D'souza & Ors Vs. State of Karnataka
 Insc 451 (30
Lahoti, Brijesh Kumar & H.K. Sema. Sema, J.
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 149
IPC and Section 201 read with 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.
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 a office by the side of Mangalore Chemical
Fertilizer Factory, got the fertilizer bags loaded between 11.30 a.m. to 3.30
p.m. After handing over necessary documents including the delivery note, the
driver and the cleaner left for Mangalore. Sometime at about 5.00 p.m., the regular driver deceased Vittal Shetty reported
back to his duty and he was asked 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 Balahonnur 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 the Jenugudde along with
the staff and observed some injuries on the dead body. He came back to the
police station and suo motu registered a case in Crime No.16/92 for the offence
under Section 302 IPC against an unknown offender. Thereafter, the investigation
is taken over by 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 eye witness 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.
noticing the serious injuries on one of the accused, PW-17 directed them to go
to Sakleshpur General Hospital.
The appellants then went to a Coffee Estate run by Rafiq Ahmed PW-27 at Belagodu
and sought his assistance to go to Sakleshpur.
noticed the condition of the injured and contacted his relative at Sakleshpur
to arrange a taxi so as to provide transportation to the injured to Belagodu.
PW-30 Feroze Khan the owner of 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.
Government Hospital Sakleshpur, the injured disclosed their names as J.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.
PW-28 made necessary entries in the Medico-legal case registered vide Ex.P.32(a)(b)
& (c) at pages 243 and 244 of the register. The doctor also noticed serious
injures on the person called J.D.'Souza.
accordingly advised them to go to a major hospital at Mangalore.
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. Accused did not have enough
money for paying the full charges. They paid Rs. 200/- in addition to one wrist
watch worn by one of them. They, however, promised PW-30 that they would come
back and pay the balance and take back the wrist watch after about three or
The accused on reaching Mangalore after engaging another vehicle, two of them
went to Wenlock Hospital at about 4.00 p.m. and Dr.Vasanth Kumar, PW-26 treated
them. Doctor noticed 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.
entered the same in the Medico-Legal Case Register and sent the MLC to the
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 able injured who
disclosed his name as Sunil Fernandis and that of 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 Ex.P.49 and also registered a case in Crime
No. 57/92 for the offences under Sections 279 and 337 IPC against the unknown
lorry driver. PW-35 having noticed that the accident had taken place within the
jurisdiction of Sakleshpur Police Station transferred the case to the
The case was then re-registered in crime No.25/92 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 belongs to PWs 5 and 16 and contacted them over
the phone intimating them that the lorry had met with an accident near Belagodu
village and three persons named George, Anil and Manjunath had received
injuries in the accident and that they were being treated at Wenlock Hospital
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 KMC Hospital, Bijai. In KMC Hospital, they found that one injured person
by name George was serious and was admitted in Intensive Care Unit and unable
to talk. PW-5 left behind PW-16 to get the particulars.
Sometime in the evening PW-16 noticed that three persons along with a young boy
came to the KMC Hospital, Bijai and when the three persons went to ICU leaving
behind the boy, 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 hotel
at Kottigehara at about midnight. When the lorry stopped at the
hotel they requested the driver to take them as passengers. All of them sat in
the cabin and after going some distance one of them got the lorry stopped on
the pretext of attending calls of nature and then Anil (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 further alleged to have revealed that after taking
the money from the person of the driver as well as the wrist watch accused
(A-1) and other took the vehicle towards the forest in order to dispose of the
dead bodies. The boy further alleged to have disclosed that when they kept the
body of the driver in a culvert near Jenugudde and before they could dispose of
the body of the cleaner in the same way they heard the sound of approaching
vehicle and they proceeded ahead in the lorry and thereafter the body of
cleaner was also kept under a culvert. The boy further alleged to have
disclosed that thereafter the lorry was driven to the estate of one 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.
is how the accused were roped in with the crime by the circumstances as recited
accused were arrested they were interrogated. Accused Nos. 1 and 3 made the
voluntary disclosure statements vide Ex.P. 39 and 40 leading to the discovery
and seizure of 193 bags of fertilizer from the estate of PW-13 Rajegowda and
the wrist watch 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 No.5 Manjunath is
stated to be a juvenile offender and his case was split up and only four
accused were tried in Sessions Case.
establish the guilt of the accused the prosecution has examined as many as PWs
1 to 36, Exs. P.1 to P.49 and M.Os. 1 to 24. In their examination under Section
313 I.P.C., the accused totally denied the prosecution story. They, however,
declined to lead any DWs.
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.
already noticed, there is a concurrent finding of facts by both the courts and
this Court would be slow to interfere with the concurrent finding of facts
unless there is some perversity in the finding. It is also established
principle of law that in a case resting on circumstantial evidence, the
circumstances from which the conclusion of guilt is drawn must unerringly lead
to one conclusion consistent only with the hypothesis of the guilt of the
in view this principle we now to proceed to find out whether the finding
arrived at by the two courts suffers from any infirmity.
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.
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
hospital. The evidence of PWs 17, 27 and 30 has also been corroborated by the
evidence of Medical Officers P.Ws. 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 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 Sakaleshpur. He stated that one of the accused had
serious injury on his head.
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 nos. 1 to 4
came to his estate out of whom one was seriously injured and sought his help to
go to hospital at Sakaleshpur. It is also stated that after seeing the
condition of the injured, he telephoned to a relative who is also Proprietor of
Hilal Coffee Works at Sakaleshpur and requested him to arrange for sending a
taxi to take the injured to the Sakaleshpur Hospital. At about 10.30 a.m. a taxi came and injured were taken in taxi towards Sakaleshpur.
The evidence of PW-27 is further corroborated by the evidence of Ferozkhan
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, Sakaleshpur and received the taxi
charges of Rs.60/- from them. The accused were identified by PWs 17, 27 and 30.
The evidence of P.W.30 that he took the accused from Belagodu to Sakaleshpur Belagodu
to Sakaleshpur 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 Govt. Hospital at Sakaleshpur 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 Manjunath S/o R.Shettty. 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 injures in the Medico
Legal Register and the same is marked vide Ex.P-32 and the relevant entries at
P-32 A, B & C. It is consistent that the accused were injured in a lorry
accident at Belagodu village and later came to Sakaleshpur 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.
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 Upppinangadi some mechanical defect
developed in the taxi and he asked the accused to make alternative arrangement.
It is further stated that on being demand of taxi charges the accused expressed
their inability to pay the whole amount and paid Rs.200/- and on being insisted
by PW-30 for full payment a sum of Rs.200/- along with "Ceiko" wrist
watch had been given stating that they would come back and take the wrist watch
back after three or four days after paying the balance amount.
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.
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 wrist watch belongs 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 wrist watch (Ceiko Company)
being worn by the deceased Vittal Shetty.
the employer of Vittal Shetty also clearly stated that he had seen the deceased
wearing MO-19 whenever he comes for duty.
the evidence disclosed above it is apparently clear that the accused received
injures on their bodies in a lorry accident at Belagodu and went from Belagodu
to Sakleshpur has been well established by the prosecution.
second circumstantial evidence against the accused is that they were being
treated by the doctors of the injuries sustained by them in an accident
involving the lorry in question. Dr. Vasanthkumar, PW-26 has stated that he
examined one injured named George D'Souza (A-4) brought by one Sunil
(established as Anil) from Sakaleshpur and noticed injuries on his body and
recorded the wound certificate Ex.P-30. According to him, it was a case of
injury of lorry accident. He has stated that the person accompanying the
injured had given his name as Sunil. This doctor in his examination-in-chief
produced Ex.P-30 and stated that while attending to the injury he has noted
identifiable marks on the body of both the injured George and Sunil. He has
found a black mole in front of the neck of George D'Souza and in the court with
the help of birth mark. He has identified the accused No.4 as the person who
was brought by Sunil in the injured condition. In regard to Sunil, he again
noted the injuries on him and issued the wound certificate vide Ex.P-31. He has
stated before the Court that he noted the identification mark on said Sunil as
having brown mole of 2" below the right nipple in front of chest. This
witness identified accused No.2 (established as Anil) as the person who brought
A-4 to the hospital and gave his name as Sunil and the identification is done
after seeing the Birth Mark in Ex.P-31. Identification marks of accused Nos. 2
and 4 by PW-26 in the court with physical identifiable mark noted in Ex.P-30
and 31 tallying with the actual birth marks in the courts clearly establish
beyond any reasonable doubt that it was accused Nos. 2 and 4 who went to the Wenlock
Hospital in injured condition on 18.2.1992 with the history of road accident.
This apart, as already noticed, A-2 also lodged a complaint of the accident
vide Ex.P-45. PW-35 B.Vasudeva PSI of Mangalore South Police Station recorded
the statement of A- 2 as Ex.P-49 wherein he stated his name as Sunil. In
Ex.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 am the lorry
capsized and the inmates received the injuries and the driver and the cleaner
ran away from the place. It is seen, thus, A-2 had admitted that A-2 and A-4
traveled 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 of receiving any injures or there was any lorry accident, in
his statement under Section 313 Cr.P.C.
third circumstantial evidence relied upon by the prosecution connecting the
accused with the guilt is the various recoveries made at the disclosure of the
accused. At the time of interrogation accused Nos. 1 to 3 made disclosure
statements leading to the discovery of incriminating materials. A-3 gave a
voluntary disclosure statement Ex.P-14 which led to the discovery of wrist
watch M-19 of deceased Vittal Shetty from PW-30 the taxi driver. As already
noticed Ex.M-19 wrist watch belongs to the deceased Vittal Shetty has been
proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the
estate of PW-13. This recovery has been made on the basis of the voluntary
statement vide Ex.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 Serial D'Souza was working
as a servant in his estate. He has also admitted that around 23rd or 24th
February, 1992 the police party came to his estate and seized 193 bags of
fertilizer from his estate. He has also admitted that he has put his signature
on the seizure panchanama Ex.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 which were carried
by the said lorry from Mangalore to Balehonnur. The seizure has been proved by
the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Ballehonnur
has been proved by PW-8 as being purchased by the Pennabur factory.
fourth circumstantial evidence appearing against the accused is the recovery of
MOs. 20, 21 and 22 at the instance of A-3. M-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
M-20 the assaulting weapon. Further M-20 was stained with blood and it was sent
to Forensic Science Lab and it is confirmed to have been stained with human
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 cob-web. As already noticed A-2 lodged the complaint Ex.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 Sakaleshpur due to rash and
negligent driving of the driver. Their lorry fell down reversly and due to the
accident the complainant and his cousin D'Souza suffered severe injuries and
they are being treated in Government hospital. On the basis of the complaint, a
case was registered under Section 279/337 IPC. In the complaint A-2 gave his
name as Sunil Farnandis which later on proved to be false and established as
Anil, as noticed earlier. There is also enough evidence on record that accused
have been treated at various hospitals which is borne out from the evidence of Dr.Prakash
Inamdar P-28 and Dr. Vasanthkumar 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 met with an accident and they sustained
injuries on their bodies out of the lorry accident. In their examination under
Section 313 Cr.PC the accused denied the prosecution story in toto. They denied
that lorry accident had taken place. They also denied to have received any
injuries. In short, in their 313 statement they completely denied the
established facts and offered false answers. By now it is well established
principle of law that in a case of circumstantial evidence where an accused
offers false answer in his examination under 313 against the established facts
that can be counted as providing a missing link for completing the chain.
Patra vs. State of West Bengal, (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.
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 State of Rajasthan, JT 2000
(5) SC 161.
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.
one error has been committed by the High Court by converting the conviction
from Section 302 read with Section 149 I.P.C. to one under Section 302 in aid
of Section 34 I.P.C. It is in the evidence of PW-16 Kiran Castolina that the
juvenile accused Majnunath 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 Majnunath has been splited. The Trial
Court, therefore, was right in convicting the appellants under Section 302 IPC
read with Section 149 IPC.
result, this appeal is dismissed, being devoid of merit.
record our appreciation of Mr. Panjwani, learned Amicus-Curiae for his able