Karnataka High Court
M. Veeresh vs State Of Karnataka on 9 July, 2021
Bench: S.G.Pandit, M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JULY 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
CRIMINAL APPEAL NO.200141/2018
Between:
M. Veeresh S/o Kambayya
Aged about 32 Years
Occ: Labour R/at Chatla Mallapur Village
Tq. Gadwal, Mahaboobnagar
Andra Pradesh-509 125
... Appellant
(By Sri B.C. Jaka, Advocate)
And:
State of Karnataka
Through Raichur Rural Police Station
New represented by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the impugned judgment of
conviction and order of sentence dated 09.07.2018 passed in
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Spl.C.No.45/2016 by the I Addl. Dist. & Sessions Judge at
Raichur by allowing the appeal and consequently acquit the
appellant/accused of the charges leveled against him for the
offences punishable under Section 369, 377, 302, 394 and
201 of IPC and Section 4 of POCSO Act.
This appeal having been heard and reserved for
judgment on 24.06.2021, coming on for pronouncement
of Judgment this day, M.G.S.Kamal J., delivered the
following:-
JUDGMENT
This appeal is filed under Section 374(1) of Code of Criminal Procedure, 1976 (for short, 'Cr.P.C') by the accused aggrieved by the judgment of conviction and order of sentence dated 09.07.2018 passed in Spl. Case No.45/2016 by the I Addl. District & Sessions Judge at Raichur (for short, 'the trial court') convicting the accused for the offences under Sections 369, 377, 302, 394 and 201 of Indian Penal Code, 1860 (for short, 'IPC) and Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO'). 3
2. By the aforesaid judgment, the trial court has passed the following sentence:
a) To undergo rigorous imprisonment for a period of 7 years and also to pay fine of Rs.5,000/- and in default to pay the fine to undergo further rigorous imprisonment for a period of six months for the offence under Section 369 of IPC;
b) To undergo rigorous imprisonment for a period of 10 years and also to pay fine of Rs.25,000/- and in default to pay to undergo further rigorous imprisonment for a period of six months for the offence under Section 377 of IPC;
c) To undergo rigorous life imprisonment and also to pay fine of Rs.50,000/- and in default to undergo further rigorous imprisonment for a period of one year for the offence under Section 302 of IPC; 4
d) To undergo rigorous imprisonment for a period of 7 years and also to pay fine of Rs.5,000/- and in default to undergo further rigorous imprisonment for a period of six months for the offence under Section 399 of IPC;
e) To undergo simple imprisonment for a period of 5 years and also to pay fine of Rs.5,000/- and in default to pay the fine to undergo further simple imprisonment for a period of six months for the offence under Section 201 of IPC;
f) To undergo rigorous imprisonment for a period of 7 years and also to pay fine of Rs.10,000/- and in default to pay the fine to undergo further rigorous imprisonment for a period of six months for the offence under Section 4 of POCSO.
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3. Case of the prosecution:
a) P.W.1- Tayappa and P.W.2- Tayyamma are the parents of deceased Mariswamy aged about 5 years. That on 09.02.2016 at about 2.00 p.m. accused-Veeresh came to their house situated at Shankarwadi village, Raichur Taluk and had asked P.W.2-
Tayamma to give him food as he was hungry. She served him food making him to sit outside house. At that time, P.W.10-Sujatha their neighbour had asked the accused as to which village was he from, to which he replied that he was from Chatla Mallapur. That the accused stayed near the house for some time. Deceased Mariswamy aged about 5 years was also present outside the house. That the accused offered deceased Mariswamy Mandalu (puffed rice) and jaggery to eat and had asked him to show 6 him the house of his uncle in Telugu "Nee Chinnappadi illu Ekkada Undi Choopi". By saying so, he had kidnapped the said Mariswamy and taken him to Raichur City from Katlatkur border crossing through Poornima Talkies and Chandramouleshwara Circle. That he had purchased a blade from the shop of P.W.17-Veeranjeneya situated opposite to Sow Number Ganesh Beedi Company and had thereafter taken the Mariswamy near the Ishwar Temple situated behind KSRTC Staff Quarters into thorny bushes and at 9.30 p.m. he had unnatural sexual intercourse with the said Mariswamy and assaulted him over his head with a stone, strangulated his neck by his hands and killed him. Accused thereafter had taken the golden ear rings (Muruvu) from the ears of the deceased by cutting them with 7 blade and had thrown dead body of the deceased in the said thorny bushes for disappearance of the evidence.
b) That on 10.02.2016 at about 2.00 p.m. accused had gone to Shri Balaji Jewelry shop of P.W.9-K. Pranesh situated at Gillesugur Camp and had pledged the golden ear rings weighing 2 grams 780 mili worth Rs.7,000/- stating that same belong to him and taken Rs.4,700/- from him.
c) That upon the complaint filed by the P.W.1- Tayyappa, the father of the deceased on 10.02.2016, case in Crime No.25/2016 was registered initially for the offence punishable under Section 369 of IPC (later offences punishable under Sections 377, 302, 394, 201 of IPC and Section 4 of POCSO Act were incorporated).
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d) The accused was arrested on 10.02.2016 at about 8.00 p.m. Thereafter, upon the information furnished by the accused Rs.4,200/- was seized from him and the body of the child was recovered from thorny bushes behind the Staff Quarters of KSRTC, Raichur and the same was sent for postmortem and that pursuant to the voluntary statement given by the accused, the police recovered golden ear rings, blood stained stone and blade and also a half burnt beedi used for commission of offence. The accused was produced before the jurisdictional Magistrate and was remanded to judicial custody. After completion of investigation, charge sheet came to be filed against the accused. Since no grounds were made out for discharge, charges were framed 9 for aforesaid offences, accused pleaded not guilty and he was tried.
4. In order to prove the guilt of the accused, the prosecution examined 27 witnesses as P.Ws.1 to 27 and got marked 36 documents at Exs.P.1 to 36 besides marking 4 material objects as M.Os.1 to 4. After closure of prosecution side, accused has been examined as required under Section 313(1)(b) of Cr.P.C. Accused denied the incriminating circumstances appearing against him and he neither examined any witness nor got marked any documents in his defence.
5. The trial court after hearing both the sides and weighing the material evidences available before it held the accused guilty of the offences under Sections 369, 377, 302, 394, 201 of IPC and Section 4 of POCSO Act, awarding the sentence as extracted herein above. Being aggrieved by the same, the accused is in appeal before this court.
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6. Submissions on behalf of the accused:
Mr. B. C. Jaka, learned counsel for the accused submitted that:
a) That the trial court erred in not appreciating that the prosecution had not conducted the test identification parade.
b) That P.W.1-Tayyappa, the complainant and father of the deceased, P.W.2, the mother of the deceased and P.W.10 - Mrs. Sujatha, the neighbour of the complainant and P.W.6-Mr. Narashimha had not identified the accused to justify the allegation of he taking away the deceased Mariswamy from their house.
c) That all these witnesses were untrustworthy with regard to the accused having taken the deceased and committing the offences alleged.11
d) That P.W.17 - Mr. Veeranjeneya, the owner of Kirana shop did not support the case of the prosecution and that the evidence of P.W.18-Chandrashekhar, the Manager of the Wine shop was not corroborated with evidence of other witnesses.
e) That seizure of material objects are not proved against the accused.
f) The postmortem report and FSL report are contrary to the evidence of the witnesses deposing to that effect.
g) That the judgment of conviction and order of sentence passed in respect of the alleged offence against the accused have not been proved by the prosecution beyond reasonable doubt. As such, the accused 12 deserves to be acquitted of the offences alleged by allowing the appeal.
h) In support of the aforesaid submission, he relied upon the judgment of the Apex Court in case of Amar Nath Jha Vs. Nand Kishore Singh & Ors. reported in (2018) 9 SCC 137.
7. Submissions on behalf of state:
Learned Addl. State Public Prosecutor for the respondent - State submitted that:
a) That the prosecution having examined P.Ws.
1 to 27 and having marked Exs.P.1 to 36 and M.Os.1 to 4 has proved the guilt of the accused beyond all reasonable doubt.
b) That the statements and evidences and the chain of event from the time the accused appearing near the house of the deceased till 13 commission of unfortunate incident and the subsequent conduct of the accused have been established beyond all reasonable doubt.
c) In view of the facts and circumstances of this case non-conducting of identification parade would not be fatal to the case of the prosecution and the accused has not made out any special or exceptional case requiring identification parade.
d) He relied upon the following decisions:
i) (2011) 3 SCC 654 (Sheo Shankar
Singh Vs. State of Jarkhand and
Anr.)
ii) Mehaboob Vs. State through
Yadgiri P.S. [Crl.A.No.3552/2013 disposed of on 28.01.2021]
iii) 2018 ACR 564 (Murugan v. State of Tamil Nadu) 14
8. Heard Mr. B.C. Jaka, learned counsel for the appellant-accused and Mr. Prakash Yeli, learned Addl. State Public Prosecutor for the respondent - State at length. Perused the records.
9. The only question under the facts and circumstances arises for consideration is:
Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt justifying conviction of the accused for the offences under Sections 369, 377, 302, 394, 201 of IPC and Section 4 of POCSO Act?
10. This case involves death of a child aged 5 years with grievous injuries on head, multiple crescentic scratch abrasions on the neck, both ears deeply cut with removed parts of the ear missing and with signs suggestive of forceful anal intercourse. Thus, the death being homicidal is not in dispute. The case of the 15 prosecution being based on the "theory of last seen" and "circumstantial evidence" is also not in dispute.
"Suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence": Mohd. Faizan Ahmad vs. State of Bihar:
(2013) 2 SCC 131.
11. The approach to the present case has to be extremely cautious keeping in mind the above principle of law emphasized by the Apex Court inasmuch as the prosecution case is solely based on the circumstantial evidence. In this context, we consider it appropriate to briefly encapsulate the depositions of the witnesses examined by the prosecution as under:
Deposition of P.W.1- Complainant:
a) P.W.1 - Mr. Tayyappa, father of the deceased Mariswamy and husband of P.W.2-
Tayyamma is the complainant in the case. 16 Reiterating the contents of the first information report, he has deposed regarding the manner in which he received the information and the narration of the incident by his wife P.W.2-Tayyamma and with regard to the police summoning him on 11.02.2016 after the arrest of the accused and also with regard to the voluntary statement of the accused of having committed the offence and with regard to recovery of money and ear rings. His complaint marked at Ex.P.1. Photograph of the child which he had given at the time of complaint marked as Ex.P.2. the golden ear rings were identified and marked as M.O.1. He pointed the identified accused before the court and stated that it was he who committed the above crime.
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In the cross-examination, apart from general suggestions of denial, it was suggested that the wife of P.W.1 had also accompanied him with the children for the purpose of grazing the sheep, which was denied.
Depositions of last seen witnesses:
b) P.W.2 - Smt. Tayyamma is the wife of P.W.1 and the mother of the deceased Mariswamy.
In her chief-examination she stated that at 2.00 p.m. accused referring the name of her father-in-law had asked for food. That she had made him to sit outside her house and served him food. That her son Mariswamy was infront of the house. The accused offered puff rice and jaggery to her son to eat and then asked him to show the house of his uncle in Telugu language, Mariswamy took him to his uncle's house. After some time, 18 one Narashimha came to her house and informed that someone was taking her son on the way to Katlatkur village. She and her brother-in-law searched her son everywhere but did not find. Her brother-in- law informed her husband over phone who came home in the night and she narrated the entire incident to him. She gave the description of the unknown person being tall, having long nose, wearing red shirt and was conversing in Telugu. On the following day, they went to Raichur Rural Police Station and filed complaint. The police came to her village and she shown them the place of incident. The police prepared the panchanama in the presence of P.Ws.3 and
4. Thereafter, on the following day, the police had brought the accused to the Police Station and called P.Ws.1, 2 and their 19 neighbour Sujatha (P.W.10), and Shivu(P.W.3) and enquired the accused in their presence. The accused confessed to have taken her son behind KSRTC Staff Quarters on 09.02.2016 at 9.30 p.m. and after having unnatural intercourse assaulted on the head with stone and killed her son by strangulating the neck with his hands, cut the ears with blade and had taken golden ear rings. Thereafter, he had pledged the said golden ear rings at jewelry shop in Devasugooru Camp for Rs.4,200/-. The photograph of the child was already marked as Ex.P.2. The golden ear rings were identified and already marked as M.O.1. She identified the accused in the court and stated it was he who committed the above crime.
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In the cross-examination, she denied the suggestion of having gone with the children to graze the sheep. She has stated that she had enquired the accused and he informed her that he is from Chatla Mallapura village. She has deposed that her neighbour P.W.10- Sujatha has seen the accused as she was near her house. She has further stated that P.W.6-Narashimha had informed her about 4.00 p.m. She has spoken about drawing of panchanama and all other suggestions put to her have been denied.
c) P.W.6 - Mr. Narshimha is the witness who has spoken about he having last seen the accused along with deceased Mariswamy while they were proceedings on the way to Katlatkur village and informing the mother of the deceased at about 4.00 p.m. He has 21 also deposed regarding Police calling him to the police station and enquiring the accused in their presence and about accused confessing of committing the crime. He has deposed regarding identifying the accused in the police station.
He has withstood the test of cross- examination by reiterating the fact of he seeing the accused earlier while he was going with Mariswamy on the way to Katlatkur village. Nothing has been elicited in the cross-examination to discredit his evidence.
d) P.W.10 - Smt. Sujatha. She is the neighbour of P.W.1, 2 and deceased Mariswamy. She has deposed about the accused having food at 2.00 p.m. at the house of P.W.1. She has specifically spoken about she having 22 enquired the accused about his place to which he had answered that he was from Chatla Mallapur. She has also spoken about the accused taking Mariswamy and about Narashima informing her that the accused was going with Mariswamy on the way to Katlatkur village. She has spoken about she identifying the accused in the police station while confessing about the crime. Except suggestions denying her evidence as false, nothing has been elicited.
e) P.W.18 - Mr. Chandrashekhar, the Manager of the Wine Shop has deposed that he was the Manager of Manju Wine Shop and that one evening accused along with child had come to his Wine Shop and that he had questioned why did he bring a small child. Two days thereafter the police had 23 summoned him to the police station and enquired him about accused.
In the cross-examination suggestions denying he being the Manger of the Wine Shop is made. He has categorically answered that on the said evening he had supplied liquor to the accused, nothing has been elicited from this witness to discard his evidence.
Witnesses to spot panchanama-Ex.P.3 and Inquest panchanama-Ex.P.4:
f) The P.W.3-Mr. Shivalinga and P.W.4-
Mr.Lingappa are the witnesses to the spot panchanama - Ex.P.3 prepared at the house of the P.W.1 from where the accused had taken the deceased Mariswamy. It was drawn on 10.02.2016 at 3.00 p.m. to 4.00 pm. 24
g) P.W.5-Mr. Girisha Poojary, P.W.7-Mallesh S/o Seenayya are the witnesses to the inquest panchanama - Ex.P.4 drawn at Mortuary of RIMS Hospital in the presence of P.W.14 - Mr. Mallesh S/o Sharanappa who is the elder brother of the P.W.1 who identified the body of the deceased. The photograph of this is marked at Ex.P.5. In the cross-examination, the said witnesses have reiterated the contention of panchanamas in their presence.
Recovery of Rs.4,200/- from the accused. Recovery of dead body and golden ear rings, stone, blade and half burnt beedi and drawing of panchanamas:
h) P.W.8 - Mr. Raju S/o Ramalu and P.W.11 -
Mr. Ranganatha Reddy are the witness to seizure panchanama - Ex.P.6 drawn while seizing Rs.4,200/- from the accused and 25 also to the spot panchanama - Ex.P.7 which was drawn at the instance of accused showing the place of crime and the recovery of dead body at the spot of the crime and regarding sending body to RIMS Hospital. They have identified two photographs marked as Exs.P.8 and 9.
In the cross-examination nothing has been elicited to discredit to their evidence.
i) P.W.9 - Mr. K. Pranesh, owner of the jewelry shop. He has spoken about the accused visiting his shop seeking to pledge the ear rings stating that his son was not well and sought for money against pledging the golden ear ring weighing 2.780 milligram for Rs.4,700/-. He has also spoken about the police bringing the accused to his shop and enquiring pledging of golden ear rings and he 26 handing over the same along with the receipt to the police. The police have taken five photographs which are marked as Exs.P.10 to 14. He identified the golden ear rings which are already marked as M.O.1. The net cash has already marked as M.O.2. He has also spoken about the panchanama drawn by the police while seizing the ear rings as per Ex.P.15 and identified his signature. Nothing has been elicited in the cross- examination of this witness to disbelieve his statement.
j) P.W.12 - Mr. Hanumesh. He is the witness to the panchanama Ex.P.16 drawn at the spot of crime shown by the accused where the stone, half burnt beedi and blood stained blade of Vijaya Company were seized. The photographs taken at the spot were marked 27 as Exs.P.17 and 18. He is also witness to the panchanama at Ex.P.15, which was drawn while seizing the ear rings. Nothing has been elicited in the cross-examination to discredit the said witness.
k) P.W.20 - Mr. Y. Abujar Gafari is the witness who deposed that he had prepared the sketch of the spot which is marked as Ex.P.25 and he identified his signature marked at Ex.P.25(a).
Circumstantial witness:
l) P.W.13-Mr. Ningappa. He is the younger brother of P.W.1 and brother-in-law of P.W.2. This witness has spoken about the information received from the complainant and about the searching of Mariswamy. He has also narrated about the information he received about the accused taking 28 Mariswamy and killing him behind the KSRTC Staff quarters.
m) P.W.14 - Mr. Mallesh, the elder brother of the complainant. He has spoken about being the witness to the inquest panchanama at Ex.P.4 at Mortuary at RIMS Hospital, Raichur along with C.Ws. 7 and 8 and he having identified the dead body of Mariswamy and also with regard to the photographs taken at the location.
n) P.W.21- Mr. Ramayya is the father of P.W.2.
He has spoken about he having gifted the golden ear rings to the deceased Mariswmay on the occasion of naming ceremony.
o) P.W.23-Mr. Parashuram. He is the younger brother of P.W.2 and brother-in-law of P.W.1. He is from the village Chatla Mallapur 29 from where the accused also hails. He has spoken to the effect that after 3 days of death of Mariswamy, the police had called him to the police station and had shown the photograph of accused and he identified him. He has stated that the parents of the accused had passed away. He has further stated that the accused was in the habit of asking money from people on the pretext of his acquaintance with their relatives. In the cross-examination there is no denial of accused belonging to the village Chatla Mallapur village. A specific suggestion was put that there were no cases except the present one filed against the accused. Recording of CCTV footage and seizure of C.D.:
p) P.W.19- Mr. Venkatesh K is the witness who deposed that he was working as System 30 Operator in the Office of the Superintendent of Police, Raichur. He has deposed to the effect that on 28.02.2016, C.P.I., Rural Police Station had shown him a photograph of a person asking him to identify the scene of movement of that person. Accordingly, the person in the photograph was moving around on 09.02.2016 and was recorded in the CCTV Camera and he had made the C.D. of the movement of the accused as per the instruction and the said C.D. was handed over in the presence of C.Ws.19 and 20 under a panchanama. Photograph in this regard has been taken and marked as Exs.P.21 to 23. He has also identified the C.D. marked at Ex.P.24 and has identified the person in the CD to be the accused person present before the court.31
In the cross-examination, except suggesting that he was deposing falsely and that the person in the CD and the accused have no connection, nothing has been elicited from his mouth.
q) P.W.15 - Mr. Mallesh S/o Hanamanth and P.W.16- Mr.Lingappa S/o Mallayya who have spoken about seeing the CD in which the accused was carrying Mariswamy near Chandramouleshwara Circle, Raichur and seizure of the said C.D. as per panchanama - Ex.P.19. They identified their signatures marked at Ex.P.19(a) and (b), respectively. In the cross-examination, except suggesting that they not having seen the contents of the CD and affixing their signatures on the blank paper, nothing has been elicited from their mouth.
32Only hostile witness:
r) P.W.17-Mr.Veeranjaneya. This witness has been arrayed in the charge sheet by the prosecution as the accused had purchased the blade from his shop. However, this witness has turned hostile and denied of selling of blade and seeing the accused.
Medical evidence, postmortem report, FSL report and opinion of the doctor
s) P.W.22 - Dr. Sharanabasappa. This witness has spoken about he conducting potency test of the accused on 11.02.2016 between 2.00 p.m .and 3.00 p.m and other tests and also sending items belongs to the accused to RFSL, Kalaburagi. He has also submitted the preliminary report which is marked as per Ex.P.26 and his signature is at 33 Ex.P.26(a) and also of giving final report after receiving the RFSL report as per Ex.P.26 (b) and recording his opinion of accused having potency. He has also spoken about conducting of postmortem of the deceased Mariswamy S/o Tayyappa aged about 5 years and the postmortem report was marked at Ex.P.27 and he identified his signature which is marked at Ex.P.27(a). He has narrated in detail the injuries found on the body of the deceased Mariswamy. He has specifically spoken about the head injury, the cut injury on both the ears and the injuries on the private parts of the deceased suggesting the intercourse. He has also spoken about his opinion regarding reason for the death being forcible assault on the head resulting in blood oozing from his brain. He has spoken about the death 34 having occurred about 24-36 hours back. He has also stated that the death can occur on account of the assault with the stone and cutting of the ears by the blade. He has also identified the stone and the blade used for commission of the crime which is marked as M.Os.3 and 4 and has opined that the injuries can occur by assault using the said stone and the blade and his opinion has been marked as per Ex.P.28. After receipt of the RFSL report he gave final report as per Ex.P.30 and his report regarding potency of the accused is marked at Ex.P.31. He identified his signatures on the said reports. In the cross-examination, he had denied the suggestions that the police had not produced M.Os.3 and 4. He has denied the suggestion that no injury can be caused by M.O.3. He 35 has also denied the suggestion of he not conducting the postmortem and giving the reports as per Exs.P.26 to 31. Nothing has been elicited to discard the evidence of this witness.
Investigation witnesses:
t) P.W.24-Mr. Bhaskar- P.C. He has spoken about carrying FIR in Crime No.25/2016 at about 5.45 p.m. to the court. The FIR was marked at Ex.P.32.
u) P.W.26- Mr. M.D. Rafiq-H.C. He has spoken about carrying the items in a sealed cover upon instructions of Deputy Superintendent of Police to RFSL and with regard to the receipt of the same.
v) P.W.27-Mr. Umesh, P.S.I. has spoken about recording of complaint given by P.W.1, 36 registering of the same in Crime No.25/2016 and dispatch of FIR to the jurisdictional Magistrate and inspecting the house of the deceased and recording the statement of P.W.2, preparing the panchanama in the presence of C.Ws.3 and 4 as per Ex.P.3 and taking into custody of accused on the same evening at 8.00 p.m. and recording his voluntary statement as per Ex.P.34 and identified the signature of the accused as per Ex.P.34(a) and signature as per Ex.P.34(b).
He has spoken about seizing of Rs.4,200/- from the possession of the accused upon his information and preparation of seizure mahazar as per Ex.P.6 and his signature as per Ex.P.6(c). He has further spoken about going to the spot of crime as per the information furnished by the accused along with C.Ws.5 and 6 where the dead body of 37 Mariswamy was found in thorny bushes behind the KSRTC Depot as shown by the accused and taking photographs, preparing the panchanama as per Ex.P.7 and his signature as per Ex.P.7(c). Photographs thereof Exs.P.35 and 36 and carrying of dead body on the same day to the RIMS Hospital and he has handed over the further investigation and the accused to P.W.25 and also for inclusion of Sections 302, 369, 201 & 392 of IPC. He has also identified the accused present before the court. w) P.W.25- Mr. Ravinath, who is CPI of Raichur Circle P.S. deposed that he had taken over the case paper for further investigation on 11.02.2016 from P.W.30. He has spoken about the entire investigation process. He has spoken about preparing of inquest 38 panchanama in the presence of father of deceased, C.Ws.7 and 8 as per Ex.P.4. He has spoken about handing over of dead body to P.C.696 and 195 with instructions to hand over the body to the relatives after postmortem report. He has spoken about the taking photographs at the time of inquest which is already marked as Ex.P.5. He has spoken about the voluntary statement of the accused of having committed the offence and giving information with regard to discovery of blade, stone, burnt beedi, ear rings at the jewelry shop. He has spoken about visiting the spot along with C.Ws.9 and 10 and his staff as shown by the accused behind the KSRTC Sub-Division amidst thorny bushes near disused well identified the stone which was used by the accused to assault on the head of the deceased and also the blood 39 stained blade of Vijaya Company used by the accused to cut the ears of the deceased and took the gold ear rings and also burnt beedi, which is used by the accused to burn testicles and waist of the deceased and recording seizing of the said objects. He has spoken about preparation of Ex.P.16. He has further spoken about recovery of ear rings from Balaji Jewelry Shop at Gillisugooru Camp from P.W.9- K. Pranesh, identified the accused having pledged the golden ear rings on 10.02.2016 for Rs.4,700/- and preparation of seizure mahazar as per Ex.P.15 and the photographs taken at the location. He spoken about recording of the further statement of P.W.1, P.W.2 and also recording the statement of C.Ws.11 to 18 and making remand application. He has spoken about 40 receipt of P.M. report, opinion of the doctor regarding object used for causing injury. He has spoken about statement of C.W.11 recorded under Section 164 of Cr.P.C. He has also spoken about showing of photographs containing accused and Mariswamy moving near Chandramouleshwara Circle to P.Ws.19 and 20 and seizing of the same by drawing mahazar thereof and taking the photograph at the location. He has spoken about recording of the statement of C.Ws.23 and 24 and preparation of sketch as per Ex.P.25. He has also spoken about the report from C.W.26 regarding power supply on 09.02.2016 lit at Chandramouleshwara Circle as per Ex.P.33 and his signature is identified at Ex.P.33(a) recording of statement of C.Ws.28 and 29 on 28.04.2016 41 and submitting of charge sheet on 29.04.2016. He also spoken about report of RFSL as per Ex.P.29 and the final report of the doctor as per Ex.P.30 and final opinion at Ex.P.31.
Nature of injuries and opinion of the doctor:
x) The post mortem report at Ex.P.27 refers to fractures over right fronto paricto occipital bone and blood effuse around. Multiple crescentic scratch abrasion over front of neck at multiple sits on dissection underlying muscle. Both ears lacerated irregular and missing of removed part.
Further, provisional opinion as to cause of death is shown "Death is due to head injury sustained."
42Perianal region examination:
Anal orifice dilated with loss of elasticity.
Anal opening admits two fingers. Morgins of anal opening shows multiple small fissures with large fissures at the lower quadrant.
Margins shows reddening faecal matter present around anal orifice.
FSL Report:
y) Ex.P-28 is the Report submitted by Raichur Institute of Medical Sciences, Raichur, Department of Medicine and Toxicology regarding furnishing opinion after weapon examination. After examination of stone and blade (M.Os. 3 and 4), the final opinion is as under;
"After examination of stone and blade, I am of the opinion that, the injury number 1 & 2 mentioned in the post mortem report on page number 2 could be caused by the type of weapon examined stone) and can cause death. The injury 43 number 2 mentioned in the post mortem report on page number 3 could be caused by the type of weapon examined (Blade) and can cause separation of ears from body.
z) Ex.P.29(a) is the Certificate of Examination issued by the Deputy Director, Regional Forensic Sciences Laboratory, Naganahalli, Kalaburagi in which the following material items have been examined.
1. One Stone
2. One Blade
3. One half burnt Beedi
4. One shirt
5. One Trouser
6. Perienal swab
7. Perienal smear
8. Anal Swab
9. Anal Smear
10. Buccal swab
11. buccal smear
12. Blood
13. One Shirt
14. One Lungi
15. One Underwear
16. Coronal smear
17. Coronal swab
18. Penile Smear
19. Penile Swab
20. Pubic hairs 44
21. Nail Clippings The opinion attached to the aforesaid report refers to presence of human blood of 'O' group the stone and blade.
aa) As per Ex.P.30(a), the Final Opinion dated 26.05.2017 is given by P.W.22 - Dr. Sharanabasappa, which is as under;
"Final Report On perusal of autopsy report, RFSL report I am of the opinion that death is due to head injury sustained. However there are signs suggestive of forceful anal intercourse/assault."
bb) Ex.P.31 is Final Opinion of RFSL report of accused-M. Veeresh S/o Kambayya, which is as under;
"Final opinion:
"There is nothing to suggest that he is incapable of performing an act like 45 that of natural/unnatural sexual intercourse."
Analysis of the case of the prosecution and evidence:
12. As in all criminal cases two important aspects are to be considered, namely:
i) Whether the alleged offence was committed?
ii) If so who has committed the offence?
13. The postmortem report reveals that the death of Mariswamy aged 5 years is due to the head injury sustained. The death has occurred due to the forcible assault on the head. The other injuries on the neck and cut injury on the ears and the other parts present on the dead body adds up to the ingredients of Section 302 of IPC.
14. The injuries at the anus area of the deceased, which according to the opinion of the doctor are 46 suggestive of forcible unnatural sexual intercourse falling within Section 5 of POCSO Act.
15. The FSL report establish the presence of human blood on the stone and the blade. It also establish the injuries found on the dead body to have been caused by use of the stone and the blade.
16. Thus, the postmortem report and the FSL report establishes the fact beyond reasonable doubt that the injuries found on the dead body have resulted in the death of Mariswamy aged 5 years.
17. Adverting to the second aspect of the matter as to who has committed this offence, we will have to analyze the material evidence produced by the prosecution particularly in view of the fact that there are no eyewitness to the incident. The entire evidence is circumstantial. The needle of suspicion is on the accused.
47
18. In this background of the matter, the first and foremost thing required to be analyzed is from the angle of the last seen theory. In this regard evidence of P.W.2, the mother of the deceased which has remained unshakable and unchallenged right from the day one categorically indicate that she had served the food to the accused. She had interacted with the accused. The minor child Mariswamy was with the accused. While she was feeding her baby inside the home. Her evidence reveal that she had sufficient amount of time to have interacted with the accused and the time to identify and recognize the accused as she had provided food to the accused. In her statement, P.W.2 has mentioned about the name of P.W.6- Narashima informing her of he having seen the accused with Mariswamy going on the way towards Katlatkur. The evidence of P.W.6- Narashma has also remained unchallenged. He has been catogoric of he having seen the accused with Mariswamy going towards Katlatkur. He has given 48 statement before the police on 10.02.2016 and has recorded the same in his evidence. He been categoric in identifying and recognizing the accused having seen him prior to the incident and in the Police Station and also in the court. P.W.2 has specifically given the description of the accused to P.W.1, who has stated the same in the complaint. This is much prior to the arrest of the accused. The description given by P.W.2 was recorded in the complaint of P.W.1 police and there is no dispute in that regard.
19. Another crucial witness in this chain of last seen theory is P.W.10 - Smt. Sujatha, who is the neighbour of P.Ws.1 and 2 and the deceased Mariswamy. She has spoken about the accused asking Mariswamy to show the house of his uncle. She has also spoken about the accused offering puff rice with jaggery to Mariswamy. She also stated about she enquiring accused of his place to which he replied he was from Chatla Mallapur. She has thereafter seen the accused on 11.02.2016 in 49 the Police Station and also before the court. This witness also has had time to have glimpse of the accused sufficient enough to identify his appearances.
20. The other witness who has seen the accused along with the deceased Mariswamy was P.W.18 - Chandrashekhar, the Manager of the Wine shop. He had objected accused bringing the child to the Wine shop. He had served the liquor to the accused. He has identified the accused in the Police Station and in the court. The time gap between he serving the liquor to the accused and identify him in the police station is just about less than 24 hours.
21. Corroborating the evidence of these witnesses with that of recording of CCTV footage in C.D - Ex.P.24 categorically establishes the fact that the accused has taken the child from the house of P.Ws.1 and 2 and had taken towards Katlatkur through 50 Chandramouleshwar Circle. There is no missing link in the last seen theory established by the prosecution.
22. The prosecution has however required to establish the link leading up to the conclusion of the accused having committed the offence.
Discovery of facts upon the information furnished by the accused:
23. The prosecution has relied upon the voluntary statement of the accused recorded as per Ex.P.34. Pursuant to the information provided by the accused as per Ex.P.34, the police have recovered Rs.4,200/-, dead body, golden ear rings, stone, blade and half burnt beedi. The question for consideration is whether recovery of these material objects would amount to 'discovery of facts' admissible under Section 27 of the Evidence Act.
51
24. The courts have to be circumspect in relying upon the voluntary statement of the accused in view of the bar contained under Sections 25 and 26 of the Evidence Act. However, Section 27 of the Evidence Act provides rule of exclusion and the bar contained in the said sections. It is settled law that part of the information given by a person, whilst in police custody, whether the information is confession otherwise, which distinctly relates "to the fact" thereby discovered but no more, is provable in the proceedings in which he is charged with the commission of offence.
25. The Apex Court in its judgment rendered in State of Rajasthan Vs. Bhup Singh reported in (1997) 10 SCC 675 dealing with the conditions prescribed in Section 27 of the Indian Evidence Act, 1872, has held as under:
"14. It is clear from the above evidence that PW12 discovered the fact that respondent had buried Article 4 - pistol. His statement to the police that he had buried 52 the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act as it became admissible under Section 27. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) He should have been accused of an offence; (3) He should have been in the custody of a police officer when he supplied the information; (4) The fact so discovered should have been deposed to by the witness. If these conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4 - pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of said fact became complete only when the pistol was recovered by the police.
15. In this context, we think it appropriate to quote the celebrated words of Sir John Beaumont in Pulukuri Kottaya vs. Emperor: (AIR 1947 PC 67):
"In the their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object 53 produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact.... Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife;
Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."
(emphasis supplied) The ratio therein has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth. We may point out that this court has approvingly referred to the said ratio in a number of decisions, e.g. Jaffer Husain Dastagir vs. The State of Maharashtra, AIR 1970 SC 1934; K. Chinnaswamy Reddy vs. State of Andhra Pradesh & anr., AIR 1962 SC 1788;
Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Ranbir Yadev vs. State of Bihar, (1995) 4 SCC 392; Shamshul Kanwar vs. State of U.P., (1995) 4 SSC
430."
54
26. In the case of State of Karnataka Vs. David Rozario and Anr. reported in (2002) 7 SCC 728 at para-5, the Apex Court at para-5 has held as under:
"5. The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. V. Balakrishan reported in AIR 1972 SC 3 and Md. Inayatullah v. State of Maharashtra, reported AIR 1976 SC. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections were presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision 55 i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands, in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in the custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so 56 recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor reported in AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. Reported (2000) 6 SCC
269. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."57
27. In the case of Anter Singh vs. State of Rajasthan reported in (2004) 10 SCC 657 the Apex Court has summed up the various requirement of Section 27 of Evidence Act, as under;
"16. The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The persons giving the
information must be accused of any
offence.
(5) He must be in the custody of a
police officer.
(6) The discovery of a fact in
consequence of information received from an accused in custody must be deposed to. 58
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
28. As already stated in the instant case, recovery of sum of Rs.4,200/- from the accused and golden ear rings from the shop of P.W.9 establishes the "fact" of accused pledging the golden ear rings for money. Recovery of dead body, recovery of stone used to assault the minor child, recovery of blood stained blade and half burnt beedi read in the light of postmortem report and FSL report establish the fact of accused having unnatural sexual intercourse, causing injuries with the stone and blade. All these discovery of facts are at the instance of the accused pursuant to the voluntary statement made by him as per Ex.P.34. These recoveries have been made under duly drawn panchanamas in the presence of independent witnesses who have had no occasion to come in contact either with P.W.1, P.W.2 or with the accused. These discoveries of the facts are 59 completed with the seizure of the aforesaid material objects and the entire process has been proved.
29. The doctor P.W.22 has deposed that such injuries can be caused by the M.O. Nos.3 and 4 such as stone and blade. These material objects as stated above were discovered at the instance of the information given by the accused. Under the aforesaid circumstances facts can be inferred leading to irresistible conclusion that it was the accused who has committed the crime.
30. As regards the offence under Section 4 of POCSO, the injuries found on the private parts of the deceased Mariswamy who was just aged about 5 years corroborated the opinion of P.W.22-Dr. Sharanabasappa would indicate commission offence of unnatural intercourse by the accused. The potency test at Ex.P.26 indicate the capability of the accused. 60 Line of defence:
31. The line of defence on behalf of the accused is only of bald denial. Even at the stage of recording statement of accused under Section 313 of Cr.P.C. except denial, accused has not chosen to rebut or lead any evidence which are incriminating in nature. No, other theory or defence line has been set up by the defence. There was no any element of animosity or ill-will from P.Ws.1 and 2 or from others witnesses to implicate the accused into the matter. All of them have encountered the accused for the first time and just on the circumstances narrated by them. Under any stretch of imagination cannot be construed to be ill-intended or the case of false implication of the accused into the crime. Therefore, this feeble admitted to be set up cannot be countenanced.
32. It is settled law that examining the accused under Section 313 of Cr.P.C. after closure of evidence by the 61 prosecution is in furtherance to the fundamental principle of 'Audi Alterem Partem'. It provide accused an opportunity to explain each and every circumstance appearing in evidence against him. It is a procedural safeguard for an accused facing the trial to explain facts and circumstance appearing against him in the prosecution evidence. Though the accused always has a right to remain silent if he wishes and the silence of the accused must never be allowed, to any degree, to become a substitute for proof by prosecution of its case. It is for the prosecution to prove its case in the first instance and not to rely on the silence of the accused. Silence and failure of the accused to explain the circumstances appearing in the evidence against him is a strong circumstances which can be used against him. The above principle is enunciated by the Apex Court in the case of Avathar Singh Vs. State of Punjab reported in (2002) 7 SCC 419 and in the case of Mani 62 Kumar Thapa Vs. State of Sikkim, reported in (2002) 7 SCC 157.
33. It may be apt at this juncture also to refer Sec. 106 of Evidence Act. Section 106 of the Evidence Act envisage that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. The prosecution in the instant case has established the fact of accused having seen last with the deceased Mariswamy and the movement of accused with deceased Mariswamy having been recorded in the CCTV camera as per Ex.P.24 ought to have explained the circumstances which are within his personal knowledge. He not having explained the circumstances, adverse inference would be drawn against him.
34. The accused has made no attempt to counter check or to verify the veracity of the CCTV footage except making bald suggestions of same being doctored. 63
35. Recovery of material objects at the instance of the accused have not been discredited by the accused. The photograph which was produced by the father of the deceased at the time of filing of the complaint marked at Ex.P.1, which was taken when the child was alive depict the existence of ear rings comparison of the said ear rings with that of the recovered from the shop of P.W.18 is supported by the evidence of P.W.21, the grandfather of the deceased would establish that the ear rings belonging to the deceased Mariswamy.
36. Though, P.W.17, the owner of the shop has turned hostile regarding he having sold the blade the same is a little consequence. The fact of the matter is the blade made of Vijay Company stained with blood was recovered at the instance of the accused from the scene of crime. The report of P.W.22-Dr. Sharnabasappa reveal that the ears have been cut by using of the blade. It is therefore can be concluded that the accused used 64 the blade to cut the ears of the deceased to take the ear rings which he had pledged with P.W.18-Mr. Chandrashekhar for Rs.4,200/- which amount was recovered and seized from the possession of the accused in the presence of the panch witnesses.
37. There is no dispute or denial of the fact that the accused belonging to Chatla Mallapur village. P.W.10 - Mrs. Sujatha had specifically asked the accused to which place he was belonged to which the accused answered that he was from Chatla Mallapur.
38. The brother of P.W.1 and his wife deposed to the effect that the accused belongs to Chatla Mallapur village. There is no whisper denying this fact of the matter. P.W.23-Mr. Parashuram, the brother of P.W.2 has also spoken about the conduct of the accused that accused was in habit of asking money from the people claiming acquaintance and relationship of one another. Viewed from this prospect, it would be evident that the 65 accused had come to the place of P.W.2 apparently finding out the details of their relationship and sought for the food. He had also asked the house of uncle of the deceased which suggest that accused had gathered information about the family members of P.Ws.1 and 2. This conduct of the accused also indicate the commission of crime by the accused.
39. The aforesaid circumstances and the chain of events leads to irresistible conclusion that it was the accused who committed the offence. There are no other possibilities of any other circumstances or person being involved in the entire incident.
40. The prosecution having established through medical evidence of the injuries on the anal area of the deceased having been caused by acts in the nature of penetrative sexual assault, the guilt of the accused 66 punishable under Section 4 of POCSO Act is established.
41. Section 29 of the POCSO Act provides for presumption of commission of the offence under Section 3, 5, 7 and 9 of the Act that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. Even in terms of this statutory presumption, though rebuttable, the accused has not led any evidence to rebut the presumption. Except adopting the line of bald and gentle denial, no attempt is made by the accused to rebut this statutory presumption Adverting to the arguments of the learned counsel for the appellant regarding non-conducting of test identification parade:
42. Learned counsel for the appellant-accused relying upon the judgment of the Apex Court in Amarnath Jha Vs. Nandakishore Singh and Ors. reported in (2018) 67 9 SCC 137, wherein the Apex Court referring to its earlier judgment in the case of Kanta Prasad Vs. Delhi Administration reported in AIR 1958 SC 350 and Vaikuntam Chandrappa Vs. State of A.P. reported in AIR 1960 SC 1340, on the aspect of effect of an inadequacy of test identification parade has held that:
"It is well settled that non-conduction of TIP may not itself be fatal to the prosecution case but certainly it must be weighed in by the court while considering the facts and circumstances of each case"
has submitted that in the instant case the prosecution has not conducted the test identification parade and as such there is no definite proof of the accused committing the offence. He further submitted that in view of there being no eyewitness to the incident, it was incumbent on the part of the prosecution to have conducted the test identification parade. 68
43. In response to the above contention of the learned counsel for the appellant, the learned Addl. State Public Prosecutor has relied upon the judgment of Apex Court in the case of Sheo Shankar Singh Vs. State of Jarkhand and another reported in (2011) 3 SCC 654, wherein the Apex Court at paragraph-47 has held as under;
"47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration."
The aforesaid decisions of the Apex Court relied upon by the learned counsel for the appellant-accused as well as 69 the learned Addl. State Public Prosecutor reiterate the settled legal principle that non-conducting of test identification parade and its effect will have to be determined in peculiar facts and circumstances in each case.
44. In the instant case, P.W.2- Tayyamma, the mother of deceased Mariswamy was the first person to have met the accused when he appeared near her house on 09.02.2016 at about 2.00 p.m. asking for food taking name of her father-in-law. She offered him food. Thereafter, he sat near her house and was conversing with the deceased, offered puff rice and jaggery to the deceased before taking him on the pretext of going to his uncle's house. Thus, P.W.2 had sufficient and ample opportunity of seeing and conversing with the accused. Further, in her narration to P.W.1, she had given detailed description of the appearance of the accused which has been reported by P.W.1 in his complaint to 70 the police. Another crucial aspect of the matter is that the accused was arrested by the Police on the very next day of the fateful day and P.W.2 was called to the Police Station wherein she identified the accused to be the person who had come to her house and had meal.
45. Similarly, P.W.6-Mr. Narashimha, who had seen the accused taking the deceased on the way to Katlatkur also identified the accused in the police station. P.W.10- Mrs. Sujatha, who had also had an opportunity to see the accused and enquire as to which village he was from identified the accused in the police station on 11.02.2016. P.W.18,the Manager of the Manju Wine Shop, who had objected accused bringing the small boy to wine shop also identified the accused in the police station.
46. It is the same accused who found to be carrying the minor child as captured in the CCTV installed at Chandramouleshwara Circle, Raichur recorded in C.D. 71 Ex.P.24 in the presence of the mahazar witnesses who have also recognized the person in the video to be the accused.
47. The time gap between the aforesaid witnesses last seeing the accused with the deceased Mariswamy alive and the arrest of the accused was just about a gap of one day. It cannot therefore be held that the evidence of the aforesaid witnesses is untrustworthy. The last seen evidence of the aforesaid witnesses stands corroborated with the recording of the CCTV in the C.D produced at Ex.P.24. The said C.D. was prepared by P.W.19 and was handed over to police in the presence of panchas. The depositions of mahazar witness to the C.D. player namely, P.Ws.15 and 16 and P.W.19 has remained unchallenged. The witnesses are not the interested witnesses. They have simply deposed the factual aspect contained in the C.D. categorically indicating the accused carrying minor boy. The identification of the 72 accused person with that of the one seen in the C.D. is not disputed. It is necessary to reiterate the observation made by the trial court in its judgment at Paragraph-69 while referring to the argument of the counsel for the accused that the C.D. is concocted one and not believable, the court has observed as under:
"Then the court has directly asked the counsel for the accused, whether you are ready for seeing the CD through video player, may I play it through video player to show you, then the counsel for the accused not shown his interest to see the CD through video player i.e., Ex.P.24."
From the above depositions of the witnesses who have last seen the accused with the deceased Mariswamy when he was alive and the witnesses with regard to C.D. at Ex.P.24, the prosecution has established beyond reasonable doubt that it was the accused who was last seen with the deceased when he was alive.
48. The Hon'ble Apex Court in the case of Yuvaraj Ambar Mohite Vs. State of Maharashtra reported in 73 (2006) 12 SCC 512 referring to its earlier decision has at para-17 stated as under;
"17. In Ramreddy Rajesh Khanna Reddy v. State of A.P., this court opined: (SCC p.181, para 27):
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. "
49. The accused has not offered any explanation in respect of the aforesaid material circumstances presented against him by the prosecution. Except adopting total denial even at the state of recording statement under Section 313 Cr.P.C., the accused has not offered any explanation. The Apex Court in the case of Murugan v. State of Tamil Nadu reported in (2018) ACR 564 at para-32 has held as under; 74
"32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two courts below against the appellant and we find no good ground to disturb this finding."
The aforesaid circumstances thus categorically indicate the guilt of the accused.
50. The Hon'ble Apex Court in the case of Sampat Tatyada Shinde vs. State of Maharashtra reported in (1974) 4 SCC 213 at para-16 has held as under:
"16. The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent 75 value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in Court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also."
51. In the aforesaid facts and circumstances of the case and the instances narrated hereinabove established the following chain of events.
a) The accused appearing at 2.00 p.m. at the house of P.W.1 on the pretext of having food and thereafter disappearing with the minor child.
b) Accused going to the wine shop and carrying the child through Chandramouleshwar Circle.
c) The recording of the movements of the accused with the minor boy in the CCTV installed at Chandramouleshwara Circle.
d) Accused furnishing the information of he taking the minor child behind the Staff quarters of KSRTC and committing the crime of unnatural sexual intercourse and assaulting the minor child with 76 the stone, cutting the ears with blade and burning the hip and private parts of the minor child with half burnt beedi.
e) Discovery of dead body of the minor child with injuries as detailed in the postmortem report, material objects such as, stone, blade and half burnt beedi used by the accused to commit the offence recovered at the instance and information given by the accused.
f) The accused pledging the golden ear rings with P.W.9 for Rs.4,700/- which was recovered at the instance and information given by the accused.
Would complete the chain of events.
52. A child Mariswamy just about 5 years innocently believed and followed the accused. Taking this hapless, helpless and defenceless condition of the child, the accused exhibiting his beastly character has committed horrendous act of unnatural sexual assault followed by assault on the head of the child with stone, even as admitted by accused, strangulated the neck of child 77 with his hands and thereafter cut the ears of the child with the blade to take golden ear rings which he later pledged for sum of Rs.4,700/-, would deserve no mercy. The chain of events placed by the prosecution are complete. We do not see any vital missing links in the entire episode irresistibly indicating the guilt of the accused in commission of the aforesaid offence.
53. The trial court taking into consideration of all these materials and appreciating in proper prospective has arrived at just and reasonable conclusion of the guilt having been established against the accused.
54. We are therefore of considered view after appreciating analyzing the facts, evidence and circumstances narrated hereinabove that there is no illegality, perversity or irregularity in the judgment, conviction and sentence passed by the trial court. The said judgment, conviction and sentence is confirmed. 78
The appeal is devoid of merits and same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE BL