Karnataka High Court
Mr.Koosappa @ vs The State Of Karnataka on 27 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JULY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.505/2013
BETWEEN:
MR.KOOSAPPA @
MADHAVA NAIKA @ GANESH
S/O ANNU NAIKA
AGED ABOUT 27 YEARS
R/AT KALLAPAPU HOUSE
BALTHILA VILLAGE
BANTWALA TALUK
D.K. - 574 211. ...APPELLANT
(BY SRI ARUNA SHYAM, ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH PUTTUR TOWN POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001. ...RESPONDENT
(BY SRI M.DIVAKAR MADDUR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
28.2.13/13.3.13 PASSED BY THE ADDITIONAL SESSIONS JUDGE,
FAST TRACK COURT, PUTTUR IN S.C.NO.153/2010 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND
2
392 OF IPC AND THE APPELLANTS/ACCUSED IS SENTENCED TO
UNDERGO LIFE IMPRISONMENT. HE IS ALSO SENTENCED TO
PAY FINE OF RS.5,000/- FOR THE OFFENCE P/U/S 302 OF IPC
AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.A.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the accused-appellant challenging the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Fast Track Court at Puttur, D.K. in S.C.No.153/2010 dated 28.2.2013.
2. The case of the prosecution in brief is that one Mohankumar filed the man missing complaint Ex.P1 on 4.6.2010 alleging that he is residing in the address given therein and he is working as a Manager in Bharath Finance situate at Market road, Mangalore since 9 years and in the said institution they pledge the gold articles and also buy pledged gold articles from other banks by repaying the loans. In the said finance one Gangadhar Achar, S/o B.Gopal Achar is working under him since 5 3 years and on 4.6.2010 at about 12.30 p.m. one Ganesh, S/o Shankar Naik of Kodimbadi, Puttur taluk came to his finance and told that he has pledged some gold in Puttur Grameena Bank and that he want to get the said gold released from the said bank and deposit in Bharath finance for which he require Rs.1,15,000/- and accordingly, he sent Gagadhar Achar along with the said Ganesh by giving an amount of Rs.1,15,000/- and after going along with cash, said Gangadhar Achar has not returned to the finance till 6.00 p.m. in the evening and accordingly, complainant filed the complaint to trace the said person by giving description of the said missing person. On the basis of the said complaint, a case was registered in Crime No.92/2010 for man missing.
Subsequently, one more complaint came to be filed on 5.6.2010 as per Ex.P2 by the same complainant M.Mohankumar alleging that he is working as a Manager in Bharath Finance which belong to one M.Padmanabha Rao. In the said finance, one Devdass and Krishna are 4 working as clerks and B.Gangadar Acharya was working as an Assistant and that on 4.6.2010 at about 12.00 p.m. Ganesh, S/o Shankar Naik of Kodimbadi came and told that one of his friends has pledged 8 pavan of gold in Puttur Grameena Bank for Rs.50,000/- and since the period of pledge has expired, in order to get it released, he require an amount of Rs.1,15,000/- and if the same is paid, the said Ganesh will sell the said gold to the finance company of complainant for which he should be paid commission amount. Accordingly, the complainant adjusted Rs.1,15,000/- and obtained a signed receipt from the accused wherein he has mentioned his name as Ganesh, Kodimbadi post, Puttur, Santosh wines and father's name as Shankar Naik. He has also mentioned his phone number as 9341716871 and land line number as 08251-237725. Thereafter, complainant has sent B.Gangadhar Acharya with an amount of Rs.1,15,000/- along with the accused. Thereafter, he called to the mobile phone of Gangadhar Acharya at 3.00 p.m. but there was 5 no response. Even after giving several calls when the said Gangadhar Acharya did not respond, complainant called to the mobile number of Ganesh, which was switched of. Thereafter the complainant called his friend Bhujanga Acharya and asked him to make enquiries about Gangadhar Acharya as to whether he is there in puttur. Thereafter being afraid, he filed the man missing complaint. However, on 5.6.2010 on obtaining the tower location of mobile phone of Gangadhar Acharya, they came to know that it was near Puttur, Kodimbadi and accordingly, the complainant along with police and his brother Satish around 10.30 a.m. in the morning went to Puttur Kodimbai and was searching for Gangadhar Acharya. At that time, near Kodimbadi village, Karpu Arbi road, they saw a chappal lying by the side of the road and when they verified the nearby place, about 25 ft. distance from the said place, they found the dead body of Gangadhar Acharya lying in a supine position and there were bleeding injuries, blood clots and abrasions over the 6 arms and other parts of the body. At a further distance of 25 ft. to the west, they found watch and mobile phone of Gangadhar Acharya. The complainant has contended that the said Ganesh with an illegal intention deceitfully has hatched a plan and accordingly, has committed the murder of Gangadhar Acharya and robbed cash of Rs.1,15,000/- and that two other persons might have involved along with the said Ganesh. He has given the particulars of said Ganesh as belonging to the age group of 25-30 years, 5.5 ft. height, well built personality and was wearing pant shirt and was taking Kannada and Tulu language. On the basis of the said complaint, he has requested to take action against the accused. Accordingly, case was registered in crime No.147/10 for the offences under Sections 302, 392 and 201 of IPC.
On the basis of the complaint, investigating agency has investigated the case and filed the charge sheet as against the accused for the said offences. Thereafter, case was committed to the Sessions Court. The Sessions Court 7 took cognizance of the offence and after hearing the learned counsel for the parties, charge was prepared and explained to the accused. Accused pleaded not guilty and claimed to be tried and the case was set down for trial.
In order to prove its case, the prosecution got examined 27 witnesses, got marked 81 documents and also 22 material objects. Thereafter statement of the accused came to be recorded under Section 313 Cr.P.C. by putting incriminating material against the accused. The accused denied the said incriminating material put in the form of questionnaire and has not led in defence evidence on his behalf, but however, during the course of cross- examination of P.W.2 he got marked Ex.D1. After hearing the learned counsel for the accused and the State Public Prosecutor and on considering the material placed on record, the Court below has come to the conclusion that the prosecution has proved the guilt of the accused and convicted the accused for the offences punishable under 8 Sections 302 and 392 of IPC. Assailing the same, the accused-appellant is before this Court.
3. We have heard Sri.Aruna Shyam, learned counsel for the appellant and Sri.M.Divakar Maddur, learned High Court Govrnment Pleader for the respondent-State at length.
4. Learned counsel for the appellant-accused apart from the grounds of appeal at Sl.Nos.1 to 7, further submitted that at the earliest instance a missing complaint came to be filed and thereafter investigation has been held. The prosecution has not produced any material to show that the entire circumstance indicates the guilt of the accused and that he committed the alleged offences. He has further submitted that the entire case of the prosecution rests on circumstantial evidence. In order to prove the guilt of the accused, the prosecution has to prove the entire circumstances on which it relies upon. There is no material to show that the accused came to the 9 finance company wherein the complainant was working as a Manager and thereafter he went along with the deceased carrying the cash of Rs.1,15,000/-. The subsequent movement of the accused with the deceased has also not been established. By referring to the evidence of P.W.4 he has submitted that whether the accused and deceased went together or not itself is doubtful. Under such circumstance, no inference can be drawn that the accused and deceased went together and thereafter the deceased has been murdered. He further submitted that the date on Ex.P4, the voucher of Bharath Finance has been put subsequently after four days of the man missing complaint and the said document has not been properly proved in accordance with law. There is no material to show that the gold articles were pledged in Puttur Grameena bank and for that reason deceased was sent along with the accused. Further the evidence of P.Ws.17, 18 and 19 is not worth believable. The recovery said to have been done at the instance of the accused has not 10 been proved in accordance with law. The evidence of P.W.1 clearly shows that they were not having any licence to purchase gold and also to pledge gold. Under such circumstances, the very theory of accused coming to the said finance mentioning himself as Ganesh and thereafter with cash he going along with deceased is not believable. He further submitted that the recovery of other articles also has not been proved in accordance with law. On these grounds, he has prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused.
5. Per-contra, learned High Court Government Pleader appearing for the respondent-State vehemently argued that there is ample material to show that the deceased and the accused went together on 4.6.2010. The witnesses P.Ws.1 to 4 have clearly stated that after negotiation with P.W.1, the deceased and accused went together and at that time the complainant P.W.1 has 11 handed over a cash of Rs.1,15,000/- to the deceased. Thereafter how and where the company of the deceased has been departed from the company of the accused has not been properly explained. In the absence of such material, it can be inferred that it is the accused who has committed the alleged offence for wrongful gain. He also further submitted that there is ample material to show that the accused came and discussed with P.W.1 for lending an amount of Rs.1,15,000/- to get the gold released which was pledged in Puttur Grameena bank in the name of some other person and that he wanted to take commission for the said amount. Further, though the name of accused is Madhava Naika as mentioned in his evidence, he has impersonated as Ganesh @ Koosappa, which itself clearly shows the criminal intention of the accused at the time of going to Bharath Finance. Further, P.W.26 the handwriting expert has compared the handwriting of the accused scientifically and found on Ex.P4 with the original handwriting of the accused and 12 has given his opinion as per Ex.P73 which shows that both the handwriting belong to the same person. Further, based on the voluntary statement of accused as per Ex.P78, cash has been recovered from the mother of the accused and one more person. On the basis of the voluntary statement, M.Os.13 and 16 to 19 have also been recovered, which belong to the deceased. The investigating Officer has conducted the Test Identification Parade wherein all the witnesses have identified the accused as he was the person who visited the finance on the alleged date. He has submitted that the entire circumstances relied upon by the prosecution has been proved with cogent evidence. The trial Court, after considering all the material placed on record, has rightly convicted the accused-appellant. The appellant has not made out any good grounds to interfere with the judgment and order of conviction and sentence passed by the trial Court. As such, the appeal is devoid of merits and the 13 same is liable to be dismissed. Accordingly, he prays to dismiss the appeal by confirming the impugned judgment.
6. We have gone through the grounds of appeal and the judgment and order of conviction and sentence passed by the trial Court and also the oral and documentary evidence produced by the learned counsel for the parties.
We have also been taken through the entire evidence by the learned counsel for the appellant-accused.
7. It is the case of the prosecution that on 4.6.2010 accused visited Bharath Finance office at Mangalore in person and represented P.W.1 that one of his relatives is in need of financial assistance as 8 pavan of his gold has been pledged for a sum of Rs.50,000/- at Puttur Grameena Bank and that his relative wants to sell the said gold after getting it released from Puttur Bank for which he need a cash of Rs.1,15,000/- and that accused will get the said gold to the complainant's finance, if he is paid with commission for the said transaction. Believing 14 the words of the accused, complainant has agreed to pay the commission and asked him to secure his friend to the finance office, for which, accused told that the said person is waiting near Puttur Bank and as such, P.W.1 sent deceased Gangadhar Achaya along with cash of Rs.1,15,000/- to discharge the debt and to get the gold released. The prosecution in order to prove its case has mainly relied upon the last seen theory of accused and deceased in the finance office. In order to substantiate the said fact, the prosecution got examined P.Ws.1 to 4.
8. P.W.1 in his evidence has deposed that on 4.6.2010 at 11.00 a.m. accused before the Court came to his finance office and informed that his relative has pledged gold in Puttur Grameena Bank and he is having difficulties and he want to sell the said gold. When P.W.1 asked for the records of the bank, he told that the records are with the person who has pledged the gold and that he has not come. When P.W.1 further asked as to how 15 much gold is there, accused told him that 8 pavan gold has been pledged and when asked about the name and other particulars of the said party, the accused told that he is not having the phone number and address and if someone accompanies him, he will introduce to the said person. P.W.1 asked the accused to give the identity card, but he told that he is not having the identity card as he is working in a hotel and that the party will come near the Puttur Grameena bank. P.W.1 asked Gangadhar Acharya as to whether he will go along with the accused for which, he agreed and thereafter P.W.1 gave voucher to the accused wherein accused wrote his name and mobile number and accused told that he has to pay Rs.50,000/- to the bank and accordingly, after calculating the amount for 8 pavan as Rs.1,15,000/-, P.W.1 told that after crediting calculated amount remaining has to be paid immediately. Accordingly, accused wrote in his voucher his name, mobile number and he has written Rs.1,15,000/-. He has further deposed that after putting 16 the said amount of Rs.1,15,000/- in the black purse belonging to the finance company, handed over the same to Gangadhar Acharya at about 11.30 a.m., Gangadhar Acharya and accused went out of the finance. He has also further deposed that in the voucher the accused has written his name as Ganesh and sir name as Naika. Thereafter, when the said Gangadhar Acharya has not made the call within the stipulated time, P.W.1 called to the mobile phone of deceased at about 3.00 p.m., but he did not lift the phone.
Then P.W.1 made a call to some of the relatives who were doing the business of jewelry at Puttur asking them as to whether the said Gangadhar Acharya has come there. Even up to 8.00 p.m., he did not get any information regarding whereabouts of the said Gangadhar Acharya. When he did not return, P.W.1 filed a man missing complaint. He also gave the address and the description of the said Gangadhar Acharya, who was missing. P.W.1 also deposed that on the next day at 17 about 7.00 a.m., himself and his brother went to the police station. From there, P.W.1 along with his brother- C.W.2 and the two police constables, went to Puttur. Thereafter, they reached Kodimbadi Arbi village. There they noticed that something has happened and when they were observing keenly, there they found a single chappal lying by the side of road on the mud portion of the tar road. Under the impression that the said chappal may be belonging to his brother, they went and thereafter, on the side of the road, they found a ditch which was about 25 and 30 feet deep and when they got down into the ditch, they found the dead body of his brother in a supine position. They went there and saw that the place was stained with blood and the shirt was also stained. There were 10-15 injuries over the body of the deceased. Spot mahazar has also been drawn as per Ex.P.2.
During the course of cross examination of P.W1, it has been elicited that the deceased was an employee of the finance and as such, no endorsement has been taken from 18 him. It is also elicited that on 4.6.2010, they have not taken the signature of the accused Ganesha on the ledgers and they have not paid Rs.1,15,000/- in the hands of him. Whenever the customers come, they will ask the identity card or the photo of the customers. P.W.1 has also deposed that on the said date, he asked the accused to provide photo and the identity card, but the accused did not give the same. He has also deposed that he has not taken the signature of the deceased in Ex.P.4. He has deposed that he does not know as to whether in Ex.P.4, it has been mentioned that the part amount has not been paid to accused. He further deposed that in Ex.P.4, it has not been mentioned as Rs.1,17,000/- and that the sum of Rs.1,15,000/- has been written in his hand writing in Ex.P.4. P.W.1 has also deposed that he has not stated that if the documents for having pledged the gold articles were not brought, he will not give money. It is also elicited that the said Ganesh had not come to the finance and he is the new person. He has admitted the suggestion as 19 true that in Ex.P.1, it has not been mentioned about Ex.P.4. He has deposed that he cannot say the colour of the shirt and the pant that was wore by the deceased. He has denied the suggestions that the accused has not come to the finance and he has not executed Ex.P.4 and not gone along with the deceased and the accused has not murdered the deceased.
9. P.W.2 is also the brother of P.W.1 and the deceased. He has also reiterated the evidence of P.W.1. He has also deposed that the deceased came to the finance in the morning hours and that himself and P.W.1 went in search of the deceased near Kodimbadi and saw a single chappal on the ground. P.W.1 identified the same as that of the deceased and when they searched for the said Gangadhar Acharya nearby, and in the ditch, they found the dead body of the deceased Gangadhar Acharya. On the face and other parts of the dead body, there were injuries and even on the stomach, there were deep 20 injuries. 2-3 articles belonging to Gangadhar Acharya were also found near the place of incident and the same were seized by the police.
10. P.W.3 has deposed that Gangadhar Acharya and accused went from the place and thereafter, the said Gangadhar Acharya has not returned.
11. By going through the evidence of P.Ws.1 to 4, it clearly goes to show the fact that the accused visited Bharat Finance which was run by P.W.1 and his brothers. The accused reported himself stating that he has got a friend and he is in difficulty and that he wanted to sell the pledged gold, which is in the Bank at Puttur. On the basis of that, the accused also asked for the commission. We have carefully perused Ex.P.4, which is said to have been executed by the accused. Ex.P.4 is also proved by the prosecution by examining the FSL officer (P.W.26). 21
12. P.W.26, in his evidence, has deposed that on 23.07.2010, from Puttur police station Crime No.147/2010, he received a receipt for having credited the amount of Rs.1,15,000/-, 8 papers in the handwritings of Koosappa and one Sulekha pocket note book. These articles were brought as per Ex.P.4. P.W.26 has further deposed that the said Ex.P.4 which has been sent by the investigation officer is a questioned document. He has mentioned as Q1 for the handwriting in Ex.P.4 and the signatures have been mentioned as Q1(a), Q1(b) and Q1(c). P.W.26 has also deposed that he has identified the hand writing of Koosappa in Ex.P.18 as Q1, S1 to S4. P.W.26 has mentioned as R1 to R8 on the specimen handwriting of Koosappa as per Exs.P.65 to 72. He has scientifically examined Q1, S1 to S4 and the writings on R1 to R8, and opined that the handwriting belongs to the same person.
Even during the course of cross examination of P.W.26, suggestions made by the learned counsel for the 22 accused that there is variation in the handwriting of Ganesh, the said suggestion has been denied.
13. We have perused the opinion given by P.W.26 as per Ex.P.73 and Ex.P.4 coupled with the evidence of P.Ws.1 to 4, which clearly goes to show that as on the date of incident i.e., on 4.6.2010, the accused visited Bharath Finance office at Mangaluru and met P.W.1 and thereafter, some negotiation took place between P.W.1 and accused regarding getting release of the pledged gold articles and thereafter, the accused executed some portion's in Ex.P.4. Thereafter along with cash of Rs.1,15,000/-, accused and deceased went from the finance and the witnesses have seen deceased and accused going together. When the accused and the deceased have gone together for the purpose of getting the pledged gold articles released from Puttur bank, then under such circumstances, the accused has to explain as to at which place, the deceased departed the company of the accused. During the course of cross 23 examination, nowhere it has been suggested that the company of the deceased has been departed from the accused. Non-explanation of the said fact goes to show that it is the accused who has caused the death of the deceased in this behalf. On the basis of the above said circumstances an Inference can be drawn so far as the last seen theory is concerned and it can be safely held that the prosecution has established the said circumstances with worth believable evidence.
14. If we peruse the evidence of the doctor (P.W.21), in his evidence, P.W.21 has clearly deposed that he has conducted post mortem over the body of the deceased Gangadhar Acharya and he found ten injuries over the body of the deceased. Even he has given his opinion after the receipt of RFSL report on 30.08.2010 and his opinion is as per Ex.P.31. In his opinion, P.W.21 has stated that in view of the RFSL report dated 19.8.2010, the viscera have responded negatively to any volatile poison, 24 pesticides, barbiturate, etc. P.W.21 has also conducted PM on 5.6.2010 and opined that the death was due to multi intra abdominal injuries and intra cranial injuries resulting in massive intra abdominal bleeding and intra cranial bleed.
Even the spot mahazar (Ex.P.2) discloses the injuries were there over the body of the deceased. In the evidence of P.W.26, at para No.9 of his deposition, he has deposed that on 26.8.2010, he received the weapon (M.O.19) and after examination of the said weapon, he gave his opinion as per Ex.P.32. In his opinion, he has opined that the above produced weapon could have been used to produce the above said two mentioned wounds over the body of Gangadhar Acharya. In that light, if the entire evidence and documents have been perused, it clearly shows that the death of Gangadhar Acharya is a homicidal death. The said fact has been proved by the prosecution. 25
15. The next circumstance on which the prosecution has relied upon is that the accused has been identified by the witnesses in the Test Identification parade. In the evidence of P.W.4, at para No.4 of the deposition, he has deposed that after one and a half month, Tahsildar of Mangaluru ordered him to come to the jail for identification of the accused. Himself and P.W.1 went there and P.W.6-auto driver was also present there. By changing the clothes of the persons present in the jail, for 2-3 times, they were made to stand in a row and in the said parade, P.W.4 identified Madhava Naika. P.W.4 has also identified the said Madhava Naika, who was present before the Court. P.W.4 has also deposed that the deceased gone along with the accused and while going he had carried the amount of Rs.1,15,000/-. The report of the Test Identification parade is also got marked as per Ex.P.79. If we peruse Ex.P.79 which has been conducted by Taluka Executive Magistrate at Mangaluru, he has narrated in detail as to how the Test Identification 26 parade has been conducted on the said date. Perusal of the said report, makes it clear that P.Ws.1 and 4 have identified the accused when the Test Identification parade was conducted. Though P.W.6 i.e., Krishnappa Moolya was present in jail, he has not supported the case of prosecution and he has been treated as hostile. In this behalf, the prosecution has also proved the fact that during the Test Identification parade, the said witnesses have identified the accused as the person with whom the deceased has gone. In that light also, the said circumstance has been fully established by the prosecution.
16. The next circumstance on which the prosecution is intending to rely upon is that the accused has given voluntary statement as per Ex.P.78 before the investigation officer (P.W.27) and recovery of cash and M.Os.9 to 13, 16 to 19 was done. If we peruse the evidence of the investigation officer (P.W.27), at para No.8, 27 he has deposed that on 15.6.2010, his staff apprehended the accused and produced before him. When the personal search of the accused was made, they found a grief pith purse and a pen in the pant pocket of the accused. The said purse was searched and they found Rs.8,420/- of different denomination. When they searched the shirt, there they found one mobile set of Onida Company. The mobile was having provision of two sims in it. There was only one sim in the mobile and another sim was not there. The number of the sim was 9731523107. The said handset was having two IMEM numbers. The said articles were seized in the presence of panch witnesses (P.Ws.17 and 3) as per Ex.P.5. P.W.27 has further deposed that when the accused was enquired, he gave his voluntary statement as per Ex.P.78. Thereafter, P.W.27 secured the panch witnesses. The accused led the police and panch witnesses to his house, where his mother was staying. The accused asked his mother to return the amount. His mother went inside the house and from the steel almirah, 28 she produced a black colour purse which was having the name of Bharath finance. The said purse was containing 100 notes of Rs.500/- denomination and the same were seized by drawing the mahazar as per Ex.P.6. He further deposed that thereafter accused led them to the house of Vasu Naika and there, the accused asked him to return the amount and the said Vasu Naika returned 20 notes of Rs.500/- denomination and the same were seized by drawing the mahazar as per Ex.P.8. P.W.27 has also deposed that thereafter, the accused led them to the house of one Sharada and asked her to produce the amount and accordingly, she produced 20 notes of Rs.1,000/- denomination and the same was seized by drawing the mahazar as per Ex.P.7. P.W.27 further deposed that on 16.6.2010, the accused took P.W.27 to Adarsha Nagar of Nekkiladi village. There, one Harish produced 10 notes of Rs.500/- denomination and a mobile (M.O.13) and the same were seized by drawing the mahazar as per Ex.P.13. P.W.27 has also deposed that 29 the accused led them and took near the shore of the river and took out a plastic cover and produced the same before them. The said plastic cover contained one jeans pant, cotton shirt and one kolibalu and the same were seized by drawing the mahazar as per Ex.P.19. This evidence of P.W.27 is also supported by P.W.17 - panch witness who was present at the time of drawing the mahazars.
17. Even the said seized articles have been sent to FSL and they have been examined by the FSL authorities, who gave opinion as per Ex.P.36 stating that M.Os.16 to 19 are stained with the human blood and even the grouping of the blood has been mentioned as 'A' group. When the said Ex.P.36 shows that the clothes of the accused as well as the weapon Kolibalu (M.O.19) that has been used for the purpose of commission of the offence has been stained with human blood, it makes it clear that the accused has caused the said injuries on the deceased with the weapon like M.O.19 and the same is also 30 substantiated by the FSL authorities as per opinion Ex.P.36. The clothes of the deceased along with the sample of mud, which were stained with the blood, were sent to the Director, FSL, Bengaluru for comparison of those articles. In this behalf also, the FSL authorities have confirmed the same with positive report. In this behalf also, the prosecution has clearly brought on record the said circumstances pointed out to the guilt of the accused alone.
18. As could be seen from Ex.P.81, soil sample of A and B which have been sent to FSL as articles A and B are similar. The prosecution has clearly established the fact that as per the voluntary statement given by the accused, the said cash and the weapons which were used for the purpose of commission of the offence have been seized. Though during the course of the arguments, learned counsel for the appellant-accused by bringing to our notice the evidence of investigation officer (P.W.27) has 31 pointed out that nobody has seen the accused and the deceased moving together and even during the course of investigation, the investigation officer has not collected any information in this behalf, but the said fact is not going to help the case of the accused in any manner. The prosecution has clearly established the fact that on the date when the accused visited the finance of P.W.1 and there the transaction has also taken place and thereafter the accused and the deceased have been seen together and they went out of the finance along with cash, then the said contention will not be having any force that too when other circumstances also points out towards accused. When by the said evidence, it has been established by the prosecution, then the burden shifts upon the accused to disprove the same with all cogent and acceptable material. Even a duty is cast upon the accused to show that when and where he departed the company of the deceased. When no evidence has been produced by the accused in respect of this aspect, under such circumstances, the 32 evidence which has been brought to our attention at para No.48 of the deposition of the investigation officer, will not enure to the benefit of the accused.
19. Though during the course of arguments the learned Counsel submitted that the Driver of the Auto in which accused and deceased went has not been examined, it is fatal to the case, on going through the entire evidence which has been produced by the prosecution, it is clear that the prosecution has established the major circumstance on which it is relying on to show that it is the accused and the accused alone, who has committed the alleged offence. On going through all the circumstances, it is clear that the accused has committed the alleged offence for the purpose of wrongful gain. Even there are no probabilities so as to create a doubt in the case of the prosecution and non-examination of driver is not going to help the accused in any manner. 33
20. We are conscious of the settled principles of law by the Apex Court in catina of decision that when the case rest on circumstantial evidence, such evidence must satisfy the test that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and lastly the circumstances taken cumulatively should form a chain. So complete that there is no scope from the conclusion that within all human probability, the crime was committed by the accused and none else. This proposition of law has been laid down in the case of Aftab Ahmad Anasari -vs- State of Uttaranchal reported in AIR 2010 SC 773, where in para 17 extracted as below:
"17. The cumulative effect of the above mentioned facts taken together is conclusive in establishing the guilt of the appellant. The chain of circumstantial evidence is complete and does not leave any reasonable ground for 34 conclusion consistent with the innocence of the appellant. The chain of circumstances is such as to show that within all human probability the rape and murder of the deceased were committed by the appellant and none else and he had also caused disappearance of evidence of those offences. This Court further notices that this Court in Vasa Chandrasekhar Rao Vs. Ponna Satyanarayana & Another (2000) 6 SCC 286 and Geetha vs. State of Karnataka (2000) 10 SCC 72, while explaining the law relating to circumstantial evidence has ruled that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused. As indicated earlier, it is proved by cogent and reliable evidence that the appellant had committed rape on the deceased and thereafter murdered her. Here in this case, the incriminating circumstances proved were put to the appellant while recording his statement under Section 313 of the Code of Criminal 35 Procedure. In his further statement, recorded under Section 313, the appellant has merely denied the same. Therefore, such denial on the part of the appellant and failure to explain the circumstances proved will have to be treated as an additional link in the chain of circumstances to bring home the charge against the appellant. The circumstances proved establish the guilt of the appellant beyond reasonable doubt".
21. By keeping in view the above said proposition of law on perusal of the evidence and records, it discloses that when accused visited the finances, he gave his name as Ganesh though his real name was Mahadev Naika and also as Koosappa that shows impersonation by the accused, he has also taken a false defence that he has not visited the said finances and has come up with any proper explanation when and where he executed Ex.P.4. It is well settled principle that when case is based on circumstantial evidence and when an incriminating circumstances is put to the accused and the said accused 36 either offers no explanation or offers an explanation, which is found to be untrue, then the same become an additional link in the chain of circumstances to make it complete. This proposition of law has been laid down in the case of Trimukh Maroti Kirkan -vs- State of Maharashtra reported in (2006) 10 SCC 681, where in Para No.12 is extracted below:
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence".37
22. Keeping in view the above said facts and circumstances of the case and even on careful and cautious perusal of the impugned judgment of conviction and the order of sentence, the Court below after considering the facts and circumstances of the case and after appreciating the legal and factual aspects, has rightly come to the conclusion in convicting the appellant accused. In the said judgment, neither there is any perversity nor illegality while passing such order. No grounds are made out to interfere with the said judgment and order of the Court below and the same deserves to be confirmed. The appeal is therefore dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE Bkp/Cs/-