above circumstances

cumulatively taken together lead to the only

irresistible conclusion that the accused appellants

alone are the perpetrators of the crime. Each and

every incriminating circumstance has been

established by reliable and clinching evidence and

we have reached to an irresistible conclusion that

inference can be drawn from proved

circumstances that the accused appellants were

involved in the crime and are guilty. We do not

find any infirmity in the judgment of the High

Court and appreciation of the evidence led by the

prosecution by it and the inference drawn there

from. The acquittal by the trial court was rightly

held to be unjustified. For the aforesaid reasons,

we dismiss the appeal and the conviction of the

appellants is maintained.