Important point
Evidence of the circumstance simplicitor that accused pointed out the place where dead body of kidnapped boy was found and on their pointing out body was exhumed would be admissible as conduct u/s 8 of Evidence Act.

Headnote:(i) Indian Penal Code, 1860—Sections 363, 384, 201 and 302—Kidnapping, demand for ransom, killing and then burrying dead body under sand by side of river bank—Conviction by High Court by reversing acquittal order passed by Sessions Court—Appeal—Case based on circumstantial evidence—Minor son of complainant PW7 left his house for his shop at 9 AM but did not return home till evening—Report of missing was lodged on next day—Telephone call was received at 3 PM on next day demanding ransom of Rs. 50,000/- for release of the child—Both accused were apprehended from near railway track when they had asked for ransom money to be kept—Dead body of victim was exhumed from under the sand by river bank side from spot pointed out by accused—River bank was a long strech and nothing unusual when police party proceeded for recovery on next morning as accused were apprehended in late evening—Evidence of witnesses of recovery inspired confidence and was worthy of credence—Accused had made ransom demand was proved by STD booth owner that accused came to make a call—Accused person’s presence at the place where they were arrested was a strong circumstance against them—Circumstances in chain of events ruled out reasonable likelihood of innocence of accused—Conviction could not be interfered with. (Paras 6 and 8 to 12)
       (ii) Evidence Act, 1872—Section 8—Conduct of accused relevant if such conduct influenced or was influenced by any fact in issue or relevant fact—Evidence of circumstance, simplicitor, that accused pointed out to police the place where dead body of kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct irrespective whether statement made by accused fell within purview of Section 27 or not of Evidence Act.
       Held : By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simplicitor, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (AIR 1979 SC 400). Even if we hold that the disclosure statement made by the accused appellants (Ex. P14 and P15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs. 1, 2, 7 and PW4 the spot mazhar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act. (Para 9)

Judgment

P.P. Naolekar, J.—This appeal is preferred by the accused A.N. Venkatesh (A-1) and Ezaz (A-2) challenging their convictions under Section 363 IPC (RI for 1 year), Section 384 IPC (RI for 2 Years), Section 201 IPC (RI for 6 months) and Section 302 IPC (Life Imprisonment) awarded by the High Court, reversing the order of acquittal, passed by the Sessions Court.

2. In brief, the prosecution case is that on 19th of May 1996 at about 9.00 AM, a minor boy named Madhu left his house for going to his father’s shop. It was vacation time for the Schools. In the afternoon when the father, M.K. Krishnamurthy, PW-7 returned home for lunch and enquired about his son, as he had not come to the shop, till evening family waited for return of the boy and thereafter the search began. Various telephone calls were made to the relatives and enquiries were made from other places where the boy was expected to have gone. Again in the next morning search was made for Madhu but he was not traced and as such at about 1.00 P.M. on 20th May 1996, PW-2, M.K. Prakash, uncle of Madhu lodged the first missing complaint in Hosadurga Police Station. The police registered the complaint as Crime No. 99/96 on the same day. Thimmanna, PW-1, another Uncle of Madhu went to the house of Prakash, whose house is near the house of Krishnamurthy, PW-7. At about 2.30 PM or 2.45 PM, a telephone call was received on Telephone No. 8537 at the house of PW-2 M.K. Prakash which was picked up by PW-1 Thimanna. He heard one male voice saying that he knew that they are in search of Madhu and that Madhu is in their custody, he will be released if the ransom amount of Rs. 50,000/- is paid. It was said that the ransom amount of Rs. 50,000/- is to be thrown in a bundle on the tracks of the railways running between Arasikere and Beerur before 5.00 P.M. After receipt of this telephonic call, PW-1 immediately rushed to the Police Station and lodged a complaint at about 3.00 PM. On this, the P.S.I. Shri B.S. Rajashekhar, PW-16, deputed A.S.I. Shri M.G. Gangadharappa, PW-17, and one P.C. Constable Rudriah to make a search of the missing boy. PW-2, Prakash along with his brother Srinivas and the police officials proceeded in a Taxi to Arsikere in search of the boy. They reached Arsikere at about 5.00 PM. Thereafter enquiries were made at the S.T.D. Booths at Arsikere for finding out from where the call was made and to trace the person who made the call to Hosadurga. Two STD booth owners informed that the calls were made from their booth to Hosadurga by two boys and one of the S.T.D. Booth owners informed the police party that the telephone to Hosadurga was made by two boys from his telephone booth at about 2.30 O’ clock. Thereafter the police party along with PW-2 went to Arasikere Railway Station and proceeded towards Beerur along the railway track. When they proceeded about two and a half to three kilometers, they saw two boys coming in their direction along the railway track at about 6.30 or 6.40 PM. When the boys reached near them, it was noticed by PW-2 that one of them Venkatesh, A-1, is his relative. On seeing the police party along with other persons those two boys started running away. However, they were chased and caught. Those accused persons, according to PW-2, volunteered that they had kidnapped Madhu and that they would show the place from where the dead body can be recovered. From there they were brought to police station when it was about 10.00 P.M. Both the accused persons were put up in the police lock up. During the night intervening 20th/21st May 1996 they were interrogated and their disclosure statements were recorded which are Exhibits P-15 and P16 in which they volunteered to take the police and others to the place where they have buried and dead body of Madhu. The police party along with accused and others proceeded towards Vedavathi river bank wherefrom dead body of Madhu was exhumed from the sand at the bank of the Vedavathi river from the spot pointed out by

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2005 Supreme(SC) 1008

Important pointEvidence of the circumstance simplicitor that accused pointed out the place where dead body of kidnapped boy was found and on their pointing out body was exhumed would be admissible as conduct u/s 8 of Evidence Act.

Cases Referred (1)

Important point
Evidence of the circumstance simplicitor that accused pointed out the place where dead body of kidnapped boy was found and on their pointing out body was exhumed would be admissible as conduct u/s 8 of Evidence Act.