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2007 Supreme(Kar) 179
2008 (1) KLO 255
IN THE HIGH COURT OF KARNATAKA
K. Sreedhar Rao and C.R. Kumaraswamy, JJ.
Criminal Appeal No. 1873/2003 C/w Crl. A.No. 328/2004,
Sri. Harsha - Appellant
Vs.
State of Karnataka by Yeshwathpura P.S. - Respondents
Decided on 15-3-2007
Apellant: Sri Vishnumurthy and Assc, Sri. N. Rudramuni, Addl. SPP, Advs.
Respondents: Sri N. Rudramuni, Additional SPP, Sri. Vishnumurthy and Asscs, Advs.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 433 A: [K. Sreedhar Rao & C.R. Kumaraswsany, JJ] Relaxation of Legislative mandate under to a life convict - Grant of remission - Held, The provisions of Section 433-A is part of the Act of Parliament and express the will of the people. The Government should necessarily keep mind the provisions of Section 433-A while exercising the power of pardon. Only in exceptional cases for public welfare and public good the prerogative power is to be exercised. On facts, held, The celebration of Golden Jubilee of formation of State of Karnataka may be a laudable step, but to let off the criminals who have committed gruesome and heinous offence on the pretext of "Survarna Karnataka Celebrations" is a misplaced sympathy. The present order of blanket remission in a heinous crime of this nature (kidnapping the minor for ransom and committing murder) is a clear case of arbitrary exercise of power without application of mind and anti-thesis to the rule of law and such an arbitrary order of remission also offends Article 14 of the Constitution of India. The sentencing policy of this kind instead of having a deterrent effect would rather patronise criminals. The order of remission was set aside.
INDIAN PENAL CODE, 1860 - Sections 364-A, 302 & 201.[K Sreedhar Rao & C,R. Kumaraswamy, JJ] Offences under -Punishment - Case of kidnapping the minor for ransom and committing murder - Circumstantial evidence against the accused - circumstantial evidence on record clinchingly established that the accused is a kidnapper and anonymous caller - Held, order of conviction is sound and proper. Sentence of imprisonment for life imposed was confirmed.
K. Sreedhar Rao, J
The case of the prosecution that one Kushal (deceased), aged about 4 years, a student in St. Lords school, Mathikere. P. W.16 is the father of the deceased. The P. W.19 is the mother of the deceased, who usually used to pick up the child after school hours. On 19.8.1996, P. W.19 had some other work, therefore, requested her son- P. W. 17 to bring the deceased from the school. P.W.17 is a teen-aged boy, forgets the instructions of his mother. P. W.19 returned home and found that the deceased has not come back from the school. Therefore goes to the school to make enquiry, to her dismay finds that all the children had gone home and the deceased was not found in the school but school bag and tiffen box belonging to the deceased was in the class room. P. W.16 and P. W.19 makes intense search in vain to know the whereabouts of the deceased. On the same day in the night at 11.35 p.m. P. W.16 lodged a missing complaint before the Yeshavanthapura police.
2. On 20.8.1996 at 11.00 a.m. P.W.16 gets anonymous call demanding ransom of Rs 4,00,000/- for the safe release of the deceased. After bargain over the phone the caller settles to release the boy on payment of Rs. 1,50,000/-. P. W.16 informs the police about the anonymous call, on the basis of the said information, the FIR is registered at Ex.P.7 for the offence punishable u/s 364-A I.P.C. without the clue of the accused.
3. The P.W.16 receives frequent calls between 20.8.1996 to 22.8.1996 demanding ransom for safe release of the deceased. In one of the calls received on 22.8.1996, the caller tells P. W.16 to come at Tennis Pavilion at Palace Orchard with cash and was instructed not to inform the police. The P. W.16 along with P. W.18 (brother-in-law) goes to the Palace Orchards, the police discreetly accompany P. W.16 and keep watch. The offender sensing the presence of police does not respond, therefore, P. W.16 after waiting for substantial time comes back without meeting the caller. The P. W.16 receives another call on 23.8.1996, the caller tells that because of presence of police he avoided meeting P.W.16, again tells P. W.16 to come with cash of Rs.1,50,000/- to Sankey Tank swimming pool. The P. W.16 was told to keep the cash bag and to go away, thereafter the caller would inform P. W.16 regarding the whereabouts of the boy.
4. On 23.8.1996, at 8.30 p.m. P.W.16 alongwith P.W.18 go to the instructed place keeps the cash bag on the steps of the swimming pool and goes away. The P.W.45 and P.W.46-the Police Officers discreetly keeping watch at the scene had come prepared with P.W11 and P.W.12, the independent witnesses. The accused come by Scooter goes and picks the bag. The P. W.45 and the P. W.46 become vigilant and move into action. The accused sensing danger runs away carrying the bag towards the Sankey Tank. The accused in the process of escape fell into the gutter. The P.W.45 and P.W.46 apprehends the accused, who was and lying injured in the gutter.
5. The accused was unconscious and admitted in Ramaiah Hospital. The C. T. scan disclosed head injury with internal haemotoma. The accused was operated. on 6.9.1996 the accused becomes conscious. The P.W.47(IO) after consulting P.W.26 (doctor), interrogates the accused. On 7.9.1996 the accused by gestures and in writing marked at Ex.P.59 informs the police that he has killed the child and that he would show the dead body. The accused leads P.W.47 P.W.43(doctor), P.W.13 and P.W.14-the panch witnesses and P. W.16 to the interior area called “Gali Thopu” in VAS campus, the accused pointed out the dead body lying in a bush. The body was petrified and not in an identifiable position. The spot mahazar is prepared at Ex.P. 7. The skull of the skeleton is seized under Ex.P. 7. The skull M.O.9 was sent to FSL for superimposition test along with the latest photograph of the deceased. The P.W.42 (Forensic expert) testify to the fact that the skull M.O.9 pertains to the deceased.
7. The prosecution version further dis
