ANSAR PASHA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal raises certain interesting and important issues touching the aspects of identification as also with regard to the manner of proof that is required in respect of documents that are tendered in evidence in a criminal proceeding. The two appellants before us, who were the original accused Nos. 1 and 2 in S. C. No. 134/93 before the learned Sessions Judge, Bangalore were alleged to have kidnapped a four year old boy by the name of Zeeshan, son of PW-10 Syed Zakir Hussain, a resident of Azad Nagar at Bangalore. The allegation is to the effect that some time in the morning of 29-1-1993, the accused No. 1 was seen playing with Zeeshan. It is necessary for us to record that A-1 and A-2 are brothers and they are neighbours of the deceased, staying virtually next door. The prosecution alleges that Zeeshan was found missing on the afternoon of 29-1-1993 and that a detailed search was undertaken to trace him out, which proved futile. A missing complaint was lodged by his father and subsequently, on 4-2-1993 a further complaint was lodged by him in which he indicated certain suspicions with regard to the accused Nos. 1 and 2. The police arrested the accused on 4-2-1993. It is relevant to mention that there were three accused before the trial Court but, since A-3 was a juvenile, the case against him has been separated and the trial proceeded only against A-1 and A-2. According to the prosecution, one more person was involved in the offences that are the subject matter of this trial, who is A-4. The prosecution has sought to contend that A-4 had turned approver and that his statement which implicates the remaining accused is a strong piece of evidence on which reliance should be placed. We shall deal with that aspect of the matter presently.

(2.) THE prosecution contends that the accused persons took the child with them to Kolar and that they spent two nights in two different lodges in Kolar when the child was with them. Thereafter, the accused are alleged to have murdered the child and dumped the body in a nearby forest. PW-6 who is a forest-guard was informed by some boys that a human hand was lying in the forest and he contends that he covered it up and left it there. There is a temple closeby and PW-16 who is the Priest in-charge of the temple also supports the version that a human hand was found lying in the forest. Ultimately the hand was taken charges of by the police and it was sent for post-mortem. There are contrary opinions with regard to the hand in question which we shall again deal with. It does appear from the record that the rest of the body was attacked and possibly consumed by wild animals because only a few pieces of bones were found near the hand and the condition in which the hand was found, with only a bare piece of bone protruding from it, would support the theory that the body had been virtually eaten up by wild animals and that only the hand and the few bones were left. The prosecution however, contends that pursuant to a statement made by the accused, that they led the police and the panchas to that spot in the forest at Kolar and pointed out the hand in question and that this circumstance heavily incriminates the accused. The police have also alleged to have recovered a small piece of cloth and a pair of short pants closeby to the scene of offence in the forest and these items have been identified by the father of the child as belonging to him. In the course of investigation, the A-1 is alleged to have made a statement pursuant to which the police went to his house and he is alleged to have produced two inland letters which are Exs. P-12 and P-13 which the prosecution places very heavy reliance on because these documents are in the form of ransom notes addressed to Zakir who is the boy's father calling upon him to pay a sum of Rs. 1,00,000/- at a prescribed place if he is interested in his son's life. We shall have occasion to deal with the admissibility or otherwise of these documents and more 'importainly the evidentiary value thereof because the defence has seriously challenged any reliance being placed on Exs. P-12 and P-13. Similarly, in the course of the same recovery, the police are alleged to have seized a child's shirt which again has been identified by the boy's father PW-10 as being the garment belonging to his son and which the child was wearing. The learned trial Judge on consideration of the evidence led in the trial held that the material fully establishes both the charges under Sections 364 and 302, IPC and convicted A-1 and A-2 for the offence punishable under Section 302, IPC. The accused were awarded a sentence of R. I. for life for the offence u/s. 302, IPC and for the offence punishable under Section 364 r/w Section 34, IPC they were ordered to undergo R. I. for 5 years and to pay a fine of Rs. 2,000/- each in default to undergo S. I. for a period of 6 months, substantive sentence to run concurrently. It is against this conviction and sentence that the present appeal has been directed.

(3.) WE need to mention at the very outset that the two learned advocates Sri Ramdoraiswamy, assisted by Sri. M. Rajgopal who appear on behalf of the appellanr-accused and the learned Addl. SPP Sri S. S. Koti have both admirably assisted the Court in the course of the hearing of this appeal. The appellants' learned advocate submitted that undoubtedly this is a case where the accused is under heavy prejudice insofar as undoubtedly they were neighbours of the deceased and the allegation is that a plot was hatched, possibly under some misguided notions, that if the deceased child were to be kidnapped and that some money were to be demanded for his safe return that the parents would pay it up and that since the operation was unsuccessful, in order to cover up their tracks, the accused decided to do away with the boy Zeeshan. The learned Advocate submitted that a reading of the judgment would indicate that the learned trial Judge has accepted all the evidence led by the prosecution, particularly the circumstantial evidence and has recorded the finding that the offence is conclusively established. It is his submission that undoubtedly the child was missing, that a complaint was lodged with the police and that despite efforts, it was impossible to trace out the child. His submission is that as admitted by the father PW-10 a suspicion was cast on the accused No. 1 merely because he had been last been seen in the company of Zeeshan on the morning of 29-1-1993 and that once the police suspected him and his associates that the rest of the case has virtually been built-up particularly after the recovery of the hand in the forest at Kolar.