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Karnataka High Court · body

2020 DIGILAW 1494 (KAR)

Vishwanath v. State Of Karnataka,

2020-07-24

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Criminal Appeal No.100169/2017 has been preferred by the appellants - accused Nos.2 and 3, Criminal Appeal No.838/2017 has been filed by appellant - accused No.4 and Criminal Appeal No.100247/2017 has been filed by the appellant - accused No.1, challenging the judgment of conviction and order of sentence passed by the learned II Additional District and Sessions Judge, Haveri, sitting at Ranebennur in S.C. No.67/2011 dated 25.04.2017. 2. We have heard Smt.Vijetha R. Naik for Sri.Basavaraj J. for the appellant-accused No.2 by virtual hearing so also heard Sri.Basavaraj J. for appellant- accused No.2, Sri.H.M.Dharigond for appellant-accused No.3, Sri.M.H.Patil for appellant-accused No.4 and Sri.Basavaraj S.Satannavar for appellant-accused No.1, who are present before the Court. We have also heard the learned Additional S.P.P. Sri.V.M.Banakar for the respondent-State. 3. The genesis of the case of the prosecution in brief is that accused No.4-Bhavya contacted the victim- Mallikarjuna Dyamaller over his mobile phone, who was known to her and asked him to come near Mruthyunjaya Kalyana Mantap, Ranebennur on 04.06.2011 in the afternoon. When the victim came to the said spot at about 02:30 p.m., accused No.4 contacted accused No.1- Chidanandayya over the mobile and informed him about coming of the victim near the said Kalyana Mantap so as to kidnap him for ransom by threatening. It is further alleged that accused No.1-Chidanandayya brought with him accused Nos.2 and 3 i.e., Vishwanath and Kumar in a Maruti Van bearing registration No.KA-27/M-3773. The said Maruti Van belonged to C.W.12. From the said spot, the victim was threatened and was kidnapped and by showing the iron kandli and knife, they snatched cash of Rs.20,000/-, one gold ring, one Nokia company mobile, one ATM card of SBI, one ATM card of Union Bank of India and another ATM card of Union Bank of India, withdrawal slip of SBI and UBI, one golden bracelet, driving licence, one passport size photo, one golden chain, another golden ring and one Influx company watch. 4. It is further alleged that with a common intention, accused persons obtained the code numbers of ATM cards and by threatening the victim, withdrawn the amount from ATM, pertaining to the victim and brother-inlaw. 4. It is further alleged that with a common intention, accused persons obtained the code numbers of ATM cards and by threatening the victim, withdrawn the amount from ATM, pertaining to the victim and brother-inlaw. It is further alleged that accused persons with common intention, wrongfully confined the victim in a rented house, where accused No.1 was residing and also demanded an amount of Rs.3,00,000/- as ransom from the complainant, who is none other than the father-in-law of the victim and on the basis of the said allegations, a complaint was filed. The Investigating Officer during the course of investigation, apprehended the accused. After investigation, the charge sheet was filed. Thereafter, the learned Magistrate committed the case to the Sessions Court. Sessions Court took cognizance, secured the presence of the accused and after hearing both sides, the charge was framed. Accused pleaded not guilty. They claimed to be tried and as such, the trial was fixed. 5. In order to prove the guilt of the accused persons, prosecution got examined as many as 21 witnesses, marked 32 documents and 25 material objects. Thereafter, the statements of the accused persons were recorded by putting incriminating materials as against them and they have not led any oral evidence. However, during the course of cross-examination, the accused persons have got marked Exs.D-1 to D-6. After hearing the learned counsel appearing for the parties, the Court below came to the conclusion that the materials placed on record is sufficient to bring home the guilt of the accused and convicted. Challenging the legality and correctness of the same, appellants - accused are before this Court. 6. The main grounds urged by the learned counsels for the appellants - accused Nos.1 and 2 are that the learned Sessions Judge without appreciating the evidence and materials placed on record, has come to a wrong conclusion and has wrongly convicted accused Nos.1 and 2. It is further submitted that accused Nos.2 and 3 were not present in the car and even the evidence goes to show that the victim was sitting by the side of the driver-accused No.1 and that he has not made any efforts to escape from the said place nor he has raised any hue and cry. Under such circumstances, the provisions of kidnap not applicable to the facts of the present case on hand. Under such circumstances, the provisions of kidnap not applicable to the facts of the present case on hand. It is further submitted that accused No.2 got out of the car in the middle of the said proceedings, neither he has threatened the victim, nor he has received any amount from him and even the said amount has not been recovered from the possession of accused No.2. Under such circumstances, the Trial Court ought to have acquitted the appellant-accused No.2. It is further submitted that what is the role played by accused No.2 to convict the accused has not been properly considered and appreciated by the Trial Court. It is further submitted that the weapons viz., iron kandli and knife, they were on the back seat of the car and accused No.1 and victim were sitting in the front seat. Then under such circumstances, the threat said to have been given by using lethal weapons is also not acceptable. It is further submitted that the conduct of the victim itself is strange. Neither he has made any resistance nor he has tried to escape from the said car and even it is an admitted fact that earlier to the incident, he was having physical relationship with accused No.4. Under such circumstances, the Trial Court ought not to have believed the evidence of these two witnesses. 7. It is further submitted that Exs.D-1 to D-6 clearly goes to show that they are the letters written by the victim to accused No.4, when they were in love with each other. It is further submitted that no motive has been proved by the prosecution. It is further submitted that the Investigating Officer has not conducted the Test Identification Parade and accused No.2 has not made any call for ransom payment. Under such circumstances, the provisions of Section 364A of IPC are not attracted. It is further submitted that the victim has not suffered with any injuries. Under such circumstances, the case of the complainant is not acceptable. 8. It is further submitted that P.W.2 during the course of cross-examination has deposed that he does not remember the phone number of accused No.4. Under such circumstances, the evidence which has been produced is not acceptable. Under such circumstances, the case of the complainant is not acceptable. 8. It is further submitted that P.W.2 during the course of cross-examination has deposed that he does not remember the phone number of accused No.4. Under such circumstances, the evidence which has been produced is not acceptable. It is further submitted that though there is no material as against the appellants - accused Nos.1 and 2, the Trial Court has come to a wrong conclusion and has erroneously convicted the accused. On these grounds, the learned counsels prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and to acquit accused Nos.1 and 2. 9. It is the submission of the learned counsel for the appellant - accused No.3 that the only allegation which has been made against him is that immediately he alighted from the car and went away and no specific overt acts have been alleged as against him. Even he was not present at the time when other accused persons were said to have made a call for ransom. Under such circumstances, the Trial Court ought to have acquitted accused No.3. 10. It is the submission of the learned counsel for the appellant - accused No.4 that neither she has called the victim nor she was present at the time of alleged incident. Exs.D-1 to D-6 clearly goes to show that victim was having love and were also having physical relationship with accused No.4 and after accused No.4 got married, there was nothing for her to come in contact with the victim. Call details produced does not substantiate the fact that accused No.4 had called the victim. Supporting the arguments of the learned counsels appearing for on behalf of other accused persons, he prayed to allow the appeal and to acquit accused No.4. 11. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the prosecution case is consistent in pointing out the fact that accused No.4 had called the victim and when the victim came near Mrutyunjaya Kalyana Mantap, at that time, accused Nos.1 to 3 came there in a Maruti Van and kidnapped the victim. P.W.2 is the victim. 11. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the prosecution case is consistent in pointing out the fact that accused No.4 had called the victim and when the victim came near Mrutyunjaya Kalyana Mantap, at that time, accused Nos.1 to 3 came there in a Maruti Van and kidnapped the victim. P.W.2 is the victim. He has clearly stated the overt acts of each of the accused persons and P.Ws.1, 4, 5, 6, 11, 12 and 13 they have also categorically deposed before the Court with regard to the act of the accused persons for ransom and kidnapping. It is his further submission that the CCTV footage shows that the accused persons have also withdrawn the amount from ATM. It is his further submission that nothing has been brought on record by the accused to show that they have been falsely implicated in this case. The evidence produced before the Court is cogent and acceptable and by relying upon the same, the learned Sessions Judge has come to a right conclusion and has rightly convicted the accused persons. There are no other good grounds made out by the appellants - accused so as to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 12. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records, including the Trial Court records. 13. To prove the case of the prosecution, it got examined as many as 21 witnesses. P.W.1 is the brotherin- law of the victim and he is also a complainant. In his evidence, he deposed that he received a phone call from the father of the victim informing that the victim has not come to the house and they requested him to go and search near the shop. Thereafter, he went near the shop and made enquiry with the neighbouring shop owners and came to know that he left the place by saying that he wants to go to some other place. Thereafter, he went near the shop and made enquiry with the neighbouring shop owners and came to know that he left the place by saying that he wants to go to some other place. As the victim was not traced, he went back to the house and at about 11:30 p.m., victim called over the phone saying that he is at a particular place and some four persons have taken him and they will release him on payment of Rs.50,000/-. He further informed that he alone should come with Rs.50,000/- near the Vinayaka Talkies. In order to arrange the amount, he went to the house and at about 00:15 hours, again he received a call by saying that Rs.50,000/- is not sufficient and he has to bring about Rs.3,00,000/- to Rs.4,00,000/-, as they are demanding the same and he also informed that Rs.3,00,000/- has to be arranged at about 07:30 a.m. and he also informed not to inform the Police. Again at about 07:30 a.m. he received the phone call and told that he has arranged for Rs.2,00,000/- and further he has to arrange for Rs.1,00,000/- and at that time, he told that he has been kidnapped by Chidanandayya, Vishwanath and Kumar and accused No.4- Bhavya had called her to come near Mrutyunjaya Kalyana Mantap and when he went there, at that time, he has been kidnapped by three persons. He further deposed that the victim had informed that the accused persons have taken him in a Maruti Van and robbed one neck chain, one bracelet, ATM card, driving licence and golden colour watch and he has been confined in the house of accused No.1- Chidanandayya Diddimath and in case if the amount has not been given, then the victim is going to be murdered. He has further deposed that he has recorded the message and the information received over the phone and he went to PSI and by placing the same, he filed the complaint. 14. During the course of cross-examination of this witness, he has deposed that on 05.06.2011 at about 08:00 a.m., he went to the Police Station and the PSI had not come and he came at about 08:30 a.m. Thereafter, he has filed the complaint. He further deposed that when accused No.1 has been apprehended is not known to him. 14. During the course of cross-examination of this witness, he has deposed that on 05.06.2011 at about 08:00 a.m., he went to the Police Station and the PSI had not come and he came at about 08:30 a.m. Thereafter, he has filed the complaint. He further deposed that when accused No.1 has been apprehended is not known to him. He has further deposed that four to five days after the filing of the complaint, he has signed the other documents. He has further deposed that on 05.06.2011 at about 12:30 p.m. lastly he spoke with the victim and he had received call at about 07:30 a.m. from the victim. He has further deposed that except accused Nos.1 and 4, he do not know what offence has been committed by accused Nos.2 and 3. He has further deposed that he has written the complaint as stated by the Police. He further volunteered that he was aware of the incident and only the procedure has been told by the Police to write the complaint. He has further deposed that accused made a phone call through victim to the phone of his wife and thereafter his wife informed him and even he has informed to the Police that the victim is going to be murdered. He has further deposed that on 05.11.2016 he has seen 4th accused while filing the complaint. Further he has improved his version and said that after apprehension of accused No.4 he has seen her and at that time he came to know that for ransom the alleged incident has taken place. He has further deposed that accused No.4 and his son-in-law were acquainted with each other and he was also knowing the same. He has also further deposed that accused No.1 has taken with him from 12:30 to 01:00 p.m. and at that time, he has not disclosed where the kidnapped person has been kept. Except that nothing has been elicited from the mouth of this witness. 15. P.W.2 is the victim. In his evidence, he has deposed that when he was looking after the shop at Ranebennur and Hirekerur, at that time, he came in contact with accused No.4-Bhavya and they maintained relation and their relation went up to getting married and he was having physical contact with her and then thereafter she got married. 15. P.W.2 is the victim. In his evidence, he has deposed that when he was looking after the shop at Ranebennur and Hirekerur, at that time, he came in contact with accused No.4-Bhavya and they maintained relation and their relation went up to getting married and he was having physical contact with her and then thereafter she got married. He has further deposed that till she got married, he was having physical contact with her. He further deposed that on 04.06.2011 at about 02:00 p.m. accused No.4-Bhavya called to his mobile phone and asked to come near Mrutyunjaya Kalyana Mantap and on 05.06.2011 at about 02:30 p.m. he went and accused No.4 was not there and he contacted to her mobile and she told that she is there itself and when he was standing by the side of the road, a silver coloured Maruti Van was standing and three persons came towards him and the driver of the Maruti Van caught hold of his neck, hand and threatened him to come and board the car and when they were intending to take, he fell down and tried to escape and at that time, his shirt got torn and thereafter, they took him forcefully in the Maruti Van. In the said car, the driver was telling to take kandli to the inmates and he was made to sit in the middle and one person was holding the kandli to his neck and another person was holding knife and the victim asked who are they, they threatened not to make hue and cry and if he makes hue and cry, he will be murdered. They went through bypass Itagi and Magadi road and went to Kadaramandalagi cross and thereafter they came inside the Ranebennur city and they have taken rounds in the city, as he had not taken any food, he felt nervous and when he asked for water, they told that they are not having any water. He was told that if he tries to escape, another vehicle is following and they are going to kill him. Accused No.1 was the driver of the said Maruti Van and by making him to sit in the middle, they used to threaten. He was told that if he tries to escape, another vehicle is following and they are going to kill him. Accused No.1 was the driver of the said Maruti Van and by making him to sit in the middle, they used to threaten. He has further deposed that when he was there in the Maruti Van, at about 07:30 p.m., accused asked how much amount is there with him and he told that he is not having any amount. Thereafter, his personal search was made and found Rs.19,000/-, two gold rings, one gold bracelet, one gold chain, one influx watch and three ATM cards of Union Bank of India, two ATM cards were belonging to him and one ATM card belonged to his wife. 16. P.W.2 has further deposed that at about 08:00 p.m. they went near post circle Union Bank ATM and parked the vehicle at a distance and asked the password of ATM card and when he did not disclose, they held kandli to his neck and being afraid, he told the password of the ATM card. Thereafter, the driver of the van went to the ATM and brought an amount of Rs.2,800/-. Thereafter, he has been wandered in the Bank and parked the said vehicle by the side of the road and asked him to pay Rs.8,00,000/- to Rs.10,00,000/- and he told that he is having a last bus to go to his place and accused persons said that they will not allow him to go and asked him to adjust and they also requested him to call his father-in-law Basavaraj Sutagatti over the phone and when he was about to call to his father-in-law, at that time, his uncle's phone came and when he was about to receive, accused No.1 snatched the phone and at about 11:00 p.m., his sister Gadigevva called him, she asked whereabouts of him and they are searching for him. He told that he is in a problem and asked her to tell the same to her husband and to bring Rs.50,000/- near Vinayak Talkies and not to inform the same to the Police. He has further deposed that at about 00:00 hours, after giving some amount to accused No.2, he was asked to get down of the said car and took him to a red tiled house and confined him in a room. Accused persons were watching by holding the kandli. He has further deposed that at about 00:00 hours, after giving some amount to accused No.2, he was asked to get down of the said car and took him to a red tiled house and confined him in a room. Accused persons were watching by holding the kandli. At about 12:30 a.m. they told to get Rs.3,00,000/-, then he told that it is not possible and the accused persons told that he has to secure from some other person. Thereafter, he informed the same to his sister Gadigevva over the phone that they are demanding Rs.3,00,000/- to release him and he also told that he will call in the morning. He has further deposed that on 05.06.2011 at about 07:00 a.m. when he watched, accused persons questioned him whether he knows accused No.4-Bhavya, he replied that prior to the marriage, he was knowing and he has left her company after her marriage and there he came to know that accused No.4-Bhavya has made him to kidnap and the driver who was driving the said car was Chidanandayya and it is accused No.1 who had planned to kidnap and asked the ransom. 17. He has further deposed that at 07:00 a.m., he called to his sister's home, but the said phone was lifted by P.W.1 and he informed what has happened and told that he want an amount of Rs.3,00,000/- and if he is not going to pay Rs.3,00,000/-, he will be murdered. He has further deposed that at about 12:00 noon, the driver alone came and opened the door, where he has been confined and took him in the van towards bypass road and asked to call his father-in-law infront of him and request him to bring the amount. As he was not having food and water, he became nervous. Thereafter, they have kept kandli and knife and took him to bypass road and at that time, his father-in-law brought the bike and the accused persons were told to keep the motorcycle on the road side and go towards Chamundeshwari Temple and when accused No.1 tried to take the amount from the motorcycle, the Police apprehended him who were in mufti and the Police have seized the gold ring, watch, ATM cards, driving licence and a kandli and knife. 18. 18. During the course of cross-examination, he has deposed that on 04.06.2011, he alone came near Mrutyunjaya Kalyana Mantap and prior to that he has not met accused No.4. He has further deposed that he had mobile number of accused No.4. He has further deposed that his eyes were not tied when he was kidnapped. But the witness volunteered that the accused persons were holding kandli and knife. He has further deposed that he does not remember who was holding kandli and who was holding knife. He has also tried to escape, but he could not. He has further deposed that immediately after the incident on 05.06.2011 at about 02:00 p.m., he has met his father-in-law in the Police Station and on 04.06.2011 at about 11:30 p.m. he himself had called his sister over phone. 19. He has further deposed that after 11:30 p.m. he has spoken about 12:30 to 12:45 p.m. He has further deposed that when he called for the second time to his sister, he did not inform that he has been kidnapped. Other suggestions which have been made have been denied. 20. P.W.5 is the goldsmith, who has done appraisal of the said seized articles. P.W.6 is the relative. He has also went in search of the victim and subsequently he came to know that the victim has been kidnapped and he saw accused No.1 taking the amount from the bag of the motorcycle and apprehension of the accused. He has been partly treated as hostile. Even in the course of crossexamination of this witness, nothing has been elicited so as to discard his evidence. 21. P.W.7 is the owner of the house of accused No.1. P.W.8 is wife of P.W.1. She has also reiterated the evidence of P.W.1. P.W.9 is the owner of the motorcycle, who appointed accused No.1 as driver and he has been partly treated as hostile. P.W.10 is the pancha to Ex.P-4 with regard to seizure of gold articles from the car and seizure of the mobile from accused No.1, as per Ex.P-5 and the mobile of accused No.3, as per Ex.P-6 and accused No.1, as per Ex.P7 and he is also a witness to the spot mahazar Ex.P-5 from where the victim has been kidnapped. P.W.11 is the Head Constable who registered the case and apprehended the accused. P.W.11 is the Head Constable who registered the case and apprehended the accused. P.W.12 is also a Police Constable who went in search of the accused for apprehension. 22. P.W.13 is the member of the team who has assisted the investigation. P.W.14 is a person who has issued the property extract pertaining to place where the victim has been confined. P.W.15 is the WPC. She has deposed that she has been called by Investigating Officer for making the personal search of accused No.4 and accordingly she was present and has assisted for searching. P.W.16 is the Bank Officer, who has given the CCTV footage and CD as per Ex.P-14 and P-15. P.W.17 is the Bank Officer he has also issued CCTV footage of ATM details, as per Exs.P-17 and P-18. P.W.18 is the Officer of the Bank and he has also given the CCTV footage as per Ex.P-19 and P-20. P.W.19 is the employee of the said Bank. 23. P.W.20 is the Investigating Officer who partly investigated the case and handed over the further investigation. P.W.21 is the Investigating Officer who investigated the case and filed the charge sheet against the accused. 24. Prosecution in order to prove the kidnapping for ransom has to prove that there was a forceful compulsion or inducement by deceitful means that the victim has been made to go from any place. A person commits the offence of abduction when he by force compels or by deceitful means induces one to go from one place to another. In order to attract the provisions of Section 364A of IPC, the prosecution has to prove that the accused must have kidnapped, abducted or detained any person and he must have kept such person under custody or detention and it is for ransom. 25. Keeping in view the above said basic ingredients of the kidnapping and kidnapping for ransom, on perusal of the evidence, the evidence of P.Ws.1 and 2 is considered to be material. 26. On perusal of the evidence of P.W.2, the victim, in his evidence he has clearly deposed that accused No.4 was acquainted with him, when he had been to Hirekerur. He has also deposed in his evidence that accused No.4 on 04.06.2011 at about 02:00 p.m. called him over phone and asked him to come near Mrutyunjaya Kalyana Mantap and when he asked why he should come, she told him to come casually. He has also deposed in his evidence that accused No.4 on 04.06.2011 at about 02:00 p.m. called him over phone and asked him to come near Mrutyunjaya Kalyana Mantap and when he asked why he should come, she told him to come casually. He has further deposed that before 04.06.2011, accused No.4 has not met him. He has further deposed that when he had been to Ranebennur for business, he came in contact with accused No.4 and they developed intimacy. During the course of crossexamination by accused No.4, he has deposed that there were no talks between him and accused No.4, when he was in Ranebennur and that accused No.4 belonged to a cultured family and he has further admitted that after the marriage, she was living a happy marital life alongwith her husband and children. He has also admitted the fact that when she was leading a happy life, there was no necessity to call him over the phone and her husband is a Government Servant and that she is not having financial problem. He has further deposed that he does not remember the phone number with which she had called. He has also admitted the fact that one day prior to the incident, no calls have been made by her. When the evidence of this victim, during the course of cross: examination indicates that accused No.4 is having a physical relation with him prior to her marriage and thereafter she got married and now she is leading happy marital life and even she is not having any contact over the phone, then under such circumstances, the contention of the prosecution that it is accused No.4 called him and she asked him to come near Mrutyunjaya Kalyana Mantap is not acceptable. 27. On perusal of the evidence of P.W.2, it indicates only on 05.06.2011 at 07:00 a.m. he came to know that accused No.4 made him to kidnap, but the evidence of this witness and P.W.1 is seen, when he made a call in the night, he informs four persons have kidnapped him and who is that fourth person is a doubtful circumstance. In that light also it creates doubt in the case of the prosecution. 28. In that light also it creates doubt in the case of the prosecution. 28. Though the prosecution has got produced Ex.P- 27 call details of accused No.1, Ex.P-28 call details of accused No.2, Ex.P-29 call details of P.W.1, Ex.P-30 call details of P.W.2, Ex.P-31 call details of accused No.3, Ex.P: 32 call details of accused No.4 did not disclose the fact of accused Nos.1 to 3 have contact with accused No.4 with a common intention to commit the offence. Though the call details of P.W.2 i.e., Ex.P-30 indicates that some exchange of calls were there between P.W.2 and accused No.4, but the evidence of P.W.2 itself disclose the fact that P.W.2 was acquainted with accused No.4 and they came closely to the extent of getting married and were also having a physical contact. Thereafter, accused No.4 got married and P.W.2 also got married. In that light, if any phone calls were there between P.Ws.2 and 4, it cannot be inferred that accused No.4 called him with an intention to kidnap with the help of accused Nos.1 to 3. Even there are no further overt acts alleged as against accused No.4. If really accused No.4 is intending to extract the money from P.W.2, she was having a physical contact with him and she could have threatened him in any other manner so as to extract the money from P.W.2. 29. Be that as it may, even Ex.D-1 to Ex.D-6 love letters written by P.W.2 were there with her. If she tells the same to P.W.2, by threatening there also she could have extracted the money. Even the prosecution evidence does not disclose the fact of any gold articles or cash said to have been recovered from the possession of accused No.4. When the case of the prosecution itself is that at the instigation of accused No.4, she contacted accused No.1 over the mobile and that he along with accused Nos.2 and 3 have kidnapped in a Maruti Van bearing registration No.KA-27/M-3773 belonging to C.W.12 falsifies. Even in his evidence he has deposed that the said car was taken round inside the city after coming from Kadaramandalagi cross. P.W.2 does resists nor ties to escape. In that light, prosecution case is not acceptable. 30. Even in his evidence he has deposed that the said car was taken round inside the city after coming from Kadaramandalagi cross. P.W.2 does resists nor ties to escape. In that light, prosecution case is not acceptable. 30. Even on perusal of the evidence of P.W.2 in the examination-in-chief itself, it indicates that he has been kidnapped at about 02:30 p.m. and accused No.1 was driving the Maruti Van and were threatening and only at about 07:30 p.m. they asked how much amount he was having and thereafter, they made a personal search and took Rs.19,000/-, two gold rings, one bracelet and one gold neck chain, one influx watch and three ATM cards. If really they were intending to extract the money, the said articles which were in possession of him and were worn by him, the same could have been snatched immediately from him, they could not have wasted for such a long time. Even the conduct of P.W.2 itself appears to be strange and unnatural. When accused No.1 alone was there in the van, he has not made any efforts to go away or escape from his clutches. Even in the evidence, he has deposed that his eyes were not tied and even he has disclosed that in which direction the said vehicle was going he cannot tell and he has also further deposed that he does not remember as to who was holding kandli and who was holding knife. Even strangely in his evidence, he has deposed that on 05.06.2011 at about 07:00 a.m., the accused asked him to wash his face and at that time, he asked whether he knows accused No.4 and then he intimated that prior to the marriage he was knowing and he has left her company after the marriage and at that time he came to know that accused No.4 got him kidnapped and also got to know the name of the accused No.1 as Chidanandayya and he has planned to kidnap him. 31. 31. Even on perusal of the evidence of P.W.1, brother-in-law of the victim, he has deposed that on 04.06.2011 he searched for the victim as per the say of the father of the victim and he called the victim over phone and the phone was switched off and at about 11:30 p.m. the victim made a call by saying that he is at a particular place and four persons have kidnapped him and they will release him on payment of Rs.50,000/-. As per the evidence of P.W.2, he has deposed that he came to know that P.W.4 got him kidnapped on 05.06.2011 at about 07:00 a.m. when he washed his face and accused No.1 asked whether he knows accused No.4 - Bhavya. If on the night of 04.06.2011 itself if he intimates that some four persons have kidnapped him and are demanding Rs.50,000/-, then admittedly accused No.4 was not there at any point of time in the said Maruti Van, then who is that fourth person, who was there in the van, creates a doubt in the case of the prosecution and especially the evidence of P.W.2, the victim. Even the evidence of P.W.1 also shows that in the first instance, he has asked Rs.50,000/- at about 11:30 p.m. and subsequently at about 12:15 a.m. he received a phone call and at that time, he informed that he require Rs.3,00,000/- to Rs.4,00,000/- and Rs.50,000/- is not sufficient. How all of a sudden the said amount has been increased. If really the accused persons have kidnapped him for ransom, they could have demanded an amount of Rs.3,00,000/- to Rs.4,00,000/- in the first instance, but they asked Rs.50,000/- and subsequently it was increased to Rs.3,00,000/- to Rs.4,00,000/-. 32. Even in the evidence of P.W.1 he has informed that accused No.4 called him over the phone and informed to go to Mrutyunjaya Kalyana Mantap and when he went near the Maruti Van, the said persons have kidnapped. But in the complaint Ex.P-1, no suspicion has been expressed as against accused No.4 or other accused person though P.W.2 has already informed that four persons kidnapped him. But in the complaint Ex.P-1, no suspicion has been expressed as against accused No.4 or other accused person though P.W.2 has already informed that four persons kidnapped him. Though he has received the phone call from P.W.2 at about 07:30 a.m. on 05.06.2011 and the complaint was filed at about 10:30 a.m., if really at the instigation of accused No.4, accused Nos.1 to 3 have kidnapped him for ransom, definitely in the complaint - Ex.P-1 some suspicion should have been shown as against accused No.4. Taking into consideration the said material which has been produced, it is not reposing any confidence to hold the fact that it is accused No.4 who instigated accused Nos.1 to 3 and kidnapped him for ransom. 33. Though the prosecution in order to bring home the guilt of the accused has relied upon the evidence of the recovery of the articles, the said evidence is also not trustworthy and reliable. On perusal of the evidence of P.W.3, in his evidence he has deposed that accused No.1 was apprehended by the Police and in his presence, one kandli and one knife were seized and a vehicle has been seized and he has signed the mahazar, as per Ex.P-4. He has also deposed that he do not know the contents of Ex.P-4. He is also a witness to Ex.P-5, whereunder the motorcycle of the complainant has been seized. He is also a witness to Ex.P-6, whereunder two mobile phones have been seized from the possession of accused No.3. He has also further deposed that the personal search of accused No.4 was made and a mobile phone has been seized as per Ex.P-5 and personal search of accused No.3 has also been made and two mobile phones have been seized. He has further deposed that PSI along with accused No.1 took them to the house of accused No.1 and produced one bracelet, one gold chain and one ring and Rs.19,000/- and the same have been seized by drawing a mahazar as per Ex.P-7 and a sketch has also been prepared as per Ex.P-8. He has also deposed that the shirt which was worn by the victim has also been produced and same has been seized as per Ex.P-10. 34. He has also deposed that the shirt which was worn by the victim has also been produced and same has been seized as per Ex.P-10. 34. During the course of cross-examination, he has admitted the fact that till date, he do not know who is the owner of the house and where the accused No.1 was residing and only two of them have gone there. He has further admitted that when they had been to the said house, accused No.1 was not there. 35. P.W.4 is also a seizure mahazar pancha and a relative of the victim. He has also made search of the victim and near Chowdeshwari Temple, the accused have been apprehended at about 02:30 p.m. and he was also there and from the said Maruti Van, one kandli, one knife, one gold ring, driving licence, ATM card, cash, C.W.4's photo were taken by the Police and at that time, accused No.1 alone was there. He has also gone along with him to the house of accused No.1 wherein one green colour ring, one gold chain, one gold colour watch and Rs.19,000/- were seized and the remaining accused persons were also brought and from them Rs.4,000/- and a ring, mobile phone, ATM card, driving licence, photo, one kandli and knife were seized. 36. During the course of cross-examination, he has admitted the fact that the road where the Cowdeshwari Temple, is the P.B.road and so many vehicles will be moving on the said road. He has further deposed that he has not seen accused No.4 anywhere. 37. P.W.5 is the goldsmith. He has deposed that on 05.06.2011 at about 09:30 p.m. he received a phone call from the Police to verify whether the seized articles were gold articles or not and he went at about 01:45 or 02:00 p.m. and the Police were there and the Police informed the apprehension of the accused persons and he weighed the seized gold articles. He has also signed the Ex.P-4. 38. On perusal of the evidence of P.W.20, the Investigating Officer, in his evidence, he has deposed that when they made a personal search of accused No.1, they have seized Rs.20,000/- cash, one gold ring, one Nokia Express Music model mobile phone, one G5 mobile, one Nokia 1280 model mobile phone, one High Tech Company AHT 3300 mobile phone and one ATM card belonging to the victim. But during the course of cross-examination of P.W.2, he has deposed that he do not remember as to from whom he got the call on 04.06.2011 at 02:30 p.m. and it has been elicited during the course of crossexamination that sim card of the mobile in which he has talked is not in his name, in respect of mobile No.9448775004. Though he has deposed that he himself was using the said mobile phone, but to whom the said sim card belongs and to whom the mobile phone belongs is not established by the prosecution, then it is very difficult for the Court to come to the conclusion that at about 02:30 p.m. the victim has received call from accused No.4. He has also admitted during the course of crossexamination that accused No.4 comes from a respectable family and his relationship with accused No.4 is cordial. When such evidence has come up before the Court, then under such circumstances, why she will instigate accused Nos.1 to 3 to kidnap P.W.2 for ransom creates a doubt. 39. Be that as it may, the accused persons have been charge sheeted for the offence read with Section 34 of IPC. The prosecution has to clearly establish under Section 34 of IPC that there will be prior meeting of the mind. But in the instant case on hand, the prosecution has tried to rely upon the call details produced to show that accused Nos.1 to 4 have connection over the phone. Even though the prosecution has tried to rely upon the call details produced at Exs.P-27, P-30, P-31 and P-32 merely because some exchange of calls were there between them and that does not indicate that there was a prior meeting of the mind and with that common intention they have committed an offence. In that light, the evidence is lacking and the accused are not liable to be convicted by taking the shelter under the common intention under Section 34 of IPC. 40. The Trial Court without taking into consideration the said aspect has come to the conclusion that the call details of accused Nos.1 and 4 indicates that they were in contact with each other even prior to the date of kidnap of P.W.2 and even after kidnapping also. 40. The Trial Court without taking into consideration the said aspect has come to the conclusion that the call details of accused Nos.1 and 4 indicates that they were in contact with each other even prior to the date of kidnap of P.W.2 and even after kidnapping also. The prosecution has utterly failed to prove the fact that what has been transpired in the said calls and the record of the calls if it could have been produced, then under such circumstances, it can be safely held that accused No.1 was in constant touch and they with a common intention kidnapped the victim. 41. Even as could be seen from the evidence made available by the prosecution, P.W.2 had been to Mrutyunjaya Kalyana Mantap, Ranebennur. There he did not notice accused No.4 and as per his evidence, accused Nos.1 to 3 came in a silver colour Maruti Van and dragged him by holding his neck and gagging his mouth he has been kidnapped. From the said evidence, it clearly goes to show that it is accused Nos.1 to 3 who have committed the criminal intimidation by threatening to his life and kidnapped him. In that light, the Trial Court has wrongly come to the conclusion and has wrongly convicted the accused No.4 for offences under Sections 364A and 365 of IPC and has rightly come to the conclusion that accused No.4 is not found guilty of the alleged offence punishable under Section 394 of IPC and rightly acquitted the accused. 42. On perusal of the evidence of P.W.2, after kidnapping he was made to sit in the middle of the van and a kandli and a knife were held to his neck and they told not to make hue and cry and if he makes, he will be killed and the accused persons snatched the mobile. Thereafter, they went to bypass road which leads to Itagi Magod and went up to Kadaramandalagi cross and thereafter they came inside the city and they took rounds in the city and as he has not taken the food, he was tiered and he was threatened not to escape and if he tries to escape, he will be murdered. Thereafter, they went to bypass road which leads to Itagi Magod and went up to Kadaramandalagi cross and thereafter they came inside the city and they took rounds in the city and as he has not taken the food, he was tiered and he was threatened not to escape and if he tries to escape, he will be murdered. He has further deposed that at about 07:30 p.m., the accused persons asked him how much amount he is having and he told that he is not having any amount and by checking the clothes, they found Rs.19,000/-, two gold rings, one gold bracelet, one gold chain and the same were snatched along with six ATM cards. Thereafter, he has deposed that they went to Union Bank ATM and asked the password of the ATM belonging to his son-in-law by parking the car at a distance and by threatening, they took the password and accused No.1 who was driving the car, went to the ATM and withdrawn an amount of Rs.2,800/- and thereafter they asked to give him Rs.8,00,000/- to Rs.10,00,000/-. 43. By going through the evidence which have been produced by the prosecution, there is no consistency in the evidence. If really the accused persons were intending to abduct him and were threatening, cause death or hurt to such person, then under such circumstances, the provision of Section 364A of IPC are attracted. P.W.2 has not received any assault or injuries. In that light, his evidence is not acceptable. At one stretch, in his evidence, he has deposed that he tried to make hue and cry and he was threatened. If really they were intending to abduct him for ransom, then they could not have brought kidnapped car inside the city and they could not have moved in lane or road of the city. Even his evidence goes to show that once he says that they have demanded Rs.8,00,000/- to Rs.10,00,000/- and subsequently he has said that they demanded Rs.50,000/- and the same has been increased to Rs.3,00,000/-. 44. Taking into consideration the said aspect of the evidence which has been produced, it does not repose the confidence of this Court to come to the conclusion that the accused person at the instigation of accused No.4 kidnapped the victim, threatened by showing iron kandli and knife. 45. 44. Taking into consideration the said aspect of the evidence which has been produced, it does not repose the confidence of this Court to come to the conclusion that the accused person at the instigation of accused No.4 kidnapped the victim, threatened by showing iron kandli and knife. 45. As could be seen from the evidence of recovery mahazar witness, P.W.4 is also a relative of the victim. But as could be seen from the evidence of P.W.3, the recovery mahazar pancha, he is residing in the said Ranebennur for more than 15 years and he is acquainted with the places. He has admitted that till date, he do not know to whom the house belongs where accused No.1 was residing and he has further deposed that when they had been to the house, nobody was there in the house. If nobody was there in the house, then under such circumstances, who opened the door of the house and with whom the key was there has also not been stated by this witness. Even surprisingly he has deposed that only two persons have gone there and they were there for one hour. Though 50 to 60 persons have gathered, but no local persons have been secured as panch witnesses. In this behalf, the recovery evidence which has been produced is also not trustworthy and reliable. 46. On perusal of the evidence of P.W.6, who is also a relative that accused No.1 said to have been apprehended by the Police, when he came near the motorcycle. Even the evidence of P.W.6 keeping the paper bundle M.O.15 and going towards Choudamma temple at about 01:00 p.m. and parking the motorcycle there and accused No.1 came and tried to take the amount from the motorcycle and at that time, apprehension of the accused at that particular place is also not acceptable. If really they were intended to secure the amount, they could not have asked to come and keep the amount at any busy locality. Even in his evidence, he has deposed that Police took accused Nos.1 and 2 to the Police Station and made an enquiry. He told that he has kept the gold bracelet, a gold chain, a ring and Rs.19,000/- in his house and he agreed to bring them and produced and he has further deposed that accordingly Police went along with him and brought the said articles and produced. He told that he has kept the gold bracelet, a gold chain, a ring and Rs.19,000/- in his house and he agreed to bring them and produced and he has further deposed that accordingly Police went along with him and brought the said articles and produced. The evidence of this witness destroyed the evidence of P.W.4 with reference to the recovery which is said to have been made at the instance of accused No.1 from his house. Even this witness has deposed that he has given statement before the Police on 5th at about 4:00 or 05:00 p.m. and in his statement he has not stated in which motorcycle with which registration number he has taken and kept the amount in the said bag and at that time, when the said motorcycle was parked and accused No.1 tried to take away the amount from the said bag has not been stated. 47. Even the evidence of P.W.7 who is the owner of the house where accused used to reside does not repose any confidence. He has deposed that in connection with the said case, nobody has questioned him and even he has not got executed the rent deed. In that light, his evidence is also not acceptable. Even the evidence of P.W.9, the owner of the Maruti Van, he has also not filed any complaint. He has only deposed that the accused was working as a driver of his car and he has taken the car to attend marriage ceremony. Even the appointment of accused No.1 as a driver of the car itself is doubtful. During the course of cross-examination, he has deposed that when accused No.1 has been appointed is not remembered by him and he has not given any statement to anybody and even he has not asked whose marriage he is going to attend and where he is going to take the car. If really he is the owner and accused No.1 asked to take the car to attend the marriage, definitely he could have also questioned the accused No.1 in this behalf. In that light, the said evidence is not acceptable. 48. If really he is the owner and accused No.1 asked to take the car to attend the marriage, definitely he could have also questioned the accused No.1 in this behalf. In that light, the said evidence is not acceptable. 48. As could be seen from the evidence of P.W.10, he has deposed that near the Tungabhadra Mill Compound, the Police were standing there and they seized one kandli, one knife, Rs.20,000/-, four mobile phones, four ATM cards, one driving licence, one gold ring from the Maruti Van bearing registration No.KA-27/M-3773. He has not specifically stated that it is accused No.1 he also produced them. Though subsequently after identifying Ex.P-4, he has stated that with accused No.1 Rs.20,000/- cash was there, three mobile phones, three ATM cards, one driving licence, but he has not specifically stated that the same have been seized. This witness has been treated as hostile by the prosecution and when he has been questioned, he has admitted that the same has been searched and seized from accused No.1. During the course of crossexamination, he has shown the ignorance and has admitted that five to six signatures have been obtained at a stretch and he do not remember who has taken the said signatures to the said papers and for which purpose they have been used and he do not remember the contents of the panchanama. In that light, the evidence does not repose any confidence. 49. P.W.11 is the Head Constable, who registered the case and apprehended the accused. P.Ws.12 and 13 were also in the same team. Accept the evidence of official witnesses, the material produced is not reposing any confidence of this Court to come to the conclusion that at the instigation of accused No.4, accused Nos.1 to 3 kidnapped and that he has been snatched the amount and the gold articles which were worn by him. Even there is no evidence produced to show that the victim used to wear two gold rings, one bracelet, one gold neck chain and he was also having an amount of Rs.19,000/- with him. If really the said amount was with him along with the gold articles, they could not have waited till 07:30 p.m. Though he has been kidnapped at 02:30 p.m., in that light, the case of the prosecution appears to be doubtful. 50. If really the said amount was with him along with the gold articles, they could not have waited till 07:30 p.m. Though he has been kidnapped at 02:30 p.m., in that light, the case of the prosecution appears to be doubtful. 50. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the evidence of the witnesses which have been produced does not repose any confidence so as to bring home the guilt of the accused beyond all reasonable doubt. It is well settled principle of law that in the case of prosecution if any doubt arises, the benefit of doubt has to be given to the accused. 51. Taking into consideration the above said facts and circumstances, we proceed to pass the following order: ORDER (i) Criminal Appeals are allowed. (ii) The judgment of conviction and order of sentence passed by the learned II Additional District and Sessions Judge, Haveri (sitting at Ranebennur) in S.C. No.67/2011 dated 25.04.2017 is set aside. Accused Nos.1 to 4 have been acquitted of all the charges levelled against them. (iii) Accused Nos.1 to 3 are ordered to be released forthwith, if they are not required in any other case. (iv) Registry is directed to intimate the Principal District Judge, Haveri and the concerned Jail Authorities through e-mail to release the appellants-accused No.1- Chidanandayya S/o.Fakkirayya Diddimath, accused No.2-Vishwanath S/o. Yallanagouda Patil and accused No.3-Kumar S/o. Pundalikappa Hubballi forthwith, if they are not required in any other case. (v) The bail bonds and surety bonds executed by accused No.4-Bhavy @ Bhavani @/o. Manjunath Valmiki stood cancelled. (vi) The learned Principal District Judge, Haveri is hereby directed to refund the fine amount, if the same has been deposited by accused No.4, on proper identification and acknowledgment. Registry is directed to send back the Trial Court records forthwith.