2003(1) Crimes 100 (SC)
Supreme Court of India
(From Karnataka High Court)
R.C. Lahoti, Brijesh Kumar & H.K. Sema, JJ.
Anthony D’Souza & Ors. —Appellants
versus
State of Karnataka —Respondent
Criminal Appeal No. 469 of 2001
Decided on 30-10-2002

Important point
In a case of circumstantial evidence where an accused offers false answers in his examination under Section 313 Cr.P.C., 1973 against the established facts that can be counted providing a missing link for completing the chain.

Headnote:Indian Penal Code, 1860—Sections 143, 302, 396 r/w 149 and 201 r/w 34—Offences of unlawful assembly, dacoity with murder in furtherance of common object of unlawful assembly and destroying evidence of offence, giving false evidence to conceal offence in furtherance of object of unlawful assembly—Five persons charged and tried for mur­dering and dacoity—One was juvenile—His trial separated—Four found guilty on circumstantial evidence—Affirmed by High Court but with the aid of Section 34 instead of 149 IPC—Appeal to Supreme Court—Chain of circumstantial evidence found duly proved—Last seen, recoveries and statements u/s 313 Cr.P.C. and conduct leaning support to convic­tion—Whether conviction be upheld? (Yes, with one modification of reiterating u/s 302/149 instead of modification of u/s 302/34 by High Court)—Appeal dismissed—Case Law referred.

       Held : 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 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 to proceed to find out whether the finding arrived at by the two courts suffers from any infirmity. (Para 7)

       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. (Para 8)

       From 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. (Para 11)

       Held after accepting proof of other circumstances : 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 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.P.C. 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. (Para 15)

       Held, after case law : 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. (Para 17)

       But held : However, 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. In the result, this appeal is dismissed, being devoid of merit. (Paras 18 and 19)