S.R. Bannurmath, J.@mdashSince these four appeals arise from the common Judgment dated 28.10.2002 and the order of conviction dated 30.10.2002 passed in SC 41 of 1999 c/w SC 40 of 1999 and SC 566 of 1999 on the file of the learned III Additional Sessions Judge, Bangalore City, in which common facts and evidence are required to be considered, all these four appeal are taken up together for consideration and are being disposed off by this common Judgment.
2. In all 11 accused were chargesheeted in Crime No. 271 of 1997 for the offences under Sections 120(B), 364(A), 342, 307, 324, 429, 504, 506 all read with Section 120(B) of IPC and Section 25(1)(a), Section 27 both read with Section 3 of Arms Act. Some of the accused were arrested at different point of time and as such they were tried in three different session cases simultaneously, common evidence was led and common arguments were addressed. It is to be noted that during the trial A-1 and A-10 absconded and as such only remaining accused namely A-2 to A-9 and A-11 came to be tried.
3. The brief history of the prosecution case giving rise to the present appeals is as follows :
A-1 Prabjinder Singh @ Dimpi, A-2 Jasvinder Singh @ Rakhi both from Punjab, A-3 Mukthiyar Khan @ Munna from Bihar, A-4 Brijesh Kumar @ Bablu and A-5 Avadhraj Sigh @ Pappu both from Uttar Pradesh, A-11 Sanjaya Kumar @ Sunny @ Rakesh Kumar from Haryana, A-6 Rajender Kumar, his brothers A-7 Premchand from Bangalore and another brother A-8 Rameshchand from Virajpet, A-9 Ravi Devaiah @ Ravi Appaiah also from Virajpet, and A-10 Roger alias Chaticha from Mercara had entered into a criminal conspiracy between 24.6.1997 and 15.7.1997 at Bangalore, Mysore, Mercara and Virajpet to kidnap and hold any wealthy person from Bangalore for ransom.
4. In pursuance of this conspiracy the accused Nos. 1, 2, 9 and A-10 stayed in Bombay Anand Bhawan Hotel from 24.6.1997 to 30.6.1997 on the first occasion and also during the first week of July, 1997 for another seven days, during which time other accused also visited and held talks with them. It is further alleged that as a part of conspiracy A-9 and 11 with the help of an estate agent Sandeep - P.W.6 took on lease a house bearing No. 218 on 80 feet road, 6th Block, 2nd Stage, Nagarbhavi, on the outskirts of Bangalore, belonging to Dr. Honnabhovi - P.W.11 under a lease deed dated 1.7.1997 and paid an advance of Rs. 1,50,000/-. Thereafter A-1, A-2, A-11, A-9 and A-10 who were staying in Bombay Anand Bhawan Hotel and A-3, A-4 and also A-11 in a hotel called Woodland Hotel visited the said house. It is alleged that they were moving in Bangalore in their own car.
5. According to the prosecution by 13th and 14th July, A-2 to 5 and 11 shifted their residence to the house and were in search of their victim and after having chalked out a plan of action, A-1 went to Hyderabad on 13.7.1997 and checked into room No. 108 of Woodbridge Hotel at Hyderabad.
6. As per the case of the prosecution P.W.3 - Nirmal Kumar Jaipuria a wealthy businessman, his two sons Vikram - P.W.1 and Aditya P.W.2 along with family members was residing at Koramangala, Bangalore. He was chosen as the victim for kidnapping and ransom by the accused. It is alleged that said Nirmal Kumar was regularly taking morning walk usually with his dog-named Boxy.
7. As per the prosecution case on 15.7.1997 as usual at about 5.50 AM said Nirmal Kumar left his house for a walk along with his dog. At about 6.45 AM the dog came back to the house with bleeding injuries and as such apprehending some untoward incident like accident has taken place, PW1 went in his car in search of his father along with usual walking route of PW3. According to him when he came near house No. 378 opposite to CPWD Quarters, at Sarjapura Service Road, he saw a crowd gathered and on enquiry learnt that three unknown person who had come in a white Maruti car had opened fire, injuring one person and a dog and thereafter forcibly took that person in the car and fled away. P.W.1 also noticed some blood fallen on the spot as well as two used cartridges lying there.
8. In the meanwhile Sri Shivashankar, Police Inspector of Koramangala Police Station (not examined as witness, as he expired during the trial) is stated to have received a telephonic message about the incident at Sarjapura Service Road in Koramangala and as such it is stated that he rushed there and learnt from the persons gathered about the kidnapping. He also noticed the bloodstains and two empty cartridges lying on the spot. It is at this stage, P.W.1 who had come there in search of his father and suspected kidnapping, was taken to the Police Station and on his information, a complaint came to be registered in Crime No. 271 of 1997 for the offences u/s 365 read with 34 IPC, and Sections 25(A) and 27 of the Indian Arms Act against unknown persons at about 7.30 AM and investigation was taken up.
9. As per the prosecution case after registration of the case, and sending the FIR to the jurisdictional Magistrate and to superior officers said Inspector of Police Sri Shivshankar went back to the spot and drew a mahazar Ex.P.85 in the presence of mahazar witnesses and seized the empty cartridges as well as blood scrap from the Road and bullet pieces lying on the spot vide MOs. 84 to 86.
10. In the meanwhile, the Commissioner of Police on learning of the heinous crime deputed Sri Nagarajaiah PW 43 - Assistant Commissioner of Police as the special investigating officer for the case. Accordingly, PW 43 proceeded to the spot and took over the investigation from Shivshankar-Police Inspector of Koramangala Police Station on the spot. Thereafter said Shivshankar stated to have visited the house of P.W.3. Suspecting that PW 3 being a wealthy person and probably has been kidnapped for ransom, and as usually in such cases a ransom message mostly through telephone is made by the kidnapper to the family members of the victim demanding a ransom, he alleged to have arranged for recording the conversations received on the telephones in the house. It is stated that said Shivshankar asked PW 21 - Sangram Singh another Police Inspector to go to the telephone exchange and make arrangements for tracing the telephone calls, if any made to the house of PW 3.
11. According to the prosecution at about 10.30 AM or so the inmates received a telephone call informing that their father is in the custody of the caller and for his release they must pay a ransom of Rs. 10 crores. As instructed by the Police, PW 1 is alleged to have initially shown his inability to pay such huge amount and after some talk, sought for some more time to think over and arrange for the money. As per the prosecution thereafter number of telephone calls were made to the house of PW 3 by the kidnapper. Tracing the calls, it was found out that they were coming from Hyderabad. As such a team of Police Officers were dispatched to Hyderabad to find out and if possible to locate the caller.
12. According to the prosecution, while the said Police team was at Hyderabad they received a call from Bangalore that the telephone call was coming from a particular phone number at Hyderabad. The investigating team said to have located the telephone number coming from a telephone booth at Banjara Hills area. On reaching they found a Sardarji coming out of the phone booth and on enquiry with the telephone booth operator, the Police team came to know that the said Sardarji had just made a telephone call to Bangalore, the number tallying with the telephone belonged to PW 3. As by the time the said Sardarji had hired an auto rickshaw and was going away, one of the officers followed him in a car and found that he was getting down in front of a hotel called Woodbridge Hotel and infact had entered the said hotel.
13. On enquiry with the receptionist at the hotel, they found that the Sardarji was the occupant of room No. 108 and his name as per the hotel register is Devendra Singh. The Police go to this room, apprehend the Sardarji found in the room and collect about 13 articles lying in the room. They also learn from that Sardarji that another person is expected in the evening and hence leaving two Police Officers in the hotel for further investigation/enquiry, said Sardarji (A-1) is brought back to Bangalore and produced before the Investigating Officer-PW 43. On arrest and interrogation, A-1 is said to have made a voluntary statement which is recorded and according to which, A-1 volunteered to show the place where his other co-conspirators have kept PW 3.
14. On a receipt of this information PW 43 deputes another Inspector PW 27 to accompany A-1 and find out what he is going to show. Accordingly, PW 27 along with some other Police Officers and mahazar witnesses led by A-1, proceed in the direction shown by him. After travelling some distance, at Nagarbhavi it is alleged that A-1 points out a house wherein PW 3 - the victim is stated to have been kept in confinement. On approaching the house, it is alleged initially A-1 makes an attempt with a mobile phone given to him by the Police to contact his team-mates inside the house and on finding no response from inside, the Police asked him to use the megaphone and tell the inmates to surrender with the arms and ammunitions and also to safely release PW 3 from their custody.
15. After such a call was made by A-1, according to the prosecution, lights inside the house were switched on and one person came on the balcony of the first floor and threw down a bundle. Thereafter one person came out of the house followed by three other persons. On enquiry with the first person coming out, Police found him to be the victim-PW 3. The Police also found the other three persons following PW 3 were the accomplice of A-1. After apprehending them, on their personal search few article like mobile phone, knives seized under mahazars, both A-1 and the apprehended person were sent to the Police Station for being produced before PW43 the main Investigating Officer.
16. After arresting these accused and on interrogation, the Investigating Officer learns about the car used in the kidnapping was kept in the car shed of mother of A-10 at Mercara-Mangalore Road, Mercara. A message is sent to the SP of Mercara to verify this aspect. Accordingly PW 26 locates the car, searches and seizes it under a mahazar and thereafter it is towed to the premises of District Armed Reserve Office at Mercara.
17. As per the prosecution story in pursuance of the voluntary statement made by A-2, he leads the Police to the Nagarbhavi house and after he opens the lock with a key in his possession certain articles like denture, blood stained clothes of PW 3 and certain other articles are seized and necessary mahazar is drawn.
18. As per the prosecution case PWs 23 and 24 the two Police Officers who had stayed back at Hyderabad, learnt from the hotel receptionist that a person by name A.R. Singh had left a message to inform the inmate of room No. 108 that he will be arriving on the next morning at 10 O''clock. On 19.7.1997 when a person comes to the hotel and makes enquiry about his friend in room No. 108 he is also apprehended along with a brief case and is brought back to Bangalore and produced before the Investigating Officer.
19. On 20.7.1997 A-6 and A-7 are apprehended, along with a car of NE 118 make which was also seized by the Police along with certain other articles like JTM mobile subscription form for obtaining sim card etc.
20. On the next day another accused A-8 is also apprehended and some more documents are seized. On 23rd July the Maruti car seized at Mercara is also produced before the Investigating Officer and when search is made, a walking stick said to be of PW 3 and a dog belt are found in the car which is seized under a mahazar.
21. After the arrest of all accused and recoveries and seizures made, further steps in the investigation like the recording audio features of the accused so as to match with the ransom telephone calls, subjecting the weapons for the examination of the Ballistic Expert, drawing up of various mahazars, on receipt of all the investigation reports and completion of the investigation, the accused are charge sheeted.
22. On committal, the learned Sessions Judge framed 9 charges against accused, namely Sections 120-B, 364-A, 342, 307, 324, 429, 504, 506 all read with Section 120B of IPC., and Section 25(1)(a), Section 27 both read with Section 3 of the Arms Act and Section 120B of IPC.
23. It is to be mentioned here itself that during the trial A-1 and 10 who were on bail, absconded and as such the case against them was split up and only A-2 to 9 and A-11 were tried by the learned Sessions Judge.
24. As the accused denied the charges and claimed to be tried, they were tried in Session Case Nos. 40 of 1999, 41 of 1999 and 566 of 1999, together and common evidence was recorded.
25. In order to establish the guilt of the accused the prosecution has examined in all 46 witnesses and got marked Exhibits P.1 to P.134 and M.Os. 1 to 103 and closed its case. Though the accused have taken specific pleas as could be seen from their answers to the questions put u/s 313 Code of Criminal Procedure, no witnesses were examined by the accused, however they got marked Exhibits D1 to D84 and closed their side.
26. After hearing arguments of both the sides and after perusal of the entire record, the trial Court though found A-1 to A-5 and A-11 guilty of the offences punishable under Sections 326, 342 read with 120B IPC., and Sections 25(1)(a) read with 3 of the Arms Act, further read with Section 120B IPC., and imposed various sentences, however it acquitted them of charges under Sections 364A, 429, 504, 506 all read with Section 120B, similarly it also acquitted A-6 and 9 of all the charges framed against them. Hence, the following appeals by the accused and the State.
1) Criminal Appeal 1829 of 2002 - by A-2 to 5 against their conviction for the offences under Sections 326, 342 IPC., read with Section 120B and u/s 25(1)(a) read with Section 3 of the Arms Act read with 120B IPC;
2) Criminal Appeal 2098 of 2002 by A-11 against his conviction;
3) Criminal Appeal 1958 of 2002 by the State against the acquittal of A-2 to A-5, A-6, A-9, A-11 for the offences under Sections 364A, 429, 504, 506 IPC., all read with Section 120B IPC., as well as acquittal of A-2 and 3 for the offence u/s 27 of the Arms Act.
4) Criminal Appeal 1959 of 2002 by the State for enhancement of sentences imposed against convicted-accused A-2 to 5.
27. We have heard the learned Advocates appearing for the accused as well as the learned Special Prosecutor appearing for the State, at length and also perused the records of the case.
28. The evidence of the prosecution can be classified into following categories :
i) The incident of abduction :
PW 3
ii) Eyewitness for assault and abduction of PW-3: PWs 4 and 5
iii) The circumstantial evidence and witnesses :
a) telephonic demand of ransom: PWs 1 and 2;
b) to show the stay and other activities of accused at various places before and after abduction: PWs 6, 7, 11, 16, 31, 36 and 39;
c) medical evidence re: injury to PW 3 and his dog at the time of abduction: PW 12, 10;
d) various mahazar witness :- PW 7, 13, 17, 18, 38, 42;
e) investigation team :- PWs 19 to 30, 32, 33, 35, 37, 40, 43, 45;
f) Expert witnesses :
PW 34, 41;
g) Others witnesses (regarding possession and use of mobile phone by the accused): PW 44, 46;
At the outset, we have to note that insofar as the incident of abduction of PW 3-Nirmal Kumar Jaipuria on 15.7.1997 at about 5.30 or 6 a.m. on Koramangala-Sarjapura Service Road in front of house No. 378 belonging to PW 5 - Nagarajan, while PW 3 was taking morning walk along with his dog by some persons, after shooting at PW 3 and his dog, in a Maruti car there is no much dispute. Even otherwise the evidence of PW 3 himself, his sons PWs 1 and 2 as to the routine walking habit of PW 3 taking in his dog with him via Koramangala Sarjapura Service Road and in fact on 15.7.1997 his going out from the house for walking and then not returning back till he is rescued is established by the prosecution. Similarly insofar as actual abduction is concerned apart from PW 3 the victim himself, the evidence of PWs 4 and 5 though were treated as hostile gives sufficient proof of such abduction. On perusal of the evidence in this regard we hold that prosecution has proved this aspect successful.
29. Similarly insofar as PW3 and his dog Boxy being injured in the said incident also cannot be doubted as again apart from the evidence of PW 3, we have on record sufficient believable evidence of PWs 1 and 2 as well as the evidence of the doctors PW 12 and 13 who have treated the injured PW 3 and his dog respectively.
30. But the moot question is as to who are the abductors of PW 3 and whether the prosecution has proved beyond reasonable doubt that it was these accused who did it?
31. At the outset it is to be noted that PW 3 who is the victim of the abduction, though speaks about his abduction and being in the custody of his abductors, from morning of 15.7.1997 to midnight of 18.7.1997 when he was rescued by the Police, almost for a period of 90 hours, has been treated as hostile by the prosecution, as he has failed to identify any of the accused before the Court as his abductors. Similarly PWs 4 and 5 the independent eyewitnesses for witnessing the abduction of PW 3 on Koramangala - Sarjapura Service Road have also been treated as hostile witnesses as, as they do not support the prosecution on material aspects namely the identity of the accused who had participated in the abduction of PW 3. It is to be noted that even though the prosecution has cross-examined these three witnesses at length nothing fruitful has been elicited to connect directly (eyewitness account) any of the accused, with the incident of abduction of PW 3 in the morning of 15.7.1997 at about 6 am or so.
32. Thus in the absence of evidence of these three material witnesses namely PWs. 3, 4 and 5 as to the identity of the accused, we have to consider the remaining evidence which will be practically consisting of circumstantial and investigational evidence adduced by the prosecution in this regard.
33. The circumstances relied upon by the prosecution are as follows:
a) Conspiracy to abduct and various movements in that direction by the accused;
b) Actual execution of the abduction;
c) Investigational steps leading to the accused;
d) Rescue operation of PW 3 and arrest of A-2 to 5 simultaneously;
e) Seizures and recoveries of incriminating articles on the information furnished by the accused;
f) The other circumstantial evidence leading to the role of remaining accused and the consequential arrest.
Conspiracy :
The case of the prosecution is that A-1 to A-11 hailing from different parts of the country entered into a criminal conspiracy between 24.6.1997 and 15.7.1997 at Bangalore, Mysore, Virajpet and Mercara to kidnap or abduct a wealthy person for ransom. In pursuance of the same, they stayed in Bombay Ananda Bhawan Hotel and Woodland Hotel at Bangalore on different dates. Two of the accused viz. A-9 and 11 through PW 6 and estate agent took a house in Nagarbhavi belonging to PW 11 on lease. Thereafter some of them stayed in the house and others used to visit them. Ultimately as conspired and planned, on 15.7.1997 in the morning, A-2, A-3, A-5 and A-11 armed with pistols and revolver came in a white Maruti Esteem car to Koramangala Sarjapura Service Road where as per the usual routine PW 3 - Jaipuria a wealthy businessman while taking walk with his dog, and after injuring him and his dog abducted him in the said car to the house at Nagarbhavi, wherein later he was rescued by the Police and also some of the accused were arrested at the house.
34. The prosecution in respect of conspiracy relies upon the evidence of following witnesses :- PWs 31, 36, 16, 6, 11 and 7.
35. Out of these witnesses PWs 31 and 36 are the receptionist and manager of Ananda Bhawan Hotel wherein some of the accused alleged to have stayed prior to the abduction. Similarly PW 16 is a supplier/room boy of Woodland Hotel who is examined to speak about some of the accused staying in the hotel. PW 6 is the estate agent who is alleged to have secured the house of PW 11 at Nagarbhavi to A-9 and 11. PW 11 is the owner of the house which was given on lease to A-9 and 11 and wherein ultimately PW 3 was found to be illegally detained after his abduction till he was rescued by the Police along with some of the accused. PW 7 alleged to be a watchman employed by PW 11 for the house before its lease to A-11 to 9.
36. Apart from relying upon this oral evidence the prosecution has also placed reliance upon documentary evidence Ex.P.61, the alleged lodge Register said to have been maintained by Ananda Bhawan Hotel and spoken to by PWs 31 and 36.
37. Out of these two witnesses, PW 36 the manager of Ananda Bhawan Hotel has not at all supported the prosecution and hence, he was treated as hostile witness. Inspite of lengthy cross-examination, nothing helpful to the prosecution has been elicited from this witness and as such his evidence is of no use. Hence, the only evidence left with the prosecution is that of PW 31 and Ex.P.61.
38. PW 31 is alleged to be a receptionist of hotel Ananda Bhawan, Bangalore. According to her evidence A-10 Roger and Ravi A-9 were the frequent visitors/customers of the hotel and as such she remembers them and identifies them in the Court. As the prosecution story goes, in the year 1997 they used to come frequently and occupy a room in the hotel. According to her in the month of June and July of 1997 Rocky - A-2 had taken a room for 12 days during which time many of his friends used to come, stay and go. On the second occasion apart from Ravi and Roger, two more persons had come to stay in the hotel one of them being a person looking like Sardarji as he was having beard and was wearing a turban. Though she identifies them as A-9 and 10 in the Court while giving evidence, as she did not identify the other accused who are also said to have been frequently visiting the hotel, the prosecution has treated her as hostile witness and cross-examined her at length. In the cross-examination she had given evasive answers by stating that she might have stated regarding identifying these accused during the investigation to the Police but now she does not remember making of such statement or specifically identifying the accused. In cross-examination when confronted with entries in Ex.P.61 an account register of the hotel, she tries to state that on 24.6.1997 room No. 1 was occupied by one Sunny Kumar. She also further states that according to the register, he was staying there from 24.6.1997 to 1.7.1997 during which time he made phone calls and had also ordered for drinks, food, etc. Further according to her on 25.6.1997 room No. 2 was occupied by a person named Ravi Appaiah, but later she says that as per the register Ex.P.61 the said room was occupied by Roger and party. In the cross-examination by the prosecution, though she was confronted with particular portions in her statement recorded by the Police, she again gives evasive answers saying "I do not remember".
39. In the cross-examination by the accused, she has practically faltered and it is ably demonstrated that she had identified some of the accused named by her in the Court, only because of the Police showed her the photographs of these accused published in the newspaper, after their arrest. The defence has further succeeded in creating doubt as to the genuineness of the entries in Ex.P.61. It is positively elicited from this witness that the names of Roger and party or Sunny Kumar have been subsequently entered in the said register Ex.P.61.
40. So far as this part of evidence is concerned at the outset we are surprised to note that the prosecution has neither seized the arrival and departure register, which would have definitely indicated as to which of the accused staying in the hotel or not on particular date or dates. Moreover the alleged manager PW 36 has totally not supported the prosecution as to the identity of the accused being present on particular dates in his hotel.
41. Before going into the entire evidence at this stage itself, we would like to point out that though these witnesses except one or two like PWs 6, 7 and 11 who''s evidence can be relied upon as to the identity of the accused because of they having occasion to see some of the accused more than one occasion and for a long period, none of the other witnesses are either acquainted with or knowing the accused earlier to their alleged first time seeing them and that too for few minutes or so.
42. As such to assure themselves that their investigation is proceeding on the right track, it was necessary for the investigating agency to hold a test identification parade (T.I.P.). We are aware of various pronouncements of the Hon''ble Supreme Court regarding necessity of holding test identification parade. It is no doubt true the identification at T.I.P. and its report is not a substantive piece of evidence and more so unless it is conducted as per various mandatory guidelines issued by Apex Court in this regard.
43. It is true that the evidence of a witness identifying an accused in Court is substantive piece of evidence. However if there is a doubt as to identifying capacity of a witness or doubt regarding whether such witness had sufficient opportunity and the time of remember the particular accused especially when he is a stranger, who could have seen the person for a few minutes only, then the requirement and necessity of T.I.P. is felt more. Unfortunately in this case except one witness viz., PW 39 none of the other witnesses who alleged to have seen some of the accused for few minutes or some time, have been subjected to T.I.P. to identify the accused during the investigation. More shockingly the victim of abduction who was practically more than 90 hours in the custody of the accused and who could have identified the accused positively, has not been able to identify the accused in the Court and as such he has been treated as hostile witness. It is at this stage the necessity of T.I. parade is felt more.
44. In this regard, we have to note that as the records disclose the Investigating Officer-PW 43 had in fact filed an application before the Magistrate to subject some of witnesses including PW 31 and 36 to T.I.P. and the Magistrate had issued orders but surprisingly and for the reasons best known to the investigating agency and prosecution, none of these witnesses except PW 39 have been called for T.I.P.
45. Hence, in our view, evidence of PW 31 which is basically indefinite, vague and as such, is a totally useless piece of evidence, for the prosecution insofar as alleged conspiracy or physical and mental meeting of some of the accused atleast at Hotel Anand Bhawan, Bangalore, before committing the crime.
46. The next evidence in the chain of conspiracy and connecting link, in respect of accused 3, 4 and 6 staying in hotel Woodland is that of PW 16. This witness is stated to be one of the suppliers/room boys of this hotel and assigned to room No. 205 from 5.7.1997 for some days, during which period, as per the prosecution, A-3, 4 and 6 were staying prior to the alleged abduction.
47. Even in the absence of the T.I. parade, evidence of this witness is very material for the purpose of establishing the identity of at least some of the accused, as this witness had opportunity to see these accused frequently and for quite sometime.
48. Though this witness speaks and gives evidence in support of the prosecution case in examination-in-chief, the accused have succeeded in showing not only by way of cross-examination but also relying upon Exs.D.36 to 65 hotel vouchers, that this witness had never been a supplier to room No. 205 during the relevant point of time when the room was said to have been occupied by A-3, 4 and 6.
49. PW 16 has admitted in the cross-examination that his supplier number is 9 or as per the identity card 36. He also has admitted that whenever a particular supplier takes orders from a room assigned to him, not only the details of the order placed but also the supplier''s number is recorded in the vouchers maintained by the hotel. It is to be noted that except one voucher, all other 29 vouchers show that at no point of relevant time, this witness has taken any orders or supplied anything to room No. 205. Even the one voucher shows he had supplied tea to the room and that would indicate he might have had only fleeting glance of the persons staying in the room when he went there. Thus prima facie there is absolutely no material evidence elicited from this witness by the prosecution to show that at the relevant point of time he was the supplier/room boy assigned to room No. 205 and had sufficient opportunity to look at the occupants in the room and identify them in the Court as A-3, A-4 and A-6 and thus could speak about presence of these three accused as part of conspiracy.
50. Again it is to be noted that this witness has also been not subjected to T.I.P. nor any relevant and material documentary evidence like arrival and departure register of the hotel has been seized during investigation or produced before the Court to ensure the presence of these accused in the hotel during relevant point of time. The prosecution has also failed to examine any other material witness like manager or the receptionist to speak in this regard. As such, in our view, it is a very remote chance for this witness to remember accused 3, 4 and 6 staying in the hotel and then identify them in the Court. This witness has been shown to be unreliable in view of the documentary evidence Exs.D.36 to D.65. Hence, in our view, evidence of this witness is also of no use to the prosecution.
51. Thus in the absence of any reliable oral or documentary evidence, in our view, it is not safe to rely upon evidence of these three witnesses namely PWs 31, 36 and 16 to hold that prior to the alleged offence of abduction some of the accused had stayed either in Ananda Bhawan Hotel or at Woodland Hotel and thereby to infer that there was any conspiracy amongst these accused to commit the crime of abduction of PW 3.
52. If the evidence of prosecution in this regard is unsatisfactory, unreliable and as such to be discarded, then absolutely there is no material before the Court to hold that at any point of time the accused met together prior to the abduction, so as to infer that their meeting was indicative of meeting of mind to conspire or plan for abduction. We again stress the need of prosecution for holding T.I.P. in the present case, especially when all the accused are from different States like Punjab, Uttar Pradesh and Bihar etc., taking into consideration these aspects, in our view, the prosecution has totally failed to prove the conspiracy part namely meeting of the accused prior to the commission of the crime so as to show hatching of the plan to kidnap for ransom, atleast in respect of some of the accused viz., A-3, A-4, A-6, A-9 and A-10.
53. The next evidence of the prosecution, to establish the alleged next conspiratory act of accused is in regard to taking on lease the house No. 218 of Nagarbhavi. According to prosecution it was A-9 and 11 who alleged to have taken this house belonging to PW 11 on lease with the assistance of PW 6 an estate agent. Thus the material evidence in this regard is that of PWs 6, 11 and to some extent PW 7.
54. It is to be noted that after the rescuing of PW 3 by the Police, it was A-2 to 5, who were alleged to have been caught on the spot. As such A-9 and 11 who were apprehended later, were not residing in the house when the Police conducted the raid to rescue PW 3.
55. Again we have to note that in respect of these three witnesses PW 6, 7 and 11 also, T.I. parade to identify some of the accused is not conducted. But as argued by the prosecution these three witnesses had some of opportunity to see the accused on few occasions, even in the absence of T.I. parade, if their evidence is reliable and corroborated by other evidence, then there is no difficulty to accept this part of evidence of the prosecution, so as to at least connect the acts of A-9 and 11 in taking the house on lease which is later used for illegally detaining PW 3 after his alleged abduction.
56. PW 6 in his examination-in-chief has stated that around 26th June, 1997 one Sanjay Kumar and Ramesh, who are now identified A-11 and A-9 respectively, had come to his office and were enquiring about getting house accommodation. According to this witness when he showed some houses in Indiranagar area, these accused told him that they preferred a house in a peaceful area or secluded place and then he told them that house of PW 11 at Nagarbhavi is available. Then on their request he contacted PW 11 and sought permission for inspecting the house. Thereafter on visiting the house and A-9 and 11 agreed to take the house on lease and after talking with PW 11 he also consented for giving the house on lease. The rent was settled for Rs. 15,000/- per month with an advance of Rs. 1,50,000/-. Thereafter the owner told them to come on 1st July. Accordingly, both accused went to the office of PW 6 and then all of them went to the house of PW 11 at Malleshwaram wherein an agreement came to be executed. It is stated that Sanjay Kumar A-11 signed it as a lessee and PW 11 as the lessor. PW 6 and A-9 also put their signatures as attesting witnesses. Thereafter A-11 paid the agreed advance of 1,50,000/-. Thereafter this witness says that both the parties paid him a commission of Rs. 25,000/-. He also states that when he enquired with A-11, he had disclosed that he is NRI from Australia and had come to Bangalore to open a hotel and that Ramesh Kumar is from Ooty. According to this witness, when they went to the house of PW 11 one watchman-PW 7 Siddappa was staying in the house and he was told by PW 11 to clean the house and hand over the house keys to Sanjay Kumar when he comes next. According to this witness these accused had come in a car of NE 118 model. This witness has been subjected to lengthy cross-examination and he has admitted that he has no records to show that he is doing the estate agency and that he has no knowledge as to who occupied the house or who were residing therein. The evidence of PW 6 does not in any way incriminating A-2 to 5. At the most it can be held that A-11 took the house on lease from PW 11 and as the other evidence discloses it was in this house, PW 3 was held and rescued later.
57. Evidence of PW 11 practically corroborates the evidence of PW 6 in so far as his house being taken on lease by A-11. The next evidence in this line is that of PW 7-Siddappa a watchman of the house said to have been employed by PW 11 and according to prosecution he is one of the star witnesses to connect the accused with the crime by showing that besides A-9 and 11 the other accused also used to visit the house frequently, as a part of conspiracy.
58. According to PW 7 in the year 1997 he was employed by PW 11 as a watchman of the house. This witness states that on 26.6.1997 two persons had come in a car along with PW 11. He states that later PW 11 informed him that his house is given on lease and when the new tenant come, PW 7 to hand over keys to them. Accordingly, on the 8th July Rakesh Kumar (A-11) came in the afternoon alone and he was handed over the keys of the house. According to this witness in the evening A-11 and A-5 came and after having looked inside the house went away. Thereafter on 11th July (Friday) four more persons came with luggage. PW 7 identifies them in the Court A-2, 3, 5 and 11 as the persons who had come on Friday. According to him all these accused were staying in the house. This witness further states that on 15.7.1997, at about 7 or 7:15 a.m these accused came in a car and took the same inside the compound. At that time he was in the neighbouring building of one Janardhan. He states that one person fully covered with a bedsheet was taken inside the house by A-2 to 5 and 11. According to this witness on 16.7.1997 PW-11 had told him that the bathroom in the house was not clean and as such he is required to go and clean it. Accordingly, when he went to the house, he knocked the door and it was A-3 who opened it. According to him when he was cleaning the bathroom he saw one person in the room who was softly moaning. When he went to the first floor for cleaning, he heard someone saying ''Bachao - Bachao''. On 16th July according to this witness A-5 and 11 left the house in two different cars without giving him the house keys. On 18th at about 10 pm police came and surrounded the building. Thereafter, he gives details of alleged rescue operations. He also states that he witnessed drawing up of mahazar Ex.P.24 in respect of seizure of certain articles during the rescue operation. In his lengthy cross-examination, it is elicited that during the relevant period, he was working as watchman of a house belonging to one Janardhan and in fact he was staying in that house. It is also elicited that he is a mason by profession and earns his livelihood by doing masonry work. In the cross-examination, he has admitted that his statement was recorded on 19th September, 1997, on the date when some of the accused were arrested by a constable named Krishnappa and that after about two years, the Police again recorded his statement. Infact he states that thrice the Police recorded his statements. He has also admitted in the cross-examination that he has not mentioned the movements of accused or identifying features of the persons staying in the house to anybody.
59. Here again we have to note that this witness is not subjected to T.I. parade. His evidence is self contradictory in nature and what is most damaging to the prosecution is the suppression of his earlier admitted statement recorded by the Police immediately after the incident. His evidence regarding A5 being one of the inmates is also found to be an omission as per Ex.D.4. He has also not identified PW 3 as the person who was brought by the accused in the morning of the alleged abduction. As such, evidence of this witness is also not helpful to the prosecution to establish the second part of the conspiracy also.
60. The next question for consideration is the actual abduction of PW 3 by the accused and evidence regarding his being kept in illegal detention in the house at Nagarbhavi till he is rescued by the Police.
61. In this regard, the case of the prosecution is that it was A-2, A-3 and A-5 are the actual accused who abducted PW 3 while he was taking the morning walk along with his dog, by coming in a car and after shooting at the dog and PW 3.
62. As noted earlier the evidence of PW 3 regarding his actual abductors or as to their identity, it is silent. In fact only because of his inability in the Court to identify the accused, he has been treated as hostile. Inspite of lengthy cross-examination nothing worthwhile has been elicited from him to bring out the identity of the actual abductor much less pointing out towards A-2, 3 and 5. At the cost of re-petitions, we have to once again emphasise the importance of holding of test identification parade during investigation. Had the investigating agency held the T.I. parade immediately after the arrest of the accused as per the procedure prescribed, even if PW 3 has turned hostile, he could have been confronted with his earlier identifying his abductors with the T.I. report. Hence, the evidence of this witness is absolutely useless for the prosecution to fix the identity of actual abductors.
63. The only other witnesses who can throw some light regarding the actual abduction and the abductors, are PW 4 and PW 5, who are alleged to be the eyewitnesses to the incident. Unfortunately these two witnesses have not supported the prosecution and hence are treated as hostile. Here again we have to note that inspite of lengthy cross-examination by the prosecution, it has failed to get any supportive evidence from them.
64. Thus in the absence of any material evidence even if we accept the case of the prosecution that PW 3 was abducted, we have to hold that the prosecution has totally failed to establish as to who are the actual culprits who entered into the conspiracy to abduct or kidnap PW 3.
65. The next link in the chain of circumstances is that after actual abduction/kidnapping of PW 3 and after receipt of the first information in this regard various steps taken by the investigating agency, ultimately ending not only rescuing PW 3 but also arrest of the accused.
66. The case of the prosecution in this regard is that after receipt of the information of kidnapping, the investigating agency took steps to hear and record the conversation between the abductors and the family members of the victim PW 3 and in pursuance of the same, telephone calls from Hyderabad were traced, ending in apprehension of A-1 and on his voluntary statement flashed information and carried out rescue operation.
67. It is to be mentioned here itself that A-1 is still absconding and the case against him has been split up, however in order to appreciate the evidence, we have to consider the evidence in his apprehension also, as the same is essential for the further evidence in the present case also.
68. According to the prosecution, after tapping the telephones in the residential house of PW 3 and listening to the same for the alleged ransom calls made to one of the phone, Police traced the call to Hyderabad and as such a team consisting of PWs 22, 25 and 40 was sent to Hyderabad. At the outset it is to be noted that neither the alleged recorded talks nor documents from telephone department have been produced to show calls made to the house of PW 3 and more importantly from which place and telephone number. In our view this was important and necessary as according to the prosecution itself certain phone calls were made from different places like Channarayapattana, Hassan, Hyderabad, etc., apart from the discrepancy as to when exactly the first call from Hyderabad was received whether at 10.30 am as spoken by PW 1 and PW 2 or at 1:30 pm and as spoken to by the Investigating Officer PW 43, there is also evidence that infact two phone calls were made from Hyderabad itself, one from the STD booth of Satyanarayana of Liberty Plaza, Hyderabad and another from the STD booth of PW 39 Ravi Babu. Again it is to be noted that said Satyanarayana is not examined by the prosecution nor there is any documentary evidence produced in this regard. This is important because the call at 10:30 am was supposed to be from this shop.
69. Further PWs 22, 25 and 40 have stated that when they were at Hyderabad, they were contacted from Bangalore tracing the call from the shop of PW 39. Even this phone call from the shop of PW 39 is not proved beyond doubt by the prosecution. Except the oral say of PW 39, no documentary evidence is produced to show that he was in-charge of the telephone booth at Banjara Hill. Even it is not shown that this telephone booth had the phone with number 332958. No bill or a printout is produced in this regard except Ex.P.43. This bill on perusal does not show from what phone, the call was made. There is sufficient doubt regarding the genuineness of Exhibit P.43 since same is not seized under any mahazar immediately nor the same is referred to in Ex.P.92 the report made by the I.O. while producing A-1. There is nothing to show that Exhibit P.43 was kept in safe custody and as such merely it being a chit without any evidence of its authenticity and hence not reliable. Even the report of PWs 23 and 24 as per Exhibit P.25 submitted by them after return from Hyderabad does not make mention of Exhibit P.43. Hence, the argument of the learned Advocate for the Appellants that whether Exhibit P.43 was in existence atleast on 20.5.1997 being doubtful, has to be accepted. It is to be noted that for the first time Exhibit P.43 has been subjected to Property Form only on 23.7.1997 and the same has reached the Magistrate on 7.8.1997. Hence in the absence of any other material Exhibit P.43 being in existence till 7.8.1997 is itself doubtful, especially when PW 39 himself has admitted that there is nothing to show from Exhibit P.43 that the same was from his telephone booth.
70. Apart from the absence of any evidence as noted above about a call being made from the telephone booth of PW 39 to the house of PW 3, which in turn led to the apprehension of A-1, even the evidence of this witness identifying the said accused in the T.I. parade and thus establishing his identity as that of A-1 is also doubtful. This is the only witness who has been subjected to T.I. parade, but the Taluk Executive Magistrate who held the parade and given report Ex.P.80 is not examined by the prosecution. Moreover on the face of the admission of PW 39 that he was shown a Sardarji prior to the T.I. parade as well as a photograph just prior to the T.I. parade creates doubt as to the genuineness of it. It is also to be noted that even on perusal of Ex.P.80 the alleged report of T.I. parade, it clearly shows that the basic and mandatory requirement like mixing the suspected accused with other persons having similar physical built of facial features with similar clothes and headgear, etc., has not been complied with. A-1 is admittedly is sikh - Sardarji and as such, must have been having beard and a turban on his head. As such while holding T.I. parade he ought to have been mixed with some other Sardarji''s or atleast persons having beard and wearing turban. Infact this is not done by the Magistrate/investigating agency while holding the alleged the T.I. parade and as such this T.I. parade practically becomes a farce. Therefore, the evidence of P.W. 39 as to identifying A-1 is also suspicious in nature.
71. Even insofar as the alleged arrest of A-1 at hotel Woodbridge is concerned, the same is again doubtful. As noted earlier no documents worth from the hotel have been produced nor any official like a manager or receptionist from this hotel have been examined by the prosecution. The doubt is created in this regard since evidence of PW 39 shows that as per Exhibit P. 33 the Police alleged to have apprehended a Sardarji immediately after he came out of the telephone booth and the contradictory and unsubstantiated evidence of the Police Officials that they arrested A-1 at the hotel in the room No. 108. It is to be noted that there is no mahazar drawn after the arrest of A-1 nor any mahazar drawn in respect of alleged seizure of articles belonging to A-1 found in the hotel room 108. There is further discrepancy as to when exactly A-1 was arrested or apprehended. Ex.P.92 the report of PW 22 shows that he was arrested at 9:30 pm which has been over written as 8:30 pm and infact in Ex.D.77-remand application that time of arrest is shown as 10.30 pm. Generally we would not have attached much importance to the time gap or discrepancy in this regard but our doubt as to the whole drama is strengthened by further un-explained discrepancy as to the alleged voluntary statement Exhibit P.91 said to have been made by A-1. Exhibit P.91 shows that the same was made on 19.7.1997 whereas the alleged Police rescuing operation at the house at Nagarbhavi, Bangalore, has taken place on 18.7.1997 itself and thus, there is no voluntary statement made by A-1 before the rescue operation. None of the Investigating Officers stated that it was A-1 who led them to the house at Nagarbhavi. As evidence discloses, by the time A-1 was brought many Police Officials had already gathered near the house. This shows that the Police Officials even before the alleged voluntary statement leading to the discovery of PW 3 and other accused being in the house at Nagarbhavi, knew the place and we do not know the source of such information.
72. After from these doubtful circumstances, we also find similar efforts made by the investigating agency/prosecution at every step to concoct evidence. One similar instance is alleged seizure of mobile phone MO 27 alleged to be in the hands of A-2 when he came out of the house following PW 3. In the mahazar Ex.P.24, the mobile phone make is mentioned as J.T.M., whereas what is now produced in Court is of Samsung make. It is to be noted that no SIM card number is mentioned or noted anywhere much less in Ex.P.24. As is commonly known it is not the mobile phone - the instrument as such, which would give the information about the user''s number but only the SIM card. Realising this mistake the investigation agency has tried to connect the same with MOs 48 and 49 - subscription form and the receipt of SIM card in the name of one Rajendra Kumar (A-6) from whom it is alleged that A-2 took the same and used it. On perusal of Mos 48 and 49 it is clearly seen that there is clear alterations in the SIM card number. From the naked eyes it can be seen that the original number MY 003792 has been altered to MY 003749. Admittedly MO 27 was not packaged and kept in sealed condition after its seizure and as such a sim card can be inserted even subsequently. Further till 28.7.1997 on which date said mahazar Ex.P.24 is sent to the Magistrate along with remand application Ex.D.77 - there is no mention of seizure of any mobile phone. Even the report of PW 27 given to PW 43 there is no mention of any seizure of mobile phone, though some other insignificant details are mentioned. Exhibit P.24 shows that it was drawn between O:45 (midnight - 12:45) but Ex.D.27 shows different time in fact much earlier to seizure mahazar Ex.P.24 itself. As such, in our view, even the seizure of MO 27 is concocted only to create a link between A-6 and A-2.
73. The conduct of the Investigating Officer is also further suspicious. If really the mobile phone, and other weapons alleged to have been thrown from the house by A-2 when seized under Ex.P.24, the remand application Ex.D.77 shows that the same were seized practically second time under different mahazar as spoken to by PW 43, and even this mahazar is not produced. Hence, in our view, Ex.P.24 is a subsequently crated document by the investigating agency to suit the prosecution case. There is one more reason to suspect genuineness of Ex.P.24. In it the time of arrest of A-2 to 4 is shown as 1:05 or 19.7.1997 as per Prisoners Search Register Ex.P.128 and even Ex.D.77 but the report Ex.D.27 and the endorsement by PW 43 time it totally different and hence, it is clear that Ex.P.34 could not have been drawn at Nagarbhavi between 12:45 midnight to 2:24 am of 19.7.1997.
74. If Ex.P.24 the seizure mahazar in respect of weapons also is doubtful as already noted, the doubt is more strengthened by sending the same to the ballistic expert on 12.8.1997 more than 25 days. This delay has remained unexplained. It is also to be noted at this stage itself that though the mahazar witness PW 13 states that he has put their signatures on the packed items, PW 43, the Investigating Officer in the Court admits and even as found and stated by the ballistic expert no such signature or seal was found on the packed articles (weapons) when sent to him.
75. The efforts of investigating agency to concoct the evidence is further seen from the alleged fact of seizure of dentures and blood stained clothes of PW 3 on 19.7.1997 between 4 to 7 pm alleged to be on the basis of voluntary statement of A-2. Exhibit D.77 the remand application received by the Magistrate after 7 pm does not mention any seizure made under Ex.P.16, other than it is mentioned that recoveries are yet to be made. We fail to understand this discrepancy.
76. Similarly the key alleged to have been used by A-2 when he took the Police to the house at Nagarbhavi leading to further discovery and seizure of certain weapons and other articles connecting PW 3 and accused, surprisingly has not been seized immediately. As PW 27 one of the Investigating Officer has admitted that even after he found the key on the person of A-2 and knowing full well at that stage that it was one of the most important incriminating articles, surprisingly he does not seize the same and leave the same with A-2 probably to make further drama of its seizure later. On the other hand Exhibit P.128 the Prisoners Search Register which has a specific column as to the articles of the prisoner is also silent about the same. It is to be noted that it has been neither seized during investigation nor has been produced before the Court.
77. As such considering the fact the house was in Police custody throughout from the evening of 18th and inspite of earlier search, no articles noticed or seized immediately, but it is only on 19th under Exhibit P.16, certain articles came to be seized from the very place, creates a great doubt as to the investigation. In our view, all these attempts on the part of the investigating agency is to make an effort to connect PW 3 being in the house at Nagarbhavi in the illegal custody of A-2 and others, but on the face of the admissions given by these Investigating Officers which creates suspicion in our mind as to its genuineness.
78. We also find similar effort on the part of the investigating agency in planting certain articles namely MO 1 a walking stick and MO 2 a dog leash belonging to PW 3 in the car seized at Mercara. A car said to have been used in kidnapping PW 3 and alleged to have been seized on 20.7.1997 by PW 26 under mahazar Ex.P.44. It is to be noted that in the said search and seizure a shirt MO 46 alleged to have been found and seized. Thereafter, it is admitted that the car was towed and kept in Police custody. Surprisingly, it is after two days namely on 27.7.1997 under another mahazar as per Ex.P.79, fresh search alleged to have been conducted and MOs 1 and 2 the walking stick and a dog leash are stated to be found in the car. If really the Police had searched the car on 20th they ought to have found Mos 1 and 2 on that day itself as un-disputedly these are not small or microscopic items, which the Investigating Officer or the mahazar witness PW 38 did not or could not see. Hence, even after search and seizure of MO 46 shirt on 20th, finding MOs 1 and 2 after two days (48 hours the car was with the Police) creates suspicion as to the seizure itself and demonstrates the suspicious investigation and a clear attempt on the part of the Police to plant certain objects of possibly to plug the loopholes and mainly towards drawing attention to the accused.
79. Thus on re-appreciation of the entire evidence in the light of arguments and the material evidence, in our view as we find the entire set of prosecution witnesses are untrustworthy and more importantly the investigation is very tainted, it is not safe to rely upon this evidence to hold the accused guilty of the offences alleged against them. The trial Court has not at all gone into this aspect and probably carried away by the heinousness and the magnitude of the crime. No doubt it is true the offences are very serious and heinous in nature but at the same time, it cannot be forgotten that in such cases evidence must be trustworthy but also without any blemish or doubt. As we have discussed in detail the negligence and even attempts on the part of the investigating agency to concoct, plant evidence, makes us too difficult to separate grain from the chaff as grains are very few and the doubt of chaff is excessive in quantity and quality. Hence, the conviction of the accused is liable to be interfered with.
80. Before parting with the case, we place on record our anguish at the way in which investigation has been carried out and negligent way the case is presented before the Court by the prosecutor without giving any attention to the lucuna pointed out repeatedly by the defence in cross-examination.
81. In the result for the reasons stated above, Criminal Appeal Nos. 1829 of 2002 and 2098 of 2002 are allowed, the conviction of the accused are set aside and they are acquitted of all the charges. Consequently, Criminal Appeal Nos. 1958 and 1959 of 2002 by the State are dismissed.
82. As the accused are stated to be in custody, they shall be set at liberty, if not required in any other cases.
