Common Judgment
1. These Memorandum of Criminal Appeals are filed under Section 374 (2) of the code of Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) by A1 to A3 assailing the judgment passed by the learned Metropolitan Sessions Judge, Hyderabad in SC.No.389 of 2016, dated 19.01.2018.
2. Criminal Appeal No.2425 of 2018 is filed by A3-Namubudri Mohan.
3. Criminal Appeal No.2704 of 2018 is filed by A1-Indugamalli Sheshu Kumar @ Sai and A2-Pondara Ravi.
4. For the sake of convenience, appellants will be herein after referred to as A1 to A3.
5.1. The case of the prosecution is that A1 to A3 came from other Districts to Hyderabad and were staying in a room near Durga Matha Temple, Hindi Nagar, Goshamahal, in the house of Sandhya Shivpurkar (PW.7) who is the owner of the building. Abhay Modani aged about 15 years was using scooter bearing No.TS-7EQ-5695 (Honda Activa Model) for running errands. A1 - I.Sheshu Kumar @ Sai befriended with the boy and he used to work in the house of Pradeep Kumar Darak (PW.4) to help his old grandfather. A1 to A3 entertained the idea of entering Cine Field and one person has advised them that atleast Rs.30 Lakhs is required for entering the Field therefore, A1 to A3 conspired to kidnap Abhay Modani and collect ransom from his parents because the boy was informing A1 that they are rich people. On 16.03.2016 at about 4.40 P.M. A1 - I.Sheshu Kumar @ Sai saw Abhay Modani going on his Activa Scooter at Ghode-ki-khabar and stopped the boy on the pretext of dropping him at his rented house. The boy accepted and dropped A1 at his rented house. A2 and A3 were in the room, they confined the boy and informed him that they kidnapped him to get money from his parents. As the boy was raising voice, accused plastered his mouth and nose. Due to suffocation, the boy fell on the floor.
5.2. A1 - I.Sheshu Kumar @ Sai has contacted the family members of the deceased boy over phone and demanded Rs.10 Crores to release their son. Family members expressed their inability to arrange such huge amount, then A1- I.Sheshu Kumar @ Sai demanded Rs.5 Crores. However, since the boy died and the accused did not receive the ransom, they packed the dead body of the deceased in an empty carton box covered with white plastic material and engaged an auto trolley to go to Secunderabad. Honda Activa of the deceased was left by A2 near Volga Hotel, Darusallam area. While taking the carton box containing the dead body of the deceased, A1 got down and sold the cell phone at a mobile shop and purchased one China made cell phone from another shop. Driver of the auto trolley dropped A2 and A3 with their belongings and carton box containing the dead body of the deceased at Jagdish Market, Abids, Hyderabad. Accused engaged passenger auto and brought the carton box containing the dead body of the deceased near Alpha Hotel, Secunderabad and abandoned the box thereat, they went to Vijayawada. PW.1-Rajkumar was asked to come to Secunderabad Railway Station.
5.3. On the complaint made by PW.1-Raj Kumar, missing case is registered. PW.1 and his family members went to Secunderabad Railway Station, public has gathered near Alpha Hotel where a carton box in which the dead body of Abhay was lying. Accused reached Vijayawada on 17.03.2016 in the early hours, they boarded another train and reached Berhampur on the same day at 8.00 P.M., after reaching Berhampur they went to Ganesh Market and sold the cell phone of A1 later they stayed at Anarkali Lodge for a night and in the morning they left to Rajahmundry. Accused Nos.1 to 3 were arrested at Rajahmundry on 20.03.2016. Police has recovered the chappals of the deceased in the rented room and also seized the remaining part of the plaster which was used to silence the boy from the rented house of A1 to A3. At the instance of A1 cell phones used by him were recovered. CCTV footages were collected, analysed and report was obtained from the Expert regarding the identity of the persons in the CCTV footage. On the death of the deceased boy, FIR was altered to Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) on 17.03.2016 at 1.30 A.M. After conclusion of the investigation, charge sheet is filed against the accused Nos.1 to 3 for the offences under Sections 364-A, 302, 120-B, 201 r/w Section 34 of IPC.
6. A1 to A3 were furnished with copies of case records in the Committal Court and thereafter the case was committed to the Court of Sessions and numbered as SC.No.389 of 2016.
7. The learned trial court has farmed charges against A1 to A3 for the offence under Sections 120-B, 364, 302 of IPC r/w 34 of IPC and 201 of IPC. As there was a typographical mistake in the second charge as the letter ‘A’ was missing by the side of Section 364 of IPC, therefore it was corrected by way of order in Crl.M.P. No.3099 of 2017 dated 27.11.2017.
8. Prosecution has examined PW's.1 to 43, got marked Exs.P1 to P52 and MOs.1 to 17. Ex.D1 is marked by the defence.
9. The learned trial Court after analysing the evidence adduced by the prosecution has convicted the accused Nos.1 to 3 for the offence under Section 302 r/w Section 34 of IPC for Life Imprisonment which shall be till their death and also to pay fine of Rs. 1000/- each, in default of payment of fine to suffer Simple Imprisonment for a period of three months each; they were also sentenced to undergo Life Imprisonment which shall be till their death and also to pay fine of 1000/- each, in default of payment of fine to suffer Simple Imprisonment for a period of three months for the offence under section 364-A r/w 34 of IPC; were are also sentenced to undergo Life Imprisonment for the offence under Section 120-B of IPC and also to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo Simple Imprisonment for a period of three months each. They were also sentenced to undergo Rigorous Imprisonment for a period of seven years each and also to pay a fine of Rs.1,000/- each, in default of payment of fine to undergo Simple Imprisonment for a period of three months each for the offence under Section 201 of IPC. Learned trial Court has given set off under Section 428 of Cr.P.C. for the remand period of A1 to A3 and the sentences imposed against A1 to A3 shall run concurrently and it is made clear that A1 to A3 shall not be released and their imprisonment is till their death.
10. In Criminal Appeal No.2704 of 2018, appellant No.1-A1-I.Sheshu Kumar @ Sai has filed an application in IA.No.1 of 2024 to determine his age by filing study certificate, birth certificate. Coordinate Bench of this Court vide order dated 01.05.2024 passed orders stating that “A1 has now raised the claim of juvenality and the Hon’ble Supreme Court repeatedly holds that the claim of juvenality can be raised at any stage which is inclusive of the appellate stage. We are of the considered opinion that it is a case where this aspect needs to be examined upon. Inquiry be conducted by Metropolitan Sessions Judge, Hyderabad, on proof of age of A1 - I.Sheshu Kumar @ Sai and report be submitted within 45 days from the date of receipt of the order and thereafter listed the matter on 24.07.2024”.The learned Coordinate B ench after receipt of the enquiry report has passed orders on 19.08.2024 which reads as under :
“Since the appellant No.1 till date has remained in custody for a period of more than eight years, which is far more than the maximum sentence, which could have been imposed by the Juvenile Justice Board and also the judicial precedents referred to above, we do not find it proper and justifiable at this juncture to remand the matter back to the Juvenile Justice Board for deciding the sentence so far as appellant No.1 is concerned. Accordingly, Interlocutory Application No.1 of 2024 stands allowed in part to the extent that the appellant No.1's conviction stands confirmed. However, since he was a minor and the maximum sentence which could be imposed under the Juvenile Justice Act is three years and further the appellant No.1 having stayed in jail for a period much more than the maximum sentence that could be awarded, we order for immediate release of the appellant No.1 from the jail. Let the authorities take necessary steps in ensuring the release of the appellant No.1 forthwith without any further delay”.
11. Now the Appeals before us are that of A2-Pondara Ravi, A3-N.Mohan.
12. Learned counsel for accused No.2 submits that the learned trial Court erred in placing reliance on the interested and discrepant testimonies of PW's.1 to 43. The learned trial Court should have seen that there is absolutely no motive for the accused persons to kidnap and kill the deceased. The allegations against A2 is that he kidnapped the boy and demanded Rs.5 Lakhs for which there are no eyewitnesses. Nobody has seen the instance which is alleged against A2 and the phone voice, phone number which are produced by the prosecution is not a proof for the offence against the accused No.2. The learned trial Court has passed the judgment without seeing the legal aspects and also failed to consider the arguments of the accused No.2 counsel. Prosecution has depended on the electronic evidence and failed to comply the mandatory requirements before the trial Court, electronic evidence is not proved by the prosecution. The sentence is unduly severe and the judgment passed by the learned trial Court is unsustainable. Counsel to substantiate his contentions has relied on the decisions in the cases of (1) Kiran Vs. State of Karnataka (2025 INSC 1453), (2) Madhusudan and others Vs. The State of Madhya Pradesh (Crl.App.No.1509 of 2010 dated 02.05.2024 of the Supreme Court of India) (3) Arjun Pandit Rao Kothkar Vs. Kailash Kushan Rao Gorantyal and others (AIR 2020 SC 4908) (4) Anwar P.V. Vs. PK.Basheer and Others (2014 11 SCR 398).
13. Learned counsel for accused No.3 submits that the learned trial Court erred in placing reliance on highly interested evidence of PW's.1 to 43, none of the witnesses narrated about the presence of A3 except PW.40. The learned Judge tagged A3 though there is no intention, motive but erroneously convicted him for all the Sections which are not attracted to him. A3 is no way concerned with the alleged offence and he was not present at the time of the offence. Video footages does not disclose the face of A3 but convicted him on mere assumptions and presumptions. The conviction of the A3 is illegal and irregular, far from truth from the case of the prosecution. Counsel to substantiate his contention has relied on the decisions in the cases of (1) Raja Naykar Vs. State of Chattisgarh (2024 INSC 56) (2) Afghan Shah Ali Khan Vs. State of AP (LAWS (APH) 2020 7 29) (3) Musapuri Krishna Vs. State of AP (LAWS (TLNG) 2019 3 190) (4) Diddikadi Srinivas Vs. State of Telangana Laws (LAWS (TLNG) 2019 3 231) (5) Balwinder Singh Vs. State of Punjab (LAWS (SC) 1995 9 112).
14. Learned Public Prosecutor submits that the learned trial Court has appreciated the evidence of the prosecution with that of the exhibits marked there on coupled with material objects and arrived at a right conclusion that A2 and A3 have committed the offence and they were rightly convicted for the offences they are charged with. No interference is called for and prayed to dismiss the Appeals.
15. Heard learned counsels for A2 and A3 and learned Public Prosecutor, perused the record.
16. Now the point for consideration is : Whether the judgment passed by the learned trial Court convicting A2 and A3 for Life Imprisonment which shall be till their death suffers from any perversity or illegality? If so, does it require interference of this Court?
17. A2 and A3 have stated in their Section 313 Cr.P.C. examination that they have taken the premises on lease from PW.7 but they have not vacated the premises. It is an admitted fact that appellants-A2 and A3 are the tenets of PW.7 along with A1.
POINT:
18. PW.7 is the owner of the house, she let out the premises to A1 to A3 on a monthly rent of Rs.7,000/- per month by collecting the Aadhar Card of A1. A1 to A3 vacated the house on 16.03.2016 at about 6.30 P.M. In the cross-examination done by A1 counsel she stated that A1 to A3 handed over the vacant possession and no belongings of the accused were left, she found nothing in their portion when she went and checked.
19. PW.1 - M.Rajkumar lodged Ex.P1 complaint on 16.03.2016 before Inspector of Police PS, Shahinayathgunj, Hyderabad that his son Abhay aged 15 years is missing. PW.33 has registered a case in Crime No.99 of 2016 as boy missing and issued Ex.P19-FIR and he handed over the case file to PW.41-E.Srinivas for further investigation.
20. PW.1 - M.Raj Kumar evidence is in tune with Ex.P1-complaint. He further deposed that PW.3-Kavitha received phone calls from kidnappers and they demanded Rs.10 Crores and thereafter Rs.5 Crores to be brought to Secunderabad Railway Station. He found the dead body of his son Abhay at Alpha Hotel, Secunderabad in a carton box with hands and legs tied up, nose and mouth was plastered. In his cross-examination he stated that Ex.P1 is in his handwriting and his name is not written underneath the signature, vehicle number is inserted between the lines of Ex.P1 and MO.9 - Honda Activa bearing No.TS 7 EQ 5695 is not in the name of his family members. PW.1 denied the suggestion that his son was sick on the day of the incident and there was a tiffin box in the vehicle, as he did not have breakfast, fell down suddenly while playing and that one of the accused made a call to him and the accused never demanded any money. PW.1 also denied the suggestion that he did not go to Secunderabad Railway Station nor observed his son's body and deposing false.
21. PW.2-M.Anuradha is the mother of the deceased, her evidence is in tune with the evidence of PW.1. In her cross-examination she denied the suggestion that phone bearing No. 8019902265 do not belong to PW.3-Kavitha, they have not received a call at 10.00 P.M. from the kidnappers demanding Rs.10 Crores.
22. PW.3-Kavitha deposed that on 15.03.2016 at about 10.00 P.M. she received a call from the kidnapper and he demanded Rs.10 Crores otherwise the boy will be killed. She informed the same to PW.1 and handed over her phone to him. There was no recording facility in her phone. PW.1 inserted her SIM in the mobile of PW.9-Brij Gopal. In her cross-examination she denied the suggestion that PW.2 has called Abhay from her phone, the said fact is not stated by her in her 161 Cr.P.C. statement so also, she did not state that she handed over her phone to PW.1. PW.3 was re-examined by the prosecution wherein she stated that deceased left the house on 16.03.2016 but not on 15.03.2016. PW.3 denied the suggestion that she do not know the actual date.
23. PW.4-Pradeep Kumar Darak engaged A1 through Kartikeya Foundation to look after his grand-father Hanumandas Darak. He identified A1 in CC TV Footage and also in Court Hall. On 17.03.2016 he along with other panch witness identified two wheeler bearing No.TS 7 5659 at Volga Hotel, Darusalam, Hyderabad. Ex.P20 is the panchanama, Ex.P21 is the rough sketch and MO.15 is the Honda Activa. In his cross-examination he denied the suggestion that CC TV footage shown to him were morphed, created for the purpose of the case and MO.15 does not belongs to the deceased or his family members, his signatures were obtained on Exs.P20 and P21 in the police station, no panch chits were affixed on MO.15.
24. PW-5-Amit Kumar Sarada acted as panch for the scene of observation cum seizure panchanama under Ex.P2, prepared Ex.P3-Rough sketch, seized MO.1 – Brown colour paper empty carton box of Samsung Refrigerator, MO.2 – White colour plastic bag, MO.3 – Wrist watch. In his cross-examination he denied the suggestion that no panchanama and material objects were seized before him and that he is giving false evidence at the instance of PW.1.
25. PW.6-Umesh Kumar Rathi accompanied with PW.1 to the police station for lodging the report about ‘Boy missing’. PW.1 has informed him that accused have demanded Rs.10 Crores to release the boy. He accompanied with police to Alpha Hotel, Secunderabad and found a carton box which was already opened by the police and the body of the deceased Abhay was found in it. He noticed a tape around the nose and mouth tightly covered, the hands were tied towards backside and the deceased was found wearing a black T-shirt and Blue jeans. MO.4 is the Black coloured T-shirt, MO.5 is the Blue-colour jeans pant. He identified MOs.1 and 2. In his cross-examination he denied the suggestion that he has not accompanied PW.1 to the police station or police parties, has not observed the dead body of the deceased and giving false evidence.
26. PW.8 - Lalith Kumar Jain deposed that he is doing business in the name and style of Pushpa Laminates at Hindinagar, Goshamahal, Hyderabad and he has installed two CC cameras, one in front of his shop and the other one inside the shop. On 16.03.2016, police has collected the data in the pen drive. He observed in CC TV footage that three persons came out of the building by holding a big carton (MO.1) covered with white plastic cover (MO.2) along with their luggage bags. Accused who are present in the Court Hall are the three persons whom he has observed in the CC TV footage. In his cross-examination he stated that his shop timings are from 9.30 A.M. to 9.00 P.M., he has not stated in his Section 161 Cr.P.C. statement that he can identify MOs.1 and 2. He denied the suggestion that no CC TV is installed in his shop.
27. PW.9-Brij Gopal deposed that on 16.03.2016 in the evening hours PW.1 informed him about the missing of his son Abhay and lodging of report in the police station. PW.3-Kavitha received a call from kidnapper and they demanded Rs.10 Crores for release of Abhay. He changed the SIM card from Kavitha mobile to his Samsung Galaxy S6 Edge (MO.6) and recorded second ransom call that Rs.5 Crores to be paid. In his cross-examination he denied the suggestion that SIM card of the old phone of PW3-Kavitha will not fit in his latest phone, he has not handed over his phone (MO.6) to the police and to express his solidarity towards PW.1 he is giving false evidence.
28. PW.10 - Durga deposed that she is incharge of Karthikeya Foundation old age home at L.B. Nagar. She employed A1 by paying Rs.6000/- per month. She has sent A1 to Begum Bazar to look after the male patient, he worked there for six months and on the pretext of his sister's marriage at Rajahmundry he left. A2 joined in the job two days after A1 leaving the job. In her cross-examination she denied the suggestion that A2 was never engaged by her.
29. PW.11 - K.Satya Murthy, sales boy in HP petrol pump observed a carton box covered with white plastic cover and informed the same to the police over phone. Two constables came to the scene and opened the carton box. Dead body of a boy aged about 15 to 16 years with hands tied towards his back, plastered around his mouth was found in the carton. Deceased was wearing blue coloured jeans pant and T-shirt. In the cross-examination he stated that he has not given attendance register to the police in proof to show that he was on duty. There are CC TV cameras near Alpha Hotel and Secunderabad Railway Station.
30. PW.12 - A.Madhava Chary deposed that on 16.03.2016 he received a telephonic message from North Zone Control Room that a carton box was left in front of HP petrol pump near Alpha Hotel, Secunderabad, he contacted PW.13-Ravi Kumar, PC.3500, LW.18-Satish Kumar, PC.2104 who were on night patrolling duty to check the carton box, after checking the box they informed him that they found a dead body of 15 to 16 years boy in a carton box and thereafter he informed the same to PW.15 N.Prabhakar. In his cross-examination he stated that there will be an order book in the police station with regard to their duties and he did not make any GD entry with regard to the information received by him.
31. PW.13 - Ch.Ravi Kumar deposed that he received information from PW.12 about carton box lying in front of HP petrol pump near Alpha Hotel, Secunderabad, he went there and opened the box, found a dead body of 15 years old boy with his hands tied up back and his mouth plastered. He identified MOs.1 and 2. In his cross-examination he stated that it is not recorded in his Section 161 Cr.P.C. statement about identifying MOs.1 and 2. He denied the suggestion that he has not gone to HP petrol pump nor observed the dead body in the carton box.
32. PW.14 - T.Murali, Crime Scene Officer in Clues Team. He photographed the scene and handed over the photos to Investigating Officer.
33. PW.15 - N.Prabakar Rao, ASI of PS Market deposed that on 16.03.2016 he was on night patrolling duty. At about 11.00 P.M.PW.12 has informed him on VHF set that he received a message about a box lying in front of HP petrol bunk near Alpha Hotel Secunderabad. He went to the scene of offence and found a carton box covered with a plastic bag and opened the same found the dead body of a boy aged about 15 years with hands tied towards backside and his mouth plastered. In his cross he stated that he has not conducted any proceedings at the scene and was there for one hour. He denied the suggestion that he has not visited the scene.
34. PW.16 - G.Vaishnavi deposed that on one day at about 11.00 A.M. A1 came to the house of PW.1 and enquired about Abhay at the gate, she informed him that Abhay went to the Hospital and A1 left the place. She observed A1 talking over phone near Colony Gate after eight days. In her cross-examination she stated that she came to know about the kidnap of Abhay on the night of 16.03.2016, she has not informed the family members of Abhay or her mother about the enquiry made by A1.
35. PW.17 - A.Narender Babu acted as Inquest panch for seizure of the clothes under Ex.P4. MO.4 – T.Shirt; MO.5 – Jeans pant; MO.7 – Black colour under wear; MO.8 – two blood stained paper pieces. In his cross he stated that his signatures were obtained on the left side of the page of Ex.P4 and at the bottom of page Nos.5 and 6. It is mentioned in Ex.P4 as the colour of the jeans pant of the deceased as black but not blue. The descriptive particulars of the box were not noted in Ex.P4. He denied the suggestion that no panchanama was conducted before him and he did not visit Gandhi Hospital on 17.03.2016 and giving false evidence at the instance of police.
36. PW.18 - Mohammad Tariq Siddiqui deposed that he went to Volga Hotel at Darusalam with his friends, a person in blue colour Activa was obstructing his vehicle and he asked him to remove the same while talking over the phone. He went into the Hotel and came back, saw the keys left to the vehicle, he removed the vehicle and put it aside and took his vehicle and left the place. A2 present in the Court hall is the said person whom he found with a Blue colour Activa vehicle. He has identified A2 in the Jail, he admitted his signature on the TI parade proceedings. In his cross-examination he denied the suggestion that police had shown the photo of A2 prior to conducting TI parade and that he is tutored by the police, also denied the suggestion that he has not given any descriptive particulars of A2 to the police in his statement. Witness adds that he stated before the police that the person was having a Nepali features. In his re-examination by the learned Public Prosecutor he has identified Honda Activa vehicle (MO.9). In his further cross-examination, he stated that he can remember the number of the vehicle as he has seen the CC TV footage several times.
37. PW.19 - Shabbir Khan @ Chaos is the driver of the Tata Ace vehicle and he deposed that A1 to A3 have transported carton box and bag (MOs.1 and 2) in his vehicle and he has also identified them in the T.I. Parade. In his cross-examination, he denied the suggestion that police has shown him the photos of A1 to A3 prior to identification of TI parade proceedings and also denied the suggestion that he is not the driver of Tata Ace goods vehicle bearing No.AP 13 Y 0844 and that the accused never engaged his vehicle and he has not carried carton box or any other luggage and he has identified MOs.1 and 2 at the instance of police.
38. PW.20 - Hayath Ali Khan is the owner of Tata Ace vehicle bearing No.AP 13 Y 0844 and he speaks about engaging PW.19 as the driver of the vehicle. In his cross-examination, he stated that he has not handed over any documents in proof of his ownership of Tata Ace vehicle and he do not possess any license to run the transport business. He denied the suggestion that PW.19 is not working under him and he is giving false evidence at the instance of police.
39. PW-21 - Mohammed Farhan Omar runs a plastic shop under the name and style of “Supreme Plastics” at Begumbazar, Hyderabad. On 15.03.2016 at about 6.00 or 7.00 P.M. A3 came to his shop and purchased one roll of brown plaster tape, he identified A3 in the T.I. Parade and also in the Court. In his cross examination he denied the suggestion that police has shown the photo of A3 thereby he identified him in the jail, A3 never came to his shop and purchased any tape and he is giving false evidence at the instance of police and also identified A3 before the Court today at the instance of police.
40. PW.22 - Mohd. Farooquddin deposed that he is having a mobile shop in the name of SM Mobiles at Jagadish Market, Abids, Hyderabad. On 16.03.2016 at about 6.30 P.M., he sold second hand cell phone (Mo.10) to A1. He identified A1 in Test Identification Parade. In his cross-examination, he denied the suggestion that he identified A1 at the instance of police and police has accompanied him to the Chanchalguda Jail, he has not sold MO.10 to A1.
41. PW.23 - Shiva Parvathi is working as a cleaner on contract basis in Railway Department at Vijayawada. On 17.03.2016 at about 11.50 A.M., while she was cleaning the Railway Track, found a cell phone of ‘FUJE ZONE’ with its battery and SIM (MO.10). She called her supervisor K.Krishnam Raju-PW.25 and his Brother-in-law V.Ravi Kumar-PW.24. After ten days police came from Hyderabad and seized MO.10 from her. In her cross she denied the suggestion that she has not called PWs.24 and 25 and she identified MO.10 at the instance of police.
42. PW.24 - V.Ravikumar deposed that PW.23 has called him over phone on 17.03.2016 and informed that she found the phone on the Railway track between Yarrakatta and Singinaru bridge. In his cross-examination, he denied the suggestion that PW.23 has not called him and did not inform about the finding of the phone at railway track and he is giving false evidence.
43. PW.25 – K.Krishnam Raju, Supervisor of PW.23 deposed that on 17.03.2016, PW.23 has called him and informed that she found a cell phone while cleaning the railway track. After ten days, police came from Hyderabad and enquired him about the cell phone. In his cross-examination he denied the suggestion that PW.23 has not called him and informed him about the phone at railway track.
44. PW.26 - Surju Behra deposed that he has a mobile shop in the name and style of ‘Mohini mobile point’ at Ganesh Market, Berhampura, Orissa. On 18.03.2016, A1 and A2 came to his shop and offered to sell ‘Samsung Grand Quatro phone (MO.11)’. A2 has given the photocopy of his ID proof (Ex.P5) and he purchased the same for Rs.2,200/-, after a week he sold the same for Rs.2,500/-. After ten days, police from Hyderabad came along with A1 to A3 and enquired him about purchasing the cell phone. In his cross-examination he stated that there is no seal of his shop or signature and date on Ex.P5. He denied the suggestion that he do not have mobile shop and he is giving false evidence that he has purchased a mobile phone from A1 and A2 for Rs.2,200/- in turn sold it to customer for Rs.2,500/-.
45. PW.27 - Asish Kumar Padhy is the Manager in Anarkali Hotel at Ramalingam Tank Road, Berhampur, Orissa. On 18.03.2016 at about 7.30 P.M. to 8.00 P.M., A1 and A2 came to their Hotel and asked for a room. He has taken the Aadhar card of A2, entered the details in the Hotel register and gave them a room on rent of Rs.800/- per day and they vacated on 19.03.2016 evening. On 30.03.2016, police from Hyderabad came and enquired about A1 and A2. In his cross-examination he denied the suggestion that he has not stated before the police that he can identify A1 and A2 and also denied the suggestion that he identified A1 and A2 at the instance of the police.
46. PW.28 - B.Laxman deposed that on 26.03.2016, he purchased MO.11 – Mobile phone from the shop of PW.26 for Rs.2,500/- or Rs.3,000/-. Police has seized MO.11 from his possession. In his cross-examination he denied the suggestion that he has not purchased any phone nor police has seized MO.11 from him.
Panch for confession of A1 to A3 and seizure:
47. PW.29 - K.Sravan Kumar deposed that on 20.03.2016 at about 11.00 A.M., Shah Inayat Gunj police have called him and N.V.Partha Sarathi-LW.27. Inspector asked them to act as witnesses for confession cum seizure panchanama of A1 to A3. Accused stated the manner in which they have committed the offence, prepared Ex.P6- scene of offence panchanama at Hindi Nagar and seized MO.12 –spectacles of Abhay at the instance of A1. A1 has led them to Begum Bazar and Jagdish market, Hyderabad, there they prepared Exs.P7 and P8 – scene of observation panchanama at Begum Bazar, Jagdish Market. A1 to A3 led them to Secunderabad Railway Station there they prepared Ex.P9 – scene of observation panchanama. A2 has confessed the offence, Ex.P10 is the admissible portion of the confession panchanama of A2. A3 has also confessed that he has committed the offence. Ex.P11 is the admissible portion of the confession panchanama of A3. A2 has led them to their rented house at Gosha Mahal, Hyderabad, there they seized MO.13 – Brown Tape under Ex.P22 – Seizure report; MO.14 – pair of Black chappals with green stripes under Ex.P23 –Seizure report. A1 to A3 led them to Vijayawada, Police conducted panchanama under Ex.P24 and seized MO.10 –cell phone with SIM and battery. Ex.P25 – Rough sketch of the scene of offence dated 29.03.2016. In his cross-examination he stated that he has not received any written requisition from the police to act as panch witness. MO.10 was not having any panch chits and was in loose condition and it is intact at present. He denied the suggestion that no panchanama is prepared in their presence and no material objects are seized. MOs.12 to 14 are not having any panch chits or were in sealed condition.
48. PW.30 - Dr.Ch.Laxman Rao deposed that on 17.03.2016, he received a requisition from SHO of PS Shah Inayat Gunj to conduct autopsy over the dead body of Abhay Modani, aged 15 years. On external examination, bluish discoloration of nails present, circum oral pallor (pale) seen, eyes congested, peteeheal hemmorages seen over upper half of face, Cyanosis seen on upper half of face and he found the following antemortem injuries:
1. Contusion surrounding lower part of nose seen.
2. Multiple small lacerations varying in size present over inner side of both lips.
3. Contusion 5 x 3 cms seen over right waist.
4. Diffused contusion seen over occipital area of scalp.
Hemotoma 5 x 3 cms seen over mid occipital area. Minute hemoragic spot seen over layers of scalp.
5. Contusion over lower lip seen.
6. On opening of chest contusion 4 x 3 cms, 3 x 2 cms, seen over medial side of middle of left side of chest.
7. Multiple small clots seen in base of tongue.
8. Blood stained frothy fluid seen in trachea.
The cause of death to the best of his knowledge and belief was due to smothering and the approximate time of death is about 12 to 24 hours prior to postmortem examination. Ex.P12 is the PME report issued by him. A1 to A3 reported no cross.
Test Identification Parade :
49. PW.31 - Y.Govinda Reddy, XVII Additional Chief Metropolitan Magistrate has conducted T.I. Parade by following the procedure on 23.04.2016 and 10.06.2016 in which PW.18, PW.19, PW.21, PW.22 and Mohd. Khaja Pasha participated and identified the accused. Exs.13 and 15 are the requisitions. Exs.P14 and P16 are T.I. Parade proceedings dated 23.04.2016 and 10.06.2016. In his cross-examination, he stated that suspects and non-suspects are wearing pants and shirts of different colours. Second TI parade proceedings were conducted beneath the tree in the jail premises but not in the video linkage room. He denied the suggestion that he has not followed the procedure for conducting the TI parade and also denied the suggestion that the witnesses have identified A1 to A3 at the instance of police.
50. PW.32 – S.Deepak Kumar, Nodal Officer of Bharati Airtel has furnished the call detail reports of mobile No.9849030527 from 15.03.2016 to 17.03.2016. Ex.P17 is the covering letter with call details (20 Pages) and Ex.P8 is the certified copy of customer application form in the name of ZEN Enterprises. A1 to A3 reported no cross examination.
51. PW.34 - R.Srinivas is working as Alternate Nodal Officer in Tata Tele Services. He has provided the call data record and customer application form of mobile Nos.8019902265, 7842276480, 7416859752 on 15.06.2016 along with covering letter (Ex.P26) and certificate under Section 65-B of the Evidence Act (Ex.P27). The mobile No.8019902265 belongs to Sanju Modani. Ex.P28 is the customer application form with I.D Ex.P31 is the call data record. Mobile No.7842276480 belongs to Jitender Bhoyar. Ex.P29 is the customer application form with I.D. Ex.P32 is the call data record. Mobile No.7416859752 belongs to Srinivas Kallepu. Ex.P30 is the customer application form with I.D. Ex.P33 is the call data record. In his cross-examination he stated that Ex.P29 and P30 are having the stamp and seal of the distributor and retailer with date of sale.
52. PW.35 - C.Ramudu, S.I. of Police, Shahinayathgunj deposed that on the intervening night of 19.03.2016, 20.03.2016 he along with other P.C’s have arrested A1 to A3 at Rajahmundry Bus stand. In his cross-examination he denied the suggestion that they have not gone to Rajahmundry on 19.03.2016 and did not apprehend the accused and deposing false.
53.1. PW.36 – A.Srikanth Reddy spoke about installing CCTV cameras in the limits of Shahinayathgunj police station, he has retrieved the CCTV footage, converted them into 14 CD’s (MO.16) and issued Section 65-B certificate (Exs.P34-P44). The above said exhibits were marked subject to objection by the defence counsel that the witness is not competent or lawful custodian of the computer from which the CDs were extracted.
53.2. In the cross-examination he stated that configuration and name of the maker of the computer was not mentioned in Exs.P33 to P44. The process of extracting the footages, converting and making into CD with the help of computer and software is not mentioned in Exs.P34 to P44. The date, time and duration of his visit and stay for collection of the computer files from PS Begam Bazar, PS Abids and Razzaqpura Welfare Colony is not mentioned in Exs.P34 to P44. The lawful custodian of the computers at the concerned police station would be the Station House Officer of the police station. No proceedings were conducted at the time of collection and preparation of the CDs, the CDs were not sealed and packed with the seal of the company. He denied the suggestion that he did not hand over the CDs and the certificates to the police on 12.04.2016. He has not obtained any permission from the Managing Director of their company for issuing certificates marked under Exs.P34 to P44. He denied the suggestion that he is not competent to issue certificates under Exs.P33 to P44 and he has no knowledge in computers, giving false evidence at the instance of police and that he has not collected any CCTV footages and converted them into CDs.
54. PW.37 Jitesh Gandhi, Proprietor of Suraksha Surveillance solutions at Begam Bazar, Hyderabad deposed about installation of CCTV at Pushpa Laminates, retrieving the CCTV footage into DVD (MO.17) in the month of March, 2016 and issued Section 65-B certificate under Ex.P45. MOs.17 and Ex.P45 are marked subject to objection by the accused counsel on the ground that witness is not competent or lawful custodian of the computer from which the CD was extracted. In his cross-examination he stated that no stamp or seal of his company was affixed on Ex.P45 and he signed in the capacity of the Proprietor of the company. CD is different from DVD and it is mentioned in Ex.P45 that the information was given in the shape of a CD but not DVD and the configuration and the name of the maker of the computer was not mentioned in Ex.P45, also the date, time, duration of his visit and stay for collecting the computer files from Pushpa Laminates is also not mentioned therein so also the time taken for extracting the footage and converting the same are missing. Company name of the DVD is not mentioned in Ex.P45. No requisition is given by the police to him and the lawful custodian of the computer at Pushpa Laminates would be the owner of the said company. No proceedings were conducted at the time of collection of the preparation of DVD and Ex.P45 does not bear any date of its issue. He denied the suggestion that he is not competent to issue Ex.P45 certificates and he has no knowledge in the computers, giving false evidence at the instance of police nor he has collected any CCTV footage nor converted them into DVD.
55. PW.38 - B.Santosh Kumar, Nodal Officer in Idea Cellular Limited, Hyderabad has furnished identity proof, customer application and call details (Ex.P46) of mobile No.9912633485 of Anuradha Modani from 14.03.2016 to 16.03.2016. A1 to A3 counsel reported no cross- examination.
56. PW.39 - Mohd. Khaja Pasha, Owner of Choice Mobiles, Jagadish Market, Abids, Hyderabad deposed that he has purchased Cellcon Mobile of A1 on 16.03.2017 between 6.00 P.M. to 7.00 P.M. (year should be 2016, it is wrongly typed as 2017). He identified A1 in T.I. Parade. In the cross-examination he denied the suggestion that choice mobile shop do not belong to him and police has shown the photo of A1 before conducting T.I. Parade, thereby he identified him in the jail.
57.1. PW.40 - D.Venkateswarlu, Assistant Director, TS FSL, Hyderabad deposed that on 11.05.2016, he received three sealed card board boxes from Shah Inayath Gunj P.S. The sealed card board box labeled on it as crime No.99 of 2016, Shah Inayath Gunj PS contained 14 CDRs of Sony make each of capacity 700 MB. DVD-R of Frontech make of capacity 4.7 GB marked by IO as S15 said to be contained questioned video footages marked by him as item No.1. A sealed card board box contained a black colour T-shirt bearing blue, yellow and pale green colour design on front side marked by him as item No.2A. A black colour trouser and underwear marked by him as item No.2B (item Nos.2A & 2B were marked by IO as S16). A sealed card board box contained six paper covers marked on them as S17 to S22, four colour photographs of Honda Activa bearing No.TS 07 EQ 5695 he marked them as item No.3. Three colour photographs said to be the photographs of the deceased Abhay marked by him as item No.4. Six colour photographs of Tata Ace Goods carrier vehicle bearing No.AP 13Y 0844 marked by him as item No.5. Four colour photographs said to be the photographs of A1- Sheshu Kumar marked by him as item No.6. Four colour photographs said to be the photographs of A2-Ravi marked by him as item No.7. Four colour photographs of A3-Mohan marked by him as item No.8.
57.2. He has examined the CC video footages present in item No.1 by using AMPED five software and furnished the list of video footages in Annexure-1. He has observed all the CCTC footages and compared the persons, vehicles and clothes worn by them with the photographs and clothes marked as item Nos.2A, 2B, 3 to 8 and all the observations are furnished in Annexure-2. Based on the examinations and observations, he is of the opinion that :
1. All the CC footages (CD’s/DVD) marked S1 to S15 of item 1 are continuous without editing.
2. The colour and model of Honda Activa observed in questioned recording of item 1 are similar to those of the vehicle in the photographs item 3. Registration number found on the above questioned vehicle is 'TS 07 EQ 5695' and is same to the vehicle registration number present in the specimen photographs item 3. (refer serial no.2, 8, 9 and 16 in Annexure -2)
3. Colour and design of T shirt item 2A is similar to those of the T shirt worn by the person on pillion of the blue colour Honda Activa (refer Sl.Nos.1 and 15 in Annexure - 2).
4. The visible facial features of the person on the pillion of the Honda Activa vehicle are similar to those of the person in the specimen photographs item 4 (refer serial No.1, 6 and 15 in Annexure -2).
5. The colour and model of goods carrier vehicle observed in questioned recording of item 1 are similar to those of the vehicle in the photographs item 5. Registration number found on the above questioned vehicle' AP 13 Y 0844' and is same to the vehicle registration number present in the specimen photographs item 5 (refer serial no.14 in Annexure 2).
6. The visible facial features of the rider (suspected to be A1) of the Honda Activa vehicle are similar to those of the person in the speciman photographs item 6 (refer serial No.1, 6 and 15 in Annexure - 2).
7. The visible facial features of the rider (suspected to be A2) of the Honda Activa vehicle are similar to those of the person in the speciman photographs item 7 (refer serial No.3, 9, 16, 17 and 18 in Annexure-2).
8. No sufficient facial features of the person suspected to be A3 are visible in CC footages present in item 1 to compare with the person in the specimen photographs item 8.
9. All the relevant photographs are furnished in Annexure-3. 57.3. On 24.05.2016 he received a sealed paper cover through T.Kiran Kumar PC.8284 of Shah Inayat Gunj PS under the seal intact which tallied with the sample seal in crime No.99 of 2016 of PS Shah Inayat Gunj. A Samsung mobile phone bearing IMEI No. 359030/06/036790/5, S/N:RF8G31FTBBM, Model: (SAMSUNG) 56 edge G925I, made in : YATELEY, U.K. without SIM and memory card marked by him as item 1. As per the Court order, he recorded the specimen voice of A1- I Seshu Kumar on 25.05.2016 and captured into CSL-4500 system. Specimen voice of the complainant M.Raj Kumar is recorded by the Scientific Officer on 31.05.2016 and captured into CSL-4500. He has examined the mobile phone item No.1 by using UFED touch ultimate hardware/software and found a question ED voice call recording by file name ‘call_23-11-34_IN_ + 917416859752. AMR’ in the file path ‘/Phone/CallRecordings/2016-03-16/call_23-11-34_IN_ + 917416859752.AMR’. He has extracted the questioned audio call recording and captured into Computerised Speech Lab (CSL 4500) and also with ACU - Expert Software System for examination. The questioned recording is 2 minutes 32 seconds which is continuous without editing. He has segregated the questioned voice of the suspect and the complainant separately marked them as QA1 and QC respectively. He has examined and compared the segregated questioned voice marked QA1 with the specimen voice of A1 and the questioned voice of the complainant with the specimen voice marked QC by conducting auditory and spectrographic examination and his observations are as under:
1. The questioned recording by file name ‘call_23_11-34_IN_+917416859752.AMR’ present in item 1 is continuous without editing.
2. The segregated questioned voice of the suspect/accused marked QA1 (extracted from call recording present in item 1) and the Specimen voice recording of A1 (I.Seshukumar, S/o.Srinu) are of the same person.
3. The segregated questioned recording of the complainant marked QC (extracted from the questioned recording present in item 1) and the Specimen voice recording of the complainant (M.Raj Kumar, S/o. Bankat lal) are of the same person.
Ex.P-47 is the opinion dt.15-06-2016 (Eng/35/2016).
Ex.P-48 is the opinion dt. 17-08-2016 (Eng/33/2016).
MO.16 are the 14 CD's examined by him.
MO.17 is the DVD examined by him.
Ex.P-49 are the photographs cographs marked as S17 to S22 sent to him by the IO.
MOs.4 and 5 are the clothes of the deceased sent to him by the IO.
MO.6 is the Samsung cell phone examined by him, it bears his signature on the phone as well as on the panch chit.
57.4. In his cross-examination he stated that there is no explanation for the delay in sending the material objects by the IO and there was a battery in MO.6 cell phone, it was 9% as on today (31.05.2017) and it was 11 months since the date of his examination, his report does not disclose the percentage of the battery charged. The charge of the battery is sufficient as on the date of his examination, he cannot say that the stand by period for MO.6 is only for eight days. Witness adds that it varies by the model and company and if it was switched off the battery may remain even after several months. He has switched off the battery after conducting the examination. His report does not disclose about switching off the battery but it was the usual practice followed. MO.6 is a smart phone having facilities of the computer and it was switched on at the time of his evidence before the Court. Witness adds that it might be switched on accidentally while handling the MO at the time of recording the evidence. The battery would have been exhausted if MO.6 was kept on for a longer time. Cardboard boxes were sealed but the material objects present inside them were kept in closed covers which were not sealed. No Magistrate was present at the time of recording the voice of A1 at FSL. The specimen voice recording of A1 was not sent to the Court as it is not the usual practice, he denied the suggestion that MOs.16 and 17 are morphed and created with that of Ex.P49 and also denied the suggestion that the questioned voice recording in MO.6 does not belong to the accused No.1 and he gave a false report under Ex.P48 and that he is giving false evidence at the instance of police, he is not competent to conduct the examination of voice recording and the series.
Evidence of Investigating Officers :
58. PW.41 - E.Srinivas, S.I. of Police received the case file from PW.33 and recorded the statement of PW.1 and after knowing the murder of Abhay altered the Section of Law from ‘boy missing’ to Sections 363 and 302 of IPC under Ex.P50, visited Chhatarpur Mandal, Ganjam District, Orissa state recorded the statement of PW.28 – B.Laxman and seized MO.11 – Samsung phone. In his cross-examination he stated that they have not taken the passport and permission in writing from the Commissioner to visit other states for conducting investigation. Witness adds that the Commissioner gave permission and passport to visit Orissa. He denied the suggestion that he has not recorded the statement of PW.28 and MO.11 is a planted object.
59.1. PW.42 – Ramakrishna, Inspector of Police took up the investigation from PW.41 on 17.03.2016, examined PWs.1 to 4, 6, 7, 8, 9, 10, 11, 12 – 16, 19, 21, 22, 23 – 25, 26, 27, 39.
• Secured PW.5 and conducted scene of offence cum seizure panchanama under Ex.P2 and seized MO.1 – carton box; MO.2 – polythene bag; MO.3 – wrist watch, prepared rough sketch under Ex.P4.
• Secured PW.17 and conducted inquest panchanama over the deceased and seized MO.7-Black colour under wear; MO.8 – Two blood stained paper pieces.
• conducted scene of offence panchanama under Ex.P20, prepared rough sketch under Ex.P21 and seized Hero Honda Activa under MO.15.
• PW.35 and LWs.51 – 54 arrested A1 to A3 at Rajahmundry bus station at 2.00 A.M. on 20.03.2016.
• Secured PW.29 recorded confession of A1 to A3, conducted scene of offence cum seizure panchanama under Ex.P6 and seized MO.12 – Spectacles of deceased in the presence of PW.29, prepared scene of offence panchanama at all places separately under Exs.P7 to P9. Visited Hindi Nagar, Ghoshamahal and seized MO.13 – Brown tape; MO.14 – Pair of chappal under Exs.P22 and P23 – seizure report, went to Vijayawada i.e., Railway track over Budamaneru, prepared scene of offence panchanama under Ex.P24, rough sketch under Ex.P25. PW.23 handed over MO.10.
• Altered section of law under Ex.P51.
• PW.9 handed over MO.6.
• Collected DVR from the shop of PW.8 with the help of PW.37.
• On 27.03.2016 took the custody of A1 to A3 as per the Court orders.
• PWs.36 and 37 collected CCTV footages.
• He was transferred and handed over the file to PW.43.
59.2. In his cross examination he stated that MOs.1 to 3 are in loose condition at present and the box was folded as such it was mentioned as pieces in the FSL report dated 07.06.2016 and he has not conducted investigation about the ownership of MO.15 Honda Active vehicle. PW.2 has not stated before him that she called the deceased through phone from the mobile of Kavitha. PW.2 has not stated before him that the kidnappers called and informed that if they would not give Rs.10 Crores, they would murder their son. Witness adds that PW.2 has stated before him with regard to the kidnappers calling and demanding Rs.10 Crores. PW.3 has not stated before him that PW.2 called the deceased from her phone No.8019902265 and enquired. PW.3 had not stated before him about the kidnappers stating that they would kill the deceased if their demands were not met, so also she has not stated before him that she has handed over the phone to PW.1 as there was no recording facility on her phone and PW.1 inserted her SIM in the mobile phone of PW.9. PW.4 has not stated before him that he went to Mangalhat PS and observed the CCTV footages. He has not examined the owner or workers of Volga Hotel nor examined the surrounding shop owners with regard to the parking of the vehicle in front of the Hotel and he has not asked for collection of fingerprints or DNA from MOs.1 to 3.
59.3. He further stated in his cross that he cannot say whether there was any cellar to the house of PW.7 and his proceedings do not disclose the same. He has not examined any of the tenants of PW.7 so as to check to whom MO.1 belongs to. Ex.D1 is the attested copy of rough sketch of the document. The said document is also available in the CD file without attestation and he cannot say whether the rough sketch in Ex.D1 belong to second floor of House bearing No.5-5-981, Hindi Nagar. Bedroom, bathroom, kitchen and hall were shown in Ex.D1. No slippers and spectacles were shown in Ex.D1. Nowhere in the CD file it is mentioned that MO.1 was folded and sent to FSL. He has not collected any proof of ownership of MO.6 from PW.9. PW.10 has not stated before him that A2 joined in the job two days after A1 leaving. Witness adds that PW.10 stated before him that A2 joined his job four months prior to the date of incident, he has not collected the attendance register of HP petrol pump besides Alpha Hotel, Secunderabad to show that PW.11 was on duty.
59.4. His investigation does not disclose that he visited the houses of the accused. His investigation is confined to the portion of the accused in second floor at Hindi Nagar. He is aware of Preventive Detention Orders passed against A1 to A3 subsequent to the case. There is no stamp or seal on FSL on MOs.1 and 2. He has not examined the mother of PW.16 by name Mangala Bai. PW.16 has not stated before him about informing to Kavitha about observing A1 at the colony gate and the enquiry made by A1 about the deceased. PW.19 has not stated before him that he can identify MOs.1 and 2. He has not collected the driving license of PW.19 and he cannot say whether PW.19 is competent to drive Tata Ace vehicle. PW.22 has not given the descriptive particulars of MO.10 as of black and silver colour with FUJEZONE written on the backside of it on the silver path.
59.5. He has not collected the Municipal Trade License of PW.22. He has not conducted any panchanama for collecting MO.10 from PW.23. PW.26 has not stated before him that when he questioned A1 and A2 for the bill of MO.11, they stated that they would give it after three to four days. PW.26 has not stated before him about the police coming to his shop along with A1 to A3. Ex.P5 does not contain any seal or stamp of the police station or Court. He has not mentioned in Ex.P4 - Inquest panchanama about the presence of tooth clips on the teeth of the deceased. So also he has not mentioned about any sticky substance on the face and hands of the deceased due to applying the plastic tapes in Ex.P4. He has not registered any case against LW.34- K.Santosh Prasad or his employer for selling the SIM card without ID proof. There is no stamp or seal on Ex.P49-photograph with date. He do not know that the phones like MOs.6, 10, 11 are available in open market. He has not examined any person from Mahalakshmi Tiffin Centre at Aghapura, Hyderabad. He denied the suggestion that he has not recorded the statements of the witnesses nor seized the material objects and he has created a story of kidnapping and murder and has falsely implicated A1 to A3. He also denied the suggestion that the exhibits marked thereon and material objects collected are created for the purpose of the case.
60. PW.43 - M.Ravindar Reddy, Inspector of Police deposed that on 09.05.2016, he took up the case file from PW.42 and conducted further investigation, got conducted voice recording of A1 and PW.1, got conducted T.I. Parade of A1 to A3 through PW.18. PW.41 examined PW.28 and recorded his statement. Collected Ex.P52 – FSL report from LW.48 – G.V.Jagadamba, Joint Director, TSFSL, Hyderabad and filed charge sheet. In his cross-examination he stated that he has not filed the extract of GD register, movement register and property register for the relevant period of the case, so also he has not filed the written requisition given to the MRO and the order given by him to the panch witnesses. Attestation on Ex.D1 pertains to him. He denied the suggestion that PW.41 did not go to Berhampur nor recorded the statements of PW.28 nor collected MO.11, he also denied the suggestion that MO.11 is a planted one and Exs.P22 and P23 are created for the purpose of the case, also denied the suggestion that MO.6 and the voice file therein are also planted for the purpose of the case.
61. Ex.D11 – Rough sketch is marked through PW.42 which shows the House numbers as 5–5-980, 5–5–971 and 5–5–981, Hindi Nagar. Towards the North of House No.5-5-980 there is a kitchen, bathroom, hall and bedroom.
62.1. In Kiran, the Apex Court held that “the sentence of Life Imprisonment cannot be directed to be till the end of natural life by the Sessions Court which direction would be in conflict with the provisions of the Cr.P.C”. The power of remission or commutation conferred on the State cannot be taken away.
62.2. In Madhusudan, the Apex Court held that “A Court may alter or add to any charge before Judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the Cr.P.C., both to the prosecution and the defence, to recall or re-examine witnesses, in reference to such altered charge more importantly in case charges are altered by the Court, reasons for the same must be recorded in the judgment.
62.3. In Anwar Biwi, the Apex Court laid down the conditions which are required under Section 65-B(4) in para 14, which reads as under:
14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following C conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
62.4. The Apex Court in Arjun (3 Judge Bench) in reference has reiterated that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record as correctly held in Anwar Biwi4.
62.5. In Raja Nayakar, the Apex Court held that “Merely on the basis of suspicion, conviction would not be tenable. It is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime.”
62.6. In Afghan Sha Ali Khan, the High Court of Andhra Pradesh has held that “identification evidence cannot be a substantive evidence, but it is only a piece of evidence when test identification parade is held in accordance with law”.
62.7. In Musapuri Krishna, the High Court of Telangana held that “conviction cannot be based on the extrajudicial confession made by the accused and the evidence of last scene has always been considered as a weak piece of evidence.
62.8. In Diddikadi Srinivas, this Court held that “conviction can be based on the testimony of a sole eye-witness, the sole eye- witness has to be a witness of his sterling worth. If his testimony suffers from defects then it is highly unsafe to convict the accused relying on the testimony of an untrustworthy witness”.
62.9. In Balwinder Singh, the Apex Court dealt with extrajudicial confession and the last seen theory which are not been established beyond reasonable doubt and the chain of circumstantial evidence snaps so badly that it is not necessary to consider any other circumstances.
63.1. Learned counsel for the appellant-A2 submits that the learned trial Court has altered the charge from Section 364 to 364-A of IPC, when charges are altered, opportunity should be given to the accused with reference to the altered charges to recall and reexamine the witnesses in reference to the altered charges.
63.2. The learned 16th Additional Chief Metropolitan Magistrate, Hyderabad has taken the charge sheet on file and taken cognizance of offence under Sections 364-A, 302, 120-B, 201 r/w 34 of IPC against A1 to A3. The charge sheet along with the material papers were furnished to the accused (A2 and A3) as contemplated under law. The learned trial Court has framed all together four charges on 09.11.2016. Charge No.2 is framed against A1 to A3 for the offence under Section 364 r/w 34 of IPC. A single sheet comprising of four charges is signed by the learned trial Judge.
63.3. A separate sheet is prepared for the plea of the accused on 09.11.2016 for the charges under Sections 120-B, 364-A, 302 r/w 34 and Section 201 of IPC where in all the accused pleaded not guilty and claimed to be tried.
63.4. The learned trial Court has noticed that the letter ‘A’ was missing after Section 364 of IPC in the single sheet comprising of four charges has amended the charge as per the orders in Criminal MP.No.3099 of 2017, dated 27.11.2017 and the word ‘A’ is added to Section 364 IPC and the charge is read as 364-A of IPC. By the date of amendment of charge No.2 on 27.11.2017 prosecution evidence and Section 313 Cr.P.C. examination of the accused is completed. The learned trial Court has assigned cogent reasons while altering the charge under Section 364 to 364-A and the contention of the appellant-A2 counsel that after altering the charges opportunity is not given to the accused is incorrect. Accused-A2 and A3 know that a charge under Section 364-A is framed against them on 09.11.2016 itself which is evident from the plea of the accused person wherein they signed on it. The contention of the appellant-A2 counsel is negatived in view of the reasons above and the decision in Madhusudan is not applicable to the case on hand.
64. Learned counsel for the appellants-A2 and A3 submits that Section 364 of IPC is only applicable to the facts of the case but not 364-A. Section 364 of IPC talks about kidnapping or abduction in order to murder. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of has to be put in danger of being murdered. Whereas Section 364-A of IPC speaks of kidnapping for ransom. Entire case of the prosecution is that accused Nos.1 to 3 have kidnapped the deceased Abhay and demanded Rs.10 Crores. To that effect, prosecution has led evidence about the demand of the accused Nos.1 to 3 of Rs.10 Crores from PW.1 and his family members. On reading of the entire material, the case falls within the ambit of Section 364-A of IPC but not under Section 364 of IPC. Hence the contention of the appellant's counsel is negatived.
65. Learned counsel for the appellants-A2 and A3 submits that it is a classic case of Section 304 of IPC but not the case of Section 302 of IPC. Section 304 of IPC reads as under:
304. Punishment for culpable homicide not amounting to murder.— Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
66. The case of the prosecution is that A1 brought the victim boy Abhay to the rented house on 16.03.2016. A2 and A3 were also present there at and they informed Abhay that he was kidnapped for ransom as Abhay was raising cries, they have tied his hands backward, legs, mouth and nose with a plaster. A1 to A3 while committing the offence know that it is so eminently dangerous that in all probability it may cause death or such bodily injury as is likely to cause death. It cannot be said that the case of the prosecution falls under Section 304 of IPC. The evidence led by the prosecution goes to show that it is a murder which falls within the ambit and scope of Section 300 of IPC punishable under Section 302 of IPC, hence the contention of the appellant’s counsel is negatived in view of the reasons above.
67. Learned counsel for the appellants - A2 and A3 contended that Exs.P34 - P45 and MO.17 are marked subject to objection and prosecution has not complied with Section 65-B of the Indian Evidence Act. Ex.B27 is the Section 65-B certificate issued by PW.34 where in the appellants-A2 and A3 have not raised any objection in marking the document. Exs.P34 to P44 (11 in number) are issued by PW.36. Ex.P45 -Section 65-B certificate and MO.17 DVD are issued by PW.37.
68. The learned trial Court has observed in Para 13 of its judgment that “it has to be seen that PW.36 deposed about the certifying and his substantial evidence cannot be ignored. Therefore Exs.P34 to P44 are valid. PW.37 issued Ex.P45 certificate regarding the CCTV footage at Pushpa Laminates, Hindi Nagar, Goshamahal. Though PW.37 did not issue the certificate on the Letter Head of the company, he affirmed that CD of the CCTV footage is authentic hence, his evidence is accepted.
69. In so far as authenticity of CCTV footage is concerned, the learned trial Court observed in Para 14 of the judgment that “the objection regarding the admissibility of CCTV footage is not tenable, since the prosecution has examined the witnesses who had installed the CCTVs, the evidence of the person who had retrieved the CCTV footage and the expert who had observed the CCTV footage”, in the CCTV the clothes worn by the deceased are very much visible thus it is clear that the deceased boy did not go anywhere else except into the room of the accused.
70. The learned trial Court has recorded in the judgment at Para No.13 that “I have seen the CCTV footage in the presence of the accused and their counsel”.
71. In so far as the TI Parade is concerned, PW.18 deposed that a person on a blue colour Activa was obstructing his vehicle, who is none other than A2 and he identified him in the jail and in Court. PW.19 is the driver of Tata Ace vehicle in which the accused were carrying big carton box, two college bags and one suitcase and he identified all the accused in T.I. Parade. PW.21 evidence is that A3 came to his shop and purchased one roll of brown colour plaster tape, he identified A3 in the jail as well as in the open Court. PW.22 and PW.39 have also identified A1. A2 and A3 in Section 313 Cr.P.C. examination contended that the TI parade is conducted in the jail and the defence taken by the accused is that police have shown their photographs to the witnesses prior to the TI parade which led to identifying them. Though PW's.18, 19 and 21 were cross examined, nothing incriminating could be elicited from them. The learned trial Court observed in Para 15 of its judgment that Test Identification Parade is only supporting evidence, identification in the Court is substantive evidence and can be believed. The above said witnesses have supported the case of the prosecution in all aspects. PW.31 conducted T.I. Parade by following the procedure.
72. MO.17- CCTV footages coupled with the evidence of PW.8 and PW.40 proves that the deceased was last seen alive in the company of A1 and going upstairs and A2 was coming downwards after some time, took the Activa and returned back by walk. CCTV footages further goes to show that A1 to A3 came out of the building with a big carton covered with a white plastic cover which is identified by PW.8 which are MOs.1 and 2.
73. PW.4 has identified MO.15 –Honda Activa at Volga Hotel, Darusalam, Hyderabad. PW.40 after analysing the material observed that registration number found on the vehicle No.AP 13Y 0844 is the same vehicle registration number present in the specimen photograph of item No.5 and the visible feature of the rider is A2.
74. Through PW.7, MOs.4, 5, 7 and 8 were seized under Ex.P4. Ex.P5 is the ID proof of A2 which is given to PW.26 by A1 and A2 while selling MO.11. A suggestion is put to PW.1 in his cross-examination by the accused counsel that his son was sick on the day of incident and there was a tiffin box in the vehicle, as he did not have breakfast, fell down suddenly while playing and that one of the accused made a call to him and the accused never demanded any money. A2 and A3 did not state the same in their Section 313 Cr.P.C. examination.
75. The mobile phone of A1 is thrown while crossing the Vijayawada Railway Station which was found by PW.23. The evidence of PW.42 is also significant as to the manner in which the offence has taken place with that of the exhibits marked thereon. The admissible portion of confession statements of A2 and A3 are marked as Exs.P10 and P11 through PW.29 with that of the material objects seized thereon at the instance of A2 and A3.
76. The decisions cited by the accused counsel in Para Nos.62.5 – 62.9 are distinguishable from the facts of the present Appeal and they are of no assistance, hence they are not applicable.
77. Learned counsels for A2 and A3 pointed out omissions and contradictions from the prosecution witnesses, they are minor in nature. On reading of the depositions of prosecution witnesses with that of exhibits and material objects marked thereon, prosecution has proved the guilt of the accused for the offences they are charged with and the learned trial Court has rightly convicted them for Life Imprisonment for the offences under Sections 302 r/w Section 34 and Section 364-A r/w Section 34 of IPC but the further sentence i.e., “which shall be till their death” is in conflict with the provision of the Cr.P.C. in view of the decision of the Apex Court in Kiran. Sentence of Imprisonment under Sections 120-B and 201 of IPC is confirmed in view of our reason above.
78. Appeals are partly allowed, modifying the sentence of Imprisonment for Life which shall be till their death to Life Imprisonment for the offences under Sections 302 r/w Section 34 of IPC, Section 364-A r/w Section 34 of IPC. The Sentence of Imprisonment for the offence under Sections 120-B and 201 of IPC is confirmed, set-off is permitted under Section 428 of Cr.P.C. All the sentences shall run concurrently.
Pending applications, if any shall also stand disposed of.
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