Case: Anthony D'Souza &amp; Others Vs. State of Karnataka

(2) Briefly stated facts are as follows:Deceased Vittal Shetty and Paul were employed as driver and cleaner in a lorry bearing registration no.CNO 8928 belonging to Kiran Transport Company owned bySri Castelino and his sonKiran Castelino. OnPWs 5 and 16 had sent the lorry driven by substituted driverPuttumonu along with deceased Paul to Penambur to take delivery of 200 bags of Mangala Urea from its factory to be taken to Mysore Coffee Curing Works at Balehonnur.Balakrishna was the clerk of Venkatadri Transport Company which has a office by the side of Mangalore Chemical Fertilizer factory, got the fertilizer bags loaded between 11.30 a.m. to 3.30 p.m. After handing over necessary documents including the delivery note, the driver and the cleaner left for Mangalore. Sometime at about 5.00 p.m., the regular driver deceased Vittal Shetty reported back to his duty and he was asked byto proceed to Balehonnur with the loaded lorry of fertilizer bags. Deceased driver along with his cleaner deceased Paul then proceeded towards Balehonnur at about 7.30 p.m. on 17.2.1992. It is stated that at about 1.30 in the night both the deceased halted the lorry at Kottigehara at Bharath hotel run by one Ibrahimfor taking tea. When both the deceased were about to leave along with the lorry, it is stated that all the four appellants along with one juvenile offender boarded the truck after some talk and left Kottigehara. Since then nothing has been heard about the truck or the driver. It is only onone Parswanatha Jaina resident of Jenugudde village receives information of finding a dead body in a culvert. He booked a trunk call to the police at Balehonnur police station. On receipt of phone message, SHO of Balehonnur police station proceeded to the Jenugudde along with the staff and observed some injuries on the dead body. He came back to the police station and suo motu registered a case in crime no. 16/92 for the offence under section 302 IPC against an unknown offender. Thereafter, the investigation is taken over by Mallikarjunappathe PSI of Balehonnur police station. In course of investigation, the prosecution examined as many as 36 witnesses and finding a prima facie case, challan was filed against the appellants. Admittedly, there is no direct eye witness and the prosecution case rests entirely on circumstantial evidence. The prosecution relied on the following circumstantialOn 18.2.1992 at about 9.15 a.m., the four appellants along with juvenile offender went to Belagodu primary health unit and informed Gangadhariahwho was a group "D" employee, that they were injured in a lorry accident and asked for immediate medical treatment. On noticing the serious injuries on one of the accused,directed them to go to Sakleshpur general hospital. (b) The appellants then went to a coffee estate run by Rafiq Ahmedat Belagodu and sought his assistance to go to Sakleshpur.noticed the condition of the injured and contacted his relative at Sakleshpur to arrange a taxi so as to provide transportation to the injured to Belagodu. (c)Feroz Khan the owner of taxi was engaged and sent to Belagodu being driven by himself.took the injured to government hospital, Sakleshpur and received his taxi charges of Rs.60/ from the accused. (d) At government hospital Sakleshpur the injured disclosed their names as J.D.Souza son of Joseph, Anil son of Joseph, Manjunatha (juvenile offender) to the medical officer Dr.Prakash InamdarThey also informedthat they sustained injuries in a truck accident near Belagodu village on 18.2.1992. (e)made necessary entries in thecase registered vide exhibit P.32(a)(b) and (c) at pages 243 and 244 of the register. The doctor also noticed serious injures on the person called J.D.Souza. He accordingly advised them to go to a major hospital at Mangalore. (f) The accused went to the taxi stand and again metand engaged his taxi to take them to Mangalore. The taxi ofwent out of order near Uppinangadi andasked them to engage another vehicle. Accused did not have enough money for paying the full charges. They paid Rs. 200/in addition to one wrist watch worn by one of them. They, however, promisedthat they would come back and pay the balance and take back the wrist watch after about three or four days. (g) The accused on reaching Mangalore after engaging another vehicle, two of them went to Wenlock hospital at about 4.00 p.m. and Dr.Vasanth Kumar,treated them. Doctor noticed one of the injured persons, named as George Dsouza, was serious accompanied by another injured named Sunil (later established as Anil). They also told the doctor that they had received injuries in a road accident. Doctor entered the same in thecase register and sent the MLC to the jurisdictional police. (h) On 18.2.1992 at about 5.40 p.m.Vasudeva ASI and SHO of Mangalore south police station went to the hospital and noticed that one of the injured was in a serious condition and others with simple injuries were able to talk. He recorded the statement of able injured who disclosed his name as Sunil Fernandis and that of seriously injured as George Dsouza, He also toldthat they sustained injuries in the motor accident near Belagodu. He has recorded the statement vide exhibit P.49 and also registered a case in crime no. 57/92 for the offences under sections 279 and 337 IPC against the unknown lorry driver. PW35 having noticed that the accident had taken place within the jurisdiction of Sakleshpur police station transferred the case to the jurisdictional police. (i) The case was thenin crime no.25/92 at Sakleshpur rural police station andlocated the lorry bearing registration no.CNO 8928 and from the lorry he found out that it belongs to PWs 5 and 16 and contacted them over the phone intimating them that the lorry had met with an accident near Belagodu village and three persons named George, Anil and Manjunatha had received injuries in the accident and that they were being treated at Wenlock hospital at Mangalore. (j) On receipt of the information PWs 5 and 16 went to Wenlock hospital and on inquiry came to know that the injured got themselves discharged against the advice of the doctorand gone to KMC Hospital, Bijai. In KMC hospital, they found that one injured person by name George was serious and was admitted in intensive care unit and unable to talk.to get the particulars. (k) Sometime in the eveningnoticed that three persons along with a young boy came to the KMC hospital, Bijai and when the three persons went to ICU leaving behind the boy,out of curiosity made enquiry and learnt from the boy that all the three persons and the juvenile were injured in the lorry which met with an accident at Belagodu. The boy further alleged to have revealed that he was working as a coolie and on 17.2.1992 the four accused brought him to hotel at Kottigehara at about midnight. When the lorry stopped at the hotel they requested the driver to take them as passengers. All of them sat in the cabin and after going some distance one of them got the lorry stopped on the pretext of attending calls of nature and then Anil (A2) tried to strangulate the driver with a plastic rope and when the driver and the cleaner tried to run away they were hit with the wooden block called as Katte and killed both of them. The boy further alleged to have revealed that after taking the money from the person of the driver as well as the wrist watch accusedand other took the vehicle towards the forest in order to dispose of the dead bodies. The boy further alleged to have disclosed that when they kept the body of the driver in a culvert near Jenugudde and before they could dispose of the body of the cleaner in the same way they heard the sound of approaching vehicle and they proceeded ahead in the lorry and thereafter the body of cleaner was also kept under a culvert. The boy further alleged to have disclosed that thereafter the lorry was driven to the estate of one Rajegowdaand after unloading the fertilizer bags, while they were proceeding towards Belagodu, the lorry met with an accident and all of them got injured.

Court's reasoning:
(7) As already noticed, there is a concurrent finding of facts by both the courts and this Court would be slow to interfere with the concurrent finding of facts unless there is some perversity in the finding. It is also established principle of law that in a case resting on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must unerringly lead to one conclusion consistent only with the hypothesis of the guilt of the accused. Keeping in view this principle we now proceed to find out whether the finding arrived at by the two courts suffers from anyThe first circumstantial evidence connecting with the accused is again the evidence ofthe taxi driver. It is noticed in the evidence of(medical officer) who had advised the accused to take the seriously injured to a major hospital at Mangalore. According to the prosecution case the accused again came back to the taxi stand and metand asked him to take the injured to Mangalore in his taxi.agreed to the request on the condition that they would pay his taxi charges of Rs.The charges were stated to be settled at Rs.500/and then they left towards Mangalore. It is in the evidence ofthat while they were proceeding near Uppinangadi some mechanical defect developed in the taxi and he asked the accused to make alternative arrangement. It is further stated that on being demand of taxi charges the accused expressed their inability to pay the whole amount and paid Rs.200/and on being insisted byfor full payment a sum of Rs.200/aiong with "Seiko" wrist watch had been given stating that they would come back and take the wrist watch back after three or four days after paying the balance amount. As already statedmet with all the accused persons on two occasions. He was well acquainted with the accused and clearly recognised them in the court. There is no malice or30 towards the accused. He was subjected to lengthy cross examination but nothing could be elicited to discredit his testimony. The statement ofhas also been corroborated by the seizure ofThis again further strengthened the prosecution story connecting the accused with the crime. PW 5, the employer of the deceased Vittal Shetty andRaghunath Shetty the younger brother of the deceased had specifically and positively identified thata wrist watch, belongs to the deceased Vittal Shetty.being the younger brother of the deceased Vittal Shetty it is quite natural that he had sufficient time and occasion to see the wrist watch (Seiko company) being worn by the deceased Vittal Shetty.the employer of Vittal Shetty also clearly stated that he had seen the deceased wearingwhenever he comes for duty.(11) From the evidence disclosed above it is apparently clear that the fact that accused received injures on their bodies in a lorry accident at Belagodu and went from Belagodu to Sakleshpur has been well established by the prosecution.(12) The second circumstantial evidence against the accused is that they were being treated by the doctors of the injuries sustained by them in an accident in volving the lorry in question. Dr. Vasanth Kumar,has stated that he examined one injured named George DSouzabrought by one Sunil (established as Anil) from Sakleshpur and noticed injuries on his body and recorded the wound certificate exhibitAccording to him, it was a case of injury of lorry accident. He has stated that the person accompanying the injured had given his name as Sunil. This doctor in hisand stated that while attending to the injury he has noted identifiable marks on the body of both the injured George and Sunil. He has found a black mole in front of the neck of George DSouza and in the court with the help of birth mark, he has identified the accused no.4 as the person who was brought by Sunil in the injured condition. In regard to Sunil, he again noted the injuries on him and issued the wound certificate vide exhibitHe has stated before the Court that he noted the identification mark on said Sunil as having brown mole of 2" below the right nipple in front of chest. This witness identified accused no.2 (established as Anil) as the person who broughtto the hospital and gave his name as Sunil and the identification is done after seeing the birth mark in exhibitIdentification marks of accused nos. 2 and 4 byin the court with physical identifiable mark noted in exhibit P30 and 31 tallying with the actual birth marks in the courts clearly establish beyond any reasonable doubt that it was accused nos. 2 and 4 who went to the Wenlock hospital in injured condition on 18.2.1992 with the history of road accident. This apart, as already noticed,also lodged a complaint of the accident vide exhibit5 B.Vasudeva PSI of Mangalore south police station recorded the statement ofwherein he stated his name as Sunil. In exhibit2 stated that on 18.2.1992 he along with his4 travelled in a lorry towards Mangalore and when the lorry came near Belagodu due to rash and negligent driving of the driver at about 10.30 am the lorry capsized and the inmates received the injuries and the driver and the cleaner ran away from the place. It is seen, thus,had admitted that A2 andtravelled in the truck and met with an accident at Belagodu and both of them received injuries and they were brought to Sakleshpur by car for treatment and from there to Wenlock hospital, Mangalore.however, disowned his statement and even denied of receiving any injures or there was any lorry accident, in his statement under section 313 Cr.P.C.(13) The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation accused nos. 1 to 3 made disclosure statements leading to the discovery of incriminating materials.gave a voluntary disclosure statement exhibitwhich led to the discovery of wrist watchof deceased Vittal Shetty from PW 30 the taxi driver. As already noticed exhibitwrist watch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate ofThis recovery has been made on the basis of the voluntary statement vide exhibitPursuant to the disclosure statementrecovered 193 bags of Mangala urea which were found stored in the godown ofThe said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur.was declared hostile and did not support the prosecution story.however admitted thatSeril DSouza was working as a servant in his estate. He has also admitted that around 23rd or 24th February, 1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchanama exhibit13 did not support the prosecution story, but two facts were established by the prosecution thatwas his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by193 bags which were part of 200 bags of Mangala urea which were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Balehonnur has been proved byas being purchased by the Pennabur factory.(14) The fourth circumstantial evidence appearing against the accused is the recovery of MOs. 20, 21 and 22 at the instance of0 is the wooden "katte" alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance onthe side mirror of the lorry andsunmica piece fixed at the lorry. However both the courts relied uponthe assaulting weapon. Furtherwas stained with blood and it was sent to forensic science lab and it is confirmed to have been stained with human blood.(15) The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their ownAs already noticedlodged the complaint exhibitIn the complainthas stated that they were the occupants of the lorry which met with an accident on 18.2.1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin DSouza suffered severe injuries and they are being treated in government hospital. On the basis of the complaint, a case was registered under section 279/ 337 IPC.In the complaintgave his. name as Sunil Fernandis which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that accused have been treated at various hospitals which is borne out from the evidence of Dr.Prakash Inamdarand Dr. Vasanth Kumar29 Dr. Chandra Kumar Ballal, as noticed earher. This would go to show that the act cused had admitted the boarding of this lorry and the lorry met with an accident and they sustained injuries on their bodies out of the lorry accident. In their exit amination under section 313 Cr.P.C. the accused denied the prosecution story in toto. They denied that lorry accident had taken place. They also denied to have received any injuries. In short, in their 313 statement they completely denied the established facts and offered false answers. By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing theIn our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.(18) However, one error has been committed by the High Court by converting the conviction from section 302 read with section 149 I.P.C. to one under section 302 in aid of section 34 I.P.C. It is in the evidence ofKiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul.As already noticedthe trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under section 302 IPC read with section 149 IPC