2004 Supreme(SC) 928

2004(6) Supreme 644
SUPREME COURT OF INDIA
(From Karnataka High Court)
P. Venkatarama Reddi & B.P. Singh, JJ.
Gilbert Pereira -Appellant
versus
State of Karnataka -Respondent
Criminal Appeal No. 752 of 2003
Decided on 24-8-2004
Counsel for the Parties :
For the Appellant : D.P Chaturvedi, S.N. Bhat and N.P.S. Panwar, Advocates.
For the Respondent : Siddhartha Dave and Sanjay R. Hegde, Advocates.

IMPORTANT POINT
When the circumstances proved against the accused are conclusive in nature, being consistent only with the hypothesis of his guilt and once his defence that he was not capable of committing the offence on account of the physical handicap suffered by him is rejected, the presumption under Section 114 of the Evidence Act can also be drawn.

Headnote:Indian Penal Code, 1860-Sections 302 and 397-Murder of a young girl-Robbing her of her gold ornaments-No eye witness-Circumstantial Evidence-Sessions Judge acquitted appellant of charges u/s 302 and 397 IPC-He was found guilty u/s 379 IPC as gold ornaments worn by deceased shortly before her murder, and which were found missing after her murder, were recovered at the instance of appellant-No explanation given as to how he came in possession of the said ornaments-High Court convicted appellant of offence u/s 302 and 397 IPC-Dead body of deceased girl was found in bathroom of house of PW17-PW 13, brother of PW17 used to look after the house in absence of PW17-Appellant, son of PW13 having access to the house was seen near the scene of offence in the village shortly after the incident-Informant had sent his daughter, deceased from his coconut garden to his house at about 9.15 a.m.-Deceased had occasion to pass by the road in front of house of PW17-Injuries suffered by the accused-Clothes of deceased seized-Knife recovered at the instance of appellant-His clothes seized on his voluntary statement-Blood found on these items was of human origin and of same blood group i.e. AB group-Physical handicap suffered by appellant-Deformity in both hands of appellant since his birth-High Court noticed that arms were strong and he was physically and mentally sound and was a young man aged 20 years-Circumstances proved against appellant form a complete chain of circumstances which is consistent only with hypothesis of guilt of appellant-Whether High Court was justified in convicting appellant of the offence-(Yes).

       Held : It is no doubt true that the appellant is a physically challenged person inasmuch as he suffers from deformity of fingers in both the hands. So far as the arms are concerned, there is no abnormality and, therefore, he is fully capable of using his arms like any other normal person. The fact that he is not capable of holding any object with firm grip with either of his hands does not mean that he cannot hold a knife atleast in his right hand. As noticed by the High Court his right thumb and index finger are sufficiently strong. The evidence on record also proves that he can write with his hand holding a pen. He can also take his meals holding a spoon. Even according to D.W.1 he was capable of causing injury No.3 as mentioned in the post-mortem report by assaulting the victim with the knife MO.14. If it is possible for the appellant to do all these things, one fails to understand why he could not have caused injuries 1 & 2 found on the person of the deceased. It is common experience that physically challenged persons since birth, as of necessity, improvise their own methods of doing things very much in the same manner as a normal person does. Having regard to the evidence on reocrd we have no doubt that he must have committed the offence. The circumstances found proved against him conclusively establish that he must have committed the offence. As against that his defence that he was physically challenged and, therefore, not in a position to cause the injuries is unbelievable. The circumstances are so telling that even the trial court which placed implicit reliance on the evidence of DW-1 felt compelled to hold that the appellant must have snatched the ornaments from the deceased, though he may not have committed the murder. These ornaments were later recovered at the instance of the appellant which is a strong circumstance to prove his complicity. Though, in our opinion, the circumstances proved against the appellant are conclusive in nature, being consistent only with the hypothesis of his guilt, we may observe that once his defence that he was not capable of committing the offence on account of the physical handicap suffered by him is rejected, the presumption under Section 114 of the Evidence Act can also be drawn. In the instant case, the evidence discloses that only a few hours after the occurrence, the appellant sold the gold chain to PW-11, from whose custody the gold chain was recovered only 4 days later at the instance of the appellant, who had no explanation to offer as to how he came in possession of the gold chain belonging to the deceased. The presumption therefore arises that the appellant was the culprit who removed the gold chain from the person of the deceased. This presumption coupled with the other circumstances adverted to above especially the unexplained injuries on the hand of the accused and the blood of same group being found on the clothes of deceased as well as accused, gives rise to further presumption that the removal of gold ornament and the fatal attack on the deceased should have taken place as part of the same transaction. (Paras 45 and 46)