Karnataka High Court
Mani @ Manigandan vs State By Bendigeri Police on 2 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.NO.865/2016
BETWEEN:
MANI @ MANIGANDAN,
S/O. C. VIJAYAN,
AGED ABOUT 32 YEARS,
PAINTING AND CENTERING WORK,
NO.87, HUBLI
PIN CODE NO.571450.
NOW RESIDING AT
MANI @ MANIGANDAN,
S/O C. VIJAYAN,
AGED ABOUT 32 YEARS,
PAINTING AND CENTERING WORK,
NO.456/A, 4TH STREET,
PANNAMDUP RAILWAY (P.T.) COLONY,
AINAVARAM CHENNAI-23,
NOW PORUR GARDEN PHASE-2,
PLOT MADHUR VAIYIL,
AMBATTUR DISTRICT,
CHENNAI: PIN CODE NO.23.
.....APPELLANT
(BY SRI. R. H. ANGADI, AMICUS CURIAE)
AND:
STATE BY BENDIGERI POLICE,
HUBLI,
REPRESENTEDC BY SPP,
HIGH COURT OF KARNATAKA
AT BANGALORE.
2
PIN CODE : 560001.
.....RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT OF CONVICTION PASSED BY I- ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD (SITTING AT
HUBLI) IN SC. NO.31/2012 DATED 20.06.2015 AND 23.06.2015
BY ALLOWING THIS APPEAL.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.08.2020, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, V. SRISHANANDA, J, DELIVERED
THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment dated 20.06.2015 in S.C.No.31/2012 passed by the I-Additional District And Sessions Judge, Dharwad, Sitting at Hubli (hereinafter referred to as "Sessions Court" for short), accused No.1- Mani @ Manigandan has preferred this appeal questioning the validity of the judgment wherein he has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and four years simple imprisonment for the offence punishable 3 under Section 201 of IPC and to pay fine amount of Rs.1,000/- each for both the offences with default sentence of simple imprisonment for fifteen days each. Second accused, who is the wife of first accused has also been convicted in the impugned judgment and sentenced to undergo for a period of four years for the offence under section 201 of IPC. She did not challenge the impugned judgment and thus, this appeal is restricted to first accused.
2. The brief facts, which are germane for disposal of this appeal are as under:
One Saikumar (hereinafter referred to as "the deceased") was the son of Smt. Nagamani @ Nagavalli i.e., (hereinafter referred to as accused No.2)from her first husband. After a few years of this marriage, she married accused No.1 and from that marriage, accused No.1 and 2 have a son. Both the accused persons, along with their two children were residing in a rented house situated at Mantur road, 3rd Cross, Sheela Colony, Hubli,( hereinafter referred 4 to as "incident-house") which was owned by one Ramanjaneya (complainant).
Further, it is found in complaint that in between 25.01.2011 to 25.02.2011, accused No.1 assaulted on the head of the deceased with a crowbar and committed his murder and in order cause disappearance of evidence of offence, he buried the dead body of the deceased in incident-house itself by removing the tiles of the floor and the second accused concealed the commission of offence committed by the first accused. Thus, complainant sought for taking action.
Based on Ex.P.1, Bendigere police have registered the case in Crime No.42/2011 vide FIR (Ex.P.16) and the investigation agency also corresponded with the Assistant Commissioner, Dharwad for exhumation of the dead body. Panch witnesses were also secured and all of them went inside the house and noticed that some of the tiles were relaid in the incident-house. Team suspected that the dead body might have been buried there and drew a mahazar (Ex.P.3) and thereafter, after exhumation, they found a 5 decomposed dead body (hereinafter referred to as "the remains" for short) wrapped in clothes and drawn another mahazar (Ex.P.4). Remains were sent for postmortem examination. The investigation agency also recorded the statement of the witnesses who were present at the time of exhumation. On conclusion of detailed investigation, accused persons were charge-sheeted.
The learned Magistrate took cognizance of the offences and since the case was exclusively triable by the Sessions Court, committed the case to the Sessions Court. The accused were arrested on 16.10.2011 and produced before Court.
After hearing the learned counsel for accused persons as well as the learned Public Prosecutor, charges were framed against accused persons. They pleaded not guilty and claimed to be tried. As such, trial was held.
On conclusion of trial, statements of accused persons as contemplated under Section 313 of Cr.P.C. were recorded. Accused persons denied all the incriminating 6 circumstances, which were put to them, however they did not offer any explanation in writing as to the alleged incident nor adduced any evidence.
Trial court, after hearing arguments, passed a judgment convicting accused No.1 for the offences punishable under Section 302 and 201 of IPC and sentenced him to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC and also sentenced him to undergo simple imprisonment for a period of four years for the offence under Section 201 of IPC with fine of Rs.1,000/- for each offence with default sentence of simple imprisonment for 15 days each. It is this judgment, which is under challenge in this appeal.
3. Sri. R. H. Angadi, the learned counsel for appellant vehemently contended that the Trial Court has grossly erred in convicting the appellant/accused No.1. He contended that the case rests on the circumstantial evidence and there is no cogent evidence placed by prosecution to convict the appellant. He argued that it is more than one month after the accused persons vacated 7 the incident-house the dead body was exhumed. As such, there is no material which would connect the death of Saikumar and the accused persons.
4. He also contended that the accused persons no doubt stayed in the house of the complainant on rent but that itself would not ipso facto result in an inference that there is a nexus between the death of Saikumar and the accused persons and thus, prayed for order of acquittal.
5. It is his further argument that the voluntary statement of the accused is obtained forcefully by the investigation agency and there is no other material placed by the prosecution which would prove the guilt of the appellant/accused No.1 and prayed for allowing the appeal.
6. It is his further contention that the prosecution is not sure as to the date of death of Saikumar as could be seen from the complaint averments. He also pointed out that the huge delay in lodging the complaint is significant while appreciating the case of the appellant and prayed for allowing the appeal.
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7. Per contra, the learned Additional State Public Prosecutor argued that even though the case is resting on circumstantial evidence, the prosecution is able to establish all the circumstances which would prove the guilt of the appellant. It is his submission that prosecution has proved that the remains which were seized from incident-house which was in occupation of the accused persons, are that of Saikumar as per Ex.P24 and as such accused were duty bound to explain as to how Saikumar died. He further pointed out that there is no dispute as to the fact that the accused persons stayed in the house of P.W.1 for a period from December 2010 to 25.03.2011 as a tenant on a sum of Rs.700/- as monthly rent.
8. He further submits that the prosecution has also proved that while vacating the house, the accused persons along with their younger child alone went out of the house. He pointed out that it is only when new tenant viz., Nagaraj Sakri occupied the incident-house in the month of April-2011, the incident has come to light, after he noticed that there was difference in some tiles which 9 were newly laid in the hall of the incident-house. Therefore, the prosecution is able to prove the last seen theory, seizure of remains of Saikumar and later on accused persons were arrested. He emphasised that the fact that no explanation is offered by accused persons either in 313 statements or by way of defence evidence about Saikumar is an additional link which has strengthened the case of prosecution.
9. He further argued that prosecution is able to establish that it is the appellant who is responsible for the death of Saikumar and thus, the judgment of the Trial Court is perfectly justified and prayed for dismissal of the appeal.
10. In view of the rival contentions of the parties, the following points would arise for our consideration:
1. Whether the appellant/accused No.1 has murdered Master Saikumar in the rented house of the complainant, who was the son of accused No.2 from her first marriage?10
2. Whether the prosecution has been able to establish that both the accused persons have caused disappearance of the evidence of the incident wherein Saikumar was murdered, with an intention to screen themselves away from legal consequences?
3. Whether the appellant establishes that the judgment of the Trial Court needs interference?
11. We answer Point No.1 and 2 in the affirmative, and Point No.3 in the negative for the following:
REASONS
12. In order to bring home the guilt of the accused persons, prosecution has relied on oral testimony of the P.W.1 to P.W.23, documentary evidence vide Ex.P.1 to Ex.P.28 and material objects vide M.O.1 to 6.
13. P.W.1 is the complainant, who lodged Ex.P.1- complaint. He deposed that he is the owner of incident- house which was rented out to accused persons on a 11 monthly rent of Rs.700/- at the instance of P.W.2. He further deposed that accused persons as well as their children by name Saikumar and Naveen were residing in the incident-house. Saikumar was born to the second accused through her first husband. As such first accused developed hatred and used to harass Saikumar. He further deposed accused did not pay the rent for the months of December-2010 and January-2011. As such, enquired P.W.2 on 05.02.2011 and he got a reply that the first accused is in financial difficulties and accused would clear arrears in the succeeding month.
14. He further deposed that on 25.03.2011, himself and P.W.2 went to the house of accused for collection of rent; at that juncture neighbours informed that the house is under lock and electrical lights inside the house were on and none is found in the house. As such, they broke open lock and he noticed that the house was vacant and accused persons have left the house without informing anybody.
15. Thereafter, he rented out the incident-house in the first week of April-2011 to one Nagaraj Sakri husband 12 of PW10. It is his case that on 07.04.2011 at about 6.00 p.m., he received a call from Nagaraj Sakri informing that there is a rumor among neighbours that accused persons had murdered Saikumar and dead body was buried in the house itself; he noticed six stone slabs (tiles) appear to have been relaid on verification and he is suspecting foul play.
16. PW.1 further deposed that he tried to contact P.W.2 to find the whereabouts of accused No.1 but his efforts were in vain. Left with no other alternative, he lodged Ex.P.1. Thereafter police visited the incident-house and exhumed the remains under a mahazar beneath the relaid portion of the floor in the presence of Assistant commissioner, doctors from KIMS hospital and the remains were seized and another mahazar was drafted. About six months later he was called to the police station where he saw accused persons. He further deposed that he came to know from neighbours that the first accused was torturing the deceased and he murdered the deceased by using a rod.
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17. In his cross-examination, he admits that he had not complained to the police before he broke open the lock. He admits that he does not know the name of first husband of accused No.2.
18. Isrel Gollappalli, who mediated between accused persons and P.W.1, is examined as P.W.2. He deposed about the acquaintance of the accused persons, their children i.e., Saikumar and Naveen and at the request of the accused, he mediated between P.W.1 and accused persons and got the incident-house belonging to P.W.1 on rent. He specifically deposed that Saikumar was the son of accused No.2 from her first husband and first accused disliked and was harassing the deceased despite his advise.
19. He further deposed that P.W.1 informed him that the agreed rent was not paid for two months by accused; as such they went to incident-house. They noticed that electrical lights were on inside the house and the house was locked. They broke open lock and went inside. But accused were not there in the house.
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20. To the extent he did not support the case of the prosecution, the prosecution has treated him as hostile witness and he was cross-examined by the prosecution.
21. In such a cross-examination, he admits the suggestion made on behalf of the prosecution that he came to know from others that accused persons have murdered the deceased and buried the dead body by removing six tiles and relaying the same.
22. In his cross-examination by defence, he admits that he is a relative of accused persons. He denies the suggestion that he did not act as a mediator between P.W.1 and the accused persons to occupy the rented house by the accused persons. Further he states that he did not have any personal knowledge that the deceased was the son born to the second accused from her first husband. He admits that he has not personally seen the torture imparted to the deceased by the first accused.
23. P.W.3 is the mahazar witness to Ex.P.3 and Ex.P.4, spot and inquest mahazars. He supported the case 15 of the prosecution and identified his signatures on the Ex.P.3 and Ex.P.4. He deposed about the presence of P.W.1 and police removing the remains of Saikumar from the incident-house, which was in occupation of the accused persons.
24. In his cross-examination, he denies the suggestion that he has given false evidence to support the prosecution.
25. P.W.4 is one Smt. Kamala Dhara, who owned tea shop in the vicinity of incident-house. She was acquainted with second accused when second accused used to visit her tea shop. She has stated that accused persons had two sons and elder son was aged around 8 years and younger was aged about 4 years. She also deposed that the deceased was also visiting her tea shop for purchasing tea and she had noticed swellings on his body. She stated that accused persons stayed in a rented house for about two to three months and she also deposed that she did not see Saikumar for some time.
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26. She did not support the prosecution further and as such, she was treated as partly hostile witness by the prosecution. She has denied the statements said to have been given by her about past life of second accused as narrated to her by second accused.
27. In her cross-examination by defence, suggestion made to her that the second accused never visited her tea shop is denied by her. It is elicited she cannot remember all the customers' name who visits her tea shop.
28. P.W.5 is Matamma Anantpur. She deposed that she is residing in a house which is two lines away from the house where the accused persons were residing. She deposed that accused persons were residing in a incident- house and they had come from Madras. It is her case that she had seen second accused visiting tea shop of P.W.4 and the grocery shop belonging to one Emima.
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29. In her cross-examination, she admits that she did not have personal knowledge as to the affairs of the family of the accused.
30. P.W.6/Sharif and P.W.9/Mohammed Jafarsab are the mahazar witnesses to Seizure mahazar-Ex.P.7. They deposed about their participation in Ex.P.7/seizure mahazar. They further deposed that on 18.11.2011 at about 10.00 a.m. they visited Bendigere police station and both accused were in police custody, the police enquired the accused persons and they gave voluntary statements and first accused took the police to the incident-house and showed a place. On digging such place, they found a crowbar and police seized the same and drafted Ex.P.7- seizure mahazar. They have identified the crowbar before the Court as M.O.1. They further deposed that the second accused showed the place where Saikumar was buried and police on verifying the said place drafted Ex.P.8-mahazar.
31. In his cross-examination, P.W.6 has denied that he has falsely deposed before the Court. He has answered 18 that he does not know whether the accused persons know Kannada language or not.
32. In the cross-examination of P.W.9, he admits that he is illiterate and he is acquainted with Kannada and Hindi language. He denied the suggestion that he has not at all participated in mahazar proceedings. In his cross- examination, he has identified his signature on the label affixed on M.O.1.
33. One Somanath Mantri is P.W.7. He deposed that he is acquainted with P.W.1 and at his request, he had visited the house at Sheela Colony and he also deposed about the police visiting the house and exhuming the remains of Saikumar. He answered that he is seen in a video clip along with three more charge-sheet witnesses and presence of Tahasildar, Police Personnel and Assistant Commissioner.
34. In his cross-examination, he has answered that he is working as a ward boy in KIMS hospital. He has 19 answered that he had seen accused persons earlier to incident when he had visited the house of P.W.1.
35. P.W.8 is one Prashant Walikar. He had also visited the incident-house during exhumation and seen seizure of remains.
36. In his cross-examination, he has denied the suggestion that he has not at all participated in exhumation proceedings and he is tutored by P.W.1. He admits that he had not seen Saikumar earlier and he came to know that the remains were that of Saikumar as per the version of P.W.1.
37. One Magi Maisanjala is examined as P.W.10. She is subsequent tenant of incident-house. She deposed that she contacted PW1 through one Emima and took the incident-house for rent on monthly rent of Rs.800/- and security deposit of Rs.5,000/-. She further deposed that on 01st of April, 2011 Emima took the keys from P.W.1 and after white-wash, they occupied the house on 04.04.2011. and noticed that six tiles in the hall were appeared as 20 relaid. She further deposed that on 06.04.2011 when she returned from work, she saw numbers of people were assembled in her house and they were discussing that there is a dead body buried in the house. She informed P.W.1 that police have visited their house and people are saying that there is a dead body inside the house and complaint needs to be lodged. She had also shown the place to P.W.1 where floor tiles appeared to have been relaid and P.W.1 told that he has not carried out such replacement. She also deposed that she had seen the accused earlier and as she was also staying in the same road, she had also seen their sons. She further deposed that in the evening they lodged a complaint. She further deposed that about 6-7 months later, she was called to police station and accused persons were in police custody and she has identified them.
38. In her cross-examination, she admits that she was not having personal knowledge about the accused persons killing Saikumar and burying him in the incident- house. It is further elicited that she was earlier residing in a 21 house, which was situated 4-5 houses away from the incident-house. She admits that on exhumation they found the dead body was highly decomposed.
39. P.W.11 is one Jog Samuel. He deposed that as per the request of the police, he had visited the police station and the accused persons were there in police custody. He deposed that the first accused gave voluntary statement in Telagu language and he has translated the same into Kannada language and after translation, he read over the translated version to accused No.1 and he admitted the same, which is marked at Ex.P.12. So also he has translated the voluntary statement of second accused- Nagamani in Kannada, which is marked at Ex.P.13. In his cross-examination, he has answered that since three years he is working in Railways and he has studied Mechanical Diploma and he is not an official translator.
40. The Autopsy surgeon is examined as P.W.12. He deposed that at the request of Sub-Divisional Magistrate he was present for exhumation proceedings in Exhumation No.1/2011 and reached the spot at about 5.15 p.m. on 22 08.04.2011 and in the presence of Assistant Commissioner, Sub-Divisional Magistrate, Taluk Executive Magistrate and ACP Hubli exhumation proceedings were commenced in incident-house and on exhumation, remains were recovered from the pit and he examined them. On such examination, he has opined that the death could be due to respiratory failure consequent upon injury to the brain. He had preserved both femur bones for DNA profiling at the request of the investigation agency and samples of earth was also preserved for chemical examination. He further deposed that a report has been given by him vide Ex.P.14. He identified the femur bones as M.O.6. He has also issued Postmortem report, which is marked at Ex.P.14. He further deposed that if somebody assaults with M.O.1/crowbar, there is a possibility of fracture of skull and impact thereof may result in death of 8 year old child.
41. In his cross-examination, he denies that M.O.6 are not the femur bones of a child. He denies that by examining the remains, opinion as to cause of death cannot 23 be assessed. He denies that if a boy dashes himself to a wall there is possibility of fracture of skull bone.
42. P.W.13 is the carrier of remains to the hospital. Likewise, P.W.14 is FIR carrier and P.W.15 is the person who carried the material objects to Forensic Science Laboratory. Their evidence is formal in nature.
43. P.W.16 is Dr.Vaishali deposed that on request of investigation agency, she visited the Magistrate Court on 24.11.2011 and collected the blood sample of second accused and handed it over to investigation agency.
44. In her cross-examination, she has stated that for the purpose of collection of blood, she has visited the Court twice. She deposed that on 19.11.2011 she could not collect the blood samples as the Court adjourned the matter to 24.11.2011. She denied that she has not collected the sample of blood in the presence of three advocates. She has stated that since she spent some time with accused No.2 at the time of collection of blood, she has identified accused No.2.
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45. P.W.17 is the in-charge investigation officer in the place of one Ravindra Shirur, who was the investigation officer in the case. He deposed that when he was in-charge investigation officer, he had sent four bottles containing mud to Regional Forensic Science Laboratory through P.C.No.1008 and on return of Raghavendra Shirur, he handed over the charge of this case to him. He denied that he had no authority to send the mud samples to the Regional Forensic Science Laboratory examination.
46. Ameerkhan Pathan, ASI, is examined as P.W.18. He deposed that on receipt of credible information as to whereabouts of accused persons, he visited Chennai and contacted Madhuravail police station and on 15.10.2011 at about 10.30 p.m., he took the accused persons to his custody near Porur garden and produced them before the investigation officer on 16.10.2011 and gave a report vide Ex.P.22.
47. He has further deposed that between the period of 08.04.2011 to 13.04.2011 he had visited Chennai, but 25 they could not locate the accused persons except locating their house and he had given a report as per Ex.P.23. He identified the accused persons before the Court. He denied the suggestion that he has not taken the accused in his custody in Chennai.
48. The Additional Deputy Commissioner by name Shivanand Kapse is examined as P.W.19. He deposed that on receipt of information from Nagaraj Sakri, he visited the house, which was in occupation of accused persons and decided to conduct exhumation proceedings and accordingly he intimated the Tahsildar, Assistant Commissioner and the ACP. He further deposed that he visited the place of incident by then P.W.1 and other police personnel were present there. He noticed the boundaries of the house and in northern side of the hall portion he saw tiles were relaid measuring about 3 feet.
49. He also deposed about the exhumation proceedings in detail and the proceedings were videographed. He further deposed that during exhumation, he also noticed that after the tiles were removed and the 26 earth was dug, they found a cloth and when they removed the cloth, they found remains of dead body and half-pant and a shirt. Based on the remains, they confirmed that the said remains were that of a small child. He also conducted the inquest proceedings and drafted Ex.P.4/mahazar and handed over the remains for Postmortem examination. On playing of the video clippings found in the Compact Disk, he identified that it is the video clip pertains to exhumation proceedings. When the Court directed the accused persons to view the video clippings, accused No.1 and 2 refused to view the video clip but accused No.2 started weeping and the Court has recorded the domineer of the accused No.2.
50. In his cross-examination, he has answered that the contents of Ex.P.4 is dictated by him and got drafted through an employee of Tahsildar office by name Hukkeri. He has answered that to question No.10 in Ex.P.4 he has provided information. He denied that Ex.P.4 is concocted. However, it is elicited that he cannot estimate the exact age of the deceased boy on the remains but he answered that 27 he could estimate as to whether the remains are that of adult or a child.
51. Even after the evidence of this witness, the Court has noted the domineer of second accused that she continued to weep in the accuse of and drinking water was provided to her.
52. P.W.20 is the carrier of blood sample to the Forensic Science Laboratory for DNA examination. He deposed that at the instructions of investigation officer, he has carried the blood sample and handed over it to Forensic Science Laboratory. In his cross-examination, he denied the suggestion that he did not carry the sample blood for examination to Forensic Science Laboratory.
53. P.W.21 is the police inspector, who registered the case on 08.04.2011 based on the complaint lodged by P.W.1 as per Ex.P.1. He identified the FIR marked at Ex.P.16. He further deposed that as per the contents of Ex.P.1, he came to know that a dead body was buried in the house occupied by the accused and accordingly, he 28 took steps to get the dead body exhumed. He also deposed about the spot mahazar marked at Ex.P.3 and the exhumation proceedings and the inquest mahazar conducted by the Assistant Commissioner vide Ex.P.4. The compact disk, said to have contained the video clipping, was played through laptop in the open Court in the presence of defence counsel and in the said video clipping one can easily identify that few tiles are relaid and the persons are removing the relaid tiles with spade. The Court has also noticed that after digging the ground for about 3 feet, a decomposed body is seen and the same is collected in a plastic cover. This witness further deposed that on 09.04.2011 he sought for preservation of bones for further investigation and also sought information as to the sex and estimation of time since death.
54. On 10.04.2011, he has recorded the statements of C.W.17 to 19. On 13.04.2011, he deputed P.W.18/Ameerakhan Pathan, ASI, to search for accused in Chennai. He further deposed that on 16.04.2011 he had deputed his sub-staff Jayashree and Nirmala to search for 29 accused. On 18.04.2011, he has recorded the statements of charge-sheet witnesses C.W.14 to 16.
55. He had deputed his sub-staff on 20.04.2011, 25.04.2011, 05.05.2011, 18.05.2011 and 29.05.2011 but his efforts were in vain. It is his case that on his transfer, he handed over the further investigation to P.W.23/Ravindra Shirur.
56. In his cross-examination, he denied that he did not receive the complaint on 08.04.2011 from P.W.1. He has answered that by the time he sent the request letter to the Assistant Commissioner, it may be 1.30 p.m., and the Assistant commissioner visited the spot at around 3.15 p.m. He answered that about 5 - 6 tiles were relaid with cement. He admits that he did not seize the tiles as part of investigation. He denies that the video clippings found in the Compact Disk are concocted and the clipping do not depict the exhumation proceedings.
57. He has answered that he did make his efforts to find out as to who was the first husband of the second 30 accused but he could not trace him. He denies that a false case has been lodged by him against the accused persons.
58. P.W.22 is the scientific officer, who has conducted the DNA examination. He deposed that on receipt of blood sample as well as femur bones, he conducted DNA profiling in his laboratory and thereafter issued a report vide Ex.P.24. He has also identified two annexures, which are marked at Ex.P.25 and 26 wherein the result of DNA profiling is mentioned. He specifically deposed that he marked the femur bones with a Code I-571 and the blood sample of the second accused has been coded as I-572N. He also deposed that the Amelogenin, which is a deciding factor of gender of the DNA in the sample turned out to be x-x in sample of femur I-571 and x-y in I-572N (sample of blood). He is of the specific opinion that from the results of DNA profiling of femur bones which was marked as I-571 is the offspring and the remains are of biological son of Smt. Nagamani @ Nagavalli-accused No.2.
59. In his cross-examination, he denies the suggestion that the police had not sent two femur bones 31 and blood sample. He answered that on 25.11.2011, the samples were received in his office and from the records he came to know that the blood sample has been collected in the presence of the Magistrate on 24.11.2011. He has answered that there are two scientific officers for DNA profiling and in the present case he has carried out the DNA profiling personally. He denies that for examination of DNA profiling, blood sample of biological father and biological mother is must. He has answered that he cannot estimate the age of M.O.6 femur bone. He denies that he has given a false report.
60. Further Investigation Officer, Ravindra Shirur is examined as P.W.23. He deposed that he took the further investigation on 02.07.2011 from P.W.17. He further deposed that on 29.11.2011, based on the call details of mobile telephone of first accused, himself and A.S.I., Pathan/P.W.18 were of the definite opinion that the accused persons are at Chennai and as such, they visited Chennai and handed over the video graphs of the case and request letter to the police station and returned to Hubli. 32
61. It is his case that on 14.10.2011, he received information from Madhuravail police station that they have traced the whereabouts of the accused persons and accordingly, he deputed P.W.18-Pathan along with other sub-staff and one lady head-constable by name Jayashree to apprehend the accused persons. He further deposed that on 16.10.2011, P.W.18 with sub-staff brought accused No.1 and 2 and produced before him and he recorded the statements of P.W.18 and other police personnel. On 17.10.2011, he reported the Jurisdictional Magistrate Court and obtained police custody of the accused persons. It is his case that they were knowing that the accused persons did not know Kannada language and as such, he secured the presence of a translator i.e., P.W.11-Jog Samuel and with his help he enquired the accused persons and recorded the voluntary statements revealed by them in Telagu and Tamil language vide Ex.P.12 and 13. It is his case that pursuant to the voluntary statements, he secured P.W.6-Sharif and P.W.9-Mohammed Jafarsab and requested them to act a Pancha witnesses in intended 33 mahazar. Thereafter, all of them left in a police jeep and first accused took them to the house situated at Sheela Colony and showed the place where the body of Saikumar was buried and also dug out the crowbar-M.O.1 and drafted Ex.P.7-seizure mahazar. Thereafter, as per the directions of second accused, they conducted the mahazar after verifying the place where the dead body of Saikumar was buried. On the same day, he has recorded the statements of P.W.4, 5, 8, 11 and other charge-sheet witnesses. On 22.10.2011 he has collected the inquest mahazar from P.W.19, which is marked at Ex.P.4 and on 07.11.2011 he requested for collection of blood sample and on 24.11.2011 he got collected blood sample and he had sent the same to FSL examination along with femur bones marked at M.O.6. He identified the other material objects as M.O.2 to 6. On 09.12.2011 he obtained the sketch of the house from PWD engineer vide Ex.P.29 and filed the charge-sheet on 24.12.2011.
62. In his cross-examination, he denies having concocted the voluntary statements of the accused. He 34 denies the suggestion that M.O.1 is also implanted in the case. He denies having filed a false charge-sheet.
63. The learned Counsel Sri. R. H. Angadi, appearing for the appellant sought for reappreciation of the above evidence and prays for allowing the appeal.
64. Close scrutiny of Postmortem report coupled with the oral testimony of the doctor-P.W.12 establishes that the prosecution has proved that deceased died a homicidal death. Defence also does not dispute the said fact.
65. The remains collected under Ex.P.3/mahazar two femur bones were preserved by P.W.12-Autopsy Surgeon during postmortem examination and they were handed over to the investigation agency. The blood sample of accused No.2 was collected in the presence of the Magistrate as per Ex.P.19. M.O.6 femur bones and the blood sample of accused No.2 were sent to DNA profiling. The FSL report marked at Ex.P.24 to 26 coupled with the oral testimony of P.W.22, would clearly establish that the 35 M.O.6, tallied with the blood sample of accused No.2. Therefore, the prosecution is successful in establishing the fact that the biological mother of the seized remains is none other than accused No.2.
66. Having held thus, now we have to consider whether accused No.1 committed the murder of Saikumar and buried him in his house.
67. Admittedly, the entire case of the prosecution rests on circumstantial evidence. Whenever, the case is based on circumstantial evidence, the prosecution is bound to prove each one of the circumstance in accordance with law and such circumstance should form a chain where it is possible for the court to reach an irresistible conclusion that the accused and accused alone, who is responsible for the act alleged against him.
68. In the background of the above requirements and when we analyse the material on record, it is an admitted fact Accused No.1 and 2 along with their two sons viz., Saikumar and Naveen came and started residing in 36 incident-house on monthly rent of Rs.700/- from the month of December-2010. It is proved by prosecution that Accused persons vacated the incident-house in the month of February-2011 without informing P.W.1, and P.W.5 saw accused persons moving out of the incident-house with their second son alone. Materials on records reveal that P.W.1 and P.W.2 visited the incident house and they broke open the lock after noticing that electrical lights were on and there were no inmates.
69. The incident-house was kept vacant till 04.04.2011 and then rented out to P.W.10 on monthly rent of Rs.800/- and it was occupied on 04.04.2011. P.W.10 noticed relaying of tiles in a portion of hall of incident-house.
70. On the above admitted and proved facts, this court is now required to find out that from the materials available on record whether prosecution had established the following circumstances:
The harassment to Saikumar by the first
accused.
37
Accused persons with their younger son alone vacating the place of the incident.
P.W.10/Magi Maisanjala knowing from the neighbours about burying of a dead body of elder son of the accused in the place of incident. Police visiting the place of incident and seizure of remains.
Arrest of the accused persons and Recovery of M.O.1/crowbar at the instance of accused No.1 pursuant to voluntary statement of accused persons.
71. To prove the harassment to Saikumar by accused No.1, the prosecution has relied on the evidence of P.W.4/Smt. Kamala Dhara, who was running a tea shop. She deposed that Saikumar was visiting her tea shop to purchase tea and at that juncture, she saw swelling on the body of Saikumar. It is an admitted fact that Saikumar was born to second accused through her first husband. P.W.4 being an independent witness defence cannot argue that 38 she is interested witness to prosecution. Admittedly she did not possess any enmity or animosity against accused persons. Nor by deposing falsely against accused she would derive any benefit. Therefore her evidence remains un- impeached on record.
72. The second circumstance is on the day of vacating the place of incident (house), the accused persons along with their younger son alone left the house. This is clear from the evidence of P.W.5/Matamma Anantpur. P.W.5 is an independent witness, who did not possess any enmity or animosity against the accused persons. Further, no explanation is forthcoming in the accused statement in this regard.
73. The next circumstance is P.W.10 occupying the place of incident (house) on 04.04.2011 and suspecting about newly laid tiles in the place of incident (house). She heard the rumor from the neighbours that previous occupants of the house had murdered their elder son and buried him in the house. She also noticed relaying of tiles in the place of incident (house). She contacted P.W.1 39 through Emima, who is running grocery shop and P.W.1 visits the house along with P.W.2/Isrel Gollappalli and he also noticed that there is relaying of tiles.
74. The next circumstance is police visiting the place of incident on 05.04.2011 by taking keys of the house from the mother of P.W.10. On 06.04.2011, P.W.1 lodges complaint after verifying the place of incident and observing relaying of tiles.
75. The next circumstance is exhumation proceedings. On receipt of complaint, the Inspector of Police/P.W.21 intimates the Sub-Divisional Magistrate and the Higher Police Officials and secured the pancha witnesses and exhumation proceeding has taken place in the place of the incident where the tiles were relaid. The exhumation proceedings were videographed and the Trial Court has played the Compact Disk wherein the Trial Court has observed that after digging the earth for about 3 feet, they noticed remains and the same were taken from the pit and they were packed in a plastic cover. At the instance of the investigation officer, the femur bones marked at M.O.6 40 were preserved by P.W.12/autopsy surgeon, who conducted the postmortem on the remains.
76. Next circumstance is the arrest of accused persons. P.W.21 and P.W.23 have specifically deposed that after sustained efforts and on definite information, P.W.18/Ameerkhan Pathan, A.S.I., visits Chennai along with his sub-staff and lady constable Smt. Jayashree on definite information from Madhuravail police station and apprehends accused persons and produced them before investigation officer on 16.10.2011.
77. It is now well settled that a conviction can be on the basis of placed on the circumstantial evidence. In Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343, it is observed as under:
"10. .....It is well to remember that in cases where theevidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency 41 and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...." .
78. In Bhodaraj v. state of Jammu and Kashmir reported in 2002 (8) SCC 45. Hon'ble Apex court has held as under:
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956 SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 : AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 : 1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC 42 (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193 : 1996 SCC (Cri) 1205] wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 43 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 : 1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be 44 accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
45
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] . Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and 46 must show that in all human probability the act must have been done by the accused."
79. Similar is the view taken by Hon'ble Apex Court in the case of Santosh Kumar Singh v. State, (2010) 9 SCC 747 popularly known as Priyadarshini Mattu's case.
80. Applying the legal principles enunciated in the aforesaid decisions to the facts of the case on hand as discussed supra, we find that prosecution has established the circumstances narrated above with cogent evidence.
81. Once the prosecution established its case with postive evidence on record, the appellant was obliged to furnish some explanation under Section 313 Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
82. Further, Section 106 of the Indian Evidence Act, 1872 deals with shifting the onus of proving a particular fact on the accused or when that particular fact is 47 especially within his knowledge. This section is an exception to section 101 of the Evidence Act and its applicability does not relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
83. For ready reference said section is culled out hereunder which reads:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
(a) When a person does an act with some intention other than that which the character and 48 circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."
84. Gainfully, a few decisions of the Hon'ble Apex Court on Section 106 of the Indian Evidence Act are also extracted at this stage.
85. In Jamnadas v. State of M.P., (2016) 13 SCC 12, the Hon'ble Supreme Court held as under:
19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases. Undoubtedly, it is a case of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , a three-Judge Bench of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, before a court can convict and the mental distance between "may be" and 49 "must be" is long and divides vague conjectures from sure conclusions;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse inference can be drawn from his silence as to the cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under: (SCC p. 337, para 141) "141. At this juncture, it must be reiterated that Indian law incorporates the "rule against adverse inferences from silence" which is operative at the trial stage. As mentioned earlier, this position is embodied in a 50 conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:
'The "right to silence" is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.'"
Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and circumstances are different. The 51 abovereferred case, in our opinion, is of little help to the appellants in the present case.
21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37) "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
***
36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.' 52
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e-Banaras" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
23. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case 53 similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15) "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
86. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, Hon'ble Apex Court observed "23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court 54 exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain 55 facts which are particularly within the knowledge of the accused.
In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Onthe contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre- eminently or exceptionally within his knowledge."
87. Applying the legal principles enunciated in the above decisions to the case on hand, we notice that after the prosecution has established all the circumstances with credible evidence, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the incident-house as said fact was exclusive to his knowledge. 56
88. But no such explanation is offered by the appellant. Non-explanation as to the remains found in the incident-house, DNA report concluding that the blood sample of accused No.2 tallying with the remains-M.O.6, we can safely conclude that the remains are that of Saikumar. This is an additional circumstance to the chain which in fact strengthens the prosecution case.
89. Thus, from the above discussion, we are of the considered opinion that the prosecution has successfully established the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion that of the accused No.1 is the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused.
90. As an alternate submission, Sri. R. H. Angadi, made a submission that accused persons were not acquainted with Kannada language and as such trial stood vitiated in the absence of trial court appointing a 57 translator. He drew out attention to the voluntary statement being recorded with the aid of translator.
91. Materials on record especially, the suggestions made by the defence counsel to prosecution witnesses that accused knew Kannada language and answers recorded by the learned Sessions Judge while recording accused statement clearly shows that accused persons know Kannada language and have participated in the trial.
Moreover, such a plea was not taken before Sessions Court. As such, we do not find any force in the said contention.
92. In view of the foregoing discussions, we find no merit in the appeal. Accordingly we pass following:
ORDER Appeal sans merit and is dismissed.
Sd/-
JUDGE Sd/-
JUDGE yan