Kum.Shubha @ Shubhashankar vs State of Karnataka Sri Dinesh @ Dinakaran Vs State of Karnataka The State of Karnataka Vs Arun Varma. D., A. Venkatesha, Dinesh @ Dinakaran and Kum. Shubha @ Shubhashankar

N. Ananda, J.—Accused 1 to 4 in S.C. No. 314/2004, on the file of Fast Track Court XVII at Bangalore City, have filed Criminal Appeal Nos. 765/2010, 774/2010, 757/2010 and 722/2010 respectively against judgment of conviction of accused 1 to 3 for offences punishable under Sections 302 & 120B IPC and conviction of accused No. 4 for offences punishable under Sections 302, 120B and also for an offence punishable u/s 201 IPC.

Criminal Appeal No. 856/2010 is filed by the State for imposition of death sentence to accused No. 2 and also to set right discrepancies relating to sentence imposed on accused 1 to 3.

We have heard Sri H.C. Hanumaiah, learned Counsel appearing for accused No. 1, Sri T. Prakash, learned Counsel appearing for accused No. 2, Sri Amar Correa, learned Counsel appearing for accused No. 3, Sri C.V. Nagesh, learned senior counsel appearing for accused No. 4 and Sri B. Venkat Rao, learned Special Public Prosecutor appearing for respondent/State in the appeals filed by accused 1 to 4 and for appellant in the appeal filed by the State.

Since these appeals have arisen out of same judgment, they are clubbed for being disposed of by this common judgment.

Some of the facts established from the evidence on record which have not been disputed by accused 1 to 4 are as follows:

The inter se relationship of accused 1 to 4 and some of the prosecution/defence witnesses, so also inter se relationship of deceased B.V. Girish and some of the prosecution witnesses are as follows:

Accused No. 1-D. Arun Varma is the son of PW22-N. Dhanashekharan and younger brother of DW3-D. Manjula Devi. During the year 2003, accused 1 & 4 were college mates of BMS Law College at Bangalore. During October 2003, accused No. 1-D. Arun Varma was a student of I-semester and accused No. 4-Shubha @ Shubhashankar was a student of V-semester B.A., LL.B., integrated course. Accused No. 2-A. Venkatesha is the son of PW17-Anandan. Accused No. 3-Dinesh @ Dinakaran is the son of PW14-Uttamprakash T.B. and the husband of PW13-Bhavani. Accused No. 4-Shubha @ Shubhashankar is the daughter of PW10-Shankaranarayan B.S. and PW12-Vijayalakshmi @ Vijaya Shankar. PW9-Uma Shashi is the maternal junior aunt of accused No. 4. Accused 1 & 3 are cousins. The sister of PW14-Uttamprakash T.B. is the wife of PW22-N. Dhanashekaran.B.V. Girish (since deceased) was the younger son of PW6-B. Venkatesh and younger brother of PW5-B.V. Ramesh. PW1-R. Harish is the Principal of BMS Law College at Bangalore.

During the year 2003, PW10-B.S. Shankarnarayan and his family members were residing at Door No. 1414, 23rd Main Road, Banashankari II Stage, Bangalore and PW6-B. Venkatesha and his family members were residing at Door No. 1420, 23rd Main Road, Banashankari II Stage, Bangalore.

During the year 2003, B.V. Girish was working as a Software Engineer in Intel Company situate at Airport Road, Bangalore. The elder brother of B.V. Girish, PW5-B.V. Ramesh was working as an Engineer in MICO, Rexruth in Peenya at Bangalore.

During third week of October 2003, PW10-B.S. Shankarnarayan and his wife PW12-Vijayalakshmi @ Vijaya Shankar approached PW6-B. Venkatesh and his wife and proposed to give accused No. 4-Shubha @ Shubhashankar in marriage to B.V. Girish. PW6-B. Venkatesh in consultation with his wife and sons viz B.V. Girish and PW5-B.V. Ramesh, accepted the marriage proposal. On 20.11.2003, it was agreed that marriage engagement shall be held on 30.11.2003. Accordingly, PW10 arranged marriage engagement during the evening of 30.11.2003 in "Udupi Hall" at Banashankari. During marriage engagement, photographs were taken (collectively marked as Ex.P.15) and there was videography. PW4-Shankar was the video/photographer.

In the marriage engagement, parties decided to perform marriage of B.V. Girish with accused No. 4-Shubha on 11.04.2004 in GNR Kalyana Mantapa at Bangalore. Before marriage engagement, B.V. Girish and accused No. 4-Shubha were moving together and they were close to each other. Before the marriage engagement, the elders namely parents of B.V. Girish and parents accused No. 4 had obtained consent of B.V. Girish and accused No. 4 for their marriage.

On 28.11.2003 and 29.11.2003, B.V. Girish had gone to BMS Law College to bring accused No. 4 on his scooter to her house. On 29.11.2003, they had a walk after dinner.

On 03.12.2003, during evening, accused No. 4 asked B.V. Girish to take her for dinner to T.G.I. Friday''s Hotel (for short, "T.G.I.F. Hotel"), which is located on Airport Road and nearer to Intel Company, where B.V. Girish was working. B.V. Girish agreed and informed his parents and also his elder brother (PW5) about his programme with accused No. 4. B.V. Girish proceeded to the house of accused No. 4 and took her on his scooter.B.V. Girish used to wear a helmet while riding scooter, on that day, he was not wearing a helmet. B.V. Girish and accused No. 4 reached TGIF Hotel. Around 9.00 p.m., B.V. Girish and accused No. 4 informed their parents that they had taken dinner and they are leaving the hotel to reach their house.B.V. Girish took accused No. 4 on his scooter to reach their house via Airport Ring Road. When they reached a place called "Air View Point" B.V. Girish stopped his scooter.B.V. Girish and accused No. 4 were seeing landing of aeroplanes and it was around 9.30 p.m. At that time, B.V. Girish received fatal injuries to his head and also on the left side of his face at the hands of an unknown assailant and fell unconscious. The assailant after assaulting B.V. Girish with a steel rod ran away from that place. Accused No. 4 with the help of passersby stopped a maruti zen car, driven by CW21-Sujeshkumar, his wife CW22-Vinitha Sujesh and their child were the inmates of the car. Both CW21 & CW22 obliged and the injured B.V. Girish was shifted to the back seat of car. Accused No. 4 sat on front seat and injured B.V. Girish was admitted in Manipal Hospital at Airport Road. Accused No. 4 gave history of assault to PW29-Dr.J.N. Harsha, who at the relevant time was working as Casualty Medical Officer in Manipal Hospital, Airport Road, Bangalore. As the condition of injured B.V. Girish was critical, he was shifted to Intensive Care Unit. Accused No. 4 contacted PW10-B.S. Shankarnarayan and informed about occurrence, so also she informed PW6-B. Venkatesh. PW10 informed his wife PW12. PW5 took his father (PW6), his mother and mother of accused No. 4 and reached Manipal Hospital, by then PW10 had reached Manipal Hospital from his office situate in Unity Building. PW5 was informed by PW29-Dr. J.N. Harsha that B.V. Girish had suffered fatal injuries to his head. The C.T. Scan showed depressed fractures of skull and crush injury to brain. PW29 informed PW5 that chances of survival of B.V. Girish were remote. At about 2 a.m. during intervening night of 3/4.12.2003, parents of deceased, the mother of accused No. 4 and accused No. 4 returned home. PW10 and PW5 stayed back in the hospital. On the next day morning on 04.12.2003, PW6, PW12 and accused No. 4 came to Manipal Hospital. On 04.12.2003 at 8.05 a.m., the duty doctor informed about death of B.V. Girish. On 04.12.2003 at 10.30 a.m., PW5 lodged first information of incident (Ex.P.17) as per the information received from accused No. 4, on the basis of which PW31-K.A. Nanaiah, Police Inspector registered a crime for an offence punishable u/s 302 IPC against unknown person. Thereafter, PW31-K.A. Nanaiah held inquest on the dead body of B.V. Girish and sent deadbody for post-mortem examination to Bowring Hospital. PW18-Dr. Bheemapa Havanur conducted postmortem examination.

In the meanwhile, PW31-K.A. Nanaiah, the Investigating Officer had taken accused No. 4, PW5 and other witnesses to place of occurrence. Accused No. 4 showed place of occurrence from where the Investigating Officer collected blood stained mud and sample mud and prepared spot mahazar as per Ex.P.14. The Investigating Officer continued the investigation and filed charge sheet on 17.04.2004. The subsequent Investigating Officer conducted further investigation and filed supplementary charge sheet on 10.01.2005.

The homicidal death of B.V. Girish was due to injuries dealt on his head, which had resulted in fracture of skull bones and injury to brain. The opinion furnished by PW18Dr. Bheemapa Havanur, who had conducted post-mortem examination has not been controverted by the defence. PW29-Dr.J.N. Harsha had given description of injuries suffered by the deceased. Therefore, case of the prosecution that death of B.V. Girish was homicidal in nature is not in dispute and cannot be disputed.

Now we will advert to the case put forth by the prosecution: It is the case of prosecution that accused No. 4-Shubha @ Shubhashankar and accused No. 1-D. Arun Varma had fallen in love with each other and she was not willing to marry B.V. Girish, in fact she was not liking the life style of B.V. Girish. Even before the date of marriage engagement, accused No. 4 had expressed her intention to PW8-Hema, who had visited the house of PW10 to apply "mehendi" to accused No. 4 during morning of 29.11.2003. Accused No. 4 had requested PW8-Hema to some how stop the marriage engagement and break marriage and accused No. 4 had told PW8 that she was in love with accused No. 1-D. Arun Varma and she would elope with him. PW8-Hema informed the same to PW9-Uma Shashi, who asked PW8 to keep quite as date of engagement is fixed. In the circumstances, if they were to disclose the matter to others and break the marriage engagement, reputation of PW10 would be spoiled and honour and reputation of family of PW10 would be ruined.

On 30.11.2003 at 2 p.m., PW8 visited the house of PW10 for beautification of accused No. 4. When PW8 was beautifying accused No. 4 for marriage engagement, accused No. 4 cursed if B.V. Girish had died, marriage engagement would have stopped and she could have eloped with accused No. 1 (her lover).

It is the case of prosecution from 24.11.2003 till 03.12.2003, accused 1 to 4 were in constant touch with each other by voice calls and they were exchanging short message service (for short, ''SMS'') and they had conspired to do away with the life of B.V. Girish, whom they had felt as an obstacle for the love affair between accused No. 1 and 4.

It is the case of prosecution, accused No. 1 had established contacts between accused No. 2 and 3 with accused No. 4. They were in constant touch with each other both by voice calls and SMS calls.

It is the case of prosecution that on 03.12.2003 during evening, accused No. 4 persuaded her fiance (B.V. Girish) to take her to dinner at TGIF Hotel. Even when accused No. 4 was in the company of her fiance-B.V. Girish, she was in constant touch with accused No. 1 and accused 2 to 4 were also in constant touch with each other. They were contacting each other from their mobile phones. After dinner, accused No. 4 expressed her ostensible desire to see landing of aeroplanes from air view point situate at ring road. This was only to create an opportunity for accused 1 & 2 to commit murder of B.V. Girish. After dinner, B.V. Girish took accused No. 4 on his scooter on Airport Ring Road which connects Airport road intersection and Koramangala road intersection. When they reached air view point, scooter was stopped. Accused No. 4 and B.V. Girish were seeing landing of aeroplanes and they were standing on the footpath on eastern side of the road. As pre-planned, accused 1 & 2 came on a scooter ridden by accused No. 1. Accused No. 2, hiding a steel rod/pipe came from behind B.V. Girish and dealt fatal blows on the hind portion of head of B.V. Girish and also on left side of face of B.V. Girish with a steel rod/pipe. The injured B.V. Girish held his head by his hands and collapsed. Thereafter, accused No. 2 ran, jumped and sat on pillion seat of the scooter, which was ridden by accused No. 1. Accused No. 1 took a U-turn and proceeded on wrong side towards Airport road intersection. The incident of assault was witnessed by PW15-Thomas and PW16-Toli Uken. They were able to identify the assailant and the rider of the scooter in the light shed by street lamp posts. They were also able to identify weapon of assault. The injured B.V. Girish had fallen on the ground with injuries to head. Accused No. 4 was standing at a distance of 10 feet from the injured. PW15 and accused No. 4 tried to stop several vehicles, CW21, who was driving his maruti zen car stopped his car. PW15 with the help of a driver of an autorickshaw, shifted the injured to back seat of the car. Accused No. 4 sat on front side seat of the car, PW15 requested CW21 to take the injured to Manipal Hospital situate at Airport Road. At the first instance, the injured was examined in casualty medical ward and later he was shifted to intensive care unit of Manipal Hospital. The history of incident was given to PW29-Casualty Medical Officer by accused No. 4. The father and elder brother of the injured came to the hospital so also parents of accused No. 4. After the incident, PW15-Thomas & PW16-Toli Uken had taken scooter of the injured to the house of PW15 who informed his tenant CW29-A.S. Naveen of the incident. PW15 and CW29 opened dicky of scooter of injured and found a digital diary, a laptop and visiting card of injured B.V. Girish. CW29 contacted CW30-P.S. Radhakrishnan, who was a Security Supervisor of Intel Company. CW30 came to the house of PW15 and took scooter and other belongings of injured. Later scooter and digital diary were returned to PW6. However, the laptop was retained by Intel Company as it belonged to Intel Company.

Before the incident of assault and after incident of assault, accused 1 to 4 were in constant touch with each other. Accused No. 4 by sending SMS to accused No. 1 was informing of their movements till accused No. 4 and B.V. Girish reached air view point. After the incident, accused No. 4 had sent SMS to accused No. 1. Even during early morning of 04.12.2003, accused No. 4 had sent SMS to accused No. 1. During initial stages the Investigating Officer did not have any clue of assailant, he had recorded statements of accused No. 4 on more than one occasion. The Investigating Officer had also interrogated PW23-Pramod Dikshith, a friend and erstwhile classmate of accused No. 4, as PW23 had frequently contacted accused No. 4 over his mobile phone.

The Investigating Officer recorded statement of PW15-Thomas on 05.12.2003 and statement of PW8-Hema on 14.01.2004. The Investigating Officer had collected call details and noticed frequent calls (both voice calls and SMS) exchanged between accused 1 to 4 immediately before the incident.

On 25.01.2004, accused 1 to 4 were arrested. The Investigating Officer recorded statements of accused 1 & 2. In furtherance of such statements, accused 1 & 2 took the Investigating Officer and other witnesses near a bush situate in military area, which is located towards north of place of incident. At the instance of accused 1 & 2, some of the police officials recovered a steel rod/pipe (M.O.11) from the bush and it was seized under a mahazar as per Ex.P.87. The Investigating Officer also seized scooter bearing No. KA-03-S-978 (Black Kinetic Honda) under a mahazar (Ex.P.88.) from the house of accused No. 1 situate in Cox Town. The Investigating Officer collected photographs and video cassette of marriage engagement of accused No. 4 and B.V. Girish from possession of PW6. On 26.01.2004 as instructed by the Investigating Officer, PW10 produced mobile phone bearing 98455 70337 with a covering letter as per Ex.P.27 before the Investigating Officer. The Investigating Officer had directed PW22-N. Dhanashekaran to produce mobile phone bearing No. 98450 17289 belonging to accused No. 1. Accordingly PW22 produced mobile phone bearing number 98450 17289 with a covering letter as per Ex.P.44 before the Investigating Officer. The Investigating Officer recorded statements of witnesses and seized incriminating materials and sent the same to Forensic Science Laboratory. The Investigating Officer with the help of PW26-Jayanarasimhappa took photographs of text of messages retrieved from mobile phone bearing No. 98455 70337 and downloaded text of SMS through a computer. Accused No. 4 had sent these messages to PW23 four days after the incident. The Investigating Officer recorded statements of other witnesses and collected particulars of mobile phones held by accused 3 & 4 and also call data, mobile phone bills and call history sheets of mobile phone bearing Nos. 98450 17289 and 98455 70337 from Airtel Company and call history sheets of mobile phone bearing No. 8036860795 owned by accused No. 3-Dinesh @ Dinakaran and mobile phone bearing No. 8036940211 acquired by accused No. 2 in the name of his father Anandan (PW17) from Reliance Infocomm. The Investigating Officer collected call records and other relevant documents and handed over investigation to his successor in office namely PW32-Honnali.G. Dawood Khan. On 17.04.2004, the Investigating Officer after completion of investigation, submitted charge sheet against accused No. 1 to 4. PW32 after further investigation, submitted supplementary charge sheet against accused 1 to 4 on 10.01.2005.

In order to bring home the guilt of the accused, the prosecution examined PWs 1 to 33 and produced documents as per Exs.P.1 to P.111 and material objects as per MOs.1 to 17. On behalf of the defence, DWs 1 to 3 were examined and documents as per Exs.D1 to D.64 were marked.

In view of the conviction of accused 1 to 4 as aforestated and the appeal filed by the State for imposing death penalty to Accused No. 2, the following points would arise for determination.

Whether the prosecution has proved that the death of B.V. Girish was homicidal ?

Whether the prosecution has proved that during the period between 24.11.2003 and 3.12.2003, accused Nos. 1 to 4 entered into criminal conspiracy in Bangalore City to commit the murder of B.V. Girish and thereby committed an offence u/s 120(B) IPC ?

Whether the prosecution has proved that in pursuance of the conspiracy as stated in Point No. 2 on 3.12.2003, at about 9.50 p.m., near Air view Point, Airport Ring Road, Bangalore City, Accused No. 2 assaulted on the head of B.V. Girish with a steel rod with an intention to cause his death and the deceased B.V. Girish succumbed to the injuries, thereby Accused Nos. 1 to 4 committed an offence punishable u/s 302 read with 120(B) IPC ?

Whether the prosecution has proved that Accused No. 4 having the knowledge that the murder of deceased B.V. Girish had been committed, caused disappearance of evidence as to the commission of the offence by not informing the said fact either to the family members of the deceased or to the hospital authorities and also caused disappearance of evidence by suppressing the facts and the telephonic messages and voice calls with Accused Nos. 1 to 3 with an intention to screen herself and also Accused Nos. 1 to 3 from capital punishment and thereby committed an offence punishable u/s 201 IPC ?

Whether the learned Trial Judge has appreciated the evidence in proper perspective ?

Whether the case against accused No. 2 falls within the category of the rarest of rare cases to attract death penalty?

Whether the impugned judgment calls for interference?

What order?

As already stated, Accused Nos. 1 to 4 have filed their respective appeals against the judgment of conviction. The law is fairly well settled that this Court dealing with an appeal against a judgment of conviction, has to reappreciate the evidence either to agree or disagree with the findings recorded by the learned trial Judge.

In a decision reported in Mustaq Ahmed Mohmed Hussain and Mukhtar Hussain Ali Hussain Vs. The State of Gujarat, at para 12, the Supreme Court has held:

The contention that, when the trial court records a well-reasoned judgment, then, even though arguable points on the question of credibility of witnesses are raised, it is unnecessary for the Court of appeal to deal with all these points and record its own reasons for agreeing with the conclusions of the trial court, is unacceptable. The right of appeal conferred on a convicted person gives him a right to challenge the reasoning and finding on the appraisal of evidence both oral and documentary by the trial court and unless the challenge can be held to be prima facie unimpressive and unarguable the High Court would be well advised to go into the points canvassed and record its reasons. Such a course would be in accord with the statutory intendment, and also of assistance to this Court in more satisfactorily dealing with appeals under Article 136 of the Constitution.

In the light of the legal principles enunciated in the above decision, we proceed to appreciate the evidence and the findings recorded by the trial Court to record our findings on the points formulated above.

In the earlier paragraphs of the judgment, we have stated that the case of the prosecution that the death of B.V. Girish was homicidal in nature has not been seriously controverted by the defence. Even otherwise, we find that the prosecution from the evidence of PW.29 Dr. Harsha and PW.18 Dr. Bheemappa Havanur has proved that death of deceased B.V. Girish was homicidal in nature.

At the relevant time, PW29-Dr.J.N. Harsha was the Casualty Medical Officer of Manipal Hospital, Airport Road. PW29-Dr.J.N. Harsha has deposed:

On 3.12.2003 at about 10.10 p.m. a lady by name Shubha brought the injured to the Casualty Ward with the history of assault and he examined him. He was in a state of coma and was not responding. He had huge lacerated wound over the left parieto, occipital region and there was swelling on the left eye ball. There was bleeding through his nose.

PW29 has given the details in the medico legal register extract as per Ex.P.86. From the contents of medico legal register extract Ex.P.86 and the case summary issued by Manipal Hospital, we find that the deceased had suffered the following injuries:

Lacerated wound over left parietooccipital region, left black eye, abrasions over extremities.

The CT Scan revealed depressed fracture over left parietooccipital region with underlying acute subdural haemotoma and significant brain edema with effacement of all cisterns and ventricles squashed.

The discharge summary would reveal that on 4.12.2003 at about 3.30 a.m., the injured developed hypotension and subsequently bradycardia. Despite all resuscitative measures, the injured could not be revived and he was declared dead at 8.05 a.m. on 4.12.2003.

PW.18 Dr. Bheemappa Havanur who conducted the post mortem examination on the dead body of B.V. Girish in the Bowring Hospital and issued the post mortem report as per Ex.P.35, has deposed that the death was due to coma as a result of head injury sustained. PW.18 was examined by putting certain hypothetical suggestions that injuries found on B.V. Girish could have been caused by a fall, considering the nature of injuries, we are of the opinion that the suggestions are not tenable. Therefore, we hold that the prosecution has proved that death of B.V. Girish was homicidal in nature. The cause of death was due to coma as a result of head injuries sustained. The learned trial Judge on proper appreciation of evidence has held that death of B.V. Girish was homicidal in nature. Therefore, we answer Point No. 1 in affirmative.

Reg. Points 2 to 4:

Before adverting to the appreciation of evidence adduced in proof of points 2 to 4 which are interlinked, it is necessary to state that the evidence adduced by the prosecution is partly direct and partly circumstantial and the direct evidence and circumstantial evidence are intertwined. Nevertheless we refer to the legal priniciples relating to appreciation of circumstantial evidence as enunciated by the Supreme Court in the decision reported in State of U.P. Vs. Ashok Kumar Srivastava, , at paragraph 9, the Supreme Court has held:

This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.

The prosecution has relied on the following:

(i). Motive

(ii). Close association of Accused Nos. 1 to 4 by voice calls and SMS calls before the date of incident, on the date of incident, immediately prior to the incident and also after the incident.

(iii). Conduct of the accused.

(iv). Direct evidence of PWs.15 and 16

(v). Recovery of weapon pursuant to the voluntary statements made by Accused Nos. 1 and 2 and at the instance of Accused Nos. 1 and 2.

(vi). Role played by each of the accused as co- conspirators.

(vii). False plea of alibi put forth by Accused No. 1.

(i) Motive:

It is the case of the prosecution that Accused No. 4 had fallen in love with Accused No. 1. At this juncture, we would like to recall at the relevant period, accused No. 4 was a student of V. semester of LLB Course of BMS College and Accused No. 1 was a student of I Semester of LLB Course of the same college. These facts have been deposed by PW.1 Harish who at the relevant period was working as Principal of BMS College and they have not been controverted. It is the case of the prosecution that Accused Nos. 1 and 4 were in constant touch with each other and were making voice calls and SMS calls from 24.11.2003 till 4.12.2003.

From the evidence of PW10, the prosecution has proved that at the relevant time, accused No. 1 was using mobile phone bearing No. 98450 17289 and Accused No. 4 was using mobile phone bearing No. 98455 70337. We notice from the evidence that PW.10 (father of accused No. 4) examined as a prosecution witness, has virtually turned as defence witness to give evidence to support the defence. PW.10 was declared as hostile witness. We refer to some of the significant features in the evidence of PW.10 which would give an indication that PW.10 had more to conceal and less to reveal.

It is not in dispute that PW.10 is a practicing Advocate of Bangalore Bar from past 35 years. PW10 has deposed that on 26.1.2004 he gave mobile phone bearing No. 98455 70337 alongwith a covering letter marked as Ex.P.27 to PW31- the Investigating Officer. PW10 has identified the covering letter as Ex.P.27 and his signature as per Ex.P.27(a). PW10 has deposed that he had another mobile phone bearing No. 98450 15150. It is clear from the contents of Ex.P.27 that on 26.01.2004, PW.10 had produced the mobile phone bearing No. 98455 70337 which was being used by accused No. 4 before PW31- the Investigating Officer. However, during trial when the mobile phone bearing No. 98450 15150 (MO.10) was shown to PW.10, he has deposed that he is not able to say whether the mobile phone similar to MO.10 was the one which he had given to the Police. Therefore, at the request of the learned Public Prosecutor, PW10 was declared as hostile witness and was subjected to cross examination by the learned Public Prosecutor. During cross examination, after the SIM card from the mobile phone MO.10 was removed, after going through SIM card number, PW.10 has deposed that MO.10 might be the mobile phone which he had handed over to the Investigating Officer on 26.1.2004.

During examination-in-chief, PW.10 having categorically admitted that on 26.1.2004, he had given to the investigating officer mobile phone bearing N.98455 70337 which was being used by his daughter (accused No. 4), during cross-examination by the learned Counsel for accused No. 4 has made an unsuccessful attempt to dilute his evidence. During cross-examination by learned Counsel for accused No. 4, PW10 has deposed that during the year 2003 or the beginning of 2004, his daughter (Accused No. 4 ) did not have a separate mobile phone. During 2003 and in the beginning of 2004, PW.10 was having two mobile phone connections. The two mobile phones which PW.10 was possessing during 2003 and in the beginning of 2004 were bearing Nos. 98450 15150 and 98455 70337. The service provider of both the mobile phones was M/s. Airtel Company (Bharati Telecom Limited). PW.10 has deposed all the members of his family viz., PW10, his wife (PW.12), and his daughter (Accused No. 4) were using mobile phone bearing No. 98455 70337. We find that PW.10 having categorically admitted that he had produced the mobile phone bearing No. 98455 70337 which was being used by his daughter (accused No. 4), during cross-examination by learned Counsel for accused No. 4 has made an unsuccessful attempt to make it appear that accused No. 4 was not exclusively using mobile phone bearing No. 98455 70337 and that it was being used by all the members of his family viz PW.10, his wife PW.12 and accused No. 4.

PW.10 during examination-in-chief has deposed that accused 1 to 3 were not known to him. However, during cross-examination by the learned Counsel for accused No. 4, PW10 has deposed; that his daughter (accused No. 4) had good number of friends, including her junior college-mates and her classmates. On several occasions, they were consulting PW.10 relating to their studies. Accused No. 4 and her college mates were also holding Moot Court rehearsals in the house of PW.10. Accused No. 1 had participated in one of Moot Court rehearsals. Accused No. 1 had come to the house of PW.10 on several occasions. Like any other friend, accused No. 1 used to call his daughter (accused No. 4). PW.10 has deposed that whenever he used to have instrument with him, PW10 used to receive calls from Accused No. 1, either PW10 would answer the call or PW10 would give phone to accused No. 4, if she was available. PW10 did not find that conduct of accused No. 1 calling accuse No. 4 over phone was objectionable. PW.10 has also given the mobile phone number of Accused No. 1 as 98450 17289 PW10 has deposed that Accused No. 4 had sent several messages (SMS) to accused No. 1 through mobile phone bearing No. 98450 17289 belonging to Accused No. 1.

PW.10 has referred the call details found in Ex.P.51, to depose that accused No. 4 was very much attached to deceased Girish and she had made good number of calls to him and she had also received good number of calls from the deceased after 27.10.2003. PW.10 having refused to identify mobile phone bearing No. 98455 70337 during examination in-chief, has reluctantly admitted the same during his crossexamination by the learned Public Prosecutor.

During cross-examination by the learned Counsel for accused No. 4, PW10 has deposed; that on 26.1.2004, PW10 surrendered his mobile phone bearing No. 98455 70337 to the Investigating Officer alongwith a covering letter and also questioned the Investigating Officer the purpose for which he had asked PW.10 to surrender mobile phone bearing 98455 70337. PW.10 has deposed that the Investigating Officer told him that his mobile was required to know the messages which had been sent or received from said mobile phone and that might throw light on the investigation of crime. PW.10 has deposed that he was asked by PW31-the Investigating Officer to display the inbox and outbox of mobile number 98455 70337 (MO.10) and he operated MO.10 and displayed the inbox and out box to PW31- the Investigating Officer. PW10 has deposed; on 26.1.2004, there were no messages either in the inbox or the out box of MO.10. PW.10 has deposed that there were no messages in the inbox and outbox of mobile bearing No. 98455 70337 as on 26.1.2004 and if at all it is stated that such messages are found in the said instrument (MO.10), they are concocted and fabricated. Thus PW.10 has pre-empted the prosecution from relying on the printouts of texts of messages retrieved from MO.10. PW.10 referring to the printouts of text of messages marked as Exs.P.45 to 47 has deposed that they were not found in MO.10 and Ex.P45 to 47 are concocted documents.

PW.10 has deposed that he had an occasion to go through Ex.P.50 and Ex.P.51 the details of calls and has pointed out several errors to show that Exs.P.50 and P.51 are not reliable documents. PW.10 has deposed that PW.8 Hema (a beautician) had never visited his house either on the date of engagement or on the day prior to the date of engagement and he does not know who she was. Thus, from the evidence of PW.10, we find PW10 had made several attempts to distort the evidence adduced and yet to be adduced by the prosecution. As already stated, PW.10 was declared as hostile witness and he was subjected to cross examination by the learned Public Prosecutor. At this juncture, we deem it necessary to refer to the dates on which PW.10 was examined before the trial Court. On 16.06.2005, PW.10 was examined-in-chief by the learned Public Prosecutor. PW10 was declared as a hostile witness and PW10 was cross-examined by the learned Public Prosecutor and PW10 was further cross-examined on 5.9.2005. On 17.1.2006, PW10 was cross-examined by the learned Counsel for accused No. 4 and on 30.01.2006, PW10 was recalled and further cross-examined by the learned Counsel for accused No. 4. Again on 31.01.2006, PW10 was recalled and further cross-examined by accused No. 4 on 31.1.2006. Thus, we find that PW.10 being the father of Accused No. 4, has attempted to pre-empt the prosecution from adducing incriminating evidence against accused. PW10 has made an unsuccessful attempt to make it appear that mobile bearing No. 98455 70337 was not being exclusively used by accused No. 4.

PW.10 in examination-in-chief having made a categorical statement that he did not know accused Nos. 1 to 3, PW10 during cross-examination by the learned Counsel for the accused has admitted that Accused No. 1 was acquainted with accused No. 4 and accused No. 1 was visiting the house of PW10. Accused No. 1 was sending SMS messages to accused No. 4 and accused No. 1 was participating in the moot court rehearsals conduced by accused No. 4 in house of PW10. PW.10 having turned hostile to the case of prosecution has deposed that PW.8 had never visited his house to cast suspicion on the evidence of PW8, which will be discussed in the later part of this judgment. Therefore, we find that PW.10 had changed his version from time to time not only to distort evidence adduced and yet to be adduced by the prosecution but also to lay a foundation for the defence. We also find from the evidence of PW.10 that he has relied upon the contents of Ex.P.51 to show that accused No. 4 was frequently contacting deceased through her mobile. So also, the deceased was frequently contacting Accused No. 4 by making calls to her mobile phone No. 98455 70337. PW.10 has produced several documents to establish the good character of his daughter accused No. 4. How far the good character of accused No. 4 is relevant and how it can be pressed into service will be discussed in the later part of this judgment.

The prosecution in order to establish the constant contacts and communications between accused No. 1 to 4 through mobile phones both by voice calls and SMS calls, has relied on the contents of Exs.P45, 47, 48, 49, 50, 51, 52 to 83 with sub-markings.

From the evidence of PW10, PW13, PW14, we find accused Nos. 1 to 4 had made unsuccessful attempts to deny that they were owning and using the mobile phones bearing numbers 98450 17289 (Airtel), 36940211 (Reliance), 36860795 (Reliance), 98455 70337 (Airtel) respectively.

From the evidence of P.W.10 and contents of Ex.P27 it is proved that accused No. 4-Shubha was using mobile phone bearing No. 98455 70337. From the evidence of P.W.22-N. Dhanashekaran, it is proved that accused No. 1 was possessing and using mobile phone bearing No. 98450 17289. P.W.22 has admitted that the mobile phone bearing No. 98450 17289 [Nokia mobile] was owned and possessed by accused No. 1 and he had produced the same before the Investigating Officer on 26.01.2007 along with the covering letter marked as Ex.P47.

As regards the mobile phone bearing number 36860795 held by accused No. 3, P.W.14-Utthamprakash T.B. [father of accused No. 3] has denied that accused No. 3 was using the phone bearing No. 36860795. PW14 was declared as hostile witnesses. During cross-examination by the learned Special Public Prosecutor, PW14 has admitted that his son i.e., accused No. 3 had acquired Reliance mobile phone bearing No. 36860795 much against the advice of PW14.

P.W.13-Bhavani i.e., wife of accused No. 3 has denied that her husband had acquired Reliance mobile phone bearing No. 36860795. In view of evidence of PW14 and documentary evidence, refusal of P.W.13 to admit that mobile phone bearing No. 36860795 was held and used by her husband (accused No. 3) is of no consequence.

The prosecution has relied on documentary evidence as per Ex.P48, wherein it is stated that mobile phone bearing No. 8036860795 was acquired and possessed by accused No. 3.

The learned Counsel appearing for accused No. 3 has submitted that Ex.P48 is not an electronic record and it was not generated by a computer and that Ex.P48 is said to have been issued by an Officer namely A. Ramani on behalf of M/s. Reliance Infocomm Ltd. The prosecution has not examined the said A. Ramani. On the other hand, the prosecution has relied on the evidence of P.W.24-Lloyd Noronha. Therefore, prosecution has failed to prove the contents of Ex.P.48.

P.W.24 was working as the Head of Marketing and Sales as also as Co-ordinator for Statutory Legal Enforcement Agencies at M/s. Reliance Infocomm Ltd., from October 2004. Prior to that one A. Ramani was working in the said post. A. Ramani left his services with the company from October 2004 and therefore, P.W.24 has given evidence in proof of contents of Ex.P48.

P.W.24 has deposed that on 08.01.2004 there was a request from Viveknagar Police Station to provide the details of mobile phones bearing Nos. 08036860795, 08036940211 and 08036920230 and the same was provided to Viveknagar Police by his predecessor viz., A. Ramani. P.W.24-Naronha had succeeded A. Ramani. PW24 has given evidence with reference to the contents of Ex.P48. Therefore, P.W.24 was a competent witness to depose about the contents of Ex.P48. P.W.24 has deposed that as per Ex.P48, mobile phone bearing No. 08036860795 was activated on 30.09.2003 as a post-paid connection. After 18.10.2004 it was shifted as a pre-paid connection and this mobile phone stands in the name of Dinakaran B.U. (accused No. 3), No. 342 A, Ramamurthy nagar Main Road, Doddabanasavadi, Bangalore-43. Accused No. 3 has not disputed the said address. Above all, P.W.14-Uttamprakash T.B., father of Accused No. 3 has admitted the acquisition and possession of said mobile phone by accused No. 3.

P.W.24 referring to contents of Ex.P48 relating to mobile phone bearing No. 08036940211 has deposed that this mobile phone started as post-paid connection on 15.11.2003. After 18.10.2004 it was shifted as a pre-paid connection and it stands in the name of Anandan C., No. 233, Appajappa Building, M.S. Nagar P.O., Naganapalya, Bangalore-560 043. P.W.17-Anandan [father of accused No. 2] has denied to have acquired the mobile phone bearing No. 08036940211. PW17 was declared as hostile witness. During cross-examination by the learned Public Prosecutor PW17 has admitted that he had received several calls from the mobile phone bearing No. 08036940221. P.W.24 has deposed with reference to contents of Ex.P48, which had already been produced by his predecessor in office. Therefore, the contention of accused No. 2 that accused No. 2 was not holding the mobile phone bearing No. 08036940211 cannot be accepted.

P.W.24 referring to mobile phone bearing No. 08036920230 has deposed that the said mobile was started as post-paid connection on 08.01.2003. After 01.08.2004 the said connection has been barred. The connection stood in the name of Lakshmi, No. 584, Kammanahalli II Cross, Nagamma Road, Reddy Layout, Bangalore-84.

The learned Counsel for accused Nos. 2 and 3 have found fault with the Investigating Officer for not seizing the mobile phones held and possessed by accused No. 2 and 3. Mobile phone bearing No. 08036860795 was possessed and used by accused No. 3 and mobile phone bearing No. 08036940211 was possessed and used by accused No. 2. The defence has not established the consequences of nonseizure of the aforestated mobile phones on the case of the prosecution.

In view of the above discussion, we hold that prosecution has proved that during the months of October, November and December 2003 accused No. 1 was the possessor and user of mobile phone bearing No. 9845017289, accused No. 2 was the possessor and user of mobile phone bearing No. 08036940211, accused No. 3 was the possessor and user of mobile phone bearing No. 0803686075 and accused No. 4 was the possessor and user of mobile phone bearing No. 9845570337. The service provider of mobile phones held and used by accused Nos. 1 and 4 was M/s. Airtel and service provider of mobile phone held and used by accused Nos. 2 and 3 was M/s. Reliance Infocomm Ltd.

The call details of mobile phone bearing No. 9845017289 belonging to accused No. 1, mobile phone bearing No. 08036940211 belonging to accused No. 2, mobile phone bearing No. 08036860795 belonging to accused No. 3 and the mobile phone bearing No. 9845570337 belonging accused No. 4 are produced by the prosecution as per Exs.P49, P50 and P51.

Sri.C.V. Nagesh, learned Senior Counsel appearing for Accused No. 4, Sri.H.C. Hanumaiah, learned Counsel for Accused No. 1, Sri. T. Prakash, learned Counsel for Accused No. 2 and Sri. Amar Correa, learned Counsel for Accused No. 3 have seriously disputed the admissibility and authenticity of bills, call history sheets marked as Exs.P.49, P.50 and P.51. The learned Counsel have contended that these documents are demonstrably concocted documents. The learned Counsel for Accused Nos. 1 to 4 have made following submissions:

I. The documents have not been proved in the manner required by law.

II. Some of the entries in the phone bills indicate both the called number and calling number are one and the same.

III. PWs.24 and 25 who have been examined to prove these documents are not competent to give evidence in proof of the entries found in these documents; in many places, the called numbers have been shown as 4045001014D and numbers which have 13 digits can never be termed as the mobile connection numbers. The summary of voice calls and SMS calls bears "IMEI Numbers" which do not correspond to mobile numbers from which the calls had originated which are otherwise termed as called numbers. From the evidence of PW.33 the defence has demonstrated the inaccuracy of IMEI numbers.

IV. These statements of voice calls and SMS calls have not been certified in the manner required by law.

V. In call history sheets, there are number of double entries of the called and calling numbers.

The learned Spl. Public Prosecutor drawing our attention to the phone bills and the summary of voice calls and SMS calls would submit that the error in mentioning of last digit of IMEI number is of no consequence. If IMEI number can be identified with 14 digits, that would depict the correct state of affairs. The learned Public Prosecutor would submit that in the computer generated statements, in some places in the columns meant for call numbers, tower numbers are recorded. However, the discrepancies have to be ignored in view of the accurate recording of IMEI numbers in the corresponding columns. The learned Public Prosecutor would submit that the double entries contained in the statements cannot be a ground to reject the authenticity and correctness of the statements. The learned Public Prosecutor would further submit that Ex.P49 to Ex.P51 have been proved in accordance with law.

Before adverting to the submissions made by the learned Counsel for the parties, it is necessary to state the fact that accused No. 1 was the possessor and user of mobile number 98450 17289 (Airtel) has been admitted by PW.22 Dhanashekaran (father of accused No. 1) and it is also evident from the contents of the letter marked as Ex.P.44 which PW22 gave to the Investigating Officer at the time of surrendering the mobile phone bearing number 98450 17289. The evidence of PW10 and the letter given by PW.10 as per Ex.P.27 would make it explicitly clear that Accused No. 4 was the user and possessor of mobile phone bearing No. 98455 70337 (Air Tel). Accused No. 3 (Dinesh) had acquired and he was the user and possessor of mobile phone bearing No. 36860795 (Reliance Infocomm). From the evidence of PW.24, it is clear that Accused No. 2 was the user and possessor of mobile bearing No. 36940211 (Reliance Infocomm). Therefore, the identity of persons calling and the persons called has been established.

Now, adverting to the submission made by the learned Counsel for the accused, we hold that the prosecution has proved the contents of Exs.P.49 to P.51 as required by law for the reasons stated hereinafter.

At the relevant time, PW.24-Llyod Naronha was working as the Head of Marketing and Sales as also as Coordinator for Statutory Legal Enforcement Agency (SLEA) of M/s. Reliance Infocomm Limited at Bangalore. PW.25 Stanley Agnelo was working as the Assistant Manager, Nodal Officer of M/s. Airtel (Bharathi Telecom Limited) at Bangalore. Therefore, P Ws.24 and 25 could be termed as persons occupying responsible official positions of the management of relevant activities in terms of Section 65(B)(4)(c) of the Indian Evidence Act. PW.24 has given the certificate as per Ex.P.50 in relation to the print outs of call data record of mobile phone bearing No. 36860795 belonging to Accused No. 3 Dinesh @ Dinakaran, call data record relating to mobile phone bearing No. 36940211 belonging to Mr. Anandan (Father of Accused No. 2) which was being possessed and used by Accused No. 2. They have also given call data records belonging to Mrs. Lakshmi (Wife of Accused No. 3). The certificate is in conformity with the provisions of Section 65(B)(4) of the Indian Evidence Act. It is in the evidence of PW.24 that the said Ramani had left his services with Reliance Infocomm. We also find that Ex.P.50 is signed by PW.24. The call data extracts bear the signatures of Sri. A. Ramani, who was the predecessor in the office of PW.24. The said A. Ramani had left his services with M/s. Reliance Infocomm, we hold that PW.24 who was the successor in office was competent to give evidence and there are no valid reasons to discard his evidence.

At the relevant time, PW.25 Stanley Agnelo was working as the Assistant Manager and Nodal Officer of M/s. Airtel (Bharathi Telecom Ltd.) at Bangalore. PW25 has furnished the call data extracts of mobile phone bearing No. 98455 70337(possessed and used by Accused No. 4), mobile phone bearing No. 98450 17289 (possessed and used by Accused No. 1). PW25 has furnished the summary of call details of these numbers. PW25 has certified call data as per Ex.P.51 by issuing certificate marked as Ex.P.83. Therefore, the competency of PW.25 to issue the call summary statements and call history reports cannot be questioned. PW.25 has deposed that the call data will be stored in the server and the same will be down loaded through computers for the purpose of billing. Therefore, we hold that the prosecution has proved these documents in terms of Section 65 of the Indian Evidence Act.

In a decision reported in 2005(3) Crimes 87(SC) State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru at paragraph 15, the Supreme Court considering provisions of Section 63 and 65 of the Evidence Act, has held:

According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensures the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in Sub-section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.

Therefore, we hold that the documents marked as Exs.P.49, 50 and 51 have been proved in accordance with law.

We notice from the call statements that there are double entries and in some of the entries called number and calling numbers are repeated. However, this cannot be a ground to hold that the entire sheet down loaded from a computer is an inaccurate document.

In the case of State v. Mohd. Afzal and Ors. reported in 2004 (1) Crimes 227 in paragraph 295, the Delhi High Court has held:

The technical flaw whereby on four occasions double, entries have been recorded are explainable, in that, they are double entries pertaining to the called and caller numbers. Even otherwise as held in Ana Marcolino (Supra) the malfunction is not sufficient to cast a doubt upon the capacity of the computer to process information correctly. It does not establish in any way that the capacity of the computer to process, store and retrieve information used to generate the statement, tendered in evidence, was effected.

The learned Counsel for the accused referring to the evidence of PW.33 and also the call history sheets have contended that there are discrepancies in the IMEI numbers. On careful scrutiny of the IMEI numbers, we find that the IMEI numbers and the corresponding mobile numbers have been accurately mentioned in the call data records. A Division Bench of Delhi High Court in the case of State v. Mohd. Afzal and Ors. reported in 2004 (1) Crimes 227 while referring to an expert evidence has held:

PW-78, Manjula Kapur, Manager from Seimens deposed that IMEI number is a 15 digit number, the first six digits are type approval code which represent the manufacture of the handset. The next two digits are assembly code which represent the model. The next six digits are serial number of the handset according to GSM specification No. 3.03. First 14 digits are significant and the last digit according to GSM specification could be transmitted by the mobile number as zero. Literature pertaining to GSM specification brought by the witness relevant to the code was Ex.PW-78/1. The witness was not cross-examined.

The learned senior counsel appearing for Accused No. 4 would submit that in Mohd. Afzal''s case, an expert was examined, therefore, what has been stated therein is not applicable to the facts of the present case which we are not persuaded to accept for the following reasons.

The Delhi High Court with the aid of expert opinion has stated IMEI numbers are provided by the manufacturer of the instruments and that identification of the instrument by the first 14 digits of IMEI numbers is sufficient.

In the case on hand, we find that discrepancies in the IMEI numbers relate to the last digit and there are no discrepancies in the first 14 digits with which the instrument could be identified. In view of the documentary evidence relied upon by the prosecution and what has been stated in the decision referred to supra, the discrepancies pointed by the learned senior counsel for accused No. 4 cannot be taken into consideration.

The learned Counsel for accused relying on the evidence of PW33 have contended that there are discrepancies in the description of IMEI No. of mobile bearing No. 98455 70337 (M.O.10) and IMEI No. of mobile bearing No. 98450 17289 (M.O.13).

PW33 has given IMEI number of M.O.10 as 350991605847686 and IMEI No. of M.O.13 as 350607601965518.

We notice discrepancies are only with reference to last digit out of 15 digits, constituting IMEI number.

In the discussion made supra, we have held variation in the last digit of IMEI numbers cannot be a ground to discredit identification of instrument and we have also held that IMEI numbers can be considered as accurate by comparing 14 digits. We have cross-checked IMEI numbers deposed by PW33 with contents of Ex.P.51 and find that discrepancies are only with reference to last digit of IMEI numbers. Therefore, submission of learned Counsel for accused cannot be accepted.

We deem it necessary to state that mobile connection number and SIM number would be registered and given by the service provider. Where as IMEI number is provided by the manufacturer of instrument. The instrument can be replaced, however, the mobile connection number and SIM number cannot be altered or varied without consent/permission of service providing company. The identity of calling person and called persons are established by the mobile connection number and SIM numbers registered and given by service provider. Above all, the defence has no case that at the relevant time, accused No. 1 to 4 were dispossessed or had lost their mobile phones and they were used by some other persons.

The learned Senior counsel for accused No. 4 has contended that the outgoing calls from mobile phone bearing No. 9845570337 and incoming calls to mobile phone No. 98455 70337 [possessed and used by accused No. 4] are not found in the bills relating to mobile phone bearing No. 9845017289 [possessed and used by accused No. 1]. It is also contended that in some of entries in bill relating to mobile bearing No. 98455 70337 calling number and called number are shown as one and the same.

In the bill relating to mobile bearing No. 9845017289, the outgoing calls are recorded. As it was a prepaid connection, incoming calls are not recorded. With regard to second submission, we notice in some of the entries in the bill marked at Ex.P49, the called number and calling number are recorded as one and the same. It is necessary to state that the mobile phone bearing No. 98455 70337 and mobile phone bearing No. 98450 01510 were acquired by P.W.10 and he was the registered customer. The service provider of both mobile phone connections was M/s. Airtel Company. Therefore, a single account bearing No. 105-100000652 in respect of mobile phones bearing numbers 9845570337 and 9845001510 was allotted to P.W.10. Therefore, the bill contains several entries wherein mobile phone bearing Nos. 9845570337 and 9845001510 are recorded as it was a composite bill. PW10 has not deposed that he was receiving separate bills relating to mobile phone No. 98455 70337 and 98450 01510. In the circumstances, the submission of the learned Counsel for the accused that the bill indicates the same called number and calling number cannot be accepted.

Now, we advert to the evidence adduced by the prosecution in proof of motive put forth by the prosecution. The prosecution has placed reliance on evidence of P.W.8Hema, who at the relevant time was a beautician by occupation. She is a resident of the same locality and her house is situate at a short distance from the house of P.W.6Venkatesh.

P.W.8 has deposed; that she is a resident of II Stage, Banashankari, Bangalore and she is a beautician by occupation and accused No. 4-Shubha is known to her. On 29.11.2003 at 10 a.m., PW8 had visited the house of P.W.10 to apply Mehandi [embossing artistic impressions of crimson red colour to palms] and applied Mehandi to palms of accused No. 4. At the time, accused No. 4 hugged PW8 and told PW8 that she was not willing to marry B.V. Girish and requested P.W.8 to inform the same to her father [P.W.10] to stop the marriage engagement. Accused No. 4 told P.W.8 that even after the marriage engagement also she would elope with accused No. 1 (her lover). P.W.8 informed the matter to P.W.9-Uma Shashi [junior maternal aunt of accused No. 4]. P.W.9 told P.W.8 that the marriage engagement has been fixed, at this juncture, if the revelation of accused No. 4 is made known to others, reputation of the family would be spoiled. PW9 told P.W.8 to keep quite.

P.W.8 has deposed that on 30.11.2003 [date of marriage engagement] at about 2.00 p.m. she had visited the house of P.W.10 to beautify accused No. 4 when PW8 was beautifying accused No. 4, accused No. 4 told P.W.8 that if B.V. Girish were to die or B.V. Girish had died, the marriage engagement would have stopped. Accused No. 4 also told that she would elope with accused No. 1 (her lover) and that people from side of accused No. 1 would help her. On 05.12.2003 viz., two days after the death of B.V. Girish, P.W.8 had visited the house of P.W.10 and told accused No. 4 that as uttered by accused No. 4 B.V. Girish had died. Accused No. 4 retorted that she had escaped from the marriage and she could be happy for two years.

P.W.8 was subjected to extensive cross-examination. The basic infirmities with which evidence of P.W.8 sought to be discredited are: the inordinate delay in recording the statement of P.W.8. P.W.8, who had the vital information did not inform the same to the parents of the deceased B.V. Girish so also to the Investigating Officer though she had met the Investigating Officer within few days after the occurrence of the incident.

It was also suggested to P.W.8 that she was very much acquainted with P.W.6-Venkatesh and she had given false evidence at the instance of P.W.6. It was suggested to P.W.8 that she had not visited the house of P.W.10 for applying Mehandi on 29.11.2003 and also on 30.11.2003 for beautifying accused No. 4.

The learned senior counsel for accused No. 4 would submit that P.W.8 was a planted witness. P.W.8 admits that she had vital information relating to murder of deceased B.V. Girish. Even then she had kept quiet till 14.01.2004 on which day her statement was recorded by the Investigating Officer, her silence from 29.11.2003 till 14.01.2004 casts serious doubt on veracity of her evidence. The Investigating Officer had not given any reasons for the inordinate delay in recording the statement of P.W.8 u/s 161 Cr.P.C.

In order to appreciate the above submissions, it is necessary to state that there is nothing on record to indicate that P.W.8 was close to P.W.6-Venkatesh. At the same time, it is difficult to conceive that P.W.6-Venkatesh, who was aged about 67 years, who had lost his son, had planted PW8 to prove the case of prosecution. At this juncture, it is necessary to state that on 14.01.2003 accused No. 4-Shubha was not arrayed as an accused. The Investigating Officer had the first information which indicated that deceased B.V. Girish was assaulted by an unknown assailant. The identity of the assailant and the persons involved in the crime had not been ascertained. In fact, Shubha was arrayed as accused No. 4 on 25.01.2004, on which day she was arrested by the Investigating Officer.

The learned senior counsel for accused No. 4 has strenuously contended that P.W.8 has admitted that she had vital information relating to commission of murder of deceased B.V. Girish. Therefore she had concealed vital information almost for a period of one month and ten days from the date of occurrence. Therefore, PW8 is a planted witness.

From the evidence of P.W.8, we find that PW8 has admitted that she had vital information relating to commission of murder of deceased B.V. Girish. However, neither the prosecution nor the defence had questioned P.W.8 about the vital information which she had. During the period between 03.12.2003 and 14.01.2004 the Investigating officer had interrogated several persons including accused Nos. 1 and 4 to know the identity of assailant and other persons involved in the commission of crime. It is neither the case of the prosecution nor the case of the defence that P.W.8 had witnessed the incident of assault on deceased and PW8 had direct knowledge of the persons involved in the commission of crime. On the other hand, P.W.8 had heard from accused No. 4 that she was not willing to marry deceased B.V. Girish and it was the wishful thinking of accused No. 4 that if deceased B.V. Girish had died before the date of engagement, the engagement would have stopped. Accused No. 4 had told P.W.8 that she would run away with accused No. 1 even after the marriage engagement. By these utterances, P.W.8 could have hardly conceived that deceased B.V. Girish was done to death for such a motive. P.W.8 had developed suspicion on accused No. 4 from what she had heard from accused No. 4.

P.W.8 was residing in the same locality where accused No. 4 was residing. Her relationship with accused No. 4 and P.W.6 was one and the same. She was neither a friend of P.W.6 nor she was inimical towards accused No. 4. PW8 is disinterested witness. In the circumstances, it is natural that P.W.8 was hesitant to reveal to the Investigating Officer whatever the information she had. It is not uncommon for a disinterested witness to be hesitant to become a witness in a murder case. We also see from the records that the investigation had gained momentum after arrest of accused No. 1 to 4 on 25.01.2004. During initial stages, the Investigating Officer was brooding over investigation and had interrogated several persons. In fact, the investigation was proceeding on the first information report lodged by P.W.5 on the basis of the information, which PW5 had received from accused No. 4.

In a decision reported in Dalip Singh and Others Vs. State of Punjab, at paragraph 26, the Supreme Court has held:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely....

The evidence on record does not disclose that P.W.8 had any motive to implicate accused No. 4, much less accused No. 1. She had not sprung from a tainted source. In the circumstances, initial hesitation on the part of P.W.8 to disclose as to what she had heard from accused No. 4 on 29.11.2003, 30.11.2003 and 05.12.2003 and the delay on the part of the Investigating Officer in recording her statement u/s 161Cr.P.C., cannot be a ground to discard her evidence.

The defence has made unsuccessful attempts to disprove that P.W.8 had not visited the house of P.W.10 on 29.11.2003 and 30.11.2003. The defence has relied on evidence of P.W.9-Uma Shashi [junior maternal aunt of accused No. 4] and P.W.10 i.e., father of accused No. 4. PW10 was declared as hostile witness.

In the discussion made supra, we have held PW10 has deposed as if he were a witness for defence though he was examined as a witness for the prosecution. Therefore, the attempts made by the defence to discredit the evidence of P.W.8 on the basis of evidence of P.W.10 cannot be countenanced.

P.W.9 is the junior maternal aunt of accused No. 4. P.W.9 has deposed that P.W.8 had not visited the house of P.W.10 either on 29.11.2003 or 30.11.2003. PW9 being the junior maternal aunt of accused No. 4 has shown her inclination to tilt the balance in favour of accused No. 4. Thus, from the testimonies of PW9 and PW10 who are highly interested in accused No. 4, it is not possible to discard evidence of P.W.8.

We find from evidence of P.W.11-Sheethal Rajgopal, to some extent, her evidence lends corroboration to evidence of P.W.8. At the relevant time, PW.11 was a student and her father Dr. M. Rajagopal, was working as a doctor in Malya Hospital. Her house was situate at II Stage, Banashankari, Bangalore. PW11 was known to accused No. 4. Both of them were attending music classes. P.W.11 has deposed that through the maid servant of PW.10 by name Kamala, PW.11 came to know that the marriage engagement of accused No. 4 with B.V. Girish was held on 30.11.2003. P.W.11 congratulated accused No. 4 for her marriage engagement with B.V. Girish over phone. At that time, accused No. 4 told P.W.11 that she was not interested in marriage. During cross-examination, the defence has made an attempt to establish that P.W.11 was not a friend of accused No. 4 and there was no maid servant by name Kamala working in the residence of P.W.10. P.W.11 and accused No. 4 had rarely met each other. In any event, P.W.11 was not a close friend of accused No. 4, to whom accused No. 4 could give up her mind. The defence has found fault with the Investigating Officer for the delay in recording the statement of P.W.11.

Before appreciating the contentions raised for accused No. 4 to discredit the evidence of P.W.11, it is necessary to state at the relevant period P.W.11 was a student and she was unmarried. She is the daughter of a doctor. In the circumstances, there was no reason for P.W.11 either to be friendly with the family of deceased B.V. Girish or to bear ill-will against accused No. 4, though the family members of deceased B.V. Girish were known to the parents of P.W.11. When accused No. 4 told P.W.11 that she was not interested in marrying deceased B.V. Girish, PW.11 could have hardly thought that deceased B.V. Girish would be done to death for such a motive. P.W.11 had not sprung from a tainted source and she had no motives to falsely implicate accused No. 4 much less she had interest in the success of prosecution. Therefore, we accept the evidence of PW11.

The prosecution has relied on the evidence of P.W.23-Pramod Dikshith to prove the mental attitude of accused No. 4 towards deceased B.V. Girish. P.W.23 was the college-mate of accused No. 4 when they were studying in PUC. P.W.23 was a close friend of accused No. 4. PW.23 was contacting accused No. 4 over phone and was also sending SMS to her. In fact, on the basis of such intimacy, the Investigating Officer had subjected PW23 to interrogation to rule out the possibility of his involvement in commission of murder of deceased B.V. Girish.

P.W.23 has deposed that he had spoken to accused No. 4 prior to the date of her marriage engagement. PW23 came to know from accused No. 4 that she was not liking the life style of deceased B.V. Girish. Accused No. 4 did not like the low profile life of deceased B.V. Girish as he did not like to visit star restaurants/hotels, whereas accused No. 4 expected the life style of high profile and expected that deceased B.V. Girish to visit top restaurants and star hotels. Accused No. 4 had also a feeling that she was getting married at a very young age. P.W.23 deposed that from his conversation with accused No. 4 he came to know that she was not satisfied with her marriage engagement.

During the cross-examination of P.W.23, it has been elicited that he was very close to accused No. 4 and her family members. After the incident, PW23 had visited the house of P.W.10 to console accused No. 4. In fact P.W.23 had received messages (SMS) from accused No. 4 and also sent messages (SMS) to her. P.W.23 had sent e-mails to P.W.10 and he used to address the parents of accused No. 4 as uncle and aunty. The learned senior counsel for accused No. 4 had confronted to PW23 the e-mails as per Ex.D.42 to Ex.D.51 which P.W.23 had sent to P.W.10. PW23 has admitted the contents of Ex.D.42 to Ex.D.51. In the circumstances, it is hardly possible to accept that P.W.23 had grudge against accused No. 4 to falsely depose that accused No. 4 was not willing to marry deceased B.V. Girish and accused No. 4 was not happy with her marriage engagement. Therefore, we hold that evidence of P.W.23 lends corroboration to evidence of P.W.8 and PW11.

The learned senior counsel appearing for accused No. 4 has submitted that PW.23 was suspected in the involvement of the commission of murder of B.V. Girish. PW23 had been subjected to interrogation by the Investigating Officer. PW23 was very much apprehensive of his being implicated in the crime and such apprehension continued till PW.23 was examined as a witness before the Court. Infact, PW.23 has voluntarily deposed as "The Damocles sword of me being lugged into the case till this day was hanging on my neck".

We find from the evidence of PW.23 and also from the records during initial stage of investigation, the Investigating Officer having noticed the close friendship between PW.23 and Accused No. 4 and their frequent contacts over mobile phones both by voice calls and SMS calls had subjected PW.23 to interrogation. However, from the evidence of PW.23, it is explicit that he had not given evidence before the Court under the threats of Police. In the circumstances, the interrogation of PW.23 during the initial stages of investigation and the suspicion entertained by the Investigating Officer about the involvement of PW.23 in the crime cannot be a ground to discard his evidence. We also find from the evidence of PW.23 that after the incident, he had visited the house of PW.10 to console them for what had happened. During course of cross-examination, the learned senior counsel appearing for accused No. 4 had confronted to PW23 certain e-mails (marked as Ex.D.42 to Ex.D.51) sent by PW.23 to PW10 several days after the incident. In the circumstances, it is not possible to hold that PW.23 had enmity or grudge against Accused No. 4 to depose that Accused No. 4 was not interested or liking the life style of deceased Girish and she had felt that she was getting married at a young age. Therefore, the submission of learned Counsel for accused No. 4 that PW23 is not a trustworthy witness cannot be accepted.

The conduct of accused Nos. 1 to 4 on 29.11.2003 and 30.11.2003, would lend substantial corroboration to evidence of PWs.8, 11 and 23. On perusal of the summary of calls exchanged between accused Nos. 1 to 4, we find that not only on the date of engagement, but also since few days prior to the date of engagement, there were numerous calls between accused Nos. 3 and 4 and accused Nos. 1 and 4. The summary of call details as found in Ex.P.49 and Ex.P.51 is extracted thus:

Note:

A1 = Accused No. 1; A3 = Accused No. 3

A2 = Accused No. 2; A4 = Accused No. 4

Mobile Nos. of Accused No. 1 = 9845017289

Mobile Nos. of Accused No. 2 = 36940211

Mobile Nos. of Accused No. 3 = 36860795

Mobile Nos. of Accused No. 4 = 9845570337

Summary of calls between A3 and A4 from 25.11.2003 to 30.11.2003

Sl.No.

Out going from

Incoming To

Calltype

Date

Time

Court Exhibit

1

A3

A4

Voice call

25.11.2003

9.04P.M.

Exh.P.49(6)(b)

2

A3

A4

Voice call

25.11.2003

9.16P.M.

Exh.P.49(6)(b)

3

A3

A4

Voice call

25.11.2003

9.17P.M.

Exh.P.49(6)(b)

4

A3

A4

Voice call

25.11.2003

9.19P.M.

Exh.P.49(6)(b)

5

A3

A4

Voice call

25.11.2003

9.23P.M.

Exh.P.49(6)(b)

6

A3

A4

Voice call

25.11.2003

9.26P.M.

Exh.P.49(6)(b)

7

A3

A4

Voice call

25.11.2003

9.28P.M.

Exh.P.49(6)(b)

8

A3

A4

Voice call

25.11.2003

9.29P.M.

Exh.P.49(6)(b)

9

A3

A4

Voice call

25.11.2003

9.40P.M.

Exh.P.49(6)(b)

10

A3

A4

Voice call

27.11.2003

5.43P.M.

Exh.P.49(6)(c)

11

A3

A4

Voice call

27.11.2003

6.33P.M.

Exh.P.49(6)(c)

12

A3

A4

Voice call

27.11.2003

6.52P.M.

Exh.P.49(6)(c)

13

A3

A4

Voice call

27.11.2003

7.00P.M.

Exh.P.49(6)(c)

14

A3

A4

Voice call

27.11.2003

7.13P.M.

Exh.P.49(6)(c)

15

A3

A4

Voice call

27.11.2003

7.17P.M.

Exh.P.49(6)(c)

16

A3

A4

Voice call

27.11.2003

7.19P.M.

Exh.P.49(6)(c)

17

A3

A4

Voice call

27.11.2003

7.49P.M.

Exh.P.49(6)(c)

18

A3

A4

Voice call

28.11.2003

12.44P.M.

Exh.P.49(6)(c)

19

A4

A3

Voice call

28.11.2003

12.53P.M.

Exh.P.49(4)(a)

20

A4

A3

Voice call

28.11.2003

01.39P.M.

Exh.P.49(4)(a)

21

A4

A3

Voice call

28.11.2003

04.00P.M.

Exh.P.49(4)(b)

22

A3

A4

Voice call

29.11.2003

08.53A.M.

Exh.P.49(7)(a to c)

23

A4

A3

Voice call

29.11.2003

09.04A.M.

Exh.P49(4)(c)

24

A3

A4

Voice call

29.11.2003

08.07P.M.

Exh.P.49(7)(a to c)

25

A3

A4

Voice call

29.11.2003

08.30P.M.

Exh.P.49(7)(a to c)

26

A3

A4

Voice call

29.11.2003

08.41P.M.

Exh.P.49(7)(a to c)

27

A3

A4

Voice call

29.11.2003

08.45P.M.

Exh.P.549(7)(a to c)

28

A3

A4

Voice call

30.11.2003

07.42P.M.

Exh.P.49(6)(e)

29

A3

A4

Voice call

30.11.2003

08.46P.M.

Exh.P.49(6)(e)

30

A3

A4

Voice call

30.11.2003

08.49P.M.

Exh.P.49(6)(e)

31

A4

A3

Voice call

02.12.2003

01.21P.M.

Exh.P.49(6)(f)

32

A3

A4

Voice call

02.12.2003

03.49P.M.

Exh.P.49(8)

33

A3

A4

Voice call

02.12.2003

03.50P.M.

Exh.P.49(8)

34

A3

A4

Voice call

03.12.2003

06.01P.M.

Exh.P.49(8)(a)

Call summary on the date of engagement - 30-11-2003

Sl.No.

Out going from

Incoming To

Calltype

Date

Time

Court Exhibit

1

A4

A1

SMS

30.11.2003

08.51A.M.

Exh.P.51(64)

2

A4

A1

Voice Call

30.11.2003

09.11A.M.

P.51(60)

3

A1

A4

Voice Call

30.11.2003

10.22A.M.

P.51(94)

4

A4

A1

SMS

30.11.2003

10.48A.M.

P.51(64)

5

A4

A1

SMS

30.11.2003

12.49P.M.

P.51(64)

6

A3

A1

Voice Call

30.11.2003

01.00P.M.

P.49(6)(7)

7

A4

A1

SMS

30.11.2003

02.38P.M.

P.51(64)

8

A4

A1

SMS

30.11.2003

04.04P.M.

P.51(64)

9

A3

A4

Voice Call

30.11.2003

07.42P.M.

Exh.P.49(6)(7)

10

A3

A2

Voice Call

30.11.2003

08.22P.M.

Exh.P.49(6)(7)

11

A3

A2

Voice Call

30.11.2003

08.29P.M.

Exh.P.49(6)(7)

12

A3

A4

Voice Call

30.11.2003

08.46P.M.

Exh.P.49(6)(7)

13

A3

A4

Voice Call

30.11.2003

08.49P.M.

Exh.P.49(6)(7)

14

A3

A1

SMS

30.11.2003

10.53P.M.

P.51(64)

In the discussion made supra, we have accepted the admissibility and the authenticity of the documents marked as Exs.P.49 and P.51.

Before adverting to the exchange of calls between Accused Nos. 3 and 4, Accused Nos. 1 and 4, Accused Nos. 2 and 3, it is pertinent to state that the association of Accused No. 4 with accused No. 1 as a college mate has not been disputed so also the relationship of accused Nos. 3 and 1 as maternal cousins is not disputed. From the evidence of PW14 (father of accused No. 3), it is proved that accused No. 2 was a friend of accused No. 3. However the circumstances under which Accused No. 4 came to be associated with Accused No. 3 has not been explained. We emphasize on this fact having regard to the admitted relative positions of accused Nos. 1, 3 and 4. As already stated, Accused No. 1 was a college mate of Accused No. 4 and Accused No. 1 is the son of maternal aunt of Accused No. 3. At the relevant time, accused No. 4 was a student of V. Semester LLB Course in BMS College. From the evidence of PW.14 Uttamprakash, father of accused No. 3, we find that accused No. 3 was running an autorickshaw. PW.14 has deposed that Accused No. 3 was also running a tailoring institute. In order to establish this fact, Accused No. 3 has relied on the contents of Ex.D.6 which is a certificate issued to Accused No. 3 for having undergone tailoring course during January 2001 -December 2001 in Classic Institute Tailoring, Kammanahalli Main Road, Bangalore. This certificate Ex.D.6 is hardly sufficient to hold Accused No. 3 was running tailoring institute. PW.14 after his retirement from NGEF alongwith Accused No. 3 was running a shop in the name and style ''Keethana Mobitech'', wherein they were undertaking to repair mobile phones. Thus, we find that Accused No. 4 who was a law student and daughter of reputed Advocate had no academic connection with Accused No. 3 and she had no occasion to get acquainted with accused No. 3. The relative positions of accused Nos. 4 and 3 would certainly lead to an inference that their association was an unusual association. In the normal course, neither accused No. 3 nor accused No. 4 had any reasons to get acquainted themselves with each other. Therefore, the only inference that could be drawn is that accused No. 1 had introduced accused No. 3 to accused No. 4. From the summary of call extracts stated supra, we can safely infer that Accused No. 3 knew the mobile number of Accused No. 4. So also, Accused No. 4 knew the mobile phone number of Accused No. 3.

Now, adverting to the summary of calls as extracted supra, we find that on 25.11.2003 and also from four days or five days prior to the date of engagement, Accused Nos. 3 and 4 were in constant touch with each other by voice calls. On 25.04.2003, the first call was at 09.04 p.m. and the last call was at 9.40 p.m. (Call No. 9). The frequency of calls would create strong suspicion about their conduct.

On 27.11.2003, the first voice call between accused Nos. 3 and 4 was at 5.43 p.m and the last call was at 7.49 p.m. (Call No. 17).

On 28.11.2003, the first voice call from accused No. 3 to 4 was at 12.44 p.m. and voice calls from accused No. 4 to 3 were at 12.53 p.m., 1.39 p.m. and 4.00 p.m.

On 29.11.2003 the voice call from Accused No. 3 to Accused No. 4 was at 8.53 a.m. and from Accused No. 4 to Accused No. 3 at 9.04 a.m., followed by voice calls from Accused No. 3 to 4 at 8.07 p.m., 8.30 p.m., 8.41 p.m. and the last call was at 8.45 p.m.

On 30.11.2003, the first voice call from Accused No. 3 to 4 was at 7.42 p.m. followed by voice calls at 8.46 p.m. and 8.49 p.m.

We notice from the extract of call summary details on 30.11.2003 between 8.51 a.m. and 10.53 p.m., accused No. 1 and 4 had exchanged as many as eight voice calls and six SMS calls.

On 02.12.2003 accused No. 4 and 3 had voice calls at 1.21 p.m., 3.49 p.m., and 3.50 p.m.

The father and mother of accused No. 4 and junior aunt of accused No. 4 viz PW10, PW12 and PW9 respectively have deposed that accused No. 4 was a consenting party to the marriage with B.V. Girish. She was very much delighted with her marriage engagement. Infact, Accused No. 4 had expressed to PW.9 (her junior maternal aunt) that she was very lucky to have Girish as her would be husband. PWs.10 and 12 have deposed that Accused No. 4 had high regards, love and affection for B.V. Girish (since deceased).

The learned senior counsel appearing for accused No. 4 referring to evidence of PW9 and PW23 has contended that on the previous day of engagement and on the day of engagement, accused No. 4 was very cheerful and she was ecstatic.

In the discussion made supra, we have held that accused No. 4 was in constant touch with accused Nos. 1 and 3 on the date of engagement, a day prior to the date of engagement and few days prior to the date of engagement. The conduct of accused No. 4 would belie evidence of PW9 and PW23. From the conduct of accused No. 4, it is clear that her consent to the marriage and her outlook towards her fiance was ostensible. This is obvious from the fact that accused No. 4 was in constant touch with Accused No. 1 even on the date of marriage engagement and during the time of engagement which took place between 7.30 p.m. and 10.00 p.m. on 30.11.2003, we find that Accused No. 3 had contacted Accused No. 4 by voice calls. There were frequent exchange of SMS between Accused Nos. 4 and 1. In the circumstances, the conduct of Accused No. 4, her frequent contacts with Accused Nos. 1 and 3 on the aforesaid dates would lend substantial corroboration to the evidence of PWs.8, 11 and 23 that she was not willing to marry deceased B.V. Girish. These calls would demonstrate that accused No. 4 was very much after accused No. 1 equally so accused No. 1 was very much after accused No. 4.

In a decision reported in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , the Supreme Court has held:

A criminal trial is not an enquiry into the conduct of an accused of any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material....

In the case on hand, we do not have reasonable explanation for the conduct of Accused Nos. 1, 3 and 4 on the aforesaid dates either by way of evidence elicited in the cross examination of the prosecution witnesses or in the evidence given by parents of Accused No. 4 and the father of Accused No. 1. So also, we do not find any explanation from the accused for their aforesaid conduct in their examination u/s 313 Cr.P.C.

At this juncture, we would like to refer to the judgment of the Supreme Court, reported in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), as to the necessity of the prosecution to produce the exact conversation between the accused. In this decision at paragraph 226 the Supreme Court has held:

The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harbouring. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence....

(underlining supplied by us)

Therefore, from the evidence of PWs. 8, 11 and 23, the call details extracted supra and the conduct of Accused No. 4 on the date of her engagement and also few days prior to the date of engagement, we hold that the prosecution has proved that Accused No. 4 was not willing to marry B.V. Girish. Accused Nos. 1 and 4 had felt that B.V. Girish was an obstacle for their affair and future plans.

We also see from the photographs marked in the album as per Ex.P.15 that even during the marriage engagement, accused No. 4 was all along holding a mobile phone, which is not consistent with her normal conduct. During a marriage engagement, the normal conduct of prospective bride/bridegroom would be to greet invitees and receive blessings from elders and well-wishers for which purpose accused No. 4 was not needed to hold a mobile phone. Therefore, we hold that the prosecution has proved the motive for commission of the offence. We also hold that the consent given by accusedno.4 for her marriage with B.V. Girish and her close movements with B.V. Girish and also her opinion on B.V. Girish as expressed to her aunt were ostensible. At this juncture, it is necessary for us to state that accused No. 4 had contacted accused No. 3 with whom she had no legitimate purpose. Accused No. 3 had no legitimate purpose to contact accused No. 4. Accused No. 1 had contacted accused No. 4 at inappropriate time. Therefore, accused Nos. 1, 3 & 4 should have offered reasonable explanation for their conduct but they have not offered any explanation. The non-explanation of conduct of accused 1, 3 & 4 would fortify motive put forth by prosecution.

We notice from the evidence, in particular the evidence of PWs.5, 6, 10, 11 and 12 that B.V. Girish had no enemies. We also notice from the evidence of PW6, PW.15 and PW16 that all the belongings of the deceased viz scooter, digital diary had safely reached the hands of his father PW.6 Venkatesh. Thus, murder of B.V. Girish was not for gain. PW.12-Vijayalakshmi Shankarnarayan (mother of accused No. 4) has categorically deposed that B.V. Girish was good, handsome, well placed and a cultured person. Therefore from the evidence on record, it is not possible to draw an hypothesis that deceased B.V. Girish had inimical relationship with other persons and had incurred their wrath to lose his life. It is not necessary for the prosecution to meet any and every hypothesis put forth by the accused.

At this juncture, it is useful to refer to the judgment of the Supreme Court, reported in The State of Uttar Pradesh Vs. Hari Prasad and Others, wherein the Supreme Court has held:

...This is not to say that even if the witnesses are truthful, the prosecution must fail for the reason that the motive of the crime is difficult to find. For the matter of that, it is never incumbent on the prosecution to prove the motive for the crime. And often times, a motive is indicated to heighten the probability that the offence was committed by the person who was impelled by that motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive....

(underlining supplied by us)

The learned Counsel for accused Nos. 1 to 4 have contended that the prosecution having alleged that accused Nos. 1 to 4 had entered into conspiracy to do away with the life of B.V. Girish, has failed to adduce cogent and credible evidence to establish the conduct of accused Nos. 1 to 4 prior to the incident, at the time of incident and after the incident.

The learned Special Public Prosecutor referring to the call summary extracts and also the relative positions of accused Nos. 1 to 4 would submit that accused Nos. 1 to 4 were closely associated with each other, considering their relative positions, it was an unusual association and it was inconsistent with their innocence. Accused Nos. 1 to 4 were closely associated with each other either by voice calls and SMS calls prior to the incident, at the time of incident and after the incident.

In order to appreciate the above submissions and to highlight the conduct of accused Nos. 1 to 4 prior to the incident, at the time of the incident and after the incident, we deem it necessary to extract from the contents of Ex.P49 and Ex.P51, voice calls and SMS calls exchanged between accused Nos. 1 to 4 on 01.12.2003, 02.12.2003 and 03.12.2003. They are tabulated as here under:

Call details on 01.12.2003 viz two days prior to date of incident

Sl.No.

Out going from

Incoming To

Calltype

Date

Time

Court Exhibit

1

A3

A1

Voice call

01.12.2003

12.11P.M.

Exh.P.49(6)

2

A3

A2

Voice call

01.12.2003

12.13P.M.

P.49(6)

3

A3

A2

Voice call

01.12.2003

01.40P.M.

P.49(6)

4

A4

Deceased

Voice call

01.12.2003

07.45P.M.

P.51(61)

5

A3

A1

Voice call

01.12.2003

09.03P.M.

P.49(8)

6

A3

A1

Voice call

01.12.2003

10.47P.M.

P.49(8)

7

A3

A1

SMS

01.12.2003

10.53P.M.

P.51(96)

8

A1

A4

SMS

01.12.2003

10.56P.M.

P.51(96)

9

A4 (resi.ph)

A1

Voice call

01.12.2003

11.51P.M.

P.51(96)

Call details on 02.12.2003 viz one day prior to date of incident

Sl.No.

out going from

Incoming To

Calltype

Date

Time

Court Exhibit

1

A4

A1

SMS

02.12.2003

8.37A.M.

P.51(65)

2

A1

A4

SMS

02.12.2003

10.18A.M.

P.51(96)

3

A1

A4

SMS

02.12.2003

10.35A.M.

P.51(96)

4

A4

A1

Voice call

02.12.2003

10.39A.M.

P.51(96)

5

A3

A2

Voice

02.12.2003

11.20A.M.

P.49(11)

6

A3

A1

Voice

02.12.2003

11.21A.M.

P.49(8)

7

A1

A4

SMS

02.12.2003

01.11P.M.

P.51(96)

8

A4

Deceased

Voice

02.12.2003

01.12P.M.

P.51(61)

9

A4

A3

Voice call

02.12.2003

01.22P.M.

P.51(61)

10

A1

A3

Voice call

02.12.2003

3.11P.M.

P.49(5)

11

A4

A1

SMS

02.12.2003

3.41P.M.

P.51(65)

12

A3

A2

Voice call

02.12.2003

3.45P.M.

P.49(8)

13

A3

A4

Voice call

02.12.2003

3.49P.M.

P.49(8)

14

A3

A4

Voice call

02.12.2003

3.50P.M.

P.49(8)

15

A3

A2

Voice call

02.12.2003

3.54P.M.

P.49(8)

16

A3

A2

Voice call

02.12.2003

4.29P.M.

P.49(8)

17

A3

A2

Voice call

02.12.2003

4.53P.M.

P.49(8)

18

A1

A4

SMS

02.12.2003

5.07P.M.

P.51(96)

19

A4

A1

SMS

02.12.2003

5.12P.M.

P.51(65)

20

A4

A1

SMS

02.12.2003

5.37P.M.

P.51(65)

21

A4

A1

Voice call

02.12.2003

5.44P.M.

P.51(96)

22

A1

A2

Voice call

02.12.2003

6.32P.M.

P.49(11)(d)

23

A4

A1

SMS

02.12.2003

6.37P.M.

P.51(65)

24

A1

A4

SMS

02.12.2003

6.37P.M.

P.51(96)

25

A1

A4

Voice call

02.12.2003

6.46P.M.

P.51(96)

26

A4

Deceased

SMS

02.12.2003

6.49P.M.

P.51(65)

27

A4

A1

Voice call

02.12.2003

6.50P.M.

P.51(96)

28

A1

A2

Voice call

02.12.2003

6.52P.M.

P.49(11)(d)

29

A1

A4

SMS

02.12.2003

6.59P.M.

P.51(97)

30

A1

A2

Voice call

02.12.2003

7.03P.M.

P.49(11)(d)

31

A1

A2

Voice call

02.12.2003

7.42P.M.

P.49(11)(d)

32

A1

A2

Voice call

02.12.2003

7.44P.M.

P.49(11)(d)

33

A1

A4

Voice call

02.12.2003

7.44P.M.

P.51(97)

34

A4

A2

SMS

02.12.2003

7.55P.M.

P.51(65)

35

A1

A4

Voice call

02.12.2003

7.58P.M.

P.51(97)

36

A4

A1

Voice call

02.12.2003

7.59P.M.

P.51(97)

37

A4

A1

Voice call

02.12.2003

8.06P.M.

P.51(97)

38

A4

A1

Voice call

02.12.2003

8.14P.M.

P.51(97)

39

A4

A1

Voice call

02.12.2003

8.15P.M.

P.51(97)

40

A4

A1

Voice call

02.12.2003

8.20P.M.

P.51(97)

41

A1

A2

SMS

02.12.2003

8.28P.M.

P.51(97)

42

A1

A2

SMS

02.12.2003

8.28P.M.

P.51(97)

43

A1

A2

SMS

02.12.2003

8.29P.M.

P.51(97)

44

A1

A2

SMS

02.12.2003

8.31P.M.

P.51(97)

45

A1

A2

Voice call

02.12.2003

8.40P.M.

P.49(11)(d)

46

A4

A1

SMS

02.12.2003

8.59P.M.

P.51(65)

47

A4

A1

SMS

02.12.2003

9.05P.M.

P.51(65)

48

A4

A1

Voice call

02.12.2003

9.13P.M.

P.51(97)

49

A1

A4

SMS

02.12.2003

9.23P.M.

P.51(97)

50

A4

A1

SMS

02.12.2003

9.24P.M.

P.51(65)

51

A1

A4

SMS

02.12.2003

9.52P.M.

P.51(97)

52

A1

A4

SMS

02.12.2003

9.52P.M.

P.51(97)

53

A2

A1

Voice call

02.12.2003

10.08P.M.

P.51(97)

54

A4

A1

Voice call

02.12.2003

10.42P.M.

P.51(97)

55

A4

A1

SMS

02.12.2003

11.21P.M.

P.51(65)

56

A4

A1

SMS

02.12.2003

11.21P.M.

P.51(65)

57

A1

A4

SMS

02.12.2003

11.24P.M.

P.51(97)

58

A4

A1

SMS

02.12.2003

11.30P.M.

P.51(65)

Call details on the date of incident viz 03.12.2003

Sl.No.

Out going from

Incoming To

Calltype

Date

Time

Court Exhibit

1

A4

A1

SMS

03.12.2003

8.50A.M.

P.51(65)

2

A4

A1

Voice call

03.12.2003

10.33A.M.

P.51(97)

3

A4

A1

Voice call

03.12.2003

10.36A.M.

P.51(97)

4

A4

A1

Voice call

03.12.2003

12.17P.M.

P.51(98)

5

A4

A1

Voice call

03.12.2003

12.22P.M.

P.51(98)

6

A4

A1

Voice call

03.12.2003

12.31P.M.

P.51(98)

7

A4

A1

SMS

03.12.2003

01.06P.M.

P.51(65)

8

A1

A4

SMS

03.12.2003

01.09P.M.

P.51(98)

9

A4

A1

SMS

03.12.2003

01.11P.M.

P.51(65)

10

A4

A1

Voice call

03.12.2003

01.32P.M.

P.51(98)

11

A4

A1

SMS

03.12.2003

01.38P.M.

P.51(98)

12

A4

A1

Voice call

03.12.2003

01.53P.M.

P.51(98)

13

A1

A4

SMS

03.12.2003

2.10P.M.

P.51(98)

14

A4

A1

Voice call

03.12.2003

2.11P.M.

P.51(98)

15

A4

A1

SMS

03.12.2003

3.07P.M.

P.51(65)

16

A1

A4

Voice call

03.12.2003

3.16P.M.

P.51(98)

17

A1

A2

SMS

03.12.2003

3.23P.M.

P.51(98)

18

A1

A2

SMS

03.12.2003

3.30P.M.

P.51(98)

19

A1

A2

SMS

03.12.2003

3.39P.M.

P.51(98)

20

A3

A2

Voice call

03.12.2003

3.44P.M.

P.49(8)

21

A3

A1

Voice call

03.12.2003

4.52P.M.

P.49(8)

22

A3

A1

Voice call

03.12.2003

5.16P.M.

P.49(8)

23

A3

A1

SMS

03.12.2003

5.22P.M.

P.49(8)

24

A4

Deceased

Voice call

03.12.2003

5.32P.M.

P.51(61)

25

A4

Deceased

Voice call

03.12.2003

5.33P.M.

P.51(61)

26

A1

A2

Voice call

03.12.2003

5.42P.M.

P.49(12)

27

A3

A1

Voice call

03.12.2003

5.46P.M.

P.49(8)(j)

28

A3

A2

Voice call

03.12.2003

5.54P.M.

P.49(8)(k)

29

A3

A4

Voice call

03.12.2003

6.01P.M.

P.49(8)(k)

30

A4

Deceased

Voice call

03.12.2003

6.16P.M.

P.51(61)

31

A4

Deceased

Voice call

03.12.2003

6.25P.M.

P.51(61)

32

A1

A4

SMS

03.12.2003

6.37P.M.

P.51(98)

33

A4

A1

SMS

03.12.2003

6.41P.M.

P.51(98)&P.51(65)

34

A1

A4

SMS

03.12.2003

6.46P.M.

P.51(98)

35

A4

A1

SMS

03.12.2003

6.51P.M.

P.51(98)&P.51(65)

36

A1

A4

SMS

03.12.2003

6.54P.M.

P.51(98)

37

A4

A1

SMS

03.12.2003

6.56P.M.

P.51(98)

38

A1

A4

SMS

03.12.2003

7.03P.M.

P.51(98)

39

A4

A1

SMS

03.12.2003

7.05P.M.

P.51(98), 55

40

A1

A4

SMS

03.12.2003

7.12P.M.

P.51(98)

41

A1

A4

SMS

03.12.2003

7.21P.M.

P.51(98)

42

A1

A4

SMS

03.12.2003

7.28P.M.

P.51(98)

43

A4

A1

SMS

03.12.2003

7.37P.M.

P.51(98)

44

A3

A2

Voice call

03.12.2003

7.39P.M.

P.49(12)

45

A1

A4

SMS

03.12.2003

7.39P.M.

P.51(98)

46

A4

A1

SMS

03.12.2003

7.42P.M.

P.51(98)

47

A1

A4

SMS

03.12.2003

7.44P.M.

P.51(98)

48

A1

A4

SMS

03.12.2003

7.45P.M.

P.51(98)

49

A1

A4

SMS

03.12.2003

8.05P.M.

P.51(98)

50

A1

A4

SMS

03.12.2003

8.12P.M.

P.51(98)

51

A4

A1

SMS

03.12.2003

8.13P.M.

P.51(97)

52

A1

A4

SMS

03.12.2003

8.16P.M.

P.51(65)

53

A4

PW.10

Voice call

03.12.2003

8.17P.M.

P.51(61)

54

A1

A4

SMS

03.12.2003

8.20P.M.

P.51(98)

55

A4

A1

SMS

03.12.2003

8.22P.M.

P.51(99)

56

A1

A4

SMS

03.12.2003

8.23P.M.

P.51(99)

57

A4

A1

SMS

03.12.2003

8.26P.M.

P.51(99)

58

A1

A4

SMS

03.12.2003

8.32P.M.

P.51(99)

59

A4

A1

SMS

03.12.2003

8.33P.M.

P.51(99)

60

A1

A4

SMS

03.12.2003

8.38P.M.

P.51(99)

61

A3

A2

Voice call

03.12.2003

8.39P.M.

P.49(12)

62

A4

A1

SMS

03.12.2003

8.40P.M.

P.51(99)

63

A1

A4

SMS

03.12.2003

8.44P.M.

P.51(99)

64

A4

A1

SMS

03.12.2003

8.47P.M.

P.51(99)

65

A1

A4

SMS

03.12.2003

8.49P.M.

P.51(99)

66

A4

A1

SMS

03.12.2003

8.55P.M.

P.51(99)

67

A1

A4

SMS

03.12.2003

8.58P.M.

P.51(99)

68

A4

A1

SMS

03.12.2003

9.07P.M.

P.51(99)

69

A1

A4

SMS

03.12.2003

9.08P.M.

P.51(99)

70

A1

A4

SMS

03.12.2003

9.10P.M.

P.51(99)

71

A1

A4

SMS

03.12.2003

9.14P.M.

P.51(99)

72

A3

A2

Voice call

03.12.2003

9.25P.M.

P.49(12)

73

A1

A4

Voice call

03.12.2003

9.39P.M.

P.51(94)

74

A4

A1

SMS

04.12.2003

2.10A.M.

P.51(66)

75

A4

A1

SMS

04.12.2003

2.10A.M.

P.51(66)

76

A4

A1

SMS

04.12.2003

6.41A.M.

P.51(66)

77

A4

A1

SMS

04.12.2003

6.51A.M.

P.51(66)

78

A3

A2

Voice call

04.12.2003

8.36A.M.

P.49(8)

79

A3

A1

Voice call

04.12.2003

8.42A.M.

P.49(8)

80

A3

A2

Voice call

04.12.2003

9.14A.M.

P.49(8)

81

A3

A1

Voice call

04.12.2003

10.04A.M.

P.49(8)

82

A3

A2

Voice call

04.12.2003

10.12A.M.

P.49(8)

83

A3

A1

Voice call

04.12.2003

2.30P.M.

P.49(8)

84

A4

A1

SMS

04.12.2003

4.18P.M.

P.51(66)

85

A1

A3

Voicecall

04.12.2003

4.48P.M.

P.49(7)

In the discussion made supra, we have held that accused No. 4 had come in contact of accused Nos. 2 and 3 who were total strangers to her. Accused No. 1 is the maternal cousin of accused No. 3. Accused No. 2 was a friend of accused No. 3. From the evidence of PW14, we find that accused Nos. 3 and 2 were friends. P.W.14-Uttsmprakash T.B. (father of accused No. 3) was declared as hostile witness. During cross-examination by the learned Special Public Prosecutor, PW14 deposed that accused No. 2-Venkatesh might be one amongst several friends of accused No. 3-Dinesh alias Dinakaran. When PW14 was specifically questioned about relationship of accused Nos. 2 and 3, P.W.14 has deposed that he cannot say that how his son (accused No. 3) would behave with the accused No. 2 in the friends circle. P.W.14 admitted that accused No. 3 was running an autorickshaw. In the discussion made supra, we have referred to the relative positions of accused Nos. 1 to 4. At the risk of repetition, we state that: at the relevant time, accused No. 1 was a student of I Semester LL.B., in B.M.S. College of Law. The father of accused No. 1 i.e. P.W.22-N. Dhanashekaran was working as a Labour Officer and Commissioner for Workmen Compensation at Mandya. His wife Rambadevi (mother of accused No. 1, not examined before the Court), was working as an Officer in Central Bank of India at Bangalore and they owned and were residing in house bearing No. 45, 1/1, Charles Campbell Road, Cox Town, Bangalore-5. As already stated, accused No. 4 was a student of V. Semester and her father P.W.10 was a reputed lawyer and they were residing in their own house bearing No. 1414, 23rd Cross, Banashankari II Stage. Accused No. 2-Venkatesh is the first son of P.W.17-Anandan who was a resident of house No. 233, By appanahally Main Road, Naganapalya, Bangalore. PW14 has admitted that accused No. 1 and 3 are maternal cousins. P.W.17 has deposed that at the relevant time, he owned a goods transport vehicle [goods tempo] and accused No. 2 was helping PW17 in loading and unloading goods.

In the circumstances, the only inference that could be drawn is that accused No. 2 was introduced to accused No. 1 by accused No. 3 and accused No. 2 and accused No. 3 were introduced by accused No. 1 to accused No. 4. The learned Counsel for accused Nos. 1 and 4 either by way of cross-examination of the prosecution witness or by way of defence evidence have not brought on record any explanation for this unusual association of accused Nos. 1 to.4. When accused Nos. 1 to 4 were examined u/s 313 Cr.P.C., accused Nos. 1 to 4 have not offered any explanation for this unusual and strange association. From the call summary extract supra, it is clear that accused Nos. 1 to 4 knew the mobile phone numbers of each other. From the call summary as extracted supra, we find that on 01.12.2003 i.e., a day after the date of marriage engagement, accused No. 4 had spoken to her fiance i.e., deceased B.V. Girish only once. But, she had spoken to accused No. 1 at 11.51 p.m. late night. We also find that there were frequent exchange of voice calls between accused Nos. 3 and 4, accused Nos. 3 and 2, accused Nos. 1 and 4 and accused No. 1 and 3. On 01.12.2003 in all there were 9 calls. The first voice call between accused Nos. 1 and 4 was at 10.56 p.m. and the last call was at 11.51 p.m., viz few minutes earlier to midnight.

On 02.12.2003 i.e., a day prior to the date of incident, there were exchanges of SMS between accused Nos. 1 to 4. The first SMS from accused Nos. 4 to 1 was at 8.37 a.m. and the last SMS between accused Nos. 4 and 1 was at 11.30 p.m. We also notice from the call summary extract that there were 58 calls from 8.37 a.m. to 11.30 p.m. between accused Nos. 1 to 4. We also notice that there were voice calls between accused Nos. 1 and 4, accused Nos. 1 and 3, accused Nos. 2 and 3, accused No. 4 and 1, accused Nos. 1 and 2 and accused Nos. 2 and 1. On 02.12.2003, accused No. 4 from her mobile phone had called B.V. Girish twice.

On the date of incident, viz 03.12.2003 there were as many as 73 SMS calls and voice calls between accused Nos. 4 and 1, accused Nos. 1 and 4, accused Nos. 1 and 2, accused Nos.3 and 2, accused Nos. 3 and 1 and accused Nos. 3 and 4. There were 4 voice calls from accused No. 4 to B.V. Girish. We find that the rest of the calls were between accused Nos. 1 and 2, accused Nos. 4 and 1 and accused Nos. 2 and 3.

From the evidence of PW5, PWs.6, PW10 and PW12, it is proved that on 03.12.2003 between 6.30 p.m. and 9.30 p.m.B.V. Girish and accused No. 4 had gone to TGIF hotel for dinner and were staying in the hotel. It is in the evidence of P.W.12 that on 03.12.2003 at around 6.00 p.m., deceased B.V. Girish picked up accused No. 4 from her house and took her on his scooter after informing PW5 and PW12 that they would be going for dinner in TGIF hotel at Airport Road. The incident of assault on B.V. Girish took place around 10.00 p.m. We notice from the call history extract, that accused No. 4 had contacted deceased B.V. Girish by voice calls at 5.32 p.m., 5.33 p.m., 6.16 p.m. and 6.25 p.m. Accused No. 3 had contacted accused No. 4 at 6.01 p.m. We notice from extract of call summary, there were voice calls between accused Nos. 1 and 2, accused Nos.1 and 3 and accused Nos. 3 and 2 between 5.42 p.m. and 6.01 p.m. on 03.12.2003. It is clear from the evidence of P.Ws.5, PW6 and PW12, on 03.12.2003 after 6.30 p.m. accused No. 4 was in the company of her fiance i.e., B.V. Girish. We notice from the call summary extract that when accused No. 4 was with her fiance i.e., B.V. Girish, she was in constant touch with accused No. 1 by SMS calls. The first SMS was sent by accused No. 1 to accused No. 4 at 6.37 p.m. the reply SMS was sent by accused No. 4 to accused No. 1 at 6.41 p.m., the second SMS was sent by accused No. 1 to accused No. 4 at 6.46 p.m. and the reply SMS was sent by accused No. 4 to accused No. 1 at 6.51 p.m., the third SMS was sent by accused No. 1 to accused No. 4 at 6.54 p.m. and the reply SMS was sent by accused No. 4 to accused No. 1 at 6.56 p.m., the fourth SMS was sent by accused No. 4 to accused No. 1 at 7.03 p.m. and the reply SMS was sent by accused No. 4 to accused No. 1 at 7.05 p.m. The fifth SMS was sent by accused No. 1 to accused No. 4 at 7.12 p.m. and there was another SMS sent by accused No. 1 to accused No. 4 at 7.28 p.m. The reply SMS from accused No. 4 to accused No. 1 was at 7.37 p.m. There was a SMS call from accused No. 1 to accused No. 4 at 7.39 p.m. and reply SMS from accused No. 4 to accused No. 1 was at 7.42 p.m. We also notice that there was a voice call from accused Nos. 3 to accused No. 2 at 7.39 p.m. Between 7.44 p.m. and 8.12 p.m. accused No. 1 had sent four SMS to accused No. 4. At 8.13 p.m. accused No. 4 had sent SMS to accused No. 1 and accused No. 1 had sent reply SMS to accused No. 4 at 8.16 p.m. At 8.17 p.m. accused No. 4 had contacted her father-P.W.10 by voice call. Thereafter, there were continuous exchanges of SMS between accused No. 1 and 4 from 8.20 p.m. to 9.14 p.m. The frequency of exchange of SMS varied from two minutes to seven minutes. There were voice calls from accused No. 3 to 2 at 8.39 p.m. and 9.25 p.m. At this juncture, we would like to emphasis that between 6.00 p.m. and till the time of incident, which took place at about 9.40 p.m. or 10.00 p.m. accused No. 4 was in the company of her fiance (B.V. Girish). All along, accused No. 4 was in constant touch with accused No. 1 by sending and receiving SMS from accused No. 1. From the exchange of SMS between accused Nos. 1 and accused No. 4, the only inference that could be drawn is that accused No. 4 was clandestinely sending and receiving SMS from accused No. 1 without the notice of B.V. Girish. Accused No. 4 had shown by her conduct that she was deliberately concealing information exchanged between accused No. 1 and accused No. 4 from the deceased. Above all, from the conduct of accused Nos. 1 and 4 in exchanging SMS when accused No. 4 was in the company of her fiance (B.V. Girish) is not consistent with their innocence. We notice that at 9.25 p.m., there was a voice call from accused No. 3 to accused No. 2. We notice from the call extract summary that there was voice call from accused Nos. 1 to accused No. 4 at 9.14 p.m., which was just 30 or 40 minutes prior to time of incident. We also see from the history of calls both the voice calls and SMS calls exchanged between accused 1 to 4 immediately prior to the time of incident had emanated from a tower at Domlur, which encompasses an area falling within a radius of 6 kms from the tower. This would lend credence to the case of prosecution about movements of accused 1 to 3 nearer to the place of incident. The place of incident is covered by Domlur Airtel tower. We also notice that after the incident, till 2.10 a.m. on 04.12.2003, there was no exchange of calls either voice or SMS amongst any of the accused. From the evidence of PW15, PW16 & PW29 and contents of accident register extract of Manipal Hospital, we find that B.V. Girish had been assaulted around 10 p.m., and he had been shifted to Manipal Hospital within 15 minutes thereafter.

The prosecution was not able to retrieve the texts of SMS and produce the computerised extract of texts of SMS as they had been manually deleted from the mobile phones of accused Nos. 1 and 4 before they were handed over to the Investigating Officer on 26.01.2004. P.W.10 has categorically deposed that when he produced the mobile phone-M.O.10 which was possessed and used by accused No. 4 before the Investigating Officer on 26.01.2004, the inbox and outbox of M.O.10 did not contain any messages and the inbox and outbox of M.O.10 were empty. We infer the same was the situation with M.O.13 (mobile held and used by accused No. 1) produced by PW22-Dhanashekaran (father of accused No. 1) before PW31-Investigating Officer on 26.01.2004. If the messages referred to above pertained to any legitimate purpose, there were no reasons to delete the messages from M.O.10 and M.O.13. Therefore, it was for the accused to establish either by cross-examination of prosecution witnesses or by offering satisfactory explanation in their statements recorded under 313 Cr.P.C., the legitimate purpose for which the accused had exchanged SMS calls since few hours prior to the time of incident till few minutes before the time of incident. The abrupt discontinuance of contacts through voice calls and SMS calls between accused Nos. 1 and 4 and other accused after the incident till 2.10 a.m. on 04.12.2003 would reflect the most unusual conduct of accused.

The learned Counsel for the accused have found fault with the prosecution for not retrieving and producing the texts of SMS. As already stated, the mobile phones possessed by accused Nos. 1 and 4 were in their possession. The mobile phone possessed and used by accused No. 4 was handed over by her father P.W.10-B.S. Shankaranarayan to the Investigating Officer on 26.01.2004 so also the mobile phone possessed and used by accused No. 1 was handed over by his father P.W.22-Dhanashekar to the Investigating Officer. Therefore, it was not possible for the prosecution to produce the extracts of text of SMS exchanged between accused No. 1 and accused No. 4.

In view of what has been held in the decision of Manu Sharma''s case referred to supra, when the call data indicates that there were exchanges of several SMS from the mobile phone of accused Nos. 1 and 4 and vice versa, it was not incumbent upon the prosecution to produce the text of SMS. On the other hand, absence of texts of these SMS in the inbox and outbox of mobile phones of accused Nos. 1 and 4 would lead to an inference that the SMS were deleted by manual operation before the mobile phones possessed and used by accused Nos. 1 and 4 were handed over by P.Ws.10 and 22 to the Investigating Officer. From the conduct of accused No. 1 and accused No. 4 an adverse inference would arise against their innocence.

The matter could also be viewed from another angle. The conversation that took place between the accused at the crucial point of time and the SMS exchanged between the accused at the crucial point of time were within the exclusive knowledge of the accused. If the accused had any other legitimate purpose to be in contact with each other at the crucial point of time, it was for them to explain the same before the trial Court. The fact that accused Nos. 1 to 4 were in touch with each other through their mobile phones by voice calls and SMS calls would clearly establish that accused Nos. 1 to 4 were contriving with each other prior to the time of incident.

In Manu Sharma''s case referred to supra at paragraph 226 the Supreme Court has held:

The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harbouring. Thus the finding of the trial court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence.

(underlining supplied by us)

In view of the discussion made supra and also in light of what has been held in the decision referred supra, we hold that association of accused No. 1 to accused No. 4 was an unusual association and their close association by voice calls and SMS calls is not consistent with their innocent conduct.

The sequence and frequency of voice calls and SMS calls extracted supra, particularly just few hours before the time of incident till few minutes before the time of incident would indicate that the accused were contacting each other and they were in constant touch with each other to accomplish a well planned and well timed act.

Now, we will advert to the evidence of PW.15 Thomas and PW.16 Toli Uken who have given eye-witness account of the incident. PW.15 Thomas is an ex-service man. He had served in Military for a period of 20 years and retired from the service in 1989. Thereafter, he had settled in an area called Nadughatta in Ejipura, Bangalore. At the relevant time, he was working as an Interior Decorator and PW.16 was associated with his business. At the relevant time, PW.16 was residing in Ejipura Bus Stand. He was an artist working in a private firm on a monthly salary of Rs. 9,000/-.

PW.15 has deposed that on 3-12-2003 at about 9.45 p.m., PWs. 15 and 16 were returning on TVS Moped ridden by PW.15. PW.16 was the pillion rider. They were coming from Domlur to Koramangala on Air Port Ring road. When they reached Air View point, PW.15 saw a dark complexion person with robust physique assaulting on the head of another person with a steel rod. After the assault, the injured held his head with his hands and collapsed on the footpath. Thereafter, the assailant came across PW.15 ran towards the road, at that time, a scooter came from the side of Airport road intersection. The assailant jumped and sat on the pillion of the scooter and thereafter the rider of scooter took a ''U'' turn and both of them fled away from that place towards Airport road intersection and scooter was ridden on the wrong side of the road.

Before proceeding to appreciate evidence of PW.15, it is necessary to briefly describe the location and topography of the place of occurrence, which has not been controverted by the defence. It is also shown in the sketch marked as Ex.P.21. The road near the place of occurrence is a stretch of the inner ring road connecting Koramangala road junction and airport road junction. The road near the place of occurrence runs in the direction of north to south. (Koramangala road intersection on southern side and airport road intersection on northern side). It is a double road with a Centre median. The eastern portion of road is meant for vehicles plying from North to South and western portion of road is meant for vehicles plying from South to North. The airport area (surrounded by a compound wall) is situate towards the eastern side of the road. The Air View Point is situate on the Eastern footpath. At this juncture, we would like to clarify this Air View Point is not a recognised tourist spot either by the BBMP or from the Department of Tourism. The persons who are keen of seeing landing of aeroplanes could see the same from standing at Air View Point located on the Eastern footpath of the Airport ring road. The electric lamp posts are situate on the centre median - each electric pole has two lamps fitted to the forked and bent portions of poles and it is a well lit road.

PW.15 has deposed; he raised hue and cried "Kyon Maarthe Hai, Kaun Hai". PWs.15 and 16 stopped their vehicle and went near the injured who had fallen on the foot path. The injured was unconscious. A girl was standing at a distance of 10 feet from the injured. PW.15 seeing the incident tried to stop the vehicles plying on the road to shift the deceased to the hospital, ultimately CW.21 C. Sujesh Kumar who was travelling along with his wife CW.22 stopped his car. PW.15 with the help of an autorickshaw driver shifted the deceased into the back seat of the car and that girl sat on the front seat of the Car. PW.15 requested CW.21 to take the injured to Manipal Hospital situate on Airport Road. Accordingly, CW.21 drove the car towards Manipal Hospital on Airport road. Thereafter, PW.15 found that the scooter of the injured was left unattended. PWs.15 and 16 thought that some one might take away the scooter and therefore, PW.15 drove the scooter of the injured and PW.16 drove the TVS moped of PW.15 and they reached the house of PW.15. Thereafter, PW.15 contacted his tenant CW.29 Naveen, who opened the dickey of the scooter and found a digital diary, lap top and the visiting card of injured from which they came to know that the injured was working as a Software Engineer in Intel Company at Airport road. CW.29 contacted CW.30 Radhakrishna (Security Supervisor of Intel Company) over phone and informed him of the incident. CW.30 - Radhakrishna and CW.31 came to the house of PW.15 and took the scooter, laptop and digital diary of the deceased. At this juncture, it is necessary to state that after few days, CW.30 - Radhakrishna handed over the scooter and the digital diary of the deceased to PW.6 - Venkatesh (father of deceased). The laptop was retained by the Intel Company as it belonged to Intel Company.

The Investigating Officer recorded the statement of PW.15 on 5.12.2003. PW.15 has given the physical features of the assailant. PW.15 has deposed that the assailant was a person of dark complexion with robust physique. However, PW.15 has not given the physical features of rider of scooter.

PW.15 has identified the assailant as Accused No. 2 and the rider of scooter as Accused No. 1 and the girl who was standing near the deceased as Accused No. 4 before the Trial Court.

The defence has attacked the evidence of PW.15 on several grounds. The learned Counsel appearing for the accused apart from referring to several discrepancies in the evidence of PW.15 have raised the following basic questions regarding the credibility of evidence of PW.15.

The learned Counsel for accused have submitted that PW.15 had limited opportunity to see assailant (later identified as accused No. 2 before trial court) and rider of scooter (later identified as accused No. 1 before trial court) who admittedly were unknown to PW.15. As per the evidence of PW.15, he had a fleeting glance of assailant and rider of scooter. The Investigating Officer had not held test identification parade. The evidence given by PW.15 regarding the dock identification of accused No. 1 and 2 is of weak character, in the absence of Test identification parade it cannot be believed. There was delay in recording statement of PW.15 u/s 161 Cr.P.C.

The defence has sought to establish that PW.15 was a Police informer and PW.6 the father of the deceased had approached and requested PW.15 to be a witness in this case. The defence has contended that PWs.15 and 16 are planted witnesses.

Before adverting to submission of the learned Counsel for accused, we would refer to the background of PW.15 and his position with relation to accused and the relatives of deceased. PW.15 was neither known to accused nor relatives of deceased. PW.15 was an independent witness. He was not interested in the success of case of prosecution. PW.15 was a disinterested witness. Though it has been suggested to PW.15 that he was a Police informer and he was a regular witness in the criminal cases filed by PW.31, we find that the suggestions are totally baseless. Considering the background of the witness, we find that he had not sprung from a tainted source. PW.15 did not have any motives to falsely implicate the accused nor he was interested in the success of the case of prosecution. PW.15 had no acquaintance with the family members of deceased.

The learned Counsel for the accused have relied upon following decisions:

I. 2007 Crl.L.J 2740 (SC) (Ravi @ Ravichandran v. State)

II. Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh,

III. Mahabir Vs. The State of Delhi,

IV. 2005 SCC (Cri.) 801 (State of M.P. v. Ghudan)

to contend that the assailant was unknown to PW.15 and in the absence of test identification parade, his evidence of identification of accused 1 and 2 before the Court cannot be accepted.

In the case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , the Supreme Court at paragraphs 256 to 258 has held:

The law as it stands today is set out in the following decisions of this Court which are reproduced as herein under:

Munshi Singh Gautam v. State of M.P. (SCC pp.642-45 paras 16-17 & 19)

As was observed by this Court in Matru v. State of U.P. identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (see Santokh Singh v. Izhar Hussain) . The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on those testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a mater for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa v. State of A.P., Budhsen v. State of U.P. and Rameshwar Singh v. State of J and K).

In Harbajan Singh v. State of J and K, though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16-12-1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held: (SCC p.481, para 4)

In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the investigating office ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villagers only shows the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant.

Malkhansingh v. State of M.P.: (SCC pp.751-52, para 7)

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak characters. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule or prudence, however is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

Mr. Ram Jethmalani has further placed heavy reliance on two books by foreign authors, namely, Proof of Guilt by Glanville Williams, 3rd Edn. And Eye Witness identification in Criminal Cases by Patrick M. Wall, to urge that identification of an accused in court is a serious matter and the chances of a false identification are very high. These texts only reiterate what the various courts have held time and again. The view of the said author has been quoted by this Court, the earliest judgment being Shivaji Sahbrao Bobade v. State of Maharashtra (SCC p.799, para 6)

...The evil of acquitting a guilty person light heartedly as a learned author (Glanville Williams in Proof of Guilt) has sapiently observed, goes much beyond the simple fact the just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ''persons'' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that ''a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....

The learned Solicitor General submitted that, even otherwise, an adverse inference ought to be drawn against the appellants for their refusal to join the TIP. This view has found favour time and again by this Court. It is pertinent to note that it is dock identification which is a substantive piece of evidence. Therefore even where no TIP is conducted no prejudice can be caused to the case of the prosecution.

(underlining supplied by us)

Therefore, the submissions of learned Counsel for accused that in the absence of the test identification parade, the evidence of dock identification given by PW.15 is incredible and not trustworthy, cannot be accepted.

The learned Counsel for the accused relying on the judgment of the Hon''ble Supreme Court reported in Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh, have submitted that PW.15 had limited opportunity to see the assailant and also the rider of scooter. Therefore, on account of limited opportunity which PWs.15 had to see the assailant and rider of scooter, in the absence of test identification parade, his evidence of dock identification that accused No. 2 was the assailant and accused No. 1 was the rider of scooter cannot be accepted. In the decision reported in Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh, , the Supreme Court has held:

It has also been held that the evidence of the identification of accused for the first time is inherently weak in character and the Court has held that the evidence in test identification parade does not constitute substantive evidence and these parades are governed by Section 162 of Code of Criminal Procedure and the weight to be attached to such identification is a matter for the courts.

In the case on hand, we find from the evidence of PW.15 that after the occurrence, he had taken the scooter of deceased and had contacted the security personnel of Intel Company through CW.29-Naveen. After the arrival of the security supervisor of Intel Company namely CW.30-Radhakrishnan, PW15 informed the incident to him and handed over the belongings of the deceased viz. scooter, laptop and digital diary. The scooter of the deceased and his digital diary had safely reached the hands of PW6 (father of deceased). The conduct of PW15 after the incident would lend corroboration to the presence of PW15 at the time and place of incident. Even otherwise, we do not find that PW.15 had any reasons to entangle himself as an eyewitness in a murder case, when nothing is brought in the evidence of PW15 to show that he was a stock witness for the Police or he was a hired witness by the father of the deceased. PW.15 had served in the defence of this country for a period of 20 years. From his evidence, we find that he is a public spirited citizen and capable of withstanding tense situation obviously due to his service background.

PW.15 has deposed that he had seen an unknown assailant assaulting the deceased with a steel rod. The deceased after receiving blows held his hands on his head and collapsed. A girl was standing at a distance of 10 feet from the deceased. PW15 had seen the incident of assault from a distance of 10 or 15 feet. The assailant, after the incident of assault came across PW15 and ran towards scooter, the engine of which was kept in running condition. The scooterist came from the side of Airport road intersection and took a ''U'' turn. The assailant ran, jumped and sat on the pillion of scooter and the scooter fled away towards Airport road intersection. PW.15 was at a distance of 50 feet from the scooter. From the conduct of PW.15, we find that he had helped Accused No. 4 in shifting the deceased to Manipal Hospital and contacted security personnel of Intel Company and handed over scooter and other belongings of deceased to them.

In a decision reported in Malkhansingh and Others Vs. State of Madhya Pradesh, the Supreme Court has held that even in the absence of a test identification parade, if the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration, the evidence of identification can be acted upon.

In a decision reported in Daya Singh Vs. State of Haryana, the Supreme Court has held:

...For that purpose, the evidence of the witness is required to be appreciated with extra care and caution. But, where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorizing the identity of the assailants. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon capacity to recapitulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the Court earlier....

The learned Counsel for accused have submitted there was delay in recording the statement of PW15 u/s 161 Cr.P.C. Therefore, PW15 was a planted witness.

The contention of the defence that there was delay in recording the statement of PW.15 cannot be accepted for more than one reason. The incident occurred at about 10.00 p.m. on 3.12.2003 and the first information was registered at 10.30 a.m. on 4.12.2003 against unknown assailant. The statement of PW.15 was recorded on 5.12.2003. At this juncture, it is relevant to state that as on 5.12.2003 none of the accused was in the frame of investigation. In fact, Accused Nos. 1 and 4 were also subjected to interrogation. As on 05.12.2003, there was no clue about the participation of Accused Nos. 1 to 4. It was not a situation where the Investigating Officer was marking the time to plant the witnesses to give a definite shape to the prosecution. It was also not a situation where the Investigating Officer after framing the accused was in search of witnesses to plant them to give a definite shape to prosecution case. Therefore, the submission made by the learned Counsel for accused, relying on the decisions reported in Balakrushna Swain Vs. State of Orissa, Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors. and Ganesh Bhavan Patel and Another Vs. State of Maharashtra, cannot be accepted. In a decision reported in Ganesh Bhavan Patel and Another Vs. State of Maharashtra, , the Supreme Court has held:

Such delays may not, by themselves, amount to a serious infirmity in the prosecution case. But they may assume such a character if there are circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such sinister significance to these delays, exists in the instant case, which inevitably lead to the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation, in a shady setting highly redolent of doubt and suspicion.

The learned Counsel for accused have sought to discredit the evidence of PW15 on the ground that PW15 has deposed that the deceased was assaulted by an assailant (later identified as accused No. 2 before Court) with a steel rod (M.O.11), whereas M.O.11 is a steel pipe.

In order to appreciate this submission, it is necessary to state that external appearance of a steel rod and a steel pipe is one and the same, both are elongated objects. The only difference is steel rod is a solid mass and a steel pipe would be hollow. Therefore, when PW15 had seen weapon of assault from a distance of 10 to 15 feet, he has described weapon of assault as a steel rod. This cannot be a ground to discredit his evidence.

The learned Counsel for accused have submitted that PW15 did not rush to police station to inform occurrence either on the date of occurrence or on the following day.

At this juncture, we would like to state that PW15 was a passerby. He is not related to the deceased. The deceased was shifted to Manipal Hospital at Airport Road. The family members of the deceased, family members of accused No. 4 reached Manipal Hospital within a short time. In the circumstances, one could hardly expect that PW15 should have gone to police station to lodge first information. There was lapse on the part of accused No. 4 so also PW10, who is a practicing Advocate for their failure to inform occurrence at the earliest. PW10 has produced marks cards of accused No. 4 and has deposed that accused No. 4 was holding moot court rehearsals in his house and she was keen to pursue her studies. Accused No. 4 had seen the incident of assault, which was a cognizable offence. Therefore, accused No. 4 should have informed the police at the earliest. Therefore, evidence of PW15 cannot be suspected for not lodging the first information.

The learned Counsel for accused have contended that PW15 has admitted to have seen photographs of accused in newspapers and also on television subsequent to date of incident. PW15 had also seen the accused in the police station. The learned Counsel for accused, relying on the decisions reported in V.C. Shukla and Others Vs. State (Delhi Administration), have contended that the evidence of identification of accused by PW15 before the Court had lost its significance. In Manu Sharma''s case, the Supreme Court has held test identification parade and photo identification held during investigation would be only to check veracity of the witnesses and evidence of identification of accused before the Court is the substantive evidence. Therefore, submission of learned Counsel for accused cannot be accepted.

Here we pause for a moment and state the reasons for failure to hold test identification parade.

PW27-Chetana Belagere, who is a producer of a television serial had taken photographs and there was video coverage of accused when they were produced before committal Magistrate on 25.01.2004. The photographs of accused No. 1 to 4 had appeared in newspapers on subsequent days. The photographs of accused No. 1 to 4 were shown in television serial under the caption "Crime Diary". In the circumstances, even if test identification parade had been held that would not have gained any significance. In the circumstances, learned Counsel for accused cannot find fault with the prosecution for not holding test identification parade. Therefore the submission of learned Counsel for accused that evidence of dock identification of accused given by PW15 cannot be accepted, has no basis.

The learned Counsel for accused drawing out attention to the evidence of PW15 would submit that PW15 has deposed that the incident was over within two seconds. Therefore, PW15 did not have any opportunity to see the assailant or the rider of scooter, who had accompanied the assailant. We are not persuaded to accept this submission for the following reasons:

It is manifest from medical evidence of PW18 and PW29 that three or four blows were dealt on the head of B.V. Girish. PW15 has deposed that assailant came across him and jumped on pillion seat of scooter, which came from the side of Airport road intersection and rider of scooter took a U-turn near the place of occurrence. Therefore, the evidence of PW15 that the incident was over within two seconds is an embellishment. We are yet to come across a witness, whose evidence does not suffer from such embellishments, which do not shake the substratum of evidence.

The learned Counsel for accused have found fault with PW15 for not chasing assailant.

PW15 has deposed that assailant came across him and jumped and sat on pillion seat of scooter and thereafter fled away on the scooter. PW15 has deposed that the victim of assault after receiving injuries on his head fell down. PW15 was anxious to save the life of injured. In the circumstances, one cannot expect that PW15 should have chased the assailant who fled away on a scooter. If PW15 had shown interest to shift the injured to hospital, that cannot be termed as unnatural conduct. Therefore, we cannot find fault with the conduct of PW15.

As regards identification of accused No. 4, there is no much controversy. The defence has not disputed presence of accused No. 4 at the time and place of incident. PW15 has identified accused No. 4 before the Court, which fact has not been controverted by the defence.

PW15 has deposed that scooter on which assailant and rider of scooter (later identified as accused 1 & 2 before Court) fled away from place of incident was a black Kinetic Honda. However, PW15 has not given registration number of the said vehicle, as it could not be noticed by him. Therefore, we do not find any reason to suspect the evidence of PW15.

PW16-Toli Uken had accompanied PW15. On the date of occurrence, both of them were returning from Domlur to Eejipura on a TVS moped ridden by PW15. PW16 has deposed that he was stunned by the incident; he was at a distance of 10 to 15 feet. PW16 has given physical features of the assailant (later identified as accused No. 2 in the Court). PW16 has not given the physical features of accused No. 1.

At this juncture, we would like to state that the conduct and reaction of different witnesses would vary from each other. The manner in which the witnesses would react in a given situation depends upon their guts and strength to withstand tense situation of witnessing ghastly crime.

PW16 has deposed that scooter on which assailant fled away was a black Kinetic Honda scooter. In the subsequent part of this judgment, we would deal with seizure of Kinetic Honda scooter.

PW16 was an artist working on a monthly salary of Rs. 9,000/-. PW16 was residing along with his wife in a rented house at Eejipura Bus Stand.

From the evidence of PW16, we find that he had shown reluctance or in a way, he was not available for the Investigating Officer for recording his statement u/s 161 Cr.P.C. The statement of PW16 u/s 161 Cr.P.C., was recorded on 21.02.2004.

The learned Counsel for accused apart from pointing out discrepancies in the evidence of PW16 have submitted that inordinate delay in recording statement of PW16 u/s 161 Cr.P.C., would clearly demonstrate that PW16 was a planted witness.

We disagree with this submission for the following reasons:

PW16 is a native of Kerala State. PW16 had come and settled at Bangalore to eke-out his livelihood. The monthly salary of PW16 was Rs. 9,000/-. It is natural that PW16 was hesitant to entangle himself as a witness in a murder case. It is probable that he was apprehensive that he may lose his abode at Bangalore. PW15 has deposed about presence of PW16 near place of occurrence. PW16 has deposed that after occurrence PW15 took scooter of the deceased and PW16 took TVS moped of PW15. After reaching the house of PW15, PW15 contacted CW30-P.S. Radhakrishnan, the Security Supervisor of Intel Company through his tenant CW29-A.S. Naveen. After arrival of the Security Officer (CW30) the belongings of the deceased were handed over to him.

In view of consistent evidence given by PW15 about presence of PW16 near place of occurrence, the contention of defence that PW16 was a planted witness cannot be accepted. PW16 was neither interested in the success of case of prosecution nor he was inimical to accused 1 to 4.

We find from the investigation records that investigation gained its momentum only after arrest of accused on 25.01.2004. After registration of crime, the Investigating Officer had even treated accused No. 4 as a witness for spot mahazar. In fact, first information lodged by PW5 was nothing but information of incident conveyed by accused No. 4 to PW5. The Investigating Officer had also recorded statement of accused No. 4. The process of investigation involved elimination of PW23-Pramod Dikshith as a suspected accused. Therefore, it is not possible to hold that PW16 was a planted witness.

From the evidence of PW16, we find that his evidence relating to identification of accused No. 2 is sought to be discredited on the ground that he had not given complete physical features of accused No. 2, in his statement recorded u/s 161 Cr.P.C. Accused No. 2 was arrested on 25.01.2004. The statement of PW16 was recorded on 21.02.2004. If the Investigating Officer was interested in concocting or giving definite shape to the case by introducing PW16 as a witness, we would not have found complete physical features of accused No. 2 as an omission in the statement of PW16 recorded u/s 161 Cr.P.C.

We find from the evidence of PW16 that he had narrated occurrence to his several colleagues, probably to seek their advice whether it would be safe for him to become witness in the case. Therefore, delay in recording statement of PW16 u/s 161 Cr.P.C., cannot be a ground to discard his evidence.

The learned Counsel for accused referring to the evidence of PW16 have submitted that PW16 has deposed when the deceased was being assaulted, PW15 & PW16 were sitting on a TVS moped and PW15 had stopped moped after passing the place of occurrence. Therefore, the evidence of PW15 & PW16 suffers from material discrepancies.

PW15 & PW16 have deposed that both of them came on a TVS moped. PW15 was the rider and PW16 was a pillion rider of TVS moped. After seeing the incident, it is natural that PW15 had taken some time to stop and park his vehicle. PW15 & PW16 could not have jumped from the vehicle unmindful of their safety. Therefore, we cannot find fault with PW15 & PW16 to reach place of occurrence after parking the vehicle. In our opinion, the discrepancy in the evidence of PW16 as to whether TVS moped was parked after crossing place of occurrence or before crossing place of occurrence is not of much consequence in view of proved fact that both PW15 & PW16 had witnessed the incident from a distance of 10 or 15 feet.

The learned Counsel for accused have submitted that PW16 had not lent his hand to shift the injured to hospital.

PW16 has deposed that he was stunned after seeing the incident. PW16 has deposed that he became tense after witnessing the incident and he continued to suffer from tension even when he was examined before the trial Court.

PW15 was an ex-serviceman. PW15 was brave and bold to raise up to the situation. PW16 was a civilian. It appears PW16 had not come across ghastly incidents in his past. Therefore, the evidence of PW16 that he was tense and he could not lend his hand to shift the injured to hospital cannot be a ground to discredit his evidence, on the other hand it would lend assurance to his evidence.

Thus, we find evidence of PW15 finds substantial corroboration from the evidence of PW16. The conduct of PW15 and PW16 after occurrence in safely taking the belongings of the deceased and handing over the same to the security officials of Intel Company would not only lend corroboration to their evidence but also demonstrates they had acted as public spirited citizens.

The evidence of PW15 is sought to be discredited on the ground that there has been discrepancy in the evidence of PW15 as to whether PW15 was holding feet or head of the injured when the injured was shifted into the car of CW21. The fact that injured was shifted from place of incident to Manipal Hospital at Airport Road in the car driven by CW21 is not disputed.

In the circumstances, discrepancy in the evidence of PW15 as to whether PW15 was holding feet or head while shifting the injured into the car of CW21 has no relevance. Therefore, we hold evidence of PW15 that an assailant (later identified as accused No. 2 before Court) had assaulted on the head of deceased with a steel rod/pipe, thereafter rider of scooter (later identified as accused No. 1 before Court) came on a scooter from the side of Airport road intersection, took a U-turn, thereafter assailant (accused No. 2) ran and jumped on pillion seat of scooter and both of them fled away on scooter finds substantial corroboration from the evidence of PW16. We do not find any material discrepancies in the evidence of PW15 & PW16 to discredit the same. PW15 and PW16 did not have any oblique motives to give false evidence against accused 1 to 4 with whom they were unconcerned.

PW15 has admitted that before date of occurrence, he had contacted the Investigating Officer (PW31) and requested his permission to take out a procession of Infant Jesus and PW31 had obliged.

The learned Counsel for accused would submit that PW15 was acquainted with the Investigating Officer (PW31) before date of occurrence.

PW15 had not approached PW31 for any personal favour, much less PW15 had any personal work with PW31. PW15 is a Christian by religion. If PW15 had approached PW31-Police Inspector of jurisdictional police station to give protection for procession of Infant Jesus held by the Church, it cannot be said that PW15 was a stock witness of jurisdictional police (Viveknagar Police). Therefore, the contention of the defence that PWs.15 and 16 are planted witnesses cannot be accepted.

It is the case of the prosecution that accused Nos. 1 to 4 were arrested on 25-01-2004. Accused Nos. 1 and 2 gave voluntary statements and the admissible portions are marked as Exs.P.94 and P.95 respectively. PW.31 has deposed and identified the voluntary statements by Accused Nos. 1 and 2 as per Exs.P.94 and P.95. Accused Nos. 1 and 2 led the Investigating Officer to the Airport ring road. It appears that PW.30 Mahadev was secured on the way. Thereafter, Accused Nos. 1 and 2 took the Investigating Officer and PW.30 to Lantena Bush located inside the defence area and pointed out the bush. That area has barbed fence. Accused Nos. 1 and 2 removed a steel rod from that bush. The Investigating officer seized it and prepared mahazar as per Ex.P.87.

PW.30-Mahadev has deposed that at the relevant time, he was a Contractor in BWSSB. He has identified Accused Nos. 1 and 2 before the Court. He has deposed that he had seen Accused Nos. 1 and 2 about one and half years prior to the date of his examination before Court, near Airport ring road. PW.30 and his brother Shivaprakash were returning from the house of their mother-in-law. It was around 2.45 or 3.00 p.m. The Police called PW.30 and requested PW.30 to be a witness. At the first instance, PW.30 was somewhat hesitant, but later, he agreed. Thereafter, Accused Nos. 1 and 2 took PW.30 and the Investigating officer near a bush situate in a defence area and both of them searched and took out a steel rod and handed over the same to the Police. The bush which was searched by accused Nos. 1 and 2 was within the defence area. The area has barbed fence. The police prepared the mahazar as per Ex.P.87. PW.30 attested the same as per Ex.P.87 (a). PW.31 Naniah, the Investigating Officer and so also PW.26 have deposed about the recovery of a steel rod from the bush shown by accused No. 1 and 2.

During cross-examination of PW.30, the learned Counsel for accused had confronted Ex.P.87 to prove that contents of Ex.P.87 do not indicate that steel rod which was lying in the lantana bush was removed by accused No. 1 and 2. The learned Counsel for Accused No. 1 and 2 relying on the contents of Ex.P.87 have contended that the recovery was not at the instance of accused No. 1 and 2. The learned Counsel have contended that the joint recovery is not admissible in evidence. The learned Counsel for the accused have contended what was recovered from that place is a steel rod in contrast to MO.11 which is a steel pipe. The learned Counsel for the accused have contended that soon after the steel rod was taken out from the bush, it was not seized and no bloodstains were found on the steel rod. The Investigating Officer had not taken the permission of the concerned defence authorities to enter the defence area.

The learned Counsel for accused have relied on the decisions reported in 2003 SCC (Cri) 1149 Salim Akhtar alias Mota v. State of U.P. (2008) 1 SCC (Cri) 733 State of Madhya Pradesh Vs. Nisar,

The law is fairly well settled that the admissibility of the evidence u/s 27 of the Indian Evidence Act relates to the fact discovered on the information volunteered by the accused. The authorship of concealment and existence of such concealment within the exclusive knowledge of the accused is the criteria. In a decision reported in 2005 (3) Crimes 87 State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru the Supreme Court after referring to various judgments including the judgment of the Privy Council in the case of Pulukuri Kotayya v. Emperor AIR 1947 PC 67) has held that if the fact discovered relates to the authorship of concealment and exclusive knowledge of the accused, that would be relevant and admissible u/s 27 of the Evidence Act. Therefore, even if the Investigating Officer had removed the steel rod from the bush, it cannot be said that the recovery of steel rod (MO.11) was not in pursuance of voluntary statements made by accused Nos. 1 and 2. Therefore, the decisions relied upon by the learned Counsel for accused are not applicable to the facts of the instant case.

The Supreme Court (in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru), reported in 2005 (3) Crimes 87 at Page 151, has held:

There is nothing in this judgment which suggest that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.

Another case which needs to be noticed is the case of Ramkishan Mithanlal Sharma Vs. The State of Bombay, . The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokuldas Dwarkadas decided by Bombay High Court, a passing observation was made in the said case the High Court "had rightly held that a joint statement by more than one accused was not contemplated by Section 27." We cannot understand this observation as laying down the law that information almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence u/s 27. It may be relevant to mention that in the case of Lachman Singh and Others Vs. The State, this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing the joint disclosures.

Therefore, the submission of learned Counsel for accused that the discovery of MO.11 on the basis of voluntary statements made by accused Nos. 1 and 2 is not admissible, cannot be accepted.

The learned Counsel for the accused have contended that as per the evidence of PWs.30 and 31 a steel rod (MO.11) was recovered on the information volunteered by Accused Nos. 1 and 2 and what was produced before the Trial Court was a steel pipe. Therefore, MO.11 was not the object which was recovered at the instance of Accused Nos. 1 and 2. In the discussion made supra, we have clarified the difference between a steel rod and a steel pipe.

The learned Counsel for Accused Nos. 1 and 2 have contended that as admitted by PW30, PW31 and PW18 Dr. Bheemappa, MO.11-steel rod had no bloodstains. However, in the FSL report, it is shown that there were bloodstains on the steel rod.

From the evidence of PW.18, we find that the Investigating Officer had sent MO.11 to PW.18 to seek his opinion as to the injuries found on the deceased could have been caused with an object like MO.11. PW.18 has opined that the injuries found on the deceased could have been caused by the object like MO.11. The Investigating Officer had not sought any clarification from PW.18 as to whether there were bloodstains on MO.11. From the examination of M.O.11 - steel rod, PW30 and PW31 might not have noticed bloodstains on M.O.11. However, this does not mean that bloodstains were not noticed after forensic examination of M.O.11 by the Scientific Officer in the Forensic Science Laboratory. The contention of the accused that the Investigating Officer had smeared blood on M.O.11 before it was sent to the FSL cannot be accepted. At this juncture, we deem it necessary to state that as per the evidence of PWs.26 and 31 the place of recovery is said to be at a distance of 100 feet from the place of occurrence and towards the north of the place of occurrence.

The learned Counsel for accused had sought to discredit evidence of recovery by relying on evidence of PWs.15 and 16. The evidence of PW15 and PW16 that accused No. 2 after assaulting the deceased with a steel rod carried it, after sitting on the scooter, he concealed it below the collar of his shirt on his back side, has been found to be an omission in the statements of PWs.15 and 16 recorded u/s 161 Cr.P.C. As per evidence of PW15 and PW16 after the incident, accused No. 2 ran away from the place of incident and sat on the scooter and concealed MO.11 on his back beneath his collar. The assailant was not known to P Ws.15 and 16. Therefore, we cannot attach importance to this omission.

The learned Counsel for accused have contended that the Investigating Officer had not taken the permission of the defence authorities to enter the defence area to discover MO.11. The Investigating Officer was discharging his official duties. In the circumstances, even if he had failed to obtain permission of the defence authorities that cannot be a ground to discard his evidence relating to recovery of M.O.11 on the voluntary information given by Accused Nos. 1 and 2.

From the contents of the FSL report as per Ex.P.39, we find that MO.11 steel rod had few stains of blood. As the stains were disintegrated, the blood grouping was not done by the Serologist.

The learned Counsel for the accused have found fault with the Investigating Officer in not packing and sealing MO.11 soon after it was seized from the place of recovery. The prosecution has not relied on the blood grouping found on MO.11 and the clothes of the deceased. Therefore, the inadvertent act of Investigating Officer in not sealing MO.11, cannot be a reason to discredit evidence of recovery of M.O.11 at the instance of Accused Nos. 1 and 2.

PW.31 the Investigating Officer has also deposed in pursuance of the voluntary statement of Accused No. 1, a black Kinetic Honda Scooter was seized from the house of Accused No. 1. Though the Investigating Officer has styled it as a recovery, we find that the perception of the Investigating Officer was wrong. We find from the evidence, scooter had not been concealed in the house of accused No. 1. But the fact remains on 25.1.2006 the investigating officer had seized the Black Kinetic Honda scooter from the house of Accused No. 1. The eye witnesses to the occurrence namely PWs.15 and 16 had identified the scooter before the trial Court.

The learned Counsel for accused No. 1 relying on the evidence of PW.22 Dhanashekharan and DW.3 Manjuladevi elder sister of Accused No. 1 have contended that DW.3 Manjula Devi was the registered owner of Kinetic Honda Scooter (MO.1) bearing No. KA 03 S 978. The scooter was purchased in the year 1997 and after her marriage in the year 2000, DW.3 was staying in her husband''s house in Pudupet, Tamil Nadu. DW.3 was in possession and she was using this scooter at Pudupet.

DW.3 has deposed that on 24.1.2004 at about 10.30 p.m. the Police alongwith Accused No. 1 had visited her house and seized the scooter. PW.22 has also deposed that on 24.1.2004, on coming to know of arrest of accused No. 1 visited Viveknagar Police Station and found that Accused No. 1 was not in the Police Station. On enquiry, from his wife Rambadevi (not examined before the Court), he came to know that Accused No. 1 had been taken by the Police to Tirupathur to seize the Kinetic Honda Scooter from the house of DW.3. PW.22 has deposed that on the following day, he saw the scooter near Vivekanagar Police Station and found it was a blue Kinetic Honda Scooter and it was of DX model. PW2 has deposed that the Police might have changed the model and colour of the scooter marked as MO.1.

The prosecution has relied on the seizure of the scooter from the house of PW.22 (father of Accused No. 1) to prove that after the incident, accused Nos. 1 and 2 had fled away on a black Kinetic Honda Scooter and it was ridden by accused No. 1. PWs.15 and 16 have not deposed that they were able to notice the registration number of the scooter. The evidence of PWs.15 and 16 that accused Nos. 1 and 2 after the incident fled away from the place of incident on a black scooter cannot be suspected. The seizure of black Kinetic Honda Scooter from the house of PW22 lends corroboration to evidence of PW15 and PW16.

We find from the evidence of DW.2 Lakshmi Chandrashekhar that the Kinetic Honda Scooter bearing No. KA 03 S 978 was insured with National Insurance Company, Basavanagudi Branch at Bangalore. The policy was being renewed from time to time. The contents of Ex.P.58 would reveal that the Kinetic Honda Scooter bearing Registration No. KA 03 S 978 was insured with National Insurance company at Basavanagudi Branch at Bangalore. Ex.P.57 is the policy issued for the period from 09-09-2003 to 08-09-2004. The premium collected was Rs. 498-00. From the contents of Ex.P.111, we find that a sum of Rs. 8,000/-was paid by the Insurance Company in respect of damage in relation to the accident that the vehicle had met. If DW.3 had taken the vehicle to Tamil Nadu, it looks improbable that the National Insurance Company, Basavanagudi Branch at Bangalore continued to be insurer of the vehicle. As deposed by DW.3 the scooter was purchased in the year 1993 and her marriage was performed during the year 2000. In the circumstances, it looks improbable that DW.3 a newly wedded woman while going to her husband''s house had taken the old scooter from her parental house and continued to have the insurance policy renewed at Bangalore. There is no evidence on record to show that DW.3 had intimated the RTO at Tamil Nadu to prove that she had shifted the vehicle from the State of Karnataka to the State of Tamil Nadu. We also notice from the evidence of DW.3 that she having witnessed the seizure of scooter from her house at 10.30 p.m on 24.1.2004 by the police who in fact had taken Accused No. 1 (her younger brother) did not inform her father about the seizure of scooter. If the police had taken accused No. 1 from Bangalore to Pudupet to the house of DW.3 and seized the scooter from the house of DW.3, the normal conduct of DW.3 would have been to inform the same to her father PW.22 Dhanashekaran. PW.22 who had come to know from his wife that Accused No. 1 had been taken by the Police to Pudupet, had not contacted DW.3 to ascertain that if his son had been taken by the police to Pudupet. Therefore, the contention of accused and evidence of DWs.2 and 3 and that Kinetic Honda Scooter was being used by DW.3 at Pudupet in Tamil Nadu cannot be accepted. The contention of the defence that the Investigating Officer had not seized the scooter from the house of Accused No. 1 cannot be accepted. The contention of the defence that the Investigating Officer had changed the colour of the scooter does not stand to reason. The Investigating Officer did not have any oblique motive to change the colour and model of the scooter as the identity of the scooter could not have been changed as a scooter will be identified by its registration number, engine number, chassis number, etc., Therefore, the contention of accused that the Investigating Officer had changed the colour and model of the scooter cannot be accepted.

Now we refer to the conduct of accused subsequent to the occurrence. The learned Senior Counsel appearing for Accused No. 4 relying on the evidence of PW.10 Shankaranarayan, PW.29 Dr. J.N. Harsha, PW.23-Pramod Dixit would submit that after the incident accused No. 4 was in a state of shock and she was sobbing. PW.23 had visited the house of accused No. 4 to console her.

In the discussion made supra, we have held that though PW.10 was examined as a witness for the prosecution, he had not only turned hostile, but also had given evidence to lay foundation to the defence. We have also discussed significant features of PW.10 that he has made contradictory statement on oath. Therefore, the evidence of PW.10 that his daughter was in a state of shock and she was sobbing after the incident is only a self-serving statement.

During cross-examination by the learned Counsel for Accused No. 4, PW.29 Harsha has deposed that when Accused No. 4 brought the injured to Manipal Hospital she was in a state of shock. She was sobbing and weeping. In order to appreciate this evidence, we have to necessarily consider the situation prevalent at that particular point of time. The injured B.V. Girish had suffered fatal injures to his head. He was in a state of coma. In the circumstances, PW.29 Dr. Harsha was more concerned with the critical condition of injured than observing the expressions and mental condition of accused No. 4. PW.23 has deposed that Accused No. 4 was not liking the deceased. In the circumstances, if PW.23 had seen the accused in a state of grief that cannot be a ground to hold that accused No. 4 was grieved by the death of B.V. Girish. On the other hand, the phone calls and the SMS calls made by her to Accused No. 4 in particular at 2.10 a.m. during the intervening night of 3/4-12-2003 and the SMS calls at 6.41 a.m. on 4.12.2003 and 6.51 a.m. on 4.12.2003 would lead to an inference that she was not grieved by what had happened to the deceased and she had contacted Accused No. 1 to inform the condition of the deceased and also to caution him. The conduct of Accused No. 4 in contacting Accused No. 1 at 2.10 a.m. on the intervening night of 3/4-12-2003 and also during the early hours of 4.12.2003 when her fiance was on death bed is totally inconsistent with her innocence. Neither Accused No. 4 nor Accused No. 1 who had exclusive knowledge of these SMS have offered any explanation for their unnatural and unusual conduct.

We also find from the evidence of PW29 that statements made by accused No. 4 immediately after the occurrence were not consistent. Accused No. 4 had given the history of assault before PW29-Dr.J.N. Harsha and she had disclosed that the assault took place on the head of Girish with some weapon when they were witnessing the air craft landing. From the contents of the Medico Legal Register extract (Ex.P.86) issued by PW.29, we find that accused No. 4 had given the time of assault as 10.00 p.m. on Domlur Koramangala Ring Road when the deceased and accused No. 4 were watching areoplane landing and somebody attacked them and hit the deceased with some weapon. It is significant to notice that the history given by Accused No. 4 would reveal that both of them were attacked. It is neither the case of the prosecution nor the case of defence that accused No. 4 had also been assaulted by the assailant. The assailant had not caused any harm to the person or property of accused No. 4. The statement made by accused No. 4 immediately after the incident, that some unknown assailant assaulted the deceased even without any rhyme or reason and ran away from that place looks improbable. Therefore, the history of assault given by Accused No. 4 that both Accused No. 4 and the deceased were attacked by assailant is not consistent with her innocence.

PW.10 in his examination by the learned Public Prosecutor has deposed that on 3.12.2003 at 9.45 p.m. or 10.00 p.m., Accused No. 4, his daughter, contacted him over phone and within 15 minutes thereafter PW.10 reached Manipal Hospital. PW.10 has not deposed that when Accused No. 4 contacted him over phone at the earliest point of time, i.e., after the occurrence, she did not inform PW10 as to how B.V. Girish had suffered the injuries. As already stated, PW.10 was declared as hostile witness. During cross examination by the learned cousnel for Accused No. 4, PW.10 has come out with a version that on 3.12.2003 at about 9.45 p.m. his daughter, Accused No. 4 informed him over phone that an incident of assault had occurred on the person of B.V. Girish near Air View Point at Domlur-Koramangala Ring Road, and B.V. Girish had sustained injures to his head. PW.10 has deposed when he received a second phone call from accused No. 4 she informed PW.10 that she had shifted B.V. Girish to Manipal Hospital.

PW.5 B.V. Ramesh, the elder brother of deceased has deposed that on 3.12.2003 at about 10.30 p.m., he received a phone call from Accused No. 4 who informed him that when the deceased and Accused No. 4 were returning after dinner, they had stopped the scooter near Air View Point and they were watching the landing of aeroplanes. At that time, some person assaulted on the head of Girish and ran away from the place.

From the evidence of PW.10, we find that the incident of assault took place when the deceased and Accused No. 4 were watching aeroplane landing from Air View Point. Accused No. 4 was holding a pass port and she had surrendered the same with the trial Court when this Court granted bail to accused No. 4 in Crl. P. No. 1391/2004. On perusal of the contents of the Passport, we find that Accused No. 4 had obtained pass port in the year 1999 and it was valid for a period of ten years. During the year 2000 and 2001, accused No. 4 had visited Malaysia and Japan in a group tour. Therefore, we find accused No. 4 had travelled in aeroplanes and had experienced taking off and landing of aeroplanes. The deceased was working as a Software Engineer in Intel Company. His office was located at Air Port Road. In the circumstances, it is hardly possible to conceive that the deceased had desired to see the landing of aeroplanes from the Air View Point. Thus, we find that accused No. 4 had expressed her desire to see landing of aeroplanes from Air View Point around 9.30 p.m. on 3.12.2003 and that was not a genuine desire. From the evidence of PW.5, we find that accused No. 4 had contacted B.V. Girish at 5.32 p.m. at 06-06 p.m. on 3.12.2003. We could safely infer that it is at the desire of accused No. 4 the deceased took her to TGI Friday Hotel, had dinner and spent time in the said hotel up to 9.15p.m. Thereafter, as desired by accused No. 4, he had taken her to Airport ring road and had stopped his scooter to see the landing of aeroplanes as wished by accused No. 4. This conduct of accused No. 4 would lead to an inference that her desire to see the aeroplane landing from Air View Point was ostensible and her real intention was to create an opportunity for accused Nos. 1 and 2 to commit the murder of her fiance-B.V. Girish.

We notice from the phone calls exchanged between Accused Nos. 1 and 4, Accused Nos. 3 and 2 and Accused Nos. 1 and 3 that they were in constant touch with each other after the incident till 4.48 p.m. on 4.12.2003. Therefore, we hold that the subsequent conduct of accused is not consistent with their innocence.

The learned Counsel appearing for Accused Nos. 1 to 4 would submit that by placing reliance on the call history sheet, it cannot be inferred that there was contact between Accused Nos. 1 to 4 and it is also not possible to draw an inference that Accused Nos. 1 to 4 had conspired to commit the murder of B.V. Girish. The learned Counsel for Accused No. 4 would submit that Accused No. 4 was candid and bold and if she was not willing to marry the deceased, she would have expressed the same to her parents.

This submission cannot be accepted in view of our discussion and acceptance of evidence of PW8, PW11 and PW23 to whom accused No. 4 had expressed that she was not willing to marry B.V. Girish.

The law is fairly well settled that conspiracy is by and large inferential and such inference has to be founded on solid facts. Surrounding circumstances, antecedents and subsequent conduct among other factors constitute relevant material. (Vide Noor Mohammad Mohd. Yusuf Momin Vs. The State of Maharashtra, ). In Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , the Supreme Court has held that the close association is a very important piece of evidence in the case of circumstantial evidence and also the evidence of phone calls is a very relevant and admissible piece of evidence. In the case on hand, we find that the association of Accused Nos. 1 to 4 was unusual. Therefore, the close association of accused Nos. 1 to 4 few days prior to the date of incident, immediately prior to the time of incident and abrupt discontinuance of calls after the incident till 02.10. a.m. on 04.12.2003 and resumption of calls on 04.12.2003 and absence of any explanation offered by accused Nos. 1 to 4 would lead to an irresistible conclusion that accused Nos. 1 to 4 had entered into a criminal conspiracy to do away with the life of B.V. Girish. In the facts and circumstances of the case and from the evidence on record, we do not find any other alternative inference or hypothesis which is incompatible with the guilt of the accused and compatible with the innocence of the accused.

The learned Counsel for accused have submitted that the prosecution has not examined material witnesses namely CW21-Sujesh Kumar, CW29-A.S. Naveen, CW30-P.S. Radhakrishnan, CW31-F.U. Khan and CW32-K.A. Inayatullah Shariff. In support of this, learned Counsel for accused have relied on the following decisions:

I. Babu Ram and Others Vs. State of Punjab,

II. Thulia Kali Vs. The State of Tamil Nadu,

III. Sawal Das Vs. State of Bihar,

IV. Narain and Others Vs. The State of Punjab,

V. Habeeb Mohammad Vs. The State of Hyderabad,

In view of examination of PW15 & PW16, CW29-A.S. Naveen, who had contacted security officials of Intel Company as requested by PW15 was not a material witness. CW30, CW31 & CW32 were working as security officials in Intel Company. From the evidence of PW15 & PW16 and also from the evidence of PW6, we find the belongings of the deceased had safely reached the hands of PW6. The above said security officials had received a scooter, a digital diary and a laptop from PW15. The security officials returned scooter and a digital diary to the father of deceased (PW6) and retained the laptop with them as it belonged to Intel Company. Therefore, examination of CW30 to CW32 was not necessary to prove these uncontroverted facts.

The learned Counsel for accused have further contended that CW21-Sujesh Kumar, who had shifted the deceased in his car from place of incident to Manipal Hospital should have been examined.

The fact that after assault on the head of B.V. Girish, he was injured and he was shifted from place of incident in a car to Manipal Hospital has not been disputed by the learned Counsel for accused. In fact, the learned Counsel for accused No. 4 has relied on the conduct of accused No. 4 to prove that accused No. 4 had made all efforts to save the life of B.V. Girish and her conduct was consistent with her innocence.

In the circumstances, non-examination of CW21 has not caused any prejudice to the defence. Therefore, it is not possible to hold that prosecution has deliberately omitted to examine the above witnesses. In the circumstances, what has been held in the decisions cited by the learned Counsel for accused is not applicable to the facts of instant case.

In the discussion made supra, we have considered the defence evidence of DW2 & DW3. We have assigned our reasons for rejecting the same.

PW22-N. Dhanashekharan, who in fact was declared as a hostile witness, has deposed that on 02.12.2003 his father-in-law was admitted in HAL hospital situate in Airport Road. PW22 on receiving information came to Bangalore on 03.12.2003 and saw his father-in-law in HAL Hospital and condition of his father-in-law was critical. PW22 reached HAL Hospital at 8.30 p.m. on 03.12.2003. At that time, his father-in-law was being treated as an inpatient. PW22 has deposed that his son (accused No. 1) had accompanied him to HAL Hospital; they were in HAL Hospital between 8.30 p.m. and 10.30 p.m.; accused No. 1 was in HAL Hospital at that time and he had not gone outside; after 10.30 p.m., they returned to their house. PW22 has produced discharge summary relating to his father-in-law. The discharge summary and its enclosures are marked as Ex.D.60, Ex.D.60(a) to Ex.D.60(c).

On behalf of accused No. 1, DW1-Sathyaprakash S.V., was examined to prove admission and treatment of the father-in-law of PW22 in HAL Hospital. The father-in-law of PW22 was admitted in HAL Hospital on 02.12.2003 and he was discharged on 11.12.2003. At the relevant time, DW1 was working as the Medical Superintendent of HAL Hospital. DW1 has deposed; that one T.V. Balakrishnan was admitted in HAL Hospital on 02.12.2003 and he was discharged from the hospital on 11.12.2003. Ex.D.60 is the discharge summary relating to T.V. Balakrishnan. Ex.D.60(a) & (b) dated 02.12.2003 & Ex.D.60(c) dated 04.12.2003 would disclose examination of T.V. Balakrishnan in HAL Hospital.

During cross-examination by the learned Public Prosecutor, DW1 has admitted that there are no records maintained in the hospital to show as to who had visited the patient namely T.V. Balakrishnan after taking permission and without taking permission. Therefore, DW1 has not been able to state as to who had visited T.V. Balakrishnan when he was being treated in HAL Hospital.

From the contents of Ex.D.60, we find that T.V. Balakrishnan was admitted in HAL Hospital on 02.12.2003 and discharged on 11.12.2003.

Therefore, the evidence of PW22 and contents of Ex.D.60 are hardly sufficient to prove that accused No. 1 was in HAL Hospital between 8.30 p.m. and 10.30 p.m. on 03.12.2003 as sought to be made out by accused No. 1. In the circumstances, accused No. 1 has miserably failed to prove the plea of alibi. Therefore, we hold that accused No. 1 had put forth a false plea of alibi, which provides an additional link in the chain of circumstances.

The learned Counsel for accused No. 1, relying on Ex.D.61 to Ex.D.64 would submit that accused No. 1 had completed I-semester LL.B. examination held during the month of December 2003. The character and conduct of accused No. 1 was good as certified by B.M. English School (Ex.D.62), where accused No. 1 had studied VIII Standard to X Standard. The learned Counsel for accused No. 1 relying on the contents of Ex.D.63 would submit the character and conduct of accused No. 1 was good during the years 20002002 when accused No. 1 was studying two years Pre University course in St. Joseph''s Pre-University College at Residency Road, Bangalore. The learned Counsel has also relied on the contents of Ex.D.64 that accused No. 1 had participated in Prudential Cricket Trophy-2003 conducted by University Law College, Palace Road, Bangalore.

The learned senior counsel for accused No. 4 relying on the evidence of PW6 and various certificates and marks cards marked as Ex.D.52, Ex.D.52(a) to Ex.D.52(v) would submit that accused No. 4 was academically brilliant, she was a good musician and she had participated in several competitions to sing classical music; she had completed "Vidwath" in music. Even the father of the deceased (PW6) has admitted that he knew Shubha (accused No. 4) from her childhood and she was a good girl. Therefore, learned Counsel for accused No. 1 and learned senior counsel for accused No. 4 would submit that character and conduct of accused 1 & 4 is enough to dispel their involvement in the crime. The learned Counsel would submit that conduct of accused 1 & 4 as established from the evidence on record would clearly rule out their involvement in the crime.

In order to appreciate this submission, we deem it proper to rely on the judgment of the Supreme Court, reported in AIR 1965 SC 682 in the case of Bhagawan Swarup Lal Bishan Lal and Ors. v. the State of Maharashtra, wherein the Supreme Court dealing with the provisions of Sections 52 to 55 of the Indian Evidence Act, 1872, has held:

It is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinction between reputation and disposition. A man may be reputed to be a good man, but in reality he may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witnesses'' perspicacity but also on their opportunities to observe a person as well as the person''s cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. Wig-more puts the proposition in the following manner.

Whether, when admitted, it should be given weight except in a doubtful case, on whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, with which the result of admissibility have no concern.

(31) But, in any case, the character evidence is a very weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a back-ground for appreciating his reactions in a given situation. It must give place to acceptable positive evidence. The opinion expressed by the witnesses does credit to the accused, but, in our view, on the face of the positive evidence we have already considered, it cannot turn the scale in his favour.

The learned Counsel for accused 1 to 4 have pointed out several discrepancies in the investigation of the case and submitted as follows:

I. The Investigating Officer has not offered any explanation for belatedly recording statements of material witnesses u/s 161 Cr.P.C.

II. The Investigating Officer had not brought on record the investigation made from time to time.

III. The Investigating Officer had not taken care to keep incriminating material objects by properly sealing them.

IV. The Investigating Officer had not updated case diary by entering incriminating material collected during investigation from time to time.

V. The Investigating Officer had not seized mobile phones of deceased, accused Nos. 2 & 3.

VI. The method adopted by the Investigating Officer to retrieve texts of SMS from M.O.10 and the manner in which photographs of such texts were taken was not scientific.

VII. The date of arrest of accused No. 1 shown in the remand application is not consistent with the evidence of the Investigating Officer before Court.

In the discussion made supra, on appreciation of evidence of material witnesses and the evidence in proof of circumstances, we have accepted the same. The irregularities attributed to the Investigating Officer do not go to root of the case of prosecution. We have not referred to the extracts of texts of SMS sent by accused No. 4 to PW23, as the trial Court had not admitted the same in evidence. The lapse on the part of the Investigating Officer to update case diary and discrepancies crept in the remand applications prepared by him are not material irregularities. In any event, defective investigation by itself cannot be a ground for acquittal when witnesses examined on behalf of prosecution have been believed by the learned trial Judge and also by us {vide (2008) 1 SCC Cri 64 paragraph 26}.

Thus, we sum up our conclusions and findings as follows:

The prosecution both from oral evidence of PW8-Hema, PW11-Sheetal Rajagopal and PW23-Pramod Dixit and also by the conduct of accused No. 4 and her contacts with other accused during two days prior to date of marriage engagement, on the date of marriage engagement and subsequent to date of marriage engagement, has proved that accused No. 4 was not willing to marry deceased B.V. Girish as accused No. 1 and 4 had fallen in love with each other. Accused No. 4 and accused No. 1 had determined to continue their love affair. Accused No. 3, the maternal cousin of accused No. 1 had introduced accused No. 2 to accused No. 1; in turn accused No. 1 had introduced accused 2 & 3 to accused No. 4. They were in constant touch with each other two days prior to the date of marriage engagement, on the date of marriage engagement and on subsequent days and also on the date of incident. They had frequent contacts both by voice calls and SMS calls prior to the date of incident, on the date of incident, a few hours before the time of incident till few minutes before the time of incident and also few hours after the incident. As pre-planned by accused 1 to 4, accused No. 4 had taken the deceased for a dinner to TGIF Hotel during evening of 03.12.2003. Accused No. 4 was in constant touch with accused No. 1 to inform accused 1 & 2 about movements of accused No. 4 and the deceased. Accused No. 2 was in the company of accused No. 1. Accused No. 1 was in constant touch with accused No. 4 to know the movements of the deceased. Accused No. 4 while returning home had insisted the deceased to stop scooter near Air View Point on the pretext of seeing landing of aeroplane only to create an opportunity for accused No. 2 to cause the death of deceased by hitting him with a steel rod/pipe. Accused No. 1, who had kept scooter in a running condition, immediately after the incident came from northern side and took a U-turn, thereafter accused No. 2 ran, jumped and sat on pillion seat of scooter and both of them fled away from place of occurrence. PW15 & PW16 had witnessed the occurrence. The evidence of PW15 relating to identification of accused 1, 2 and 4 before Court is credible and consistent. The evidence of PW16 regarding identification of accused No. 2 before Court is credible and consistent. The evidence of PW15 and PW16 finds ample corroboration from medical evidence given by PW18-Dr. Bheemappa Havanur and PW29-Dr.J.N. Harsha. The weapon of assault and manner in which blows were dealt on the head of the deceased which resulted in depressed fractures of skull and crush injury to brain would clearly establish the acts committed by accused No. 2 squarely attract an offence punishable u/s 302 IPC. Accused No. 2 had dealt blows on the head of deceased with a steel rod/pipe (M.O.11) with intention and knowledge of causing death of B.V. Girish. The conduct of accused Nos. 1 & 4 after the occurrence viz., accused No. 4 contacting accused No. 1 at 2 a.m. on the intervening night of 03/04.12.2003 and also during early morning of 04.12.2003 by SMS when her fianc� was on death bed is entirely inconsistent with the innocence of accused No. 4 and accused No. 1. The call details and call history sheets would reveal that accused No. 3, who had introduced accused No. 2 to accused No. 1, was constantly in touch with accused 1, 2 & 4 since a few days prior to date of occurrence. The conduct of accused No. 3 would prove that accused No. 3 was acting as a satellite to receive information from accused 1 & 4 about the movements of B.V. Girish and he was giving necessary instructions to accused 1 and 2. The evidence adduced by prosecution relating to recovery of a steel rod/pipe (M.O.11) on the information volunteered by accused 1 & 2 is credible and seizure of a black Kinetic Honda scooter from accused No. 1 would lend corroboration to the evidence of PW15 & PW16. After the incident of assault, accused No. 1 came from northern side of ring road and had kept the engine of scooter in a running condition and took a U-turn and thereafter accused No. 2 ran, jumped and sat on pillion seat of scooter and both of them sped away from place of incident. The evidence of PW15 & PW16 relating to manner of assault and subsequent conduct of accused 1 & 2, topography of place of occurrence and existence of electric lamp posts near place of incident would prove that PW15 & PW16 had sufficient opportunity to identify accused 1 & 2. In view of background of PW15 & PW16 and evidence given by PW15 regarding identification of accused 1, 2 & 4 before the Court even in the absence of test identification parade so also evidence of PW16 regarding identification of accused No. 2 before Court would inspire confidence. The circumstantial evidence in the form of call history sheets and call data records indicating frequent contacts between accused 1 to 4 and conspiracy of accused 1 to 4 by voice calls and SMS calls a few days prior to date of incident, on the date of incident and immediately prior to the time of incident would lend corroboration to direct evidence of PW15 & PW16. Though the prosecution has not placed any evidence as to the actual conversation that had taken place between accused 1 to 4, call details, call history sheets extracted in this judgment would clearly indicate that they were in close association with each other. Accused 1 to 4 had entered into a criminal conspiracy to do away with the life of the deceased and they were co-conspirators. The conduct of accused 1 to 4 before incident, at the time of incident and after the incident is compatible with their guilt and incompatible with their innocence and no other hypothesis except hypothesis of guilt of accused 1 to 4 can be drawn.

Accused No. 4, who was the custodian of mobile No. 98455 70337 before it was produced by her father (PW10) to the Investigating Officer had deleted text of messages exchanged between accused 1 and other accused and thereby accused No. 4 had caused disappearance of evidence to screen herself and other accused from legal punishment. Accused No. 4 who knew that accused No. 2 had assaulted on the head of the deceased with a steel rod/pipe had intentionally given false information that the deceased was assaulted by an unknown assailant. Therefore, we hold during the period between 24.11.2003 and 03.12.2003, accused 1 to 4 had entered into criminal conspiracy to commit the murder of B.V. Girish and in pursuance of such criminal conspiracy, on 03.12.2003 around 09.30 p.m., accused No. 4 took the deceased to Air View Point located on the eastern footpath of Airport ring road on the pretext of seeing landing of aeroplanes. Accused No. 4 and B.V. Girish were seeing landing of aeroplanes by standing near Air View Point. At that time, as pre-planned by accused 1 to 4, accused No. 1 brought accused No. 2 armed with a steel rod/pipe on his black Kinetic Honda scooter, accused No. 2 assaulted on the head of B.V. Girish with a steel rod/pipe with the intention and knowledge of causing his death. After the incident, accused No. 2 ran and jumped and sat on pillion seat of the scooter and accused No. 1, who had kept the engine of scooter in running condition, took a U-turn and both of them sped away from place of incident. After the incident, accused No. 4 had made pretext of sobbing to make it appear that she was in immense love with the deceased, which in fact was falsified by her immediate conduct of contacting accused No. 1 during midnight of 03/04.12.2003 and early hours of 04.12.2003 when her fiance-B.V. Girish was on death bed. Accused No. 3 was in constant touch with accused 1, 2 & 4. The combination of accused 1 to 4 was an unusual combination. They had no legitimate reasons to keep close contacts with each other by voice calls and SMS calls, except to achieve the common object of criminal conspiracy. Though the evidence of the Investigating Officer (PW31) suffers from irregularities, these irregularities do not go to the root of case of prosecution and the evidence adduced by prosecution cannot be discredited on this ground. The defence evidence adduced by accused No. 1 in proof of alibi put forth by accused No. 1 is hardly sufficient to hold that accused No. 1 was not present near place of incident and he was present in HAL Hospital at the time of incident. The prosecution cannot be found fault with for not producing texts of SMS messages, which in fact had been deleted by accused 1 & 4 even before their mobile phones were produced by PW10 and PW22 before the Investigating Officer. The defence of accused No. 1 that a black Kinetic Honda scooter was in possession of DW3-D. Manjula Devi and the evidence adduced in proof of such fact is fallacious.

We concur with the findings recorded by the learned trial Judge that accused 1 to 4 are guilty of an offence punishable u/s 302 read with 120B IPC and accused No. 4 is guilty of an offence punishable u/s 201 IPC. In view of this, the evidence adduced by defence in proof of the character of accused Nos. 1 and 4 would be irrelevant.

In view of the above discussion and for the foregoing reasons, we answer points 2 to 4 in affirmative.

On consideration of the impugned judgment, we find that the impugned judgment should have been more reasoned. The learned trial Judge should have met all the points raised by the defence. However, conclusions reached by the learned trial Judge and reasons assigned thereon do not suffer from any errOrs.

The State has filed Criminal Appeal No. 856/2010 to sentence accused 1, 3 & 4 for an offence punishable u/s 302 IPC and also sentence accused 1, 2 and 3 for an offence punishable u/s 201 IPC. The State has also sought for imposition of death penalty to accused No. 2. 158. We find from the impugned judgment, the learned trial Judge has sentenced accused 1, 3 and 4 to undergo imprisonment for life and pay a fine of Rs. 50,000/- each with default sentence of simple imprisonment for a period of 10 months for an offence punishable u/s 120B IPC. The learned trial Judge has sentenced accused No. 2 to undergo imprisonment for life and pay a fine of Rs. 50,000/-, in default to undergo simple imprisonment for a period of ten months for an offence punishable u/s 302 IPC. Accused No. 4 has been sentenced to undergo simple imprisonment for a period of three years and pay a fine of Rs.25,000/- with default sentence of simple imprisonment for a period of six months for an offence punishable u/s 201 IPC. Out of fine amount realised, a sum of Rs. 2,00,000/- has been ordered to be paid to the family members of the deceased as compensation.

The learned trial Judge should have sentenced accused 1, 3 & 4 for an offence punishable u/s 302 IPC, which is the substantive offence. The learned trial Judge having held that accused 1 to 4 had entered into criminal conspiracy to commit murder of B.V. Girish and in pursuance of such criminal conspiracy accused Nos. 1 to 4 committed murder of B.V. Girish ought to have sentenced accused 1 to 4 for an offence punishable u/s 302 read with 120B IPC. Therefore, we set right these discrepancies by sentencing accused 1 to 4 to undergo imprisonment for life for an offence punishable u/s 302 read with 120B IPC. We maintain fine and default sentence imposed by the trial Court for the aforestated offences. The conviction passed by the trial Court against accused No. 4 for an offence punishable u/s 201 IPC and sentence imposed thereon are confirmed, so also payment of compensation to the family members of the deceased.

The prosecution has not sought for imposition of death sentence to accused 1, 3 & 4, who in fact were tried along with accused No. 2 and convicted for an offence punishable u/s 302 read with 120B IPC. Accused 1 to 4 were co-conspirators. The prosecution cannot classify conspirators as primary conspirators and secondary conspirators. The prosecution cannot isolate accused No. 2 as the acts committed by accused No. 2 were in pursuance of criminal conspiracy entered into between accused 1 to 4. Even otherwise, we do not find the case against accused No. 2 falls under the category of the rarest of rare cases. Therefore, in our considered view the State appeal is liable to be dismissed but for the aforestated modification of sentence. Hence points 6 and 7 are answered accordingly.

In the result, we pass the following:

ORDER

Criminal Appeal No. 765/2010 c/w Criminal Appeal Nos. 774/2010, 757/2010 & 722/2010 filed by accused 1 to 4 are dismissed. Criminal Appeal No. 856/2010 filed by the State is accepted in part. The sentence imposed by the trial Court is modified as follows:

Accused 1 to 4 are sentenced to undergo imprisonment for life for an offence punishable u/s 302 read with 120B IPC. The fine and default sentence imposed by the trial Court is confirmed. The conviction passed by the trial Court against accused No. 4 for an offence punishable u/s 201 IPC is confirmed so also the sentence imposed thereon is confirmed. The rest of the impugned judgment relating to payment of fine, compensation and set off given in terms of Section 428 Cr.P.C., are confirmed. Office is directed to send back records along with a copy of this judgment, forthwith.