Govindappa vs State of Karnataka

K.N. Phaneendra, J.—The aggrieved accused has preferred this appeal against the judgment of conviction and sentence dated 30/31.07.2010 passed in SC No. 81/2009 rendered by the Principal District and Sessions Judge, Chitradurga wherein the accused/appellant was found guilty of the offence punishable under sections 302 and 201 of IPC and sentenced the accused/appellant to undergo imprisonment for life and also to pay fine of Rs. 10,000/- for the offence punishable under Section 302 of IPC and sentencing him to undergo further rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 1,000/- in respect of the offence punishable u/s. 201 of IPC with default clause.

The accused though charged for the offence punishable under Section 376 of IPC, he was acquitted for the said offence.

The brief facts that led to submitting of the charge sheet against the accused for the above said offences are that:

3.1 A lady by name Nagarathnamma PW-1 lodged a complaint as per Ex. P-1 before the PSI Parashurampura Police Station stating that P.W. 1 has been residing along with her daughter (victim girl), aged six years at Kollapuradamma temple road in Parashurampura village of Challakere Taluk. She has been eking her livelihood by doing coolie.

3.2 It is the case narrated in the complaint that on 14.2.2009 in the evening at about 3 p.m., the daughter of the complainant (victim girl) left the house for the purpose of playing, did not return to home. In spite of their best search, they could not able to locate the whereabouts of the said girl. On 16.2.2009 in the evening, PW-1 went to the Parashurampura Police Station and lodged a missing complaint requesting the police to locate the whereabouts of her daughter. Even after lodging such missing complaint, she continued to search for her daughter. In this background on 24.02.2009, on the day of Shivarathri festival, in the early morning hours at about 3.00 a.m., some people were gathered near the house of Manjula (PW-14) wife of the accused Govindappa @ Govinda, which is nearby the house of PW-1. The people were wondering in front of the house of the accused on the suspicion that some rotten smell was emerging from of the house of the accused. Some people went inside the house and opened the door of a room and there, they found the dead body of a small girl in between the Kadappa slab Almirah and the wall inside the said room which was that of a dead body of the victim girl.

3.3 PW-1 went near the said dead body and identified the said dead body as that of her daughter, on the basis of the clothes worn by the deceased when she left the house for playing. It is also alleged in the complaint Ex. P-1 that the accused Govindappa had been absconding from 16.2.2009, and it is further alleged that he actually committed rape on the Victim girl and murdered her and kept the dead body in his house and thereafter, he absconded.

3.4 On the basis of the above allegations in the complaint, PW-19 Nischal Kumar has registered a case in Crime No. 15/2009 for the offence punishable under Sections 302 and 201 of IPC.

3.5 It is the further case of the prosecution that during the course of investigation, the investigating agency found sufficient materials to inculpate the accused into the crime. The Police have collected sufficient materials, recorded the statements of the relevant witnesses and seized the incriminating articles at the instance of the accused and laid the charge sheet against the accused for the above said offences.

3.6 After filing of the charge sheet, the court secured the presence of the accused from the judicial custody since the date of the arrest of the accused i.e., on 29.3.2009 he has been in custody and after hearing with regard to the framing of charges, proceeded to frame charge for the offence punishable under Sections 376 , 302 and 201 of IPC.

3.7 The prosecution in order to bring home the guilt of the accused, examined as many as 22 witnesses as PWs. 1 to 22 and got marked 27 documents i.e., Exs. P-1 to P-27 and Exs. C-1 and C-2 and Material Objects MOs. 1 to 8 were got marked. The accused was also examined u/s.313 of Cr.P.C.. He was also provided with an opportunity to lead defence evidence. However, he did not choose to lead any defence evidence.

3.8 After hearing the arguments and evaluating the oral and documentary evidence on record, the court has come to the conclusion that the accused has committed the offences punishable u/s. 302 and 201 of IPC and accordingly, convicted and sentenced him as referred supra. However, the accused was acquitted for the offence punishable under Section 376 of IPC. The accused had called in question the judgment of conviction and sentence on various grounds. State did not choose to prefer any appeal.

We have heard the arguments of Sri Sampangi Ramaiah N.S., learned amicus curiae appointed by this court to defend the accused and Sri I.S. Pramod Chandra, learned counsel appointed by the High Court Legal Services Committee to defend the accused. We have also heard Sri P.M. Nawaz, learned State Public Prosecutor - I, for the State.

The learned counsel for the accused has strenuously contended before this Court that the entire case rests on circumstantial evidence. The Trial Court has committed serious error while giving finding with regard to the identification of the dead body of the deceased and also failed to hold that all the circumstantial evidence projected by the prosecution have not been proved beyond all reasonable doubt. Though the prosecution relied upon several circumstances, none of the circumstances have been proved up to the hilt so as to conclusively come to the conclusion that the accused is the perpetrator of the crime.

For each & every individual circumstance, the learned counsels have referred to the evidence of the witnesses & argued before the court. Hence, we refer those arguments while dealing with the relevant circumstances.

Likewise, the learned State Public Prosecutor-I strenuously contended before this Court that though some procedural irregularities and lapses found in the investigation and also some minor discrepancies found in the evidence of the witnesses, but as a whole, the prosecution was able to establish the guilt of the accused. There are many number of circumstances, which unequivocally establish and shift the burden on the accused left un-explained by the accused. Therefore, the prosecution has proved the case against the accused beyond all reasonable doubt and therefore, the Trial Court after properly appreciating the oral and documentary evidence in their proper perspective, convicted the accused and sentenced him accordingly. The reasoned judgment of the trial Court does not call for interference at the hands of this court.

As rightly contended by the learned counsel for the accused and the learned State Public Prosecutor-I for the State, the case entirely rests on the circumstantial evidence. Before adverting to the several circumstances which sought to be established before the court by the prosecution, it is just and necessary to have the brief description of the witnesses examined before the Trial Court.

8.1 PW-1 Nagarathnamma is the mother of the deceased (victim-girl) who lodged the missing complaint and regular First Information Report as per Ex. P-3 and Ex. P-1 respectively and she is also witness to the identification of the victim girl on the basis of the clothes worn by the deceased as per MOs. 1 to 3.

8.2 PW-2 is also another witness for the identification of the dead body of Prema. He is the attester to Ex. P-2 Spot Mahazar and Ex. P-6 Inquest mahazar, under which the clothes of the deceased Prema were seized.

8.3 PW-3 Venkatesh is the panch witness to Ex. P-4 panchanama, under which the blood stained clothes Mos. 6 to 8 i.e., Lungi-panche, baniyan and underwear respectively were recovered at the instance of the accused. He is also a witness to Ex. P-5 panchanama under which a knife MO-5 was recovered from PW-13 Maruthi.

8.4 PW-4 Rajamma is another panch witness to the Ex. P-5 inquest panchanama who also identified the dead body.

8.5 PW-5 Bharathamma is a witness, who has last seen the deceased victim going to the house of the accused.

8.6 PW-6 Hemalatha, PW-7 Virupakshamma, PW-8 Manjunatha, PW-9 Pampanna and PW-10 Sumitramma are also witnesses who examined to establish the identity of the victim. But PWs. 6 to 10 have turned hostile to the case of prosecution.

8.7 PW-11 Rafiq @ Babu speaks about the accused working under him as coolie, but he also partially turned hostile to the case of prosecution.

8.8 PW-12 Narasimhappa and PW-13 Maruthi were examined to prove the extra judicial confession and also recovery of knife at the instance of the accused. They also did not support the prosecution.

8.9 PW-14 Manjula, wife of the accused speaks about the conduct of the accused and seen the accused immediately after the incident and absconding of the accused thereafter and also speak about the deceased coming to their house for the purpose of watching TV and for playing with her daughter and also she is a witness to the identification and recovery of the dead body.

8.10 PW-15 Nagabhushana is also a witness to the last scene theory. But he has turned hostile.

8.11 PW-16 Ashok is the carrier of the FIR Ex. P-18 on 22.04.2009 to the Court. He speaks about delivery of FIR to the jurisdictional Magistrate at 1.30 p.m.,

8.12 PW-17 Mahendra Kumar is another Police Constable who handed over the dead body of the deceased to the relatives.

8.13 PW-18 Dr. Rangegowda, Medical Officer, conducted the Post Mortem examination on the dead body of the victim girl on 24.02.2009, issued P.M. report as per Ex. P19. He also gave the approximate time of death of the victim.

8.14 PW-19 Nischal Kumar, PSI of Parashurampura Police Station, registered a case on the basis of the complaint lodged by PW-1 and dispatched the FIR as per Ex. P-18 to the jurisdictional Court. He also speaks about visiting of the spot, conducting of spot mahazar and also conducting of inquest proceedings as per Ex. P-6.

8.15 PW-20 M. Govindaraj, PSI who apprehended the accused on 29.03.2009 gave report as per Ex. P-22.

8.16 PW-21 Dr. Shivakumar, Medical Officer, examined the accused on 30.03.2009 at about 5.00 p.m., and issued certificate as per Ex. P-23.

8.17 PW-22 Vasudev is the Investigating Officer, who speaks about arrest of the accused and recording of the voluntary statement of the accused, recovered the incriminating articles at the instance of the accused and after recording the statement of the witnesses and completing the investigation, laid the charge sheet against the accused.

8.18 The prosecution relies upon various circumstances to prove the guilt of the accused.

8.19 The circumstances are broadly categorized in this case are as follows:

"(1) Motive

(2) Deceased last seen going to the house of the accused

(3) Identification of the dead body of the victim girl.

(4) Homicidal death of the deceased.

(5) Recovery of incriminating articles at the instance of the accused,

(6) Conduct of the accused."

The Trial Court has also formulated certain points for consideration with regard to the proof of the accused committing rape and murder of the victim six years old minor girl and whether the prosecution has proved the case against the accused for the above said offences beyond all reasonable doubt. Though the Trial Court has not formulated any specific circumstance, but considering almost all the above said circumstances, has come to the conclusion that the accused is the only person who must have committed the offences alleged. Therefore, the Trial Court has recorded the conviction judgment and sentenced the accused accordingly.

The above said circumstances relied upon by the prosecution have to be proved beyond all reasonable doubt. It is worth to note here certain guidelines of the Hon''ble Apex Court so far as the circumstantial evidence cases are concerned. There are umpteen numbers of cases rendered by the Hon''ble Apex Court and the High Courts, wherein the time tested principles are laid down which are briefly enumerated below.

"(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 the guilt of the accused;

(3) The proved 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 the 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."

By looking to the above guidelines, it is abundantly clear that the prosecution has to conclusively prove the circumstances relied upon by it. But it does not mean to say that if some of the circumstances are not established or proved to the satisfaction of the court are sufficient to throw away case of the prosecution, but the other circumstances proved are sufficient to complete the chain of evidence and if such circumstances indicate conclusively and unerringly the guilt of the accused and the court can rely upon those proven circumstances for the purpose of laying conviction against the accused it can definitely do so. Bearing in mind the above golden principles, we would like to discuss and consider the circumstances relied upon by the prosecution and whether the circumstances relied upon are sufficiently and conclusively proved to draw an inference of guilt against the accused.

I. MOTIVE

The prosecution mainly relied upon the evidence of PW-1 and Ex. P-1. The learned defense counsels argued that the motive is not properly established. Motive is only a facilitating circumstance to other circumstances therefore even the motive is not proved to the satisfaction of the court as we have said if the other circumstances are sufficient, the court can draw an inference on the basis of such circumstances. Here, in this case, the motive alleged by the prosecution is that the accused in order to accomplish his sexual lust has taken advantage of the loneliness of the child who came to his house on the ill-fated day, he forcibly committed rape on the said girl and murdered her to avoid any evidence against him by the said girl and stealthily suppressed the dead body in his house itself. This motive of accomplishment of the lust of the accused has not been properly established because of the reason, the dead body of the deceased was highly decomposed, the inquest report and the spot mahazar and the evidence of the witnesses coupled with the Post Mortem report which is marked at Ex. P-19, clearly establishes that the dead body when detected was in the advanced stage of decomposition. The doctor could not able to give any opinion with regard to the sexual assault on the said girl. No evidence was available in order to establish the offence u/s. 376 of IPC. The Trial Court has also rightly acquitted the accused for the offence punishable under Section 376 of IPC. Therefore, the motive factor though remotely taken by the prosecution to prove has not been established.

II. The deceased last seen going to the house of the accused and presence of the accused in the house of the accused at that time:

This is the strongest circumstance relied upon by the prosecution apart from the other circumstances. The learned counsel for the accused strenuously contended that the prosecution has relied upon the evidence of PWs. 5 and 14 in order to establish this circumstance. It is contended that the evidence of PW-5 is untrustworthy as it contains lot of discrepancies and contradictions with regard to the time and other circumstances spoken to by these witnesses. The evidence of PW-14 is also not reliable because she is none other than the wife of the accused and there are so many reasons for her to support the case of the prosecution to falsely implicate her husband. It is the defence taken up by the accused and it is suggested to PW-14 during the course of cross examination that she had some illicit intimacy with one Kenchappa of the same village. Therefore, this witness has deposed against the accused to avoid him and to continue her illicit relationship without any hindrance.

Per contra, the learned State Public Prosecutor-I strenuously contended that though there are some discrepancies with regard to the mentioning of the time and also explaining the circumstance of victim girl going to the house of the accused and also with regard to the relationship between PW-14 and Kenchappa, but as a whole if the evidence is read, the factum of deceased went to the house of the accused on that day is firmly established. The evidence of PW-14 is also clear that immediately after the incident; the accused person was very much present in the house itself.

In this background, we have to discuss the evidence of these witnesses coupled with other important aspects. PW-5 in her evidence has categorically stated that the accused and PW-14 have been residing in the adjacent house of this witness. The accused has also a daughter by name Supraja. The victim girl and Supraja were classmates and they were almost playing everyday together and going to the house together. On the ill-fated day, the victim, in the evening at about 8.00 p.m., had been to the house of the accused. After some time, the accused came out of the house and wondering around his house. She has also deposed that thereafter, victim was not seen and PW-1 and others were searching for the victim. About 10 days afterwards, the dead body of the victim was detected in the house of the accused on the basis of the rotten smell emerging from the house. She has further stated that she did not go inside the house. She also deposed that she does not know whether the relationship between accused and PW-14 was cordial or not.

15.1 In the course of cross examination, of course she has stated that she did not disclose the victim going to the house of the accused or anybody. She does not know about Nagarathnamma lodging any complaint before the police. She is doing the business of selling of fried eatables and she used to go to the retail shops for the purpose of supplying the said eatables. It is suggested that the accused was not cordial with his wife. She also said that she does not know about any quarrel between the accused and one Kenchappa on that day and she was not there in the village. She had come back to the village one week prior to the Shivarathri festival. It is suggested that she has seen the deceased going to the house of the accused. It is also suggested that in order to help the accused, the wife of the accused has been deposing falsely though she has not seen anything as stated by her in her examination in chief. It is further stated in the cross examination that she has disclosed the same to her husband, but her husband also used to go to different places for the purpose of cooking food in functions.

15.2 The learned counsel for the accused very strenuously contended that the evidence of this witness is totally abnormal as to why she kept quite for such a long time without disclosing the same till the dead body was recovered. Secondly, the evidence of this witness is contradictory to the evidence of PW-14 with regard to the time she saw the deceased going to the house of the accused at 8.00 pm. Before adverting to the said contentions raised by the defence counsel, we would like to consider the evidence of PW-14 and then consider the evidence of these witnesses together.

15.3 PW-14 Manjula, who is the wife of the accused has categorically deposed that herself, accused and her two children have been residing in the house on rental basis, situated at Kollapuradamma Temple street, which house belongs to one Sumithramma. It is stated by her that the accused is a womanizer and he had committed rape on a girl earlier and he was convicted in the said case. She has further deposed that Supraja is her daughter and victim girl is the daughter of PW-1 Nagarathnamma. It is also stated that, the victim girl often visiting the house of this witness for the purpose of playing with Supraja and for watching TV. She exactly does not know what her husband has done to the victim, but, later she came to know that he has committed rape and murder of the victim and kept the dead body in the house. She has further deposed before the court that the said dead body was kept in a bag in the room, which was later detected and recovered. She is also very categorically stated in her evidence as to what happened on the day of the incident. On that day she had been to the Hospital to discharge her duty, the accused was alone in the house. When she came back at about 6.30 p.m., when she came to the house, her husband (Accused) was very much present and he started shivering on seeing this witness. On that night the accused stayed in the house itself. On the next day, he went out for tractor work. Three or four days later she observed, some rotten smell emerging from the room. She suspected that some Bandicoot might have died. In spite of bad smell she continued to live in the same house sustaining the bad smell, but the smell intensified day by day and spread over to the surrounding area. The people residing in the surrounding house of this witness have questioned her and in fact they entered the house of this witness on the Shivarathri festival and broke open the lock put to the said room and they found the dead body of the victim in a corner of the said room. On the basis of the clothes on the dead body, this witness identified the dead body as that of the victim girl. In the course of cross examination also, she has re-iterated the same to the questions that have been put to elicit the relationship between her and her husband, the accused and suggested that they were not in cordial terms with each other. She has admitted that she did not made any efforts to get the accused released from the jail. It is also suggested that after victim found missing, her mother came to the house and enquired this witness has told her that victim did not come to their house and she also made efforts to search the victim. She also stated that she does not know on that particular day, who has locked the said room where dead body was found. Some questions have also been put so far as the previous conviction of the accused, in our opinion, it may not be necessary to consider this circumstance. It is suggested that the accused and this witness are not cordial with each other because of the reason that she had some illicit relationship with one Kenchappa. It is admitted by her that on the previous day of the incident, Kenchappa had come to their house, talked with her husband and she told Kenchappa that was not the time to talk with her husband and thereafter her husband remained in the house. She denied that she is deposing falsely against her husband and she moved for divorce through one Shivanna. She has also denied that she is giving false evidence only to avoid the accused and to continue the relationship with Kenchappa.

Looking to the above said evidence, the contentions raised by the learned counsel for the accused/appellant is that PW-5 has not disclosed the said aspect immediately to anybody and she saw the deceased at 8.00 pm, whereas, PW-14 has stated that she has come to the house on 6.30 p.m., and at that time, the accused was shivering in his house. According to the prosecution, the deceased has left the house at 3.00 p.m., and after some time, she went to the house of the accused. Therefore, there is some discrepancy with regard to the time factor stated by PW-5 and as well PW-14, but the court has to see the occupation of the witness and also their behavioral pattern and participation and habit have to be judged. Looking to the above said evidence of PW-5 in the examination in chief coupled with the circumstances, it is categorically stated by her that she has been regularly seeing the victim playing with Supraja daughter of the accused and also visiting the house of the accused for the purpose of watching TV. Perhaps that may be the reason on that day also; she might have assumed that victim had been to the house of the accused either for the purpose of playing with Supraja or for the purpose of watching TV. She might have felt that it was a routine visit of the deceased to the house of the accused and thereafter, watching TV she might have come out and went somewhere and she may come back. Another reason may be that PW-14 herself has stated that victim was not there in their house. Therefore she might not have disclosed it to anybody. She might have felt that it was not necessary to disclose it to anybody. When she came to know of detection of the dead body of the victim in the house of the accused, she might have felt the importance of victim went to the house of the accused therefore she disclosed the same to others immediately after the dead body was recovered. Therefore, in our opinion, there is no such abnormality in not disclosing the same to anybody by this witness.

16.1 PW-5 Bharathamma a rustic woman, neighbor of the accused has started in her evidence that she is eking her livelihood by selling some eatables to different shops and she will be away from the villages for the purpose of selling the same. Her husband is also away from the village as he is a cook. They themselves have lot of problems in their family. Therefore, she might not have disclosed the same as she did not feel it important to disclose the same to anybody. But once the dead body was recovered, she might have recollected the fact that victim went to the house of the accused on that particular day. Therefore, she has disclosed it. Even the prosecution case also discloses that till the dead body of victim was detected, nobody suspected the hands of the accused. Therefore, in our opinion, it is not such an abnormal behavior on the part of this witness to dub her as a planted witness of the prosecution. It all further depends upon the thinking capacity, weighing the circumstances and mind set of the witnesses. All persons cannot be weighed on the same scale. It is well settled and time tested principles that over importance should not be attached to the minor discrepancies which bound to occur due to lapse of time.

16.2 So far as the variation in timing is concerned, of course the witness has stated that she saw the deceased at 8.00 p.m., going to the house of the accused. But when the witnesses are all from the rural background, they do not usually keep clock or watches to say the exact time, it is very difficult for them to give correct time. Therefore, even if there is some discrepancy in time, if the other evidence of the witness is acceptable and trust worthy for acceptance merely because some discrepancy in time cannot be taken into consideration if there is any little variance in time. Sophisticated approach should not be applied when screening the various witnesses, the court has to infer contradictions and discrepancies bound to occur because of varieties of men, with different perceptions with regard to the observation and understanding of the circumstances and in their own way disclosing the same to others and the court.

16.3 Even otherwise, if she has seen the victim at 8.00 p.m., going into the house of the accused by that time, P.W. 14 was very much there in the house itself. She would have stated that the victim came to her house at 8.00 p.m., when she was in the house. Therefore, the time factor stated by P.W. 14 and PW5 though does not tally with each other but the fact remains that the deceased going to the house on that particular day is not disturbed during the course of cross examination. PW5 never stated in her evidence that she also saw the deceased going to the house of accused in the night hours, but she says in the evening. 8.00 p.m., cannot be called as evening hours, Up to 6 p.m., generally called as evening hour and thereafter, we call it as night hours. Therefore, considering the discrepancy even though exists in the evidence of these two witnesses, but those discrepancies in our opinion do not go to the root of the prosecution case in order to topple the case of the prosecution. Therefore, the evidence of PW5 can be safely relied upon though the circumstances that when the deceased on that ill fated day evening went to the house of the accused.

16.4 The evidence of P.W. 14 is also cannot be discarded, as the evidence of this witness, in our opinion, plays a dominant role because she states that she with two small children and the accused were residing in the house. Therefore, the explanation should be offered by PW-14 or the accused with regard to the dead body found in the house of the accused. Therefore, we are of the opinion that the prosecution has successfully established the circumstance of last seen of the deceased going to the house of the accused and that the accused was very much present in the house on that particular point of time as per the evidence of PW-14 and even after the incident, the accused was present in the house when PW-14 came back after finishing her work in the hospital that shows that after the victim entered into the house and even the accused before left the house of the accused on the next day, the incident must have occurred inside the house of the accused. Therefore, the circumstance of victim went in to the house of the accused on that day evening is overwhelmingly established by the prosecution.

III. IDENTIFICATION OF THE DEAD BODY:

The prosecution has relied upon the evidence of PWs. 1, 2 and 4 and also relied upon the spot mahazar and the inquest and photographs marked at Ex. P-21 and P-21(a) and the evidence of the doctor and the Investigating Officer. These witnesses, particularly PW-1 accepted that she identified the dead body on the basis of the clothes worn by the deceased on the day she lastly left her house. It is quite natural that she is the mother and she is the proper person to identify the dead body on the basis of the clothes. She has also very much stated that she can specifically identify the clothes of the victim girl. It is suggested to PW-1 that she does not know what are all the clothes worn by the victim on the date of the alleged incident and also suggested that she does not know what has been written in Ex. P-1. But all those suggestions have been denied by her. She has deposed that, she has lodged a missing complaint with regard to the missing of her daughter. It is important to note here that the said missing complaint is marked before this Court as per Ex. P-3. Missing complaint was lodged on 16.02.2009, two days immediately after the missing of the girl from the house. In the missing complaint also, she has categorically described the physical features of the said girl and also stated that victim left the house with white & rose colour middy, green colour top and brown colour under wear. Therefore, the evidence of this witness is fully corroborated. PW-1 has further deposed that on that particular day, other witnesses PWs. 2 & 4 were also present; they also identified the dead body as that of the victim girl. In the course of cross examination, so far as this aspect is concerned, there is nothing to indicate that the accused has contradicted the said version except putting suggestion that those clothes does not belong to victim.

17.1 PW-2 and PW-4 have also stated that they identified the said girl on the basis of the clothes. Quite interestingly, the cross examination of these witnesses does not disclose that the accused has challenged the identity of the deceased. So also, no suggestions were put that the said dead body was not that of the victim.

17.2 The evidence of the Dr. Rangegowda P.W. 18 discloses that on 24.2.2009 he conducted the Post Mortem examination on the dead body of the victim. The dead body was fully decomposed and the death was probably between one to two weeks before the Post Mortem examination. Apart from giving the description of the dead body, he has stated that he actually take over the clothes on the dead body which are marked at MOs. 1 to 3 and handed over the same to the Police and the description of all these clothes matches with the description given in Ex. P-3 and Ex. P-6 missing complain and inquest and also the evidence of PW-1 and other witnesses.

17.3 Ex. P-21 and P-21(a) also shows the colour of the said clothes on the dead body which are very much visible. The accused has not disputed with regard to the photographs marked at Ex. P21 and P21a. His defence is that he is not the perpetrator of the crime except that he has not meticulously countered with regard to the identification of the dead body as we have observed that before the Trial Court the accused has not made any efforts to counter the evidence pertaining to the identification of the dead body, but it is for the first time argued before us by the learned counsel for the accused. Therefore, it made us to discuss the above said aspects. Even at the cost of repetition, we observe that PW-14 wife of the accused has also specifically and categorically identified the dead body of the victim on the basis of the clothes. Hence, the prosecution has established conclusively that the dead body found in the house of the accused recovered on 24.2.2009 was that of the victim girl i.e., daughter of PW-1.

IV. RECOVERY OF DEAD BODY FROM THE HOUSE OF THE ACCUSED AND HOMICIDAL DEATH OF THE DECEASED:

The learned counsel for the accused has strenuously argued before this Court that the prosecution has not proved the homicidal death. It is sine-qua-non for the purpose of convicting the accused that the death of the deceased must be a homicidal death. In this particular case, he points out that the doctor has given the opinion that cause of death cannot be given because of the advanced stage of decomposition of the dead body of the deceased. No other witnesses have spoken to as to how the death of the victim occurred and what was the cause for the death. It is the responsibility of the prosecution to prove this aspect, then only the burden shifts on to the accused. Of course in all murder cases, the homicidal death has to be meticulously proved. There is no hard and fast rule to prove the homicidal death, the Court can gather the same from the circumstances of each and every case on the basis of the materials placed on record. If the death of the deceased is exclusively within the knowledge of the accused, and the accused does not explain the same, the prosecution can only bring home such circumstances to show that the accused is the only person who has knowledge of the death of the deceased. Though there may not be any direct materials to come to the conclusion with regard to the homicidal death, but the court has to consider all the surrounding circumstances to draw an inference with regard to the homicidal death of the deceased.

It is worth to note here in this regard a decision of the Hon''ble Apex Court reported in Mohibur Rahman and Another Vs. State of Assam, , wherein the Hon''ble Apex Court has held that -

"the circumstance of last seen does not by itself necessarily leads to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicidal death."

Therefore, the court has to visualize the entire surrounding circumstances to come to the conclusion whether the homicidal death has been proved or not. Therefore, recovery of the dead body from the house of the accused play a dominant role in this particular case to fasten the responsibility on the accused to explain as to how the death of the deceased has occurred.

It is clear from the evidence of PW-1 that after some days of missing of her daughter, the people were talking about the foul smell emerging out of the house of the accused. In fact, she also with all curiosity went in to the house of the accused and saw the deceased in the room in between a shelf and a wall in a decomposed position. Therefore, she had drawn an inference that the accused is the person who must have committed the murder.

It is quite important to observe that none of the prosecution witnesses including the mother of the deceased and PW-14 have suspected that the accused had committed an offence with regard to the killing of the victim. Therefore, the persons who are in the house have to explain as to how the dead body has come to their house. The evidence of the other witnesses such as PW-2 Ramanna and PW-4 Rajamma have also categorically stated that they saw the dead body in the house of the accused pushed in between the Almirah and the wall which was in the advanced decomposed position. The Investigating Officer has also drew up the mahazar as per Ex. P-2 with regard to the position in which the dead body was found in the house of the accused which play a dominant role to ascertain the homicidal death of the deceased. Ex. P-2 shows that the house of the accused and PW-14 is situated at Kollapuradamma street, which is a small house belonging to one Sumitramma which is measuring East to West 27'' and North to South 12 1/2''. The mahazar also discloses that from the centre portion of the house, there is a hall, towards northern side of the said hall, attached to the said hall there is bathroom and also a room. The said bathroom and the room are bifurcated by a wall. It is quite interesting to note here that the wall of the room and also the bathroom are not raised up to the roof height but there is a gap between the roof and the said walls to the extent of 1 foot 10 inches almost two feet. The said room was locked from outside. The door of the said room is on the western wall of the said room. The lock put to the room was broken and on entering into the said room, the people found that there was a shelf made up of Kadapa stone which was close to the southern wall and there was a small gap between shelf and the wall of the said room. The dead body of the victim appears to be forcibly pushed in between the shelf as well as the wall of the said room. This situation of the dead body can also be inferred from the Photographs Ex P-21 and 21(a). This scrupulous act of the accused clearly demonstrate that nobody could easily see the dead body because the said room was locked and it is admitted by PW-14 that the key of the said lock was with the owner of the house, who was also examined before the court as PW-10. PW-10 who has categorically stated that she has given the said house to Manjula w/o of the Accused on rent. She also states that she does not know victim died, but she went to the said place on the day of Shivarathri and she came to know that the dead body of victim was found in the house of the Accused. The learned counsel for the accused strenuously contended that the said portion was not exclusively in possession of either PW-14 or the accused. It was in the exclusive possession of Sumitramma. Such Arguments would not in any manner alter the structure of the house. Here the circumstance shows that the said room walls are not raised upto the roof, anybody can enter or anything can be put from outside of the room, and from the hall portion into the said room and i.e., very much clear from Ex. P-2 Mahazar. Therefore, that clearly establishes that the dead body which was in the advanced stage of decomposition and it was in a precarious condition, recovered from the house of the accused. Therefore, it becomes the responsibility of either PW-14 or the accused to show how the dead body was found in the house of the accused.

In this background, the doctor has also opined in the Post Mortem report that he was not able to give the approximate time of death but it was in between one week to two weeks. Admittedly, the deceased left the house of PW-1 on 14.2.2009 and the dead body was found on 24.2.2009. Therefore, it was in the second week, the dead body was detected after the incident; the time of death also tallied as per the evidence of the doctor PW-18 and the Post Mortem report as per Ex. P-19. In this background, the court has to ascertain whether the child died homicidal or any other type of death.

PW-14 wife of the accused explained with regard to the recovery of dead body from her house. She has categorically stated that the deceased often visiting her house for the purpose of playing with her daughter Supraja and also for the purpose of watching TV. It is clear from the evidence that almost every day, the daughter of the accused and the victim girl used to go together to the school, play together and watch TV together. On that particular day of the incident, PW-14 Manjula categorically explained in her evidence that she was not there in the house till 6.00 p.m., she went to hospital for work. Admittedly, she was employed in the hospital and she has specifically stated that the accused was alone on that day and her children were also not there in the house and she came back at 6.30 p.m. At that time, the accused was there in the house. Therefore, the time factor from 3 to 6.30 p.m., whereas PW-1 has stated that deceased left the house at 3.00 p.m., PW-5 has stated that she saw the deceased going into the house of the accused in the evening and PW-14 came back to the house at 6.30 p.m., and saw the accused inside the house and thereafter the victim girl never seen by anybody except her dead body on 24.2.2009 in the house of the accused. Therefore, PW-14 has successfully and categorically explained her innocence that she was unaware that dead body was hidden in her house. She has further explained in her evidence that she noticed some rotten smell emerging from the room, but she suspected the death of bandicoot. When the smell was extensively spread over to the surrounding area that made the people to enter into the house of the accused and there they detected the dead body of the victim. No witness has made any allegations against PW-14. PW-14 has successfully established the presence of the accused prior to and after the incident that must have taken place in the house of the accused. Therefore, the surrounding circumstance clearly discloses that the accused is the person who can properly explain as to what happened after the said girl came to his house and how the dead body was found in his house in such a precarious condition. If he does not explain in an acceptable manner to the satisfaction of the court, the court can draw an inference that the accused is the person who has exclusive knowledge of the dead body of the deceased and he is bound to explain as per Section 106 of the Evidence Act. The conduct of the accused shows that PW-14 is not in a position to give any evidence with regard to the particular aspect as the dead body of the girl found there when he was very much present in his house on that particular day. The situation in the house clearly discloses that one can put something from the hall portion to the room portion. Therefore, the accused must be the person who put the said dead body into that area in between the shelf made up of Kadappa slabs and the wall of the said room. Therefore, the non explanation by the accused homicidal death can be inferred. Hence, in this manner, the prosecution has also conclusively proved the recovery of the dead body in the house of the accused and also the homicidal death of the victim girl.

V. RECOVERY OF OTHER INCRIMINATING ARTICLES FROM THE ACCUSED AND CONNECTION TO THE CRIME.

The learned counsel for the accused strenuously contended that mere recovery bereft of any connection to the crime is of no use. It is submitted that even if the court considers that some incriminating materials have been recovered at the instance of the accused in the absence of other connecting materials, the prosecution cannot be said to have been proved the circumstance beyond all reasonable doubt. In this background, we have to consider the recovery of incriminating articles at the instance of the accused and its connectivity to the crime. The prosecution has relied upon the evidence of PW3 Venkatesh in this regard.

It is the case of the prosecution that the accused was arrested by PW-22 Vasudev, the Investigating Officer, on 29.3.2009 and recorded the voluntary statement of the accused as per Ex. P-24. On the basis of the voluntary statement, the accused led the police and panch witness and at his instance, the police have recovered his clothes as well as knife.

PW-3 Venkatesh has categorically stated in his evidence that the accused who was in the custody of the police since 30th March, 2009 led the police and the witnesses to his house and opened an Almirah and took out the clothes i.e. a Lungi-panche, baniyan and an underwear which were stained with blood under a mahazar Ex. P-4. He identified his signature as per Ex. P-4 (a). He has also stated that the accused also led the police and the witnesses to the house of one Maruthi who is examined as PW-13 (Hostile). The said Maruthi has produced a knife stating that the said knife was given to him by one Narasimhappa PW-12 by saying that the said knife was given to him by the accused Govindappa and in that context, the said Maruthi has produced the knife before the police in the presence of this witness, the police have seized the same under Ex. P-5 Mahazar. He identified those clothes before the Court as MOs. 6 to 8 and the knife at MO-5. In the course of cross examination, of course, it is elicited that he is the witness in another case, where the accused was the same in that case also and he has also witness in some other case and he has given evidence before the Challakere Court also and etc., but he clarifies that the police have called him as a panch witness whenever this witness has seen something in connection with the said case. He also fortified that only when he has to speak truth before the court, in such circumstances only he went to the court and deposed before the court. Merely because he has given evidence in some other case and also a witness in other criminal case against the accused, he cannot be said that he is a regular witness to the prosecution. Except this, nothing has been elicited in the course of cross examination to discard the evidence of this witness. More over, it is brought to the notice of the court by the defence counsel that the accused has taken the defence that the police have forcibly by assaulting him took him to several places and recovered some articles. The learned counsel drawn my attention to the statement of the accused recorded u/s. 313 Cr.P.C.. At question No. 19, the court has explained the evidence of PW-3 Venkatesh with regard to the presence of the said witness and the accused, leading to the said place and recovery of the clothes and the knife at the instance of the accused. He has categorically stated that the police have assaulted him and humiliated him and forcibly took him and broke open the lock in the house and taken the clothes. This clearly in fact corroborates the prosecution case, virtually the accused has admitted the entire recovery proceedings by the Investigating Officer, but his defence has not been established before the court. The learned counsel for the accused submitted that the accused being in the custody of the police, how he could establish such situation. It is needless to say that the accused has to be produced within 24 hours from the time of arrest and thereafter on every 14th day, he has to be present before the jurisdictional Court. If he has got any grievance against the police, that the police have forcibly in a coercive manner recovered such articles, he could have stated before the Magistrate so far as those aspects are concerned. Though it was a very remote circumstance, but the accused could have explained the same before the jurisdictional court, but that has not been done. Even otherwise, there is absolutely no cross examination so far as this aspect is concerned either to PW-3 Venkatesh or to the Investigating Officer. There is no allegations of whatsoever against the Investigating Officer that the Investigating Officer was an interested person who has concocted the case of the prosecution and laid the charge sheet against the accused. Nothing has been proved at least by preponderance of probabilities, so far as this aspect is concerned. In the absence of such material, we are of the considered opinion that the prosecution has successfully established the recovery of the clothes of the accused and also the knife from one Maruthi and not from the accused.

Now coming to the connectivity of these incriminating articles to the crime, the FSL report which is marked at Ex. P-20 discloses that item Nos. 4, 5 and 6 are the clothes of the accused and item Nos. 10, 11 and 12 are the clothes of the deceased and item No. 13 is a cloth piece belonging to the deceased were sent to the FSL for examination. Out of these items, item Nos. 4, 10, 11 and 13 are the clothes stained with blood of the deceased. Serology report shows that blood stains in item Nos. 2 and 3 and 10, 11 and 13 were stained with blood and particularly ''O'' group blood. Therefore, the clothes i.e., Banian which was recovered at the instance of the accused which is proved to the satisfaction of the court contain the blood stains of the deceased on his baniyan. It can also be adverted that normally if the people go out of the house, they wear shirt, pant etc. but if they are inside the house, they normally wear Lungi-panche, baniyan and underwear. In that context also, the presence of the accused at the time of the incident can be inferred.

Looking to the above said circumstances, the recovery is not disputed to connect with the crime. The accused has not explained as to how he sustained blood stains on banyan particularly ''O'' group blood. Therefore, in the above said circumstances, the prosecution has also successfully established the recovery of incriminating articles which can be referable to the crime and also those clothes were belonging to the accused though the accused has denied the said fact.

So far as the identity of the dead body on the basis of the clothes are concerned, the learned counsel for the accused has strenuously argued before the court that the Investigating Officer has not seized those clothes at the time of spot mahazar or at the time of inquest and there is no mention in the evidence of the Investigating Officer as to how he secured these clothes. Therefore, when the procedure contemplated is not followed by the Investigating Officer, there is some lapse on the part of the investigation that itself is sufficient to throw away the case of the prosecution.

As we have already discussed that there are discrepancies in the investigation, the lapse on the part of the investigating agency itself is not sufficient to throw away the case of the prosecution. The discrepancies must be of such a nature that it should go to the root of the prosecution case to totally up-root the case. Even in spite of such lapses on the part of the Investigating Officer, on the basis of other evidence available on record, if the prosecution has successfully established the clothes on the deceased and on the basis of such clothes they identify the dead body there is no reason to disbelieve.

We have already discussed that PW-1 has given a missing complaint under Ex. P-3 in which she has given the details of the clothes on the victim girl, when she left the house on the ill-fated day and subsequently in the FIR, evidence also she describes the same. The witnesses who identified the dead body has also stated about the presence of those clothes on the dead body. Exs. P-2 to P-6 also disclose the clothes on the dead body and the said dead body was sent to the Post Mortem examination. Therefore, this is a consistent evidence of the witnesses clearly go to show that the witnesses are firm in their evidence that they saw those clothes on the dead body. The evidence of the doctor as we have referred to also shows that the dead body was sent along with clothes on it and he removed them and handed over the same to the police, he identified those clothes as MOs. 1 to 3 even witnesses after long lapse of time also, have identified the clothes before the court.

On examination of the records, during the course of investigation, the police have also subjected these clothes to the property form though in a delayed manner, but nevertheless, the clothes were produced before the Magistrate and taken the order from the Magistrate to retain the same with them to be produced later. These are all the circumstance shows that even though there are lapses on the part of the Investigating Officer with regard to non following of the procedure for seizing of MOs. 1 to 3, nevertheless, the clothes being on the body and thereafter it was taken out from the doctor sending the same to the FSL are not disturbed during the course of cross examination of any of the witnesses, nothing has been elicited from the mouth of the Investigating Officer with regard to the seizure of these articles nor it is suggested to any witnesses that the deceased was not wearing those clothes at the time of her death. Therefore, the arguments of the learned counsel in this regard do not hold any water.

The learned Counsel also relied on another decision with regard to last seen theory. In a decision between Kanhaiya Lal Vs. State of Rajasthan, , the Hon''ble Apex Court at paragraph 12 has held thus -

"12. The circumstance of last seen together does not by itself and necessarily led to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the accused/appellant, in our considered opinion, by itself cannot lead to proof of guilt against the accused."

Looking from the above said circumstances, it is not only the circumstance of last seen the deceased going to the house of the accused but the other surrounding circumstances also fully corroborate the evidence to show that the accused is the perpetrator of the crime. Therefore, the prosecution has conclusively established on the basis of above said proven circumstances the completion of the chain of evidence so as to definitely come to the conclusion that the accused has committed the crime alleged against them.

The non explanation of the accused also play a dominant role and constitute an additional link to the other proved circumstances, in a decision reported in Trimukh Maroti Kirkan Vs. State of Maharashtra, , wherein the Hon''ble Apex Court has observed at para 12 in the following manner:

"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact especially within the knowledge of any person, the burden of providing that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

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."

In view of the above said circumstances, if the entire incident is well within the knowledge of the accused exclusively the accused keeping silent himself and does not give any probable and acceptable explanation that can also be added as a link to the other circumstances.

In view of the above said facts and circumstances, the Trial Court has also in detail reasoned out in its judgment with regard to the incriminating circumstance against the accused and proof given by the prosecution and reliance placed, thereafter came to the conclusion that the accused is the person who has committed the murder of the deceased victim girl. Therefore, rightly convicted and sentenced the accused. Hence, we do not find any strong reasons to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, the appeal filed by the accused/appellant deserves to be dismissed.

Accordingly, the Criminal Appeal is dismissed.

Before parting with the judgment, this court has appointed Sri Sampangiramaiah, learned counsel as amicus curiae to assist the Court. Sri Pramod Chandra, learned counsel was also appointed by the Legal Services Authority to assist the court. Sri Sampangi Ramaiah is entitled for remuneration of Rs. 10,000/- and Sri Pramod Chandra, learned counsel is also entitled for remuneration in accordance with law.