Dismissed

Shivakumar v. State of Karnataka, by

Karnataka HC15 Nov 2022CRL.A/587/2018

Case brief

AI extract

What is this about?

High Court of Karnataka allowed the appeal of a convicted appellant challenging his conviction for kidnapping, murder, and destruction of evidence of a minor child, affirming the lower court's judgment based on corroboration of confession and other evidence.

What did the court decide?

Criminal appeal dismissed as devoid of merit; impugned judgment of conviction and sentence confirmed.

Shivakumar Vs State of Karnataka, by — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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CRIMINAL APPEAL No.587/2018

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BETWEEN:

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SHIVAKUMAR S/O. MUNIYAPPA AGED ABOUT 36 YEARS R/AT 4^TH CROSS, OPP. PARK, ADARSH NAGAR, MOODALAPALYA, BENGALURU CITY – 560 072. ... APPELLANT

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(BY SRI BASAVARAJU T.A., ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY CHANDRA LAYOUT POLICE STATION, BENGALURU CITY – 560 072. REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR STATE PUBLIC PROSECUTORS OFFICE, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA AMBEDKAR VEEDI AT BENGALURU – 560 001.

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... RESPONDENT

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(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 08.01.2007 AND SENTENCE DATED 27.01.2007, PASSED BY

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THE DISTRICT AND SESSIONS JUDGE, PRESIDING OFFICER, F.T.C.-VIII, BANGALORE IN S.C.NO.408/2005 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 364, 302, 201 OF IPC AND ETC.

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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The accused, who is the husband of PW.4 – Shanthi filed the present criminal appeal to set aside the judgment of conviction dated 08/01/2007 and order of sentence dated 27/01/2007 passed by the learned Fast Track Court No.VIII, at Bengaluru City in S.C.No.408/2005 for the offences punishable under Sections 364, 302, 201 of IPC.

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It is the case of the prosecution that

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accused is second husband of Shanti-PW.4. The deceased Ajay is two years old child the son of Shanthi-PW.4 born through her first husband Velu Murugan and PW.4 was separated from her 1^st husband. Shanthi, was working as mason, fell in love

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with the accused and got married and started residing

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in a separate house situated at Adarsha Nagar, 4^th Cross, in front of the park at Moodalapalya, Bengaluru. Smt. Unnamalai – PW.10 the mother, Murugesh - PW.12 the brother, Sharada – PW.1 and Kum. Ganthimathi – PW.3 are the younger and elder sisters of Shanthi – PW.4, Kum. Saritha - PW.2 is the daughter of Sharda - PW.1 were staying at Bengaluru in house No.17, 1^st Main Road, ‘B’ Cross, Sanjeevini Nagar, Moodalapalya, Bengaluru. From the beginning, after the marriage with Shanthi – PW.4, the accused – Shivakumar second husband of PW.4 -Shanthi used to dislike and hate the child deceased Ajay, who was the first husband’s son of his wife Shanthi. Thereby, Shanthi was forced to leave the two years old son at her mother’s at Moodalapalya, Bengaluru. Even during the visits of Shanthi - PW.4 and the accused to the house of mother, the accused used to express hatredness by words and actions and disliking towards the deceased child Ajay.

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It is the case of the prosecution that

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Shanthi – PW.4 delivered another male child born

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from her second marriage at Bengaluru, at the end of December 2004 and was taken to Palakkodu in Tamil Nadu after delivery and the accused was alone at Bengaluru. It is the further case of the prosecution that on 07/01/2005 at about 2.00 p.m., the deceased

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boy Ajay was playing in front of the house with his niece Kum. Saritha – PW.2 (daughter of Sharada – PW.1 maternal aunt of the deceased). The accused came there and gave Rs.2/- currency note to Saritha and asked her to buy biscuits for Ajay and she went to the nearby shop to buy biscuits. By the time Kum. Saritha – PW.2 returned with biscuit packet, Saritha saw the accused taking away the child Ajay, which she revealed to her mother Sharada. Smt. Sharada is one of the sisters of Shanthi – PW.4, on being informed by her another sister Kum.Ganthimathi over phone at her

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work place and informed about the missing of the child Ajay, rushed to the house and searched for the child Ajay, which went in vain and then went to Chandra Layout police station and lodged complaint about missing of the child Ajay. Shanthi was also informed by her brother Murugesh about the missing of her son Ajay. On being received the information about missing of her son Ajay, on 10/01/2005, both Shanthi and her second husband-accused Shivakumar started from Palakkodu, Tamilnadu to Bengaluru. On the way to Bengaluru, the accused made extra judicial confession before his wife Shanthi – PW.4 to the effect that he has murdered the child Ajay and on reaching Bengaluru, both accused as well as Shanthi went to the house of Shanthi’s mother at Moodalapalya, Bengaluru, wherein Shanthi disclosed to her mother and sister about her husband’s confession. The accused also confessed the same before the mother and brother of Shanthi-PW.4. When Shanthi was

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advised by her mother and brother to lodge a complaint, accused ran away. PW.4 Shanthi went to Chandra Layout police station and lodged complaint against her second husband – accused. The accused was caught by the staff of the Chandra Layout Police Station on the same day i.e., 10/01/2005 at about 5.00 p.m. at Nagarbhavi Main Road in BMTC bus stop and was produced before the Police Inspector at about 5.15 p.m., wherein the accused gave voluntary statement and led the police and panchas to the hillock near Kalasipalya, Bengaluru and then led them to a place bounded to the East by Cauverypura and Muneshwara Nagar; to the West by hillock; to the North by Channappa Hill spot and to the South by Sharavathi Nagar and showed the dead body of child Ajay and the dead body was taken to custody by the police. Panchnama was drawn on the spot and the dead body of the child Ajay was shifted to Victoria Hospital, Bengaluru. Inquest Mahazar and post

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mortem examination were conducted at the Victoria Hospital, on the next day i.e., 11/01/2005. After completion of the investigation, the accused came to be charge sheeted for the offences punishable under Sections 364, 302 and 201 of the IPC.

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The offence committed by the accused was triable and thus the matter was referred to learned Sessions Judge. Learned Sessions Judge secured presence of the accused to frame charges against the accused for the offences punishable under Sections 364, 302 and 201 of the IPC and explained to the accused in the language known to him who pleaded not guilty of the offence and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution in all examined sixteen witnesses as PWs.1 to 16 and got marked eleven documents as Exs.P-1 to P-11 and material objects at M.Os.1 to 3. After completion of the evidence of

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prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 statement was recorded. The accused denied all incriminating circumstances adduced by the prosecution witnesses, but did not lead any evidence.

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Based on the above said pleadings, the trial

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Court framed the following points for consideration:

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“1. Whether the prosecution has proved that the accused kidnapped the deceased boy Ajay aged about two years at about 2.00 p.m. on 7.1.2005 from in front of house No.17, situated at 1st Main Road, B' Cross, Sanjeevini Nagar, Moodalapalya, Bangalore (House of the maternal grand mother of the child Ajay) in order to commit his murder and thereby the accused is guilty of offence punishable under Sec.364 of I.P.C.?

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2. Whether the prosecution has proved that the accused committed murder of the deceased boy Ajay after 2.00 p.m. of 7.1.2005 before his proceeding to Bangalore from Palakkodu, Tamil Nadu

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with his wife Smt. Shanthi on 10.1.2005 and thereby the accused has committed culpable homicide amounting to murder and thereby the accused is guilty of offence punishable under Sec.302 of I.P.C?

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3. Whether the prosecution has proved that accused caused disappearance of evidence of murder of the boy Ajay and thereby the accused is guilty of offence punishable under Sec.201 of 1.P.C.?

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Considering both oral and documentary

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evidence on record, learned Sessions Judge recorded a finding that the prosecution has proved beyond reasonable doubt that the accused kidnapped two years boy Ajay at 2.00 p.m. on 07/01/2005 in front of the house of the mother of Shanthi – PW.2 at house No.17, 1^st Main Road, ‘B’ Cross, Sanjeevini Nagar, Moodalapalya, Bengaluru, before he proceeded to Bengaluru from Palakkodu, Tamilnadu with his wife Shanthi-PW.4 on 10/01/2005, thereby he committed culpable murder which offence falls under Section 302

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of the IPC and further proved that after committing the offence, he has taken the dead of the child Ajay on the hillock and tried to destroy the evidence and thereby, he has committed the offence punishable under Section 201 of the IPC. Accordingly, learned Sessions Judge convicted the accused for the aforesaid offences. Hence, the present appeal is filed.

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We have heard learned counsel for the

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parties to the lis.

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Sri Basavaraju T.A., learned counsel for the

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accused contended with vehemence that the impugned judgment and order of conviction passed by the learned Sessions Judge for the offences punishable under Section 364, 302 and 201 of the IPC is mainly on the basis of extra judicial confession which is a week evidence cannot be sustained. He further contended that though the incident occurred on 07/01/2005 at about 2.00 p.m., the case was

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registered on the same day i.e., on 07/01/2005 and at the first instance, complaint was registered as per Ex.P-1, on 07/01/2005 at about 15.30 hours in Cr.No.3/2005 about the missing of the boy Ajay. Thereafter, on the statement made by PW.4 Shanthi on 10/01/2005, the jurisdictional police proceeded with investigation and after investigation, registered a case, thereby the impugned judgment cannot be sustained. He would further contend that according to PW.2 Saritha, who claimed to be the last seen witness, at about 2.00 p.m. saw the accused and the deceased Ajay together and admittedly a missing complaint was lodged at 3.30 p.m. and the case was proceeded on 10/01/2005. It is only after due deliberation within the family members, thereby the accused has been falsely implicated. He would further contend that there are too many contradictions, improvements in the evidence of witnesses and the learned Sessions Judge has not considered the same.

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He would further contend that PW.1

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Sharada complained against the accused with regard to the incident and while lodging complaint, she did not disclose anything regarding ill-will and enmity towards the child. During the cross-examination, it is admitted that the first husband had left PW.4 Shanthi and later the accused was in relationship with Shanthi. Thereafter, she is not aware of whether they got married or not. PW.1 denied the address of the appellant and also admitted that she has not seen the incident and place of occurrence. He further contended that Saritha was examined as PW.2 who is alleged to be the last seen witness. During the crossexamination admitted that she does not know the name of the shop where she purchased Parle-G biscuits. Further, she does not know about the complaint lodged by her mother. It is further stated by PW.2 that when she returned she saw the accused

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carrying Ajay in a distance of 300 to 400 feet and when she tried to chase the accused, there was large number of public movement on the road and she has not given any statement before the police. The evidence of PWs.2, 4, 8 and others are all interested witnesses and thereby, the learned Sessions Judge proceeded to convict the accused based on the evidence of the witnesses. He would further contend that recovery of the dead body at the instance of the accused is not a ground to convict the accused under the provisions of Sections 302 or 201 of the IPC. He further contended that learned Sessions Judge proceeded to convict the accused only on the presumption and assumption and the same cannot be sustained. Therefore, he sought to allow the appeal.

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Per contra, Sri Vijay Kumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment and order of

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conviction, contended that the learned Judge

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convicted the accused on the basis of;

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(a) Motive, stated by PWs.1, 2, 3, 5, 10 and 12;

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(b) Last seen theory by PW.2;

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(d) Recovery of the dead body at the instance of the accused as per Ex.P-5 mahazar witness as PW.8 and the cause of death of two years old boy Ajay is homicidal as could be seen from the evidence of PW.9 Dr. C.N.Sumangala at Ex.P-7 post-mortem report and thereby, learned Sessions Judge is perfectly justified in convicting the accused. Therefore, sought to dismiss the appeal.

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In view of the aforesaid rival contentions

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urged by learned counsel for the parties, the only point that arises for our consideration in the present appeal is:

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“Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offences punishable under Sections 364, 302 and 201 of the IPC in the facts and circumstances of the present case?

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It is not in dispute that the accused is the second husband of PW.4 Shanthi and that as on the date of the love marriage entered into by the accused and PW.4 Shanthi, she had a male child aged about 2 years by name Ajay, through her first husband Velu Murugan. It is the specific case of the prosecution that on 07/01/2005 at 2.00 p.m., when PW.2 Saritha was playing with the child Ajay, the accused came and asked PW.2 to get biscuits by giving Rs.2/- and by the time she came back with biscuits, she saw Ajay was missing there and she saw the accused taking away the child Ajay along with him. Therefore, missing

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complaint was lodged in the Chandra Layout Police Station on the same day at 3.30 p.m.

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This Court being the appellate Court, in order to re-appreciate the entire material evidence on record, it is relevant to consider the evidence of the prosecution witnesses and material documents relied upon.

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(a) PW.1 Sharada is the sister of PW.4 Shanthi

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who deposed that PW.4 Shanthi was married to Velu Murugan and out of their wedlock the deceased Ajay was born. Thereafter, the first husband Velu Murugan was not cordial with Shanthi and he left her along with his son and later PW.4 fell in love with the accused Shivakumar and got married to him and they were living separately. Thus, deceased Ajay was with his mother PW.4 and accused. Since the accused was not happy with the deceased child Ajay, Shanti PW.4 left the child in her mother’s house. On 07/01/2005, at

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3.30 p.m., and PW.3 one of the sisters intimated about the missing of child Ajay and thereafter, both of them searched and could not trace the child and hence, lodged a missing complaint before the police. She specifically stated that since the accused was not liking Ajay, the child was taken away by the accused. It is further stated that the accused had kidnapped the child and killed him. Nothing is elicited in the crossexamination to disbelieve her version. The evidence of the witnesses is as under:

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(b) PW.2 Saritha, who is the last seen eyewitness deposed that after Velu Murugan left Shanthi PW.4, she married the accused and thereafter, the accused, Shanthi PW.4 and the child Ajay were staying together. The accused had developed enmity towards Ajay and used to often assault him. He was not happy that the Ajay was residing with them (accused and PW.4 Shanthi). On 07/01/2005, when PW.3-Saritha was playing with

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Ajay, the accused came to the spot and gave Rs.2/asking her to buy biscuits to the child Ajay and when she came back with the biscuits, Ajay was not there and she found that the accused was taking away Ajay and she went chasing the accused but he escaped with the child in small lanes and thereafter, she came home and at 5.30 p.m. her mother PW.2 lodged a missing complaint. She identified MOs.1 to 3 the belongings of the deceased Ajay. Nothing has been elicited in the cross-examination to disprove her statement.

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(c) PW.3 also deposed on par with PW.2 and specifically stated that the accused made a confession in the presence of PWs.3, 10 and 12 who are sister, mother and brother of Shanthi – PW.4 that he has killed the child Ajay. Nothing has been elicited in the cross-examination of PWs.2, 4, 10 and 12 to disprove that the accused has not killed the child.

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(d) PW.4 Shanthi, who is none other than the

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wife of the accused. She has specifically stated that the accused killed her son Ajay, who was aged about

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two years, born to her first husband Velu Murugan and that both the accused and PW.4 were working together as masons, fell in love with each other and got married and residing separately. She further deposed that after her marriage with the accused, she gave birth to a male child in the month of December, 2004 and after delivery she went to the native place of the accused at Palakkod, Tamil Nadu and she came to know from her mother about the missing of the child Ajay. When they were traveling from Tamil Nadu to Bengaluru, the accused made a confession to his wife that he has killed the two years child Ajay and requested her not to lodge any complaint and that he will not commit such mistake and sought forgiveness. It is further stated that after both the accused and PW.4 came to Bengaluru, when he made confession

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statement again before the mother, brother and sister of PW.4 complainant, she made a statement before the police on 10/01/2005 and thereafter, the police arrested the accused. After investigation, they filed the charge sheet. Nothing has been elicited in the cross-examination to disprove her statement that the deceased child Ajay was killed by her own husbandaccused.

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(e) PW.5 – P.N. Sheshadri, P.C.No.3589, working in Chandra Layout Police Station, as instructed by the higher authorities, collected the belongings of child Ajay from Victoria Hospital in two sealed covers and handed over in the station.

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(f) PW.6 – M. Babu who is the Revenue

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Officer, made spot inspection and submitted his report at Ex.P-3 and his signature was identified as Ex.P-3(a) in support of the prosecution case.

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(g) PW.7 – Shanegowda who was working as Police Sub-Inspector in Chandra Layout Police Station

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registered FIR-Ex.P-4 on the basis of the missing complaint, which is in support of the prosecution case.

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(h) PW.8 - Ekambaram is the witness to the

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spot mahazar for the recovery of the dead body who supported the prosecution case and has signed at Ex.P-5(a) and the inquest mahazar at Ex.P-6(a) and supported the case of the prosecution.

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(i) PW.9 - Dr.C.N.Sumanala, who conducted

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autopsy on the dead body of the child and found ligature mark on the neck of the child and the death is due to asphyxia as a result of ligature strangulation.

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Ex.P-7 is the post-mortem report and Ex.P-8 is the opinion of the Medical Officer.

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(j) PW.10 - Unnamalai - mother-in-law of the

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accused and mother of PW.4 – Shanthi who deposed that Shanthi got second marriage with the accused and the child Ajay was with them and whenever PW.4 and the accused came to her house, the accused was not tolerating the child Ajay and he made a confession

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statement in the presence of PWs.3, 10 and PW.12 about the killing of the child Ajay as he could not tolerate him and therefore supported the prosecution case.

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(k) PW.11 one of the witnesses for recovery of the dead body who supported the case of the prosecution.

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(l) PW.12 is the brother of PW.4 Shanthi who reiterated on par with PWs.3, 4 and 10 about extra judicial confession statement made by the accused and supported the case of the prosecution.

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(m) PW.13 Venkatesh K., is the Police Constable who arrested the accused on 10/01/2005 at about 5.00 p.m. at Nagarbhavi BMTC bus stop and produced him before the Investigating Officer.

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(n) PW.14 Srinivas Shetty, Police Constable who carried the FIR on 10/01/2005 and submitted to the jurisdictional police station at 9.00 p.m. on the same day.

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(o) PW.15 is the Investigating Officer,

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Onkaraiah who recorded the statement of Shanthi as per Ex.P-2 and after investigation, the accused was arrested and the voluntary statement was recorded and at the instance of the accused, the body of the deceased child Ajay was recovered as per the mahazar Ex.P-5 in the presence of PW.8 and the witness supported the case of the prosecution.

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(p) PW.16 Prakash one of the panch witnesses

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to Exs.P-5 and P-6 spot mahazar and inquest mahazar of the dead body who supported the case of the prosecution, thereby learned Sessions Judge proceeded to convict the accused for the offences stated supra.

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By careful perusal of the entire material on record, the following points emerges for consideration in the present case:

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(i) Motive;

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(ii) Homicidal death;

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(iii) Last seen theory;

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(iv) Confession statement by the accused before PWs.4, 10 and 12;

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(v) Recovery of dead body of the deceased Ajay;

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(vi) Statement made under the provisions of Section 313 of the Cr.P.C.

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Motive:

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In order to prove the motive, the prosecution relied mainly on the evidence of PW.1 the complainant and PW.2 the last seen eyewitness and PW.3 is the sister of PW.4 and PW.4 is the wife of

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accused who specifically stated on oath in an unequivocal terms that the accused was disliking the child Ajay as he happened to be the son of the first husband of PW.4 Shanthi and that the accused was staying away with his wife Shanthi - PW.4 without the child Ajay is one of the factors to arrive at a conclusion there was a motive for the accused to

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commit murder of the deceased. Though lengthy cross-examination was made to the aforesaid

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witnesses, in the cross-examination of PW.1, it has been tried to elicit on behalf of the accused that Shanthi had not disclosed to the accused about her first marriage with Velu Murugan and was having child out of the said wedlock and the said suggestion was denied and specifically stated that the child born to her first husband was left in the house of her mother as the accused used to always scold the child Ajay and warned him that he would kill the boy. PW.2 who is the last see eyewitness specifically stated that she had seen the child on 07/01/2005 at about 2.00 – 2.30 p.m. and that the accused gave Rs.2.00 to PW.2 to buy biscuits and when she returned she did not see the child Ajay where they were playing. She saw the accused carrying the child and when she chased him, he disappeared. The evidence of PWs.1 to 4, 10 and 12 clearly depicts that he had hatredness towards the

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child Ajay and nothing has been elicited in the crossexamination to disbelieve the statements, thereby the prosecution proved beyond reasonable that the accused had a motive to kill the deceased Ajay.

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Homicidal death:

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With regard to homicidal death, PW.9 Dr.C.N.Sumangala who is stated to have conducted post-mortem on the deceased child Ajay and stated on oath that she was working as Medical Officer at Victoria Hospital, Bengaluru. She had given the report as per Ex.P-7 and Ex.P-8 is the opinion letter issued by the doctor, thereby supported the case of the prosecution. She further deposed that the postmortem was conducted on 11/01/2005 between 10.40 a.m. and 11.40 a.m. Ex.P-7 is the post-mortem report of the deceased child Ajay which clearly depicts the external appearance as under:

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(i) Condition of subject: Stout, emaciated, decomposed etc.,

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(ii) Wounds: Position, size, character,

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(iii) Fracture, dislocation etc.,

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(iv) Mark of ligatures on neck.

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It is further deposed that the dead body is that

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of a male child measuring 83 cms. in length, moderately built and nourished, dark brown in complexion. Rigor mortis present in all parts of the body. PM staining present over back of the body. Dry grass and mud particles present here and there over scalp hair, face chest and abdomen and pubic region. Post mortem animal bite marks present here and there ranging from 2 cm. x 2 cm. x 0.5 cm. to 4 cm. x 3 cm. x 1 cm. over face, front of chest, front and back of right forearm and right hand, front of right thigh. Post mortem peeling of skin present here and there over left gluteal region, back of left thigh, inner aspect of right thigh front of right side of chest. She further opined that the death was due to asphyxia as a result of ligature strangulation and not manual strangulation.

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Thereby, the cause of death was homicidal in view of the categorical oral evidence made by PW.9 and material documents Exs.P-7 and P-8, thereby the homicidal death is proved by the prosecution beyond reasonable doubt.

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Last seen theory:

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PW.2 Sarita, daughter of PW.1 Sharada, who specifically stated that the accused came on 07/01/2005 at about 2.00 p.m. when the deceased child Ajay was playing in front of the house of PW.2, the accused came there and gave Rs.2/- and asked her to bring biscuits for Ajay. She went to the nearby shop to bring biscuits and by the time she returned with biscuit packet, the accused and Ajay were not seen there and she saw the accused was going with the child Ajay in a little distance and though she chased, the accused disappeared with the child Ajay. Though a lengthy cross-examination was made to

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PW.2 by the defence, nothing has been elicited in the cross-examination to disprove that she has not seen the accused and the deceased, thereby the last seen theory is proved.

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Confession statement by the accused before PWs.4, 10 and 12:

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It is the specific statement made by PW.1 complainant Sharada, PW.3 Gandhimathi, PW.4 Shanthi, who is none other than the wife of the accused, PW.10 mother-in-law of the accused and PW.12 brother-in-law of the accused have specifically stated that the accused made a confession to his wife Shanthi while they were traveling from Tamilnadu to Bengaluru on 10/01/2005 that the accused requested his wife Shanthi not to disclose anybody that he only (accused) killed the child Ajay and when she disclosed, PWs.1, 3, 4, 10 and 12 in a categorical unequivocal terms stated that the accused made a

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confession statement before them that he has killed the deceased child Ajay. Though lengthy crossexamination was conducted by the counsel for the defence, nothing has been elicited to disprove the confession statement made by the accused before the aforesaid witnesses, thereby the confession statement made by the accused is proved.

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Recovery of dead body of the deceased Ajay:

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It is also not in dispute that after the complaint, the accused was arrested on 10/01/2005 and his statement was recorded on the same day by the investigating officer, who stated in the voluntary statement on 10/01/2005 that, as he (accused) used to dislike the child Ajay who was born to the first husband of PW.4 Shanthi and he was not happy in the house, thereby PW.4 his wife was forced to leave the child with her mother and whenever he saw the child, he used to get angry and he felt that if the deceased

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is alive, it is an insult for him and hence, he decided to kill the child. Based on the voluntary statement made as per Ex.P-10 body of the deceased was recovered at the instance of the accused as per Ex.P-5 in the presence of witnesses PWs.8 and 11 who categorically stated on oath that the voluntary statement was recorded and the body was recovered at the instance of the accused who has shown the place where he had thrown the deceased child Ajay from the hill. Thereby, the Investigating Officer has specifically stated about the recovery of the dead body at the instance of the accused. From the lengthy crossexamination made, PWs.8, 11 and 15 nothing has been elicited to disprove that the accused has not been involved in the homicidal death of the two years old child Ajay. After completion of investigation, statement under the provision of Section 313 of Cr.P.c. was recorded, wherein except total denial, the accused has not whispered anything about his

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presence and in view of the categorical evidence, the prosecution proved beyond reasonable doubt the involvement of the accused in kidnapping the child, murdering him and destroying the evidence, thereby the provisions of Sections 302 and 201 of the IPC attract the peculiar facts and circumstances of the present case. In the 313 statement, except denial, he has not explained the circumstances as to how the child died. In the absence of any explanation offered in the statement under Section 313 of the Cr.P.C., an adverse inference has to be drawn against the accused when all other corroborative evidence against the accused has been clearly proved about the involvement of the accused. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438], wherein at paragraph No.11 , it is held as under:

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“11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.”

¶159

A careful consideration of both oral and

¶160

documentary evidence on record clearly indicates that the six circumstances stated supra in the present case has been clearly proved and shows the involvement of the accused in the homicidal death of the deceased. Thereby, learned Sessions Judge, considering both oral and documentary evidence in right perspective has come to the definite conclusion that the prosecution proved beyond reasonable doubt that on 07/01/2005 at about 2.00 p.m., the accused kidnapped the deceased Ajay two years old child and

¶161

34 -

¶162

committed the murder and tried to destroy the evidence and tried to vanish the evidence of murder of the child Ajay, thereby the accused committed offences punishable under Sections 364, 302 and 201 of the IPC.

¶163

For the reasons stated above, the point that arose for consideration in the present appeal is answered in the negative holding that the accused has not made out any case to interfere with the impugned judgment and order of conviction passed by the learned District & Sessions Judge convicting the accused under Sections 364, 302 and 201 of the IPC.

¶164

In view of the above, we pass the

¶165

following:

¶166

ORDER

¶167

(i) The criminal appeal filed by the accused is hereby

¶168

dismissed as devoid of any merit .

¶169

35 -

¶170

(ii) The impugned judgment of conviction and order of sentence dated 08/01/2007 passed in S.C.No.408/2005 on the file of the District and Sessions Judge, Presiding Officer, Fast Track Court – VIII, Bangalore convicting the accused for the offences punishable under the provisions of Sections 364, 302 and 301 of the IPC is hereby confirmed.

¶171

(iii) Since the main matter itself is dismissed on merits, the question of considering I.A.No.2/2022 for suspension of sentence and grant of bail would not arise for consideration.

¶172

Sd/JUDGE

¶173

Sd/JUDGE

¶174

Shivakumar v. State of Karnataka, by

Case brief

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Shivakumar v. State of Karnataka, by

Case brief

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What the court decided

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