TaxTMI 
TaxTMI 
2025 (7) TMI 2077
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.... Hoda, Adv. Ms. Eesha Bakshi, Adv. Mr. Kamran Khan, Adv. Mr. Arjun Sharma, Adv. Ms. Jayanti Singh, Adv. Ms. Gurbani Bhatia, Adv. JUDGMENT M. M. Sundresh, J. 1. The voice of a young ambitious girl, muffled by a forced family decision, created the fiercest of turmoil in her mind. This, backed by an unholy alliance of a mental rebellion and wild romanticism, led to the tragic murder of an innocent young man, while simultaneously destroying the lives of three others. 2. A studied scrutiny of the charges, along with the evidence placed on record led to the confirmation of the conviction rendered against the appellants, by the High Court, for the major offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") while upholding the decision delivered by the Court of Sessions. The appellants who are before us seek to assail the life sentence imposed upon them by the Division Bench of the High Court of Karnataka. 3. We have heard learned Senior Counsel Mr. Ranjit Kumar, Mr. S. Nagamuthu, Mr. Siddhartha Dave, and Mr. R. Nedumaran appearing for the appellants, and learned Additional Advocate General (AAG) Mr. Muhammed Ali Khan and ....
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....committed by women. If the factors highlighted above are applied in the context of a woman, it would result in heightened prejudices against her, leading to a gendered response of victimization. A woman is pushed into a dark corner by external elements, that contribute substantially to the inequalities in her life. Thoughts of a woman would differ based on the place, person and group that she interacts with. It is the social norms and values which determine an action on her part, that is nothing but a form of her expression. 8. We shall test this proposition through a simple example of a young lady, who is desirous of spreading her ambitious wings, longing for her own independence. A forced marriage, divorcing her from her professional ambitions and curtailing her further education, would certainly warrant a reaction. Such reactions would vary from one woman to another, depending upon the circumstances. For instance, a girl from a middleclass family might react differently compared to one who hails from a poor, or even a rich family. Even amongst these classifications, a decision made by a woman might vary depending upon the impact brought about by the peculiar circumstances in ....
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....n shaping criminal behavior, and is also responsible for the creation of such behaviour, whether through poverty, lack of education, discrimination, or broken institutions. In that scenario, the offender becomes a victim, requiring adequate measures for treatment by compassionate correction, structural support, and opportunities for genuine transformation. In an attempt to bring the individual back into the social fold, responsibility has to be shared by every other individual, ultimately rebuilding the bonds of community rather than perpetuating cycles of alienation and punishment. ARTICLE 161 OF THE CONSTITUTION OF INDIA, 1950 13. The Constitution of India, 1950 (hereinafter referred to as the "Constitution") which is the supreme law of the land, encourages the reformation of individuals, by granting them a new lease of life. This is personified by Articles 72 and 161 of the Constitution which empowers the constitutional authorities to grant pardon to convicts. In light of this, we would like to specifically elaborate on the underlying principles pertaining to the powers vested with the Governor under Article 161 of the Constitution. Article 161 of the Constitution ....
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....for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code. (2) We affirm the current supremacy of Section 433-A over the Remission Rules and short-sentencing statutes made by the various States. (3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on government making in order en masse or individually, in that behalf. (4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like." (emphasis supplied) Shatrughan Chauhan and Anr. v. Union of India and Ors., (2014) 3 SCC 1 "16. Articles 72/161 of the Constitution entail remedy to all the convicts and are not limited to only death sentence cases and must be understood accordingly. It contains the power of reprieve, remission, commutation and pardon for all o....
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....mphasis supplied) 16. From the above, we would only clarify that, notwithstanding the existence of a Circular or a Rule introduced by way of a statutory power under Section 473 of the BNSS, the constitutional powers granted under Article 161 of the Constitution, can also be exercised in a given case. Thus, even in cases where statutory mechanisms exist, the constitutional mandate under Article 161 of the Constitution remains inviolable and exercisable, in order to ensure that justice in individual cases is not constrained by procedural norms. FACTUAL BACKGROUND 17. During the month of December 2003, Shubha Shankar (hereinafter referred to as "A-4"), a young girl aged 20 years, was studying in the 5th semester of integrated course, B.A., LL.B. at BMS Law College, Bangalore. PW-10, B.S. Shankarnarayan, is the father of A-4, and an Advocate. PW-12, Vijayalakshmi, is her mother. Arun Verma (hereinafter referred to as "A-1") was also a student of the same college as A-4, studying in the 1st semester. PW-22, N. Dhanashekaran, is his father who was working as a Labour Officer during the said period. At the relevant point of time, Dinesh @ Dinakaran (hereinafter referred to as "A-....
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.... A-4 informed her father PW-10 about the occurrence, who in turn, passed on the information to PW-12. She also informed PW-5 about the same. On receiving the information, PW-5 took his parents and the mother of A-4 to the hospital. By then, PW-10 had also reached the hospital from his office. Around 02:00 AM in the intervening night between 03.12.2003 and 04.12.2003, all of them returned home except for PW-10 and PW-5 who stayed back at the hospital. In the early morning of 04.12.2003, PW-6, PW-12 and A-4 returned to the hospital. At about 08:05 AM, the deceased was declared dead. PW-5 lodged a written complaint at the police station, based on the information received from A-4, on the basis of which the First Information Report (hereinafter referred to as the "FIR") was registered against unknown persons for the offence punishable under Section 302 of the IPC. The said FIR was registered by the police Inspector PW-31, K.A. Nanaiah, who was the 1st Investigating Officer (hereinafter referred to as the "I.O."). Upon investigating, A-1 to A-4 were arrested on 25.01.2004. PW-31 continued the investigation till 17.02.2004, after which the case file was handed over to Dawood Khan, PW-32,....
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....-16. After the occurrence, the deceased was admitted to the hospital by A-4, and he succumbed to his injuries on the morning of the following day. 24. For proving the said theory, the prosecution mainly relied upon the evidence of PW-8, PW-11 and PW-23 to establish motive, the Call Detail Records (hereinafter referred to as the "CDR") showing the extensive communications between the accused persons from 25.11.2003 to 04.12.2003, the eye-witness testimonies of PW-15 and PW-16, and the recovery of the steel rod and the scooter at the instance of the accused. 25. PW-8, Hema is the beautician who applied mehendi for A-4 on 29.11.2003 and also dressed up A-4 for the engagement ceremony on 30.11.2003. She deposed that at the time of applying mehendi on 29.11.2003, A-4 hugged her and told her that she was not willing to get married to the deceased, and requested her to do anything to stop the marriage. A-4 also told PW-8 that even if the engagement were to take place, she would run away and get married to her friend, A-1. PW-8 informed about the same to PW-9, Umasashi who is the maternal aunt of A-4. However, PW-9 asked PW-8 to keep quiet as the engagement had already been fixed, an....
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....the help of an auto-rickshaw driver. He then drove the scooter of the deceased to his house and with the help of his tenant, informed the Intel security officers who came to his house and collected the belongings of the deceased. PW-16 deposed that he left with the two-wheeler of PW-15. 30. After the accused persons were arrested on 25.01.2004, M.O.11 and M.O.12 which were used for the commission of the offence, were recovered by PW-31 pursuant to the disclosure statements made by A-1 and A-2 under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the "IEA"). 31. On 13.07.2010, the Trial Court convicted the appellants for the offence punishable under Section 120-B of the IPC and sentenced them to undergo life imprisonment. A-2 alone was convicted and sentenced to life for the offence punishable under Section 302 of the IPC. Additionally, A-4 was convicted for the offence punishable under Section 201 of the IPC and sentenced to undergo simple imprisonment for a period of 3 years, with the sentences imposed to run concurrently. The Trial Court rendered the conviction by accepting all the materials put forth by the prosecution as discussed above, with subst....
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....xamined by the prosecution, for the reasons best known to them. 35. The evidence adduced by PW-8 is wholly unreliable being contrary to the evidence of PW-9, PW-10, PW-12, PW-6 and PW-31. Her presence at the engagement ceremony has not been proved by the prosecution either by the production of her diary, or the photographs taken on the day of the engagement, making her very presence doubtful. There was an inordinate delay in recording her statement as it was recorded only on 14.01.2004, even though she received the information from A-4 on 05.12.2003 itself, with no explanation for such delay. She has contradicted herself on quite a few occasions, especially with respect to the information given by her to PW-6 and PW-31. 36. The evidence of PW-11 is tainted, as she is an interested witness known to the family of the deceased, evident from the fact that she was accompanied by the sister of the deceased to the Trial Court. Kamala, from whom she got the information regarding the engagement of A-4, has neither been cited as a witness, nor has she been examined by the prosecution. Though she deposed that she had not attended the engagement ceremony, the evidence of PW-10 and PW-12 ....
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....ng to the tower location at the behest of the police. The said data provided by the CDR is also fundamentally unreliable and cannot be used against the appellants as, PW-25 admitted during his cross-examination that the tower has a coverage radius of approximately 6-7 kilometres, which represents an extraordinarily vast area, meaning that any individual within a span of 12-14 kilometres in diameter could potentially be serviced by the said tower. The CDR, even if admissible, do not per se implicate the appellants and thus, no inference can be drawn on that basis. 39. With respect to the recovery of M.O.11, an argument was made to the effect that the said recovery cannot be sustained, as the disclosure statements under Section 27 of the IEA were made jointly by both A-1 and A-2. M.O.11 was subsequently recovered from an open space pursuant to their statements. The link required under Section 27 of the IEA is missing as the panch witnesses to the recovery of M.O.11 cannot prove whether the recovery was made pursuant to the disclosure statement of the accused as the same was not recorded in their presence. It was also openly shown to PW-15 at the police station, without properly se....
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....presence of A-4 along with the deceased at the place of occurrence stands proved. 42. The testimonies of eye-witnesses PW-15 and PW-16 are consistent with the medical evidence available on record. There are concurrent findings of the Courts below with regards to the quality of their evidence. Moreover, being neutral witnesses with no prior relation to the deceased, they have no reason to falsely implicate the accused. 43. The motive of A-4 to commit the murder of the deceased along with the other accused is proved by the testimonies of PW-8, PW-11 and PW-23. The evidence of PW-8 showed that not only was A-4 unwilling to marry the deceased, but also wanted to elope with A-1. PW-11 also testified regarding the resentment of A-4 towards her marriage with the deceased. The testimony of PW-23, who is in fact a confidant of A-4, is also consistent with the testimonies of PW-8 and PW-11. Thus, there is no reason to discredit his testimony. 44. The testimonies of PW-24 and PW-25, being the competent officers, established the authenticity of the CDR, which were duly proved by way of the requisite certificates under Section 65-B of the IEA. The Courts below upheld the evidentiary va....
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....ence. "Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved".-A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." 12. Section 3 of the Evidence Act defines "evidence", broadly divided into oral and documentary. "Evidence" under the Act is the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an "adjective law" highlighting and aiding substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. 13. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, con....
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....y considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it. 18. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a Judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a Judge. It is only after undertaking the said exercise can he resume his role as a Judge to proceed further in the case. 19. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and re....
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.... on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well-recognised maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person m....
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....y of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution." (emphasis supplied) 48. Thus, the evidence adduced before the Court, can be accepted either in toto or in part. Furthermore, it can also be rejected. A Court shall apply its mind to the evidence available to arrive at a just conclusion. DISCUSSION 49. We shall first consider the ocular evidence available before us comprising of the testimonies of the eyewitnesses, PW-15 and PW-16. i. Eye-Witness Testimonies of PW-15 and PW-16 50. PW-15 and PW-16 are the two witnesses who are stated to have been present at the place of occurrence. We have carefully considered the evidence adduced by them. The more closely we scrutinize the testimonies of these witnesses, the less we find ourselves relying on them. This is due to their unnatural conduct and the material discrepancies found between their testimonies. PW-15, despite being an ex-service man and an eyewitness to the incident, did not taken any step whatsoever to report the same to the police. Rather strangely, he took pain....
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....ntradictions in the evidence of PW-15 and PW-16 on the identification of A-1 and A-2. We also find that there is no clarity in the evidence of PW-15 on the presence of PW-16. 52. In light of what has been discussed above, we can observe that many of the cited witnesses, including the occupants of the car in which the deceased was taken to the hospital, the tenant of PW-15 and the Intel security officer, who could have testified to the presence of PW-15 and PW-16 on that fateful night, have not been examined by the prosecution, for the reasons best known to them. 53. Though we find numerous other serious contradictions in the evidence of PW-15 and PW-16, we do not wish to go into it any further, as we have absolute clarity that their presence at the place of occurrence is highly doubtful and therefore, cannot be relied upon. 54. As we have discarded the eyewitnesses' account of the incident, we must note now that the case rests purely on circumstantial evidence. Thus, we must scrutinize the remaining evidence available by keeping in mind the five golden principles laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. (1) "th....
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....he prosecution to prove it. 57. We shall first examine the evidence of PW-8. Firstly, we find her evidence to be tainted, as she was already known to the father of the deceased, PW-6 who stated that he knew her from 4-5 years ago as they used to see each other in the park while walking. Secondly, not only does she state that she had attended the engagement ceremony of A-4 on 30.11.2003, but also goes to the extent of stating that she had sat in the first row and that photos and videos were taken of the same. However, the prosecution has not made any attempt to prove her presence at the ceremony by producing the said photographs or videos. None of the other witnesses have testified about her presence at the ceremony. Thus, her very presence at the engagement ceremony itself is highly doubtful. Thirdly, there is a huge delay in the recording of her statement by the police, as the same was done only on 14.01.2004. Fourthly, apart from the contradictions in her own testimony, there are material contradictions with the testimonies of PW-6 and PW-31 regarding the place and manner in which her statement was recorded by the police. PW-8 states that her statement was recorded by the poli....
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....ends credence to the case of the defence that she did attend the ceremony on behalf of the family of the deceased. She also testifies that it was Sunitha and PW-6 who had visited her house soon after she had seen the incident on television, and asked her to recount what she knew. She adds that they were the ones who had informed the police about the same, and to her surprise, the police visited her home four or five days later, which makes the manner in which her statement was recorded by the police a little odd as well. There is also a huge delay in recording her statement under Section 161 of the Cr.P.C, as it was only recorded in February 2004. Therefore, the observations made by us on the conduct of the abovementioned witnesses extends to PW-11 as well. 59. This leaves us with the evidence of PW-23, Pramod Dixit, who went to Pre-University College with A-4. He deposed in clear terms that A-4 confessed to him that she did not want to get married to the deceased, as she felt that they were not compatible. While the deceased had a conservative lifestyle, she wanted a luxurious one, visiting expensive hotels and restaurants. She also disclosed to him that she did not want to get....
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....ticulous arguments made by learned Senior Counsel, Mr. Tomy Sebastian appearing on behalf of the complainant, much effort has also been undertaken by our Office with respect to the correlation of the CDR, already filed and taken on record. Records from the months of October, November and December 2003 have been taken and an endeavor has been made to ascertain the conspiracy hatched amongst the accused persons. 62. On a perusal of the relevant oral and documentary evidence on record, we have no doubt in holding that the prosecution has duly proved that A-1 was in possession of and the user of mobile phone bearing No. 9845017289, A-2 was the possessor and user of mobile phone bearing No. 08036940211, A-3 was the possessor and user of mobile phone bearing No. 08036860795, and A-4 was the possessor and user of mobile phone bearing No. 9845570337. The TSP of the mobile phones used by A-1 and A-4 was Airtel and the TSP of the mobile phones used by A-2 and A-3 was Reliance. 63. Before we analyze the evidence available by way of CDR, it is imperative to prove that the admissibility of the said evidence was strictly in accordance with Section 65-B of the IEA, as the information pertai....
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....ing that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). This being the case, it is necessary to clarify what is contained in the last sentence in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108 which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108 does not need to be revisited. *....
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....doubt that the compliance of this provision is mandatory. However, there is no straitjacket formula to arrive at the conclusion of such due compliance, with specific reference to the CDR. It is the duty of the concerned Court to satisfy itself on such compliance, by taking due note of the requisite certificate produced under Section 65-B(4) of the IEA, coupled with the oral evidence adduced by the competent officer on behalf of the TSP. One must understand that in contrast to the other prosecution witnesses, the one who speaks in support of such certificates, has no other interest in the case and therefore, has to be considered as a Court witness, having no axe to grind with anyone. He deposes on behalf of the TSP, concentrating only with respect to the certificate issued. Thus, in the absence of any fundamental flaw in his testimony, with competency to depose on behalf of the TSP, the Court is expected to take due note of it, accordingly. 65. In the case at hand, while scrutinizing the evidence pertaining to the admissibility of CDR, it is crucial to keep in mind that we are dealing with an offence which was committed in the year 2003, when technology and the laws governing it ....
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....ew the evidence in its entirety. Moreover, it is nobody's case that the entries in the CDR are factually incorrect, nor is there any dispute over the author of these entries. It is also to be kept in mind that there was no specific denial or explanation offered by even the accused persons, when presented with the overwhelming evidence on the numerous calls/SMSes exchanged between them, while recording their statement under Section 313 of the Cr.P.C. Thus, we are inclined to hold that on the facts of the instant case, the CDR furnished by both Reliance and Airtel are admissible in accordance with Section 65-B(4) of the IEA. 66. As we have established the admissibility of the CDR, we may proceed with the evaluation of the voluminous data on CDR, placed on record by the prosecution, showing the unusually high number of communications exchanged between the accused persons during the relevant period of time. On a meticulous analysis of the same, we find that the results are astounding. For the sake of convenience, we would like to categorize the communications appended in Annexure 'A' on the basis of the time period during which they were exchanged, as following: October 2003 (Table ....
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...., the call records exhibit a completely different story. For instance, on 23.11.2003, 9 communications have been exchanged between A-4 and A-1, while A-4 contacted the deceased only twice. Similarly, on 24.11.2003, 16 communications have been exchanged between A-4 and A-1, as against only 3 with the deceased, which leads us to arrive at the conclusion that A-4 was not interested in her marriage with the deceased, and instead shared a close relationship with A-1. It is to be noted that in a majority of these communications, it is A-4 who has contacted A-1 and not vice versa. 70. Now, we shall come to the data available for 25.11.2003 in Table 4. Here again, A-3 has communicated with not only A-1, but also A-4 by way of voice calls. A-1, being in contact with A-3 from 23.11.2003, roped him into the plan and on 25.11.2003, A-3 has made direct contact with A-4 for the first time. On the very same day itself, A-3 has made 9 voice calls to A-4, one after the other, and in short intervals. Thus, it can be inferred that A-3 has actively entered into the conspiracy on the said date. We wish to emphasize on the same, as A-3 is a complete stranger to A-4, and there was no occasion or reaso....
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....e calls. This shows the unnatural conduct of A-4, as even on the day of her engagement ceremony with the deceased, she was fervently communicating with A-1, lending corroboration to the evidence of PW-23 that she was not willing to marry the deceased. 76. We would also like to draw specific attention to A-4's conduct during the engagement ceremony. Firstly, the photographs taken during the ceremony marked as Exhibit P-15, clearly show that A-4 was holding her phone in her hands throughout the ceremony. Secondly, as per the evidence of PW-10, the engagement ceremony commenced around 7:00 PM. The CDR show that even during the engagement ceremony, A-4 has attended 3 calls made by A-3 between 7:00 PM to 9:00 PM. Qua the other communications, A-3 has made 2 calls to A-2 and it is to be noted that right after making these calls to A-2, A-3 has contacted A-4 twice, which shows that they were acting in furtherance of their conspiracy. 77. The CDR for 01.12.2003 and 02.12.2003 in Tables 10 and 11 respectively, show the communications between all the accused persons. On 01.12.2003, there were a total of 5 communications between A-4 and A-1, including 3 voice calls and 2 SMSes, as again....
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....CDR show that there was a call between A-4 and PW-10 at about 09:56 PM, and the last communication between A-1 and A-4 before the said call took place at 09:39 PM, which leads us to the conclusion that the incident took place sometime between 09:39 PM to 09:56 PM. Thus, we would like to draw specific attention to the communications exchanged between the accused after 06:30 PM. A-1 and A-4 have exchanged 38 SMSes from 06:37 PM to 09:39 PM continuously, one after the other, with an average gap of only 2-7 minutes in between each message. 82. It is rather strange that A-4 was continuously exchanging messages with A-1, during the entire period that she was with the deceased, who was her fiancé at the time. This lends credence to the case of the prosecution that she was giving information to A-1 regarding their whereabouts. Obviously, there were no voice calls made during the said period, as she could not talk to A-1 on the phone with the deceased beside her. With respect to A-1 and A-2, 4 communications have been exchanged between them, with the last call at 05:42 PM. No calls/SMSes were exchanged after that, which brings us to the inference that they were together during the....
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....-2 throughout the morning. 85. On 05.12.2003, as observed in Table 14, the communication between A-1 and A-4 became almost nil, with only one communication made by A-1 to A-4, and a few more between A-1 and A-2. On 06.12.2003, as mentioned in Table 14, there was only a solitary communication between A-1 and A-4. 86. From the aforesaid materials, it is impossible for us to come to any other conclusion, than the one put forth by the prosecution, as the communications between the accused persons are too many, having a distinct pattern, following one after the other and even during odd hours of the night. The sudden rise in communications on the date of the incident and even a day prior to it, followed by a sudden drop in the communications on the very night of the unfortunate incident and days thereafter, consistently point only towards the guilt of the accused and serve as proof of the conspiracy that was hatched to murder the deceased. At this juncture, we would like to point out that while CDR data may not be construed as a substantive piece of evidence, it is certainly to be used for appropriate corroboration. One has to see the attending circumstances to decide the evidentiary....
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.... similar information leading to the discovery of fact which was reduced into writing, such disclosure by two or more persons in police custody do not go out of the purview of Section 27 altogether. What is relevant is that information given by one after the other without any break, almost simultaneously, as in the present case and such information is followed up by pointing out the material things by both of them then there is no good reason to eschew such evidence from the regime of Section 27. Whether that information is credible is a matter of evaluation of evidence. The courts below have accepted the prosecution version in this behalf, being credible. Suffice it to say that the disclosure made by Accused 3 about the relevant fact, per se, is not inadmissible." (emphasis supplied) 88. The argument raised by the appellants that the link required under Section 27 of the IEA is missing due to the absence of the panch witnesses while recording the disclosure statements of the accused is also not acceptable, on the facts of the case, as the presence of the witness to the disclosure statement is not a mandate and only one of prudence. The mere absence of the witness to the discl....
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....n sending the seized guns/pistol, there is no material showing as to where the seized weapons were kept during the period from 1.3.2006 to 19.4.2006. Such delay in sending the recovered weapons to FSL could only be an omission or lapse on the part of the Investigating Officer. Such omissions or lapses in the investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent...." (emphasis supplied) 91. The recovery of M.O.12, was made from the house of A-1 in the presence of PW-30, pursuant to the disclosure statement of A-1. The said factum has been confirmed by PW-30 and PW-31 in their testimony before the Court. The defence raised by A-1 that M.O.12 belonged to his sister DW-3, as it was gifted by their parents in her marriage, and was being used by her in Tamil Nadu cannot be believed as the National Insurance Company based in Bangalore continued to be the insurer of the vehicle at the relevant point in time. Further, no evidence was brought on record by the defence to show that DW-3 had given any intimation to the RTO in Tamil Nadu to prove that she had shifted the vehicle from the State of Karnataka to the State of Tamil Nadu. Thus, ....
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....er of A-1, had deposed that A-1 was at the HAL hospital on the night of 03.12.2003 as his father-inlaw had been admitted there. Thus, in order to prove the said plea of alibi, the discharge summary was marked as Exhibit D-60 and DW-1, who was the Medical Superintendent at the said hospital, was examined by the defence. However, Exhibit D-60 did not contain anything to show that A-1 was present at the hospital during the period in question and DW-1 also admitted in his cross-examination that the hospital did not maintain any records to show as to who had visited the patient at the hospital. Thus, we conclude that A-1 had raised a false plea of alibi. 94. From the discussion made above, it is clear that the foundational facts are not in dispute. The case of the prosecution with respect to the homicidal death of the deceased stands duly proved by way of the post-mortem report marked as Exhibit P-35 and the deposition of PW-18 in support of the same which would reveal that the deceased suffered as many as six injuries in total, 'Injury No.2' being the vital injury on the head, and the cause of death was coma as a result of the said head injury. No challenge has been raised by the ap....
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....unicating with A-2, but also A-1 and A-4. The CDR show that a total of 34 voice calls have been made between A-3 and A-4 during the entire period ranging from 25.11.2003 to 03.12.2003, with no communications either before or after the said period. The said evidence is particularly overwhelming and cannot be brushed aside, as admittedly, there was no prior relationship between them, and there was no occasion for them to have communicated extensively when they were strangers to each other, with nothing in common, belonging to different strata of the society. It is A-3, who communicated extensively with A-1, A-2 and A-4. Though arguments have been made by the appellants to the effect that the prosecution has not been able to prove his profession, what is sufficient for us is the crucial role played by A-3. 97. With respect to A-2, he came into the picture at a much later point of time. It is the case of the prosecution that this teenager was roped in at the instance of A-3 to hit the final nail in the coffin. We wish to observe that A-2 was a teenager hailing from an impoverished community, and was engaged in the loading and unloading of goods, as per the evidence of his father PW-....
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....r from a different perspective, only for the purpose of giving a new lease of life to the appellants who have committed a heinous crime, notwithstanding the availability of other alternative avenues to resolve the problems faced by A-4. We have also been informed that they have not been put to adverse notice thereafter. Their conduct in the prison is also not adverse. They were not born as criminals, but it was an error of judgment through a dangerous adventure which led to the commission of a heinous crime. It is difficult for us to decide at this stage who influenced the other, although there is a clear meeting of minds. 101. In light of the same, we would like to facilitate the appellants' right to seek pardon by permitting them to file appropriate petitions before His Excellency the Hon'ble Governor of Karnataka. We would only request the constitutional authority to consider the same, which we hope and trust would be done by taking note of the relevant circumstances governing the case. 102. Accordingly, we grant eight weeks' time from the date of this judgment, for the appellants to file appropriate petitions seeking to invoke the power of pardon under Article 161 of the ....
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.... 07:02 PM A4 Deceased 43. 30.10.2003 11:19 PM A4 A1 44. 31.10.2003 09:10 AM A4 A1 45. 31.10.2003 09:36 AM A4 A1 46. 31.10.2003 12:05 PM A4 Deceased 47. 31.10.2003 01:40 PM A4 Deceased 48. 31.10.2003 08:44 PM A4 A1 49. 31.10.2003 10:37 PM A4 A1 50. 31.10.2003 10:55 PM A4 Deceased Table - 2 01.11.2003-15.11.2003 SI No. DATE TIME FROM TO 1. 01.11.2003 12:35 AM A1 A4 2. 01.11.2003 01:52 PM A4 Deceased 3. 01.11.2003 03:41 PM A4 A1 4. 01.11.2003 04:09 PM A4 Deceased 5. 01.11.2003 07:02 PM A4 A1 6. 01.11.2003 07:03 PM A4 A1 7. 01.11.2003 08:20 PM A4 Deceased 8. 01.11.2003 09:17 PM A4 A1 9. 01.11.2003 11:30 PM A4 A1 10. 01.11.2003 11:36 PM A4 Deceased 11. 01.11.2003 11:41 PM A4 A1 12. 02.11.2003 01:40 AM. A1 A4 13. 02.11.2003 10:45 AM A4 Deceased 14. 02.11.2003 05:07 PM A4 Deceased 15. 02.11.2003 06:16 PM A4 A1 16. ....
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....05:08:50 PM A4 A1 66. 08.11.2003 05:10 PM A4 Deceased 67. 08.11.2003 05:11 PM A4 Deceased 68. 08.11.2003 07:11 PM A4 Deceased 69. 08.11.2003 07:19 PM A4 Deceased 70. 08.11.2003 08:49 PM A4 Deceased 71. 08.11.2003 09:27 PM A4 A1 72. 08.11.2003 10:04:01 PM A4 A1 73. 08.11.2003 10:04:03 PM A4 A1 74. 09.11.2003 12:43 AM A1 A4 75. 09.11.2003 03:51 AM A1 A4 76. 09.11.2003 10:26 AM A4 A1 77. 09.11.2003 03:38 PM A4 A1 78. 09.11.2003 08:17 PM A4 A1 79. 09.11.2003 10:11:46 PM A4 A1 80. 09.11.2003 10:11:47 PM A4 A1 81. 09.11.2003 11:35 PM A1 A4 82. 10.11.2003 03:25 PM A4 A1 83. 10.11.2003 04:18 PM A4 A1 84. 10.11.2003 05:50 PM A4 A1 85. 10.11.2003 06:05 PM A4 A1 86. 10.11.2003 09:57 PM A4 A1 87. 10.11.2003 09:59:41 PM A4 A1 88. 10.11.2003 09:59:44 PM A4 A1 89. 10.11.2003 10:42 PM A4 A1 90. 10.11.2003 11:10:30 PM A4 A1 ....
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.... 06:09:25 PM A4 A1 4. 16.11.2003 06:18:06 PM A4 A1 5. 16.11.2003 06:25:41 PM A4 A1 6. 16.11.2003 07:26:23 PM A4 A1 7. 16.11.2003 07:40 PM A4 Deceased 8. 16.11.2003 09:16 PM A4 Deceased 9. 16.11.2003 09:24 PM A4 Deceased 10. 16.11.2003 09:35 PM A4 Deceased 11. 16.11.2003 09:49 PM A4 Deceased 12. 16.11.2003 10:08:41 PM A4 A1 13. 17.11.2003 09:53 AM A4 A1 14. 17.11.2003 10:25 AM A4 A1 15. 17.11.2003 03:34 PM A4 Deceased 16. 17.11.2003 03:38 PM A4 A1 17. 17.11.2003 04:25 PM A1 A4 18. 17.11.2003 10:55:54 PM A4 A1 19. 17.11.2003 10:55:56 PM A4 A1 20. 17.11.2003 11:21 PM A4 A1 21. 17.11.2003 11:39 PM A4 A1 22. 17.11.2003 11:42 PM A4 A1 23. 18.11.2003 09:26 AM A4 A1 24. 18.11.2003 09:46:39 AM A4 A1 25. 18.11.2003 09:46:41 AM A4 A1 26. 18.11.2003 10:34 AM A4 A1 27. 18.11.2003 06:47:42 PM A4 A1 28. 18.11.2003 06:47:45 PM ....
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....0:46 AM A4 A1 80. 22.11.2003 11:43 AM A4 A1 81. 22.11.2003 03:16 PM A4 Deceased 82. 22.11.2003 04:00 PM A4 Deceased 83. 22.11.2003 07:41:08 PM A4 A1 84. 22.11.2003 07:41:11 PM A4 A1 85. 22.11.2003 09:57:50 PM A4 A1 86. 22.11.2003 09:57:52 PM A4 A1 87. 22.11.2003 10:21 PM A4 A1 88. 22.11.2003 11:35 PM A1 A4 89. 22.11.2003 11:44:07 PM A4 A1 90. 22.11.2003 11:44:09 PM A4 A1 91. 23.11.2003 12:43 PM A4 A1 92. 23.11.2003 12:55 PM A4 A1 93. 23.11.2003 02:07 PM A4 A1 94. 23.11.2003 03:56 PM A4 A1 95. 23.11.2003 04:36 PM A4 A1 96. 23.11.2003 04:42 PM A4 A1 97. 23.11.2003 08:17 PM A3 A1 98. 23.11.2003 09:22:35 PM A4 A1 99. 23.11.2003 09:22:38 PM A4 A1 100. 23.11.2003 09:36 PM A4 Deceased 101. 23.11.2003 09:47 PM A4 Deceased 102. 23.11.2003 10:31 PM A3 A1 103. 23.11.2003 11:18 PM A4 A1 104. 24.11.2003 01:20 AM A4 A1 ....
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.... AM A3 A1 Residence V 2. 03:23 PM A3 A1 V 3. 05:43 PM A3 A4 V 4. 06:04 PM A4 A1 SMS 5. 06:33 PM A3 A4 V 6. 06:52 PM A3 A4 V 7. 07:00 PM A3 A4 V 8. 07:06 PM A4 Deceased SMS/V 9. 07:13 PM A3 A4 V 10. 07:17 PM A3 A4 V 11. 07:19 PM A3 A4 V 12. 07:49 PM A3 A4 V 13. 08:36 PM A4 A1 SMS 14. 08:42 PM A4 A1 SMS 15. 09:22 PM A4 A1 SMS 16. 11:11 PM A3 A1 V Table - 7 28.11.2003 S No. TIME FROM TO SMS/V 1. 12:09 AM A1 A4 V 2. 12:12 AM A4 A1 V 3. 09:09 AM A4 A1 SMS 4. 09:18 AM A4 A1 SMS 5. 09:31 AM A4 A1 SMS 6. 09:44 AM A4 A1 SMS 7. 10:05 AM A4 A1 SMS 8. 10:22 AM A3 A1 V 9. 12:44 PM A3 A4 V 10. 12:53 PM A4 A3 V 11. 01:40 PM A4 A3 V 12. 02:31 PM A4 Deceased SMS/V 13. 02:56 PM A3 A1 V 14. 03:45 PM A3 A1 V 15. 04:00 PM A4 A3 V ....
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.... 08:22 PM A3 A2 V 12. 08:29 PM A3 A2 V 13. 08:46 PM A3 A4 V 14. 08:49 PM A3 A4 V 15. 10:53 PM A4 A1 SMS Table - 10 01.12.2003 SI No. TIME FROM TO SMS/V 1. 12:11 PM A3 A1 V 2. 12:13 PM A3 A2 V 3. 01:40 PM A3 A2 V 4. 05:06:50 PM A1 A4 SMS/V 5. 07:45 PM A4 Deceased V 6. 08:39:53 PM A1 A4 SMS/V 7. 09:03 PM A3 A1 V 8. 10:47 PM A3 A1 V 9. 10:53 PM A4 A1 SMS 10. 10:56 PM A1 A4 SMS 11. 11:51 PM A-4 Residence A1 V Table - 11 02.12.2003 SI No. TIME FROM TO SMS/V 1. 08:37 AM A4 A1 SMS 2. 10:18 AM A1 A4 SMS 3. 10:35 AM A1 A4 SMS 4. 10:39 AM A4 A1 V 5. 11:20 AM A3 A2 V 6. 11:21 AM A3 A1 V 7. 01:11 PM A1 A4 SMS 8. 01:12 PM A4 Deceased V 9. 01:22 PM A4 A3 10. 03:11 PM A1 A3 V 11. 03:41 PM A4 A1 SMS 12. 03:45 PM A3 A2 V 13. 03:49 PM A3 ....
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....:11 PM A4 Residence A1 V 15. 03:07 PM A4 A1 SMS 16. 03:16 PM A1 A4 V 17. 03:23 PM A1 A2 SMS 18. 03:30 PM A1 A2 SMS 19. 03:39 PM A1 A2 SMS 20. 03:44 PM A3 A2 V 21. 04:52 PM A3 A1 V 22. 05:16 PM A3 A1 V 23. 05:22 PM A3 A1 V 24. 05:32 PM A4 Deceased V 25. 05:33 PM A4 Deceased V 26. 05:42 PM A1 Residence A2 V 27. 05:46 PM A3 A1 V 28. 05:54 PM A3 A2 V 29. 06:01 PM A3 A4 V 30. 06:16 PM A4 Deceased V 31. 06:25 PM A4 Deceased V 32. 06:37 PM A1 A4 SMS 33. 06:41 PM A4 A1 SMS 34. 06:46 PM A1 A4 SMS 35. 06:51 PM A4 A1 SMS 36. 06:54 PM A1 A4 SMS 37. 06:56 PM A4 A1 SMS 38. 07:03 PM A1 A4 SMS 39. 07:05 PM A4 A1 SMS 40. 07:12 PM A1 A4 SMS 41. 07:21 PM A1 A4 SMS 42. 07:28 PM A1 A4 SMS 43. 07:37 PM A4 A1 SMS 44. 07:39 PM A3 A2 V 45. ....