Sema, J.— Four appellants — Anthony D'Souza, Anil Kumar @ Anil D'Souza, Seril D'Souza and George D'Souza @ Babli were tried by the Additional Sessions Judge, Chickmagalur and convicted for the offences under Section 143 IPC, Section 396 read with Section 149 IPC and Section 201 read with Section 149 IPC and sentenced to undergo SI for six months for the offence under Section 143 IPC, rigorous imprisonment for life for the offence under Section 396 read with Section 149 IPC and a fine of Rs 5000 each. In default of payment of fine SI for three months and to undergo two years' RI and to pay a fine of Rs 2000 each for the offence under Section 201 read with Section 149 IPC and in default of payment of fine, SI for three months. All the substantive sentences were ordered to run concurrently. On appeal their conviction and sentence is confirmed by the High Court. Hence the present appeal.
2. Briefly stated facts are as follows:
Deceased Vittal Shetty and Paul were employed as driver and cleaner in a lorry bearing Registration No. CNO 8928 belonging to Kiran Transport Company owned by PW 5 Sri Castelino and his son PW 16 Kiran Castelino. On 17-2-1992, PWs 5 and 16 had sent the lorry driven by substituted driver PW 15 Puttumonu along with deceased Paul to Penambur to take delivery of 200 bags of Mangala Urea from its factory to be taken to Mysore Coffee Curing Works at Balehonnur. PW 9 Balakrishna was the clerk of Venkatadri Transport Company which has an office by the side of Mangalore Chemical Fertilizer Factory, got the fertilizer bags loaded between 11.30 a.m to 3.30 p.m After handing over necessary documents including the delivery note, the driver and the cleaner left for Mangalore. Sometime at about 5.00 p.m, the regular driver deceased Vittal Shetty reported back to his duty and he was asked by PW 5 to proceed to Balehonnur with the loaded lorry of fertilizer bags. Deceased driver along with his cleaner deceased Paul then proceeded towards Balehonnur at about 7.30 p.m on 17-2-1992. It is stated that at about 1.30 in the night both the deceased halted the lorry at Kottigehara at Bharath Hotel run by one Ibrahim, PW 12 for taking tea. When both the deceased were about to leave along with the lorry, it is stated that all the four appellants along with one juvenile offender boarded the truck after some talk and left Kottigehara. Since then nothing has been heard about the truck or the driver. It is only on 18-2-1992, one Parswanatha Jain, PW 1, a resident of Jenugudde village receives information of finding a dead body in a culvert. He booked a trunk call to the police at Balehonnur Police Station. On receipt of phone message, SHO of Balehonnur Police Station proceeded to Jenugudde along with the staff and observed some injuries on the dead body. He came back to the police station and suo motu registered a case in Crime No. 16 of 1992 for the offence under Section 302 IPC against an unknown offender. Thereafter, the investigation is taken over by Mallikarjunappa, PW 33, the PSI of Balehonnur Police Station. In course of investigation, the prosecution examined as many as 36 witnesses and finding a prima facie case, challan was filed against the appellants. Admittedly, there is no direct eyewitness and the prosecution case rests entirely on circumstantial evidence. The prosecution relied on the following circumstantial evidence:
(a) On 18-2-1992 at about 9.15 a.m, the four appellants along with juvenile offender went to Belagodu Primary Health Unit and informed Gangadhariah, PW 17 who was a Group ‘D’ employee, that they were injured in a lorry accident and asked for immediate medical treatment. On noticing the serious injuries on one of the accused, PW 17 directed them to go to Sakleshpur General Hospital.
(b) The appellants then went to a coffee estate run by Rafiq Ahmed, PW 27 at Belagodu and sought his assistance to go to Sakleshpur. PW 27 noticed the condition of the injured and contacted his relative at Sakleshpur to arrange for a taxi so as to provide transportation to the injured to Belagodu.
(c) PW 30 Feroze Khan, the owner of a taxi was engaged and sent to Belagodu, being driven by himself. PW 30 took the injured to Government Hospital, Sakleshpur and received his taxi charges of Rs 60 from the accused.
(d) At Government Hospital Sakleshpur, the injured disclosed their names as G. D'Souza s/o Joseph, Anil s/o Joseph, Manjunatha (juvenile offender) to the Medical Officer Dr Prakash Inamdar, PW 28. They also informed PW 28 that they sustained injuries in a truck accident near Belagodu village on 18-2-1992.
(e) PW 28 made necessary entries in the medico-legal case register vide Ext. P-32(a), (b) and (c) at pp. 243 and 244 of the register. The doctor also noticed serious injuries on the person called G. D'Souza. He accordingly advised them to go to a major hospital at Mangalore.
(f) The accused went to the taxi-stand and again met PW 30 and engaged his taxi to take them to Mangalore. The taxi of PW 30 went out of order near Uppinangadi and PW 30 asked them to engage another vehicle. The accused did not have enough money for paying the full charges. They paid Rs 200 in addition to one wristwatch worn by one of them. They, however, promised PW 30 that they would come back and pay the balance and take back the wristwatch after about three or four days.
(g) On the accused reaching Mangalore after engaging another vehicle, two of them went to Wenlock Hospital at about 4.00 p.m and Dr Vasanth Kumar, PW 26 treated them. The doctor noticed that one of the injured persons, named as George D'Souza was serious, accompanied by another injured named Sunil (later established as Anil). They also told the doctor that they had received injuries in a road accident. The doctor entered the same in the medico-legal case register and sent the MLC to the jurisdictional police.
(h) On 18-2-1992 at about 5.40 p.m PW 35 Vasudeva, ASI and SHO of Mangalore South Police Station went to the hospital and noticed that one of the injured was in a serious condition and others with simple injuries were able to talk. He recorded the statement of the able injured who disclosed his name as Sunil Fernandes and that of the seriously injured as George D'Souza. He also told PW 35 that they sustained injuries in the motor accident near Belagodu. He has recorded the statement vide Ext. P-49 and also registered a case in Crime No. 57 of 1992 for the offences under Sections 279 and 337 IPC against the unknown lorry driver. PW 35 having noticed that the accident had taken place within the jurisdiction of Sakleshpur Police Station transferred the case to the jurisdictional police.
(i) The case was then reregistered in Crime No. 25 of 1992 at Sakleshpur Rural Police Station and PW 32 located the lorry bearing Registration No. CNO 8928 and from the lorry he found out that it belonged to PWs 5 and 16 and contacted them over the phone intimating them that the lorry had met with an accident near Belagodu village and three persons named George, Anil and Manjunatha had received injuries in the accident and that they were being treated at Wenlock Hospital at Mangalore.
(j) On receipt of the information PWs 5 and 16 went to Wenlock Hospital and on inquiry came to know that the injured got themselves discharged against the advice of the doctor, PW 26 and gone to K.M.C Hospital, Bijai. In K.M.C Hospital, they found that one injured person by the name of George was serious and was admitted in the Intensive Care Unit and unable to talk. PW 5 left behind PW 16 to get the particulars.
(k) Sometime in the evening PW 16 noticed that three persons along with a young boy came to K.M.C Hospital, Bijai and when the three persons went to ICU leaving behind the boy, PW 16 out of curiosity made enquiry and learnt from the boy that all the three persons and the juvenile were injured in the lorry which met with an accident at Belagodu. The boy further alleged to have revealed that he was working as a coolie and on 17-2-1992 the four accused brought him to a hotel at Kottigehara at about midnight. When the lorry stopped at the hotel they requested the driver to take them as passengers. All of them sat in the cabin and after going some distance one of them got the lorry stopped on the pretext of attending call of nature and then Anil (A-2) tried to strangulate the driver with a plastic rope and when the driver and the cleaner tried to run away they were hit with the wooden block called as katte and killed both of them. The boy is further alleged to have revealed that after taking the money from the person of the driver as well as the wristwatch, accused (A-1) and the others took the vehicle towards the forest in order to dispose of the dead bodies. The boy is further alleged to have disclosed that when they kept the body of the driver in a culvert near Jenugudde and before they could dispose of the body of the cleaner in the same way they heard the sound of an approaching vehicle and they proceeded ahead in the lorry and thereafter the body of the cleaner was also kept under a culvert. The boy is further alleged to have disclosed that thereafter the lorry was driven to the estate of one Rajegowda, PW 13 and after unloading the fertilizer bags, while they were proceeding towards Belagodu, the lorry met with an accident and all of them got injured.
This is how the accused were roped in with the crime by the circumstances as recited above.
3. After the accused were arrested they were interrogated. Accused 1 and 3 made the voluntary disclosure statements vide Exts. P-39 and P-40 leading to the discovery and seizure of 193 bags of fertilizer from the estate of PW 13 Rajegowda and the wristwatch MO 19 belonging to the deceased Vittal Shetty from PW 30, the taxi driver. The disclosure statement led to the recovery of wooden katte MO 20 alleged to have been used by the accused for the murder of deceased Vittal Shetty and deceased Paul. In course of the trial, Accused 5 Manjunatha is stated to be a juvenile offender and his case was split up and only four accused were tried in the sessions case.
4. To establish the guilt of the accused the prosecution has examined as many as PWs 1 to 36, Exts. P-1 to P-49 and MOs 1 to 24. In their examination under Section 313 IPC, the accused totally denied the prosecution story. They, however, declined to lead any DWs.
5. It is contended by Mr Vijay Panjwani, learned amicus curiae, that the prosecution case rests entirely on the circumstantial evidence and the prosecution in such a case is required to prove all the links in the chain of circumstances which would lead to unerringly one conclusion and that is the guilt of the accused. According to him, the chain of circumstances linking to the guilt of the accused has not been discharged by the prosecution.
6. As already noticed, there is a concurrent finding of facts by both the courts and this Court would be slow to interfere with the concurrent finding of facts unless there is some perversity in the finding. It is also an established principle of law that in a case resting on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must unerringly lead to one conclusion consistent only with the hypothesis of the guilt of the accused. Keeping in view this principle, we now proceed to find out whether the finding arrived at by the two courts suffers from any infirmity.
7. Before we advert further, we may point out that all the prosecution witnesses were independent witnesses and there is no allegation of malice or rancour towards the accused. The witnesses were also subjected to lengthy cross-examination but their testimony remained unimpeached.
8. It is not disputed that on 17-2-1992, the lorry bearing No. CNO 8928 loaded with 200 Mangalore Urea bags, driven by deceased Vittal Shetty accompanied by cleaner deceased Paul left Mangalore towards Balehonnur. The said lorry belongs to PWs 5 and 16 of Kiran Transport Company. The said lorry met with an accident near Belagodu when the accused were injured in the same accident. This is borne out from the witnesses of PWs 17, 27 and 30 who are the persons who were immediately approached by the accused after the accident and their help was sought to go to the hospital. The evidence of PWs 17, 27 and 30 has also been corroborated by the evidence of medical officers PWs 28, 26 and 29. It is in the evidence of PW 17 Ganga Shetty, a Group ‘D’ employee of Health Unit at Belagodu that on 18-2-1992 all the accused along with a boy came to the Health Unit and informed him that they had sustained injuries in an accident to the lorry in which they were travelling. As there was no medical officer available, he directed the accused to approach the General Hospital at Sakleshpur. He stated that one of the accused had serious injury on his head. The statement of PW 17 is corroborated by the evidence of PWs 27 and 30. As noticed, PW 17 was a ‘D’ Class employee of PHU, Belagodu and residing near the place of accident, it is quite natural that the accused would go to the nearest place where medical aid is available. Further, the evidence of PW 17 is corroborated by the evidence of PW 27 who is a coffee estate owner of Belagodu village. It is in the statement of PW 27 that in the morning at about 9.00 a.m on 18-2-1992 Accused 1 to 4 came to his estate out of whom one was seriously injured and sought his help to go to the hospital at Sakleshpur. It is also stated that after seeing the condition of the injured, he telephoned to a relative who is also the proprietor of Hilal Coffee Works at Sakleshpur and requested him to arrange for sending a taxi to take the injured to Sakleshpur Hospital. At about 10.30 a.m a taxi came and the injured were taken in the taxi towards Sakleshpur. The evidence of PW 27 is further corroborated by the evidence of Feroze Khan, PW 30, the taxi driver. PW 30 stated that he is a taxi driver driving a taxi bearing Registration No. MEX 2837. On receipt of communication from the proprietor of Hilal Coffee Works that there was a phone call from Belagodu stating that an accident had happened at Belagodu and the injured were required to be shifted to a hospital, he took the taxi, went to Belagodu and reached the outskirts by about 9.30 or 9.45 a.m and saw some persons standing and one of them was seriously injured. He took them to Government Hospital, Sakleshpur and received the taxi charges of Rs 60 from them. The accused were identified by PWs 17, 27 and 30. The evidence of PW 30 that he took the accused from Belagodu to Sakleshpur Hospital has been corroborated by the evidence of Dr Prakash Inamdar, PW 28. It is stated in the evidence of PW 28 that he was a medical officer in the Government Hospital at Sakleshpur and on 18-2-1992 he had examined three injured persons who disclosed their names as D'Souza s/o Joseph D'Souza, Anil s/o Joseph D'Souza and Manjunatha s/o R. Shetty. The accused also informed him that they were victims of a motor vehicle accident near Belagodu village. PW 28 not only treated the accused but also noted down the injuries in the medico-legal case register and the same is marked vide Ext. P-32 and the relevant entries at Ext. P-32(a), (b) and (c). It is consistent that the accused were injured in a lorry accident at Belagodu village and later came to Sakleshpur Government Hospital with the help of PWs 27 and 30. In the light of the facts recited, the following circumstances are clearly established against the accused.
9. The first circumstantial evidence connecting with the accused is again the evidence of PW 30, the taxi driver. It is noticed in the evidence of PW 27 (medical officer) who had advised the accused to take the seriously injured to a major hospital at Mangalore. According to the prosecution case the accused again came back to the taxi-stand and met PW 30 and asked him to take the injured to Mangalore in his taxi. PW 30 agreed to the request on the condition that they would pay his taxi charges of Rs 550. The charges were stated to be settled at Rs 500 and then they left towards Mangalore. It is in the evidence of PW 30 that while they were proceeding near Uppinangadi some mechanical defect developed in the taxi and he asked the accused to make alternative arrangement. It is further stated that on making demand of taxi charges the accused expressed their inability to pay the whole amount and paid Rs 200 and on being insisted by PW 30 for full payment a sum of Rs 200 along with “Seiko” wristwatch had been given stating that they would come back and take the wristwatch back after three or four days after paying the balance amount. As already stated PW 30 met with all the accused persons on two occasions. He was well acquainted with the accused and clearly recognised them in the court. There is no malice or ill-feeling of PW 30 towards the accused. He was subjected to lengthy cross-examination but nothing could be elicited to discredit his testimony. The statement of PW 30 has also been corroborated by the seizure of MO 19. This again further strengthened the prosecution story connecting the accused with the crime. PW 5, the employer of the deceased Vittal Shetty and PW 8 Raghunath Shetty, the younger brother of the deceased had specifically and positively identified that MO 19, a wristwatch belonged to the deceased Vittal Shetty. PW 8 being the younger brother of the deceased Vittal Shetty is quite natural, that he had sufficient time and occasion to see the wristwatch (Seiko Company) being worn by the deceased Vittal Shetty. PW 5, the employer of Vittal Shetty also clearly stated that he had seen the deceased wearing MO 19 whenever he came for duty.
10. From the evidence disclosed above, it is apparently clear that the accused received injuries on their bodies in a lorry accident at Belagodu and went from Belagodu to Sakleshpur, has been well established by the prosecution.
11. The second circumstantial evidence against the accused is that they were being treated by the doctors for the injuries sustained by them in an accident involving the lorry in question. Dr Vasanth Kumar, PW 26 has stated that he examined one injured named George D'Souza (A-4) brought by one Sunil (established as Anil) from Sakleshpur and noticed injuries on his body and recorded the wound certificate Ext. P-30. According to him, it was a case of injury in a lorry accident. He has stated that the person accompanying the injured had given his name as Sunil. This doctor in his examination-in-chief produced Ext. P-30 and stated that while attending to the injury he had noted identifiable marks on the body of both the injured George and Sunil. He had found a black mole in front of the neck of George D'Souza and in the court with the help of birthmark he had identified Accused 4 as the person who was brought by Sunil in an injured condition. In regard to Sunil, he again noted the injuries on him and issued the wound certificate vide Ext. P-31. He has stated before the court that he noted the identification mark on the said Sunil as having a brown mole of 2″ below the right nipple in front of the chest. This witness identified Accused 2 (established as Anil) as the person who brought A-4 to the hospital and gave his name as Sunil and the identification is done after seeing the birthmark in Ext. P-31. Identification marks of Accused 2 and 4 by PW 26 in the court with physical identifiable mark noted in Exts. P-30 and 31 tallying with the actual birthmarks in the courts clearly establish beyond any reasonable doubt that it was Accused 2 and 4 who went to Wenlock Hospital in an injured condition on 18-2-1992 with the history of road accident. This apart, as already noticed, A-2 also lodged a complaint of the accident vide Ext. P-45. PW 35 B. Vasudeva, PSI of Mangalore South Police Station recorded the statement of A-2 as Ext. P-49 wherein he stated his name as Sunil. In Ext. P-49 statement A-2 stated that on 18-2-1992 he along with his brother-in-law A-4 travelled in a lorry towards Mangalore and when the lorry came near Belagodu due to rash and negligent driving of the driver at about 10.30 a.m the lorry capsized and the inmates received the injuries and the driver and the cleaner ran away from the place. It is seen, thus, A-2 had admitted that A-2 and A-4 travelled in the truck and met with an accident at Belagodu and both of them received injuries and they were brought to Sakleshpur by car for treatment and from there to Wenlock Hospital, Mangalore. A-2, however disowned his statement and even denied receiving any injuries or there was any lorry accident, in his statement under Section 313 CrPC.
12. The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation Accused 1 to 3 made disclosure statements leading to the discovery of incriminating materials. A-3 gave a voluntary disclosure statement Ext. P-14 which led to the discovery of wristwatch MO 19 of deceased Vittal Shetty from PW 30, the taxi driver. As already noticed Ext. MO 19 wristwatch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate of PW 13. This recovery has been made on the basis of the voluntary statement vide Ext. P-39 made by A-1. Pursuant to the disclosure statement PW 34 recovered 193 bags of Mangala Urea which were found stored in the godown of PW 13. The said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur. PW 13 was declared hostile and did not support the prosecution story. PW 13, however, admitted that A-3 Seril D'Souza was working as a servant in his estate. He has also admitted that around 23-2-1992 or 24-2-1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchnama Ext. P-15. Although PW 13 did not support the prosecution story, but two facts were established by the prosecution that A-3 was his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by A-3. 193 bags which were part of 200 bags of Mangala Urea were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W of Balehonnur has been proved by PW 8 as being purchased by the Penambur factory.
13. The fourth circumstantial evidence appearing against the accused is the recovery of MOs 20, 21 and 22 at the instance of A-3. MO 20 is the wooden katte alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance on MO 21, the side mirror of the lorry and MO 22 sunmica piece fixed at the lorry. However, both the courts relied upon MO 20, the assaulting weapon. Further MO 20 was stained with blood and it was sent to Forensic Science Lab and it is confirmed to have been stained with human blood.
14. The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their own cobweb. As already noticed A-2 lodged the complaint Ext. P-45. In the complaint A-2 has stated that they were the occupants of the lorry which met with an accident on 18-2-1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin D'Souza suffered severe injuries and they were being treated in Government Hospital. On the basis of the complaint, a case was registered under Sections 279/337 IPC. In the complaint A-2 gave his name as Sunil Fernandes which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that the accused have been treated at various hospitals which is borne out from the evidence of Dr Prakash Inamdar, PW 28 and Dr Vasanth Kumar, PW 26 and PW 29 Dr Chandra Kumar Ballal, as noticed earlier. This would go to show that the accused had admitted the boarding of the lorry and the lorry meeting with an accident and they sustaining injuries on their bodies out of the lorry accident. In their examination under Section 313 CrPC the accused denied the prosecution story in toto. They denied that the lorry accident had taken place. They also denied to have received any injuries. In short, in their Section 313 statement they completely denied the established facts and offered false answers. By now it is a well-established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under Section 313 against the established facts, that can be counted as providing a missing link for completing the chain.
15. In Swapan Patra v. State of W.B (1999) 9 SCC 242 this Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra v. Suresh (2000) 1 SCC 471 where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh v. State of Rajasthan (2000) 5 SCC 7, JT (2000) 5 SC 161.
16. In our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.
17*. However, one error has been committed by the High Court by converting the conviction from Section 396 read with Section 149 IPC to one under Section 396 in aid of Section 34 IPC. It is in the evidence of PW 16 Kiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul. As already noticed the trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under Section 396 IPC read with Section 149 IPC.
18. In the result, this appeal is dismissed, being devoid of merit.
19. We record our appreciation of Mr Panjwani, learned amicus curiae for his able assistance.