Dismissed

Veeresh S/O Chandrashekharayya Hiremath v. the State of Karnataka

Karnataka HC12 Aug 2020CRL.A/100399/2017

Case brief

AI extract

What is this about?

Appeal against conviction under Section 302 IPC for the drowning of the appellant's two minor sons. The court held the circumstantial chain, resting on last seen together and the appellant's unexplained conduct and absconding, complete, and that failure to prove motive was not fatal. The conviction and life sentence were upheld.

What the court decided

AI extract

Veeresh S/O Chandrashekharayya Hiremath Vs… — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF AUGUST 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA CRIMINAL APPEAL NO.100399/2017

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BETWEEN

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VEERESH S/O CHANDRASHEKHARAYYA HIREMATH, AGE: 39 YEARS, OCC: BUSINESSMAN, R/O: GALGALI VILLAGE, TQ: BILAGI, DIST: BAGALKOT, NOW AT JAMAKHANDI.

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... APPELLANT

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(BY SRI.M.B.GUNDAWADE, ADV.)

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AND

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THE STATE OF KARNATAKA, BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD, THROUGH BILAGI POLICE STATION.

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... RESPONDENT

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(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., SEEKING TO PASS JUDGMENT OF ACQUITTAL BY SETTING ASIDE THE JUDGEMENT OF CONVICTION AND ORDER OF SENTENCE DATED 09.11.2017 PASSED AGAINST THE APPELLANT, IN S.C. NO.40/2014 BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT, FOR THE OFFENCE UNDER SECTION 302 OF IPC.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.07.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the sole – accused in the Sessions Case in S.C. No. 40/2014 on the file of the Principal District and Sessions Judge, Bagalkot (for short, ‘ the Sessions Court’ ). The Sessions Court by the impugned judgment and order dated 09.11.2017 has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code (for short, ‘ IPC’ ) and the appellant is sentenced to undergo imprisonment for life and pay fine of Rs.25,000/- with default sentence of simple imprisonment for three months.

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The prosecution’s case against the appellant is that the appellant, a resident of Jamakhandi, regularly quarrelled with his wife, Smt.Soumya (P.W.14), suspecting her fidelity and stating that their children, Master Abhishek (aged about 7 years) and Master Vidyanand (aged about 5 years) were not his children. Smt.Soumya, for about 10-20 days prior to 24.01.2014, was staying with the children in her

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maternal house at-Hunnur because her grandmother had died immediately prior thereto. On 24.01.2014, the appellant called on his wife at her maternal place and took the two children stating that he was taking the children with him so that they could meet the paternal grandparents. The appellant had come on a twowheeler, a-Scotty. But neither the appellant nor the children returned even though it was late in the evening.

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The prosecution’s further case is that the appellant’s father-in-law called the appellant’s sister, Smt.Kavita, on her cell phone, and she could only say that the appellant had not returned home yet. The appellant’s father-in-law tried to contact the appellant over his cell phone, but his cell phone was switched off. Therefore, the appellant’s sister, Smt.Kavita was again contacted over her cell-phone, and even this time, she only could reiterate that the appellant had not returned home. However, the appellant returned to the house of the parents-in-law at Hunnur alone at about 9:00 p.m.

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without the children. When enquired, he informed that he had taken the two children with him to Babaladi Mutt and he had to stop at Galgali because of a flat tyre. A vulcaniser at Galgali informed him that the tube had to be replaced. He instructed the vulcaniser to do the needful and went to a tea stall. He went to answer nature’s call leaving behind the two children. The children were not to be found when he returned. He looked for the children late into the evening, but could not locate them.

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The prosecution’s case is also that the appellant’s father and his two sisters, Smt.Kavita and Smt.Vidya reached Hunnur. The appellant, his father, his two sisters, his father-in-law, his wife and a neighbour decided to hire a cruiser jeep to go to Galgali and look for children. Accordingly, all these persons reached Galgali at around 12 ‘o’ clock in the night. They looked for the children through the night, but could not find them. However, the next morning at about 8:00 a.m. when they were near the Galgali Bus

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Stand, a resident of the village, a fisherman, enquired about what they were looking for. When informed that they were looking for two missing children, this person stated that he had seen the appellant with two boys at about 7:30 p.m. of the previous evening; the appellant was sitting with two boys on a sluice near the bridge built on the banks of river Krishna. Thereupon, suspecting that the appellant could have drowned the children, the aforesaid family members, including the appellant, and a neighbour started looking for the children at the riverbank. At that time, another fisherman informed them about seeing the dead bodies of two children in the river.

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The appellant’s father-in-law on 25.01.2014 at 12:00 p.m., lodged first information in this regard with the jurisdictional police. The appellant’s father-inlaw stated in this first information that the family members suspected that the appellant had committed the murder of his two sons. He, therefore, requested the police to investigate and take action against the

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appellant. The jurisdictional police registered the first information in Crime No.10/2014, and a copy of the FIR is lodged with the jurisdictional magistrate the very same day at 05:05 p.m. The police have thereafter commenced investigation resulting in charge-sheet being filed against the accused for offence punishable under Section 302 of IPC.

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The jurisdictional magistrate ensuring compliance with Section 207 of The Code of Criminal Procedure (for short, the ‘ Cr.P.C’ ) has committed the case to the Sessions Court for trial. The Sessions Court has framed charges against the appellant. The appellant, on the charges being read over, has pleaded not guilty and has claimed for trial.

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The prosecution, to bring in the guilt of the appellant, has examined 19 witnesses as P.W.1 to P.W.19 and marked Exhibits P1 to P21 and M.O.1 to M.O.6. The appellant’s father-in-law, the appellant’s wife and a relative of the appellant’s wife are examined

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as P.W.1, P.W.14 and P.W.15 respectively. A neighbour of P.W.1 is examined as P.W.16. The fishermen who informed the family members that the appellant was seen with the children the previous evening and who pointed out the dead bodies of the children at the riverbank are examined as P.W.6, P.W.9 and P.W.13. The vulcaniser at Galgali and the person who was waiting tables and managing a Tea Stall at Galgali where the deceased and children had some snack in the evening of 24.01.2014 have been examined as P.W.7 and P.W.8 respectively.

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Apart from these witnesses, panchas for the Inquest Report, Spot Panchanamas (of the places where the dead bodies were found and the place shown by the appellant as the place from where he pushed the two children into the river) and Seizure mahazars (for recovery of the clothes found on the dead bodies and the scooty used by the appellant to take the two children from his in-laws’ place) are examined as P.W.2, P.W.3 and P.W.4 respectively. The Doctor who conducted the

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autopsy of the dead bodies and filed Autopsy Report is examined as P.W.5. The police personnel who arrested the accused, who accompanied the dead bodies for postmortem, who registered the FIR and carried it to the learned magistrate and the Investigating Officers have been examined as P.W.10, P.W.11, P.W.12, P.W.17, P.W.18 and P.W.19.

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The Inquest Report is marked as Exhibits P.2 and P.15. The Mahazar drawn at the place where the bodies were found is marked as Exhibit P.3 and a sketch of this place is marked as Exhibit P.19. The Photographs taken at this place are marked as Exhibits P.11 and P.16. The Mahazar of the place on the bridge, pointed out by the appellant as the place from where he pushed the two children into the river, is marked as Exhibit P.6. A sketch of this place is marked as Exhibit P.21. The two photographs of this place are marked as Exhibits P.7 and P.8. The appellant’s voluntary statement offering to show the place from where he pushed the two children into the river is marked as

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Exhibit P.20. The Post-Mortem Reports are marked as Exhibits P.9 and P.10. The mahazar under which the clothes found on the dead bodies are recovered is marked as Exhibit P.4. The Reports filed in this regard is marked are Exhibits P.12 and P.13. The Report filed by the concerned on arresting the appellant is marked as Exhibit P.14. The FIR is marked as Exhibit P.17. The report about the filing of FIR with the learned Magistrate is marked as Exhibit P.18.

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The Sessions Court, in the light of the evidence of the Doctor, P.W.5, who has conducted the post-mortem and furnished Post-Mortem Reports as per Exhibits P.9 and P.10 and the Inquest Reports as per Exhibits P.2 and P.12, has concluded that the homicidal death of the two children is established and therefore the question would be: who is responsible for such death . The Sessions Court in answering this question has assessed the evidence on record considering the fact that the prosecution’s case is based on circumstantial evidence.

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The Sessions Court has referred to the decision of the Hon’ble Supreme Court in State of Andhra Pradesh v. Patchimala Vigneswarudu @ Viganna@Ganapathi¹ , as regards the proposition that last seen together , motive , medical evidence and the accused absconding would complete the chain of circumstances establishing the culpability of an accused and decision in Balkar Singh versus State of Hariyana² , as regards the proposition that the chain of circumstances must be so complete and consistent that the circumstances it should only point to the guilt of the accused without any room for reasonable doubt. The Sessions Court relying upon a decision of a Division Bench of this Court³ has also observed that though motive assumes importance in the case of circumstantial evidence, failure to establish the same would be of no consequence if the evidence against the accused is otherwise clear and clinching.

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1 (2016) 2 SCC (Cri.) Page 443

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2 2014 STPL page No. 10893 SC

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3 2016 (1) KCCR 906

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The Sessions Court has concluded that the prosecution is able to establish that the appellant on 24.01.2014 arrived at the residence of his father-in-law (P.W.1) in Hunnur and took the two children with him stating that he was taking them to meet their paternal grandparents and that they were also seen with the appellant in the evening hours of the same day at Galgali. The Sessions Court has accepted the evidence of the father-in-law (P.W.1) and the evidence of the wife (P.W.14) as regards the appellant coming to Hunnur to take the children with them, and the evidence of the vulcaniser (P.W.7) and the person who was waiting table at a tea stall (P.W.8) as regards the two children being with the appellant when he took the two-wheeler - a Scooty - for valcunising and visited the Tea Stall for snacks in the evening of 24.01.2014.

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The Sessions Court has opined that the evidence of these two witnesses, P.W.7 and P.W.8, is corroborated by the evidence of two fishermen (P.W.9 and P.W.13) about the two children being seen in the

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company of the appellant in the evening of 24.01.2014 and the evidence of these fishermen cannot be doubted because they are independent witnesses, who could have no enmity against the appellant to falsely implicate him.

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The Sessions Court has further opined that the appellant’s defence that children went missing from his father-in-law’s residence at Huunnur is not supported by any evidence, and the appellant who is enjoined with the onus of offering a valid, or a plausible, explanation for the absence of the two children, who were last seen with him, in view of the provisions of Section 106 of the Indian Evidence Act, 1872, has failed to discharge such burden. The Sessions Court has considered the appellant’s conduct as well. The appellant, who was with the family members when the dead bodies were found on the riverbank according to the evidence of the family members as well as independent witnesses, went absconding until 29.01.2014 when he was arrested by police constable

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(P.W.11) and produced before the investigating officer (P.W.19) as reported in Exhibit P.14.

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The Sessions Court has concluded that the appellant’s defence that it is admitted by his father-inlaw and the wife that the two children were admitted in a well-known school at Jamakhandi and the appellant was meeting all their education and maintenance expenses cannot by itself inure to the appellant’s advantage. The Sessions Court has observed that in the light of the positive and creditworthy testimonies of the family members and third persons, the failure to cite either the appellant or his sisters, who even according to the prosecution were present when efforts were made to trace the children and when the bodies were recovered, would not be fatal to the prosecution’s case and such failure cannot be a material irregularity.

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The learned counsel for the appellant argued against the Sessions Court’s finding on multiple grounds. The learned counsel submitted that the

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evidence on record establishes that the appellant’s father-in-law filed the first information with the police after much deliberation, and this demonstrates that there is a deliberate effort to falsely implicate the appellant. The learned counsel took us through the evidence of the father-in-law (P.W.1) and the appellant’s wife (P.W.14) to impress upon us that both these witnesses have stated that the police were informed on 24.01.2014 itself about the two children going missing and therefore a policeman was part of the group which looked for the children during the night intervening 24.01.2014 and 25.01.2014 and when the dead bodies were found at 10 ‘o’ clock. It is shown that the First information is filed with the police at 12 ‘o’ clock i.e., much after the dead bodies were found at the riverbed and the FIR is filed with the learned magistrate only at 5 ‘o’ clock in the evening.

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The learned counsel argued that the fact that police was present through the intervening night and when the dead bodies were found, and FIR is lodged

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later after a considerable lapse of time and FIR is filed with the learned magistrate after a further lapse of five hours demonstrates that the FIR is lodged after much deliberation to falsely implicate the appellant.

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The learned counsel submitted that there are contradictions in the testimony of the vulcaniser (P.W.7). The vulcaniser in his statement recorded under Section 161 of Cr.P.C. (as per Ex. D-1) has stated that after attending to the flat tyre, he asked one of his friends to look after the shop and left for dinner because the appellant had not returned to take the vehicle. He returned to the shop at about 10 - 11 ‘o’ clock and found the two-wheeler at the shop. When he inquired with his friend, he informed him that the appellant had not come back to take the vehicle. However, in contradiction with this statement, the vulcaniser has deposed before the Court that he had asked his assistant, Ramesh, who was at the shop, to look after the shop when he left for dinner, and when he returned later, Ramesh informed him that the appellant had not

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come back to take the vehicle. This is a very significant contradiction and this demolishes the creditworthiness of this witness. As such, an important link in the chain of circumstances relied upon by the prosecution, the appellant visiting the vulcanising shop with the two children is rendered very doubtful.

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The learned counsel argued that though the prosecution contends that the two-wheeler - a scooty - was seized from the premises of P.W.7 as per mahazar at Exhibit P.5 and relies upon the evidence of P.W.2 and P.W.3 to prove the mahazar and seizure of the twowheeler, have failed to establish the ownership of the two-wheeler. The prosecution’s case hinges on the assertion that the appellant visited his in-law’s residence at Hunnur on a two-wheeler and took the children on such two-wheeler, and also that the children were seen with the appellant when he had taken this two-wheeler for valcunizing. The learned counsel also took us through the evidence of the appellant’s father-in-law (P.W.1) and his wife (P.W.14) to

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buttress his submission that it was crucial for the prosecution to establish the ownership of the twowheeler because they have stated that the appellant owned only a pulser motorcycle and a car. The failure to establish the ownership of the two-wheeler further undermines the prosecution’s case of the appellant being last seen with the deceased children. As such, there is reasonable doubt about the prosecution’s case.

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The learned counsel for the appellant argued that the evidence of P.W.8, P.W.9 and P.W.13 (the person who was waiting tables at tea-stall and the firshermen respectively) is very contrived and is not natural and creates a serious doubt about the prosecution’s case. The learned counsel canvassed that the consistency with which these witnesses have spoken in support of the prosecution’s case demonstrates that these witnesses are tutored and therefore unreliable. The learned counsel pointed out that P.W.13, the fishermen who states that he saw the appellant on the evening of 24.01.2014 with the deceased children,

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inquired with the appellant why he was sitting with the children late in the evening at about 07:00 p.m., and on the next day i.e., on 25.01.2014 on his own enquired with the appellant’s father-in-law and the others who they were looking for. This evidence is very contrived, and so is the evidence of P.W.9.

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As regards the testimony of the wife, P.W.14, the learned counsel argued that the witness has stated in categorical terms that she never stated before the police about the appellant suspecting her fidelity and in fact, a portion of a statement before the police under Section 161 of Cr.P.C. in this regard is marked as Exhibit D.2. She has also stated that she did not state before the police that the appellant, his sisters and father joined the search for the children, and her statement in this regard is marked as Exhibit D.3. These contradictions between the statements as per Exhibits D2/D3 and the depositions not only destroys the prosecution’s case of motive against the appellant

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but also brings out an effort by the prosecution to falsely implicate the appellant.

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The learned Counsel canvassed that it is undisputed that the appellant, his wife and children stayed together in a rented premises in Jamakhandi and the children were attending one of the well-known schools there, and that the children’s education expenses and other expenses were not met by the family of P.W.1. The witness has stated that the expenses were not met by the appellant, but were met by the appellant’s father and that the appellant’s father would not decide anything without informing P.W.1. This circumstance only demonstrates that the appellant and P.W.14 were almost in a happy matrimony. This evidence also renders the prosecution’s case as regards the motive that the appellant regularly quarrelled with P.W.14 because he suspected her fidelity and doubted the paternity of the children - hollow. In the facts and circumstances of the case, and because of the serious infirmities in the prosecution’s case, the failure to

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establish motive would be fatal to the prosecution’s case. The learned counsel also took this Court through the evidence of the appellant’s father-in-law (P.W.1), a relative of P.W.14 and scribe of the First Information (P.W.15) and a neighbour of P.W.1 (P.W.16) to bring out certain purported inconsistencies in their version.

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The learned Additional S.P.P., on the other hand, supported the Sessions Court’s judgment arguing that the prosecution has established that the appellant was last seen with the deceased children late in the evening at about 08:00 p.m. on 23.01.2014 and the dead bodies were found in the next morning after 08.00 a.m., and the prosecution is able to establish all the links beyond doubt. It is settled that an accused cannot take any advantage of a lapse in the investigation that does not affect prejudice the investigation, and in the present case, the appellant is not able to establish any material such irregularity. Therefore, there cannot be any interference with the judgment of the Sessions Court’s judgment.

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The Hon’ble Supreme Court in Lal Mandi v. State of West Bengal⁴ , while observing that in an appeal against conviction, the appellate court has the duty to itself appreciate the evidence on record and the benefit of reasonable doubt has to be given to the accused if two views are possible of the appraisal of the evidence, has declared:

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Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of an accused which gets strengthened on his acquittal is not available on his conviction and appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the

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4 (1995) 3 Supreme Court Cases 603

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same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on record so as to arrive at an independent finding regarding guilt or innocence of the convict. An appellate court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on record and arrive at an independent finding based on the appraisal of such evidence .

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In the light of this enunciation, and in the facts and circumstances of the case, the points for consideration in this appeal are:

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i. Whether the prosecution is able to establish beyond all reasonable doubt based on circumstantial evidence that the appellant took his two deceased minor sons on 24 01.2014 in the morning from the residence of his father-in-law and committed the murder of these two children in the evening of

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the same day by pushing them into river Krishna, and

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ii. Whether the Sessions Court has appreciated the evidence on record in its proper perspective in arriving at its conclusion that the prosecution is indeed able to establish beyond all reasonable doubt the accused’s culpability as aforesaid.

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In cases where the prosecution relies upon circumstantial evidence, it is settled that (i) the circumstances from which the guilt of the accused is to be drawn must be fully established, (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, (iii) the circumstances should be conclusive to exclude every possibility except indicating the culpability of the accused, and (iv) the chain of evidence must be so complete as not to leave any reasonable to indicate a

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conclusion that would be consistent with the innocence of the accused⁵ .

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The kernel of the prosecution’s case to inculpate the appellant for committing the murder of two minor children on 24.01.2014 is in the following chain of circumstances:

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a. The appellant’s wife, P.W.14, was residing at her matrimonial home at Hunnur with the two minor children master Abhishek and master Vidyanand for about 10-12 days prior to 24.01.2014.

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b. The appellant on 24.01.2014 at about 11:00 a.m. came to his in-law’s residence at Hunnur on a two wheeler (a scooty) and took the children saying that he was taking the children so that they could meet their paternal grandparents;

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5 This principle emphasized in M G Agarwal v. State of Maharashtra reported in AIR 1963 SC 200 has been followed throughout by the Hon’ble Supreme Court in a catena of decisions .

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c. The appellant did not return back until late in the evening at about 09:30 p.m., and the appellant returned alone without the children. When he was enquired, he informed his father-in-law (P.W.1), his wife (P.W.14) and others that the children went missing from the Bus Stand at Galgali and he could not trace them;

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d. The appellant was seen with the children at 04:30 in the evening on 24.01.2014 by a valcuniser in Galgali (P.W.7) when the appellant took the twowheeler with the complaint of a flat tyre. The appellant instructed the valcaniser (P.W.7) to attend to the flat tyre saying that children and he would have some tea and snacks in a nearby tea stall;

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e. The appellant and the children visited the tea stall in Galgali and they were attended to by the son of a proprietor of such tea stall, who was waiting the tables as well as managing the affairs of the tea stall in the absence of his parents.

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f. A couple of fishermen (P.W.9 and P.W.13) saw the appellant and children together between 07:00 and 07:30 p.m. on 24.01.2014 at a bridge near Galgali, and the appellant was seen alone later at the Galgali Bus Stand around 08:00 p.m. by one of them, P.W.9;

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g. The appellant, upon returning to Hunnur, he informed the family members and a couple of neighbours that the children had gone missing at Galgali. Therefore, his father-in-law, his wife and a couple of neighbours joined by the appellant, his father and two sisters hired a jeep reached Galgali to look for the children;

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h. In Galgali they saw the two-wheeler, which the appellant was riding in the morning, parked in front of a valcunising shop. They woke up the vulcaniser (P.W.7) and enquired with him. He, while identifying the appellant, informed them that the appellant, accompanied by two children, had come in the evening earlier and had asked him to attend to a flat tyre;

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i. The men folk in the group continued to look for the children through the night but they could not be traced. The womenfolk were asked to stay back at Galgali. However, at about 08:00 a.m., the next day when everyone was at the Bus Stand, Galgali, a fisherman, (P.W.13) spoke to them. When they informed him that they were looking for two missing children, he told them that he had seen the appellant with the children the previous evening near the bridge;

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j. The appellant’s father-in-law, the complainant and the others, suspecting the appellant went to look for the children at the riverbank of river Krishna and at that time the other fisherman (P.W.9), informed them about he seeing these two children with the appellant on the previous evening and the dead bodies floating in the river Krishna. The dead bodies were brought to the river bank by P.W.6 and P.W.9; and

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k. The appellant, who was until then accompanying his wife, the father-inlaw and the others, managed to give a slip and he was arrested later on 29.01.2014. The appellant has not been able to explain the dead bodies of the two children being found at the riverbank after they were last seen with him as late as 8 ‘o’ clock the evening of 24.01.2014.

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The appellant’s father-in-law (P.W.1), the appellant’s wife (P.W.14), their neighbour at Hunnur (P.W.16) and their relative (P.W.15, who is also the scribe of the complaint as per Exhibit P.1) have been categorical in their evidence that the grandmother of the appellant’s wife had died about 10-12 days prior to 24.01.2014. Therefore, she was visiting her matrimonial home with her two minor children to attend the last rites. The evidence of these witnesses in this regard is clear and unequivocal and in fact there is no serious effort to undermine their testimony in this regard in their cross-examination except for a suggestion to the

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appellant’s wife (P.W.14) that despite the appellant protesting against she taking the children to her place for a long period, she had taken the children. As such, the first of the link is established.

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The appellant’s father-in-law (P.W.1) and the appellant’s wife (P.W.14) have further stated that on 24.01.2014, the appellant visited them and took the children stating that he was taking them to meet the paternal grandparents. They also have stated that the appellant had come on a two-wheeler, a scooty, to take children. Their testimonies in this regard, it is contended is not believable because it is admitted that the appellant, apart from a Pulser motorcycle, owned a Maruti van. The prosecution has neither established the ownership of the two-wheeler nor explained why the appellant, who owned a car and a motorcycle, would come on an unknown two-wheeler.

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This defence will have to be examined in the light of the evidence of the appellant’s wife. In her cross-

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examination, she has stated that this two-wheeler belonged to the appellant’s sister, Smt.Kavita. This evidence has not been challenged on behalf of the appellant. Even otherwise, evidence of P.W.1 and P.W.14, the appellant’s father-in-law and wife, as regards the appellant calling on them in the morning of 24.01.2014 at about 11:00 a.m. and taking the children with him is clear, consistent and corroborated by the other circumstances discussed hereinafter.

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The next link in the prosecution’s case is that the appellant was seen with the children at Galgali between 04:30 p.m. and 08:00 p.m. on 24.01.2014 by the vulcaniser (P.W.7), the son of the proprietor of the tea stall and who was waiting table during that time (P.W.8) and two fishermen (P.W.9 and P.W.13). The twowheeler, which was parked at the vulcanising shop, was seized under Mahazar at Exhibit P.5 in the presence of two panch witnesses. These panchas have been examined as P.W.2 and P.W.3, and they have consistently stated about the seizure of the two wheeler

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from the vulcanizing shop and the drawing up of mahazar in that regard as per Exhibit P-5.

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The vulcaniser, P.W.7, has been consistent in his evidence that the appellant, accompanied by the two children, came to his shop with a flat tyre around 04:30 p.m. in the evening of 24.01.2014. The appellant did not come back to take the vehicle. When he left for dinner, he had asked another person to return the vehicle if the appellant come back. But the appellant did not come back. Later, during the night, the appellant and the other family members came to the vulcanising shop inquiring about the two children on seeing the two-wheeler in front of the shop.

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The learned counsel for the appellant tried to impress upon this Court that the testimony of this witness is unbelievable because in the statement with the police under Section 161 of Cr.P.C, (as per Ex.D.1) he had told the police that he had asked his friend, Mallappa, to look after the shop when he went out for

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dinner and to return the two-wheeler if the appellant came back. But, in his evidence he has stated he had asked his assistant to look after the shop and to return the bike if the appellant came back. This is not a major lacuna that would undermine his evidence when his evidence as regards the material aspects is completely consistent. There is nothing on record to indicate that the testimony of this witness is contrived or that the witness is planted. Therefore, the testimony of this witness, who is a natural witness in the circumstances, cannot be undermined howsoever on this score, and further, the testimony of this witness is corroborated by the evidence of other witnesses.

¶125

The evidence of P.W.8, who was looking after the tea stall at Galgali and waiting the tables there, is also consistent in that he states that about 04:30 in the evening about 2 years prior to the date of his evidence, the appellant, accompanied by two children, came to his tea stall and paid an amount of Rs.28/- towards tea and certain snacks. This evidence of P.W.8 is consistent,

¶126

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¶127

and he is a natural witness in the circumstances of the case. The evidence of P.W.8 entirely corroborates the evidence of P.W.7. The evidence of this witness is also crucial in establishing the chain of circumstances relied upon by the prosecution.

¶128

The fishermen, P.W.9 and P.W.13, the next crucial witnesses, speak about the appellant being seen with the two children in the evening of 24.01.2014 between 7 and 8 ‘o’ clock. The witness, P.W.9, states that he is licensed to fish in the river Krishna between Babaladi and Suthugunda, and this area includes the bridge area of Galgali. He goes to the river every day around 5 ‘o’ clock in the evening to put out his fishnet and returns around 7 ‘o’ clock, and in the next morning at around 8 ‘o’ clock he goes to the area to pull the fishnet out. About 2 years prior to the date of recording his evidence, on his way to the river to put out the fishnet he saw the appellant with two children on the river bridge of Galgali, and while returning, around 8 ‘o’ clock, he saw the appellant alone at the bus stand of

¶129

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Galgali. The next morning at about 8 ‘o’ clock, when he was about hundred metres from the bridge, P.W.6 beckoned him to the place where he had his coracle and pointed out the floating dead bodies. He immediately recognised the bodies as that of the two children whom he had seen the previous evening with the appellant. Around the same time, the appellant’s relatives also came near the place, and he and P.W.6 pulled the dead bodies to the river bank.

¶131

The other witness, P.W.6, has also mentioned that about 2 years prior to the date of his evidence, when he was in his coracle fishing, he saw a 10-15 people looking down the bridge, and about half a kilometre from the bridge, he also saw the dead bodies of the two children. He called out P.W.9 and informed him about the same. They signalled, and called out, the people on the bridge about seeing the dead bodies.

¶132

The other crucial witness is P.W.13. This witness has also spoken about being licensed to fish

¶133

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¶134

between Babaladi and Suthugunda and going every day to the river in the evening at around 7 ‘o’ clock to put out the fishnet and going again in the next morning to pull out the fishnet. He also states that about 2 years prior to the date of recording his evidence he saw the appellant and the two children near the sluice between 07:00 and 07:30 p.m. He enquired with the appellant what he was doing because it was late in the evening and beyond the normal walking hours. The appellant did not respond. When he started walking, the elder of the two boys held his hand stating that he would like to go with them. But, the appellant called him out, and when he enquired with the boy, he told him that the person calling was his father. Therefore, he asked the boy to go back to his father.

¶135

This witness has also stated that the next morning at around 8 ‘o’ clock, he saw a gathering of people near the Bus Stand of Galgali on his way to the river. He went there and enquired with them. He was told that two boys had gone missing. The appellant was

¶136

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¶137

also with him these people, and he pointed out that he had seen the appellant with two children. These persons asked him to take them to the place where he had seen the appellant and the two children the previous evening. He took them there, and at that point of time, two fishermen in the river signalled. When they went to the river bank, the two fishermen (P.W.6 and P.W.9) informed them about the dead bodies floating in the river.

¶138

The appellant’s father-in-law (P.W.1), the appellant’s wife (P.W.14), a relative and a neighbour of these 2 persons (P.W.15 and P.W.16) have testified that the appellant returned home at Hunnur late in the evening at around 09:30 p.m. on 24.01.2014 without the children and told them that the children had gone missing at Galgali when he had gone to answer nature’s call. Thereafter, these persons along with the appellant and his father and sisters travelled to Galgali in a hired jeep and made efforts to trace the two children. They saw the two-wheeler that the appellant had used in the

¶139

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¶140

morning at a valcunizer shop in Galgali and the valcunizer (P.W.7) identified the appellant stating that he was at a shop the evening with the two children. They have also spoken about P.W.13 meeting them in the next morning at around 8 ‘o’ clock and informing them about seeing the children with the appellant between 07:00 and 07:30 p.m. the previous evening. The testimony of these witnesses is consistent, and they corroborate each other.

¶141

The argument as against the testimony of these witnesses (P.W.6, P.W.8, P.W.9 and P.W.13, and P.W.1, P.W.14, P.W.15 and P.W.60) is that the appellant’s wife, the P.W.14, has admitted that a policeman accompanied the group throughout the night intervening 24.01.2014 and 25.01.2014 and that this policeman was also present the next day when they were at the Bus Stand and when the dead bodies were found. The FIR is registered only at 12 ‘o’ clock and the same is filed with the learned magistrate at 05:00, past 5 ‘o’ clock in the evening. These circumstances

¶142

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demonstrate that there was deliberation before the complaint (Ex.P.1) was drafted. The witnesses have been accordingly planted to corroborate the version in the complaint. It is also contended that because there is deliberation, the prosecution has not examined either the appellant or the appellant’s two sisters.

¶144

The fact that P.W.6, P.W.9 and P.W.13 are fishermen is beyond dispute. The witnesses, P.W.9 and P.W.13, have spoken about their daily routine of going to the riverbed below the bridge at Galgali around 7 ‘o’ clock in the evening each day to put out their fishnet and return home around 8 ‘o’ clock via the bridge and going to the river again early next morning to pull out the fishnet and fish. The presence of these witnesses viz ., P.W.6, P.W.9 and P.W.13 both in the evening of 24.01.2014 and the next morning near the bridge at Galgali is natural. There is nothing on record to indicate that these witnesses could be inimically disposed towards the appellant or being acquainted with or related to either the complainant or the other family

¶145

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¶146

members to falsely implicate the appellant. The testimonies of these witnesses are also corroborated by the other witnesses. As such, these witnesses cannot be called planted witnesses, or their respective testimonies doubted. Their evidence is also corroborated by the evidence of P.W.1, P.W.14, P.W.15 and P.W.16 who are again consistent even as regards the P.W.9 and P.W.13 informing them about seeking the appellant the previous evening with the children.

¶147

The dead bodies were, according to the testimonies of the different witnesses discussed above, seen only after 8 ‘o’ clock on 25.01.2014 and later the dead bodies were pulled to the riverbank. In fact, as per Exhibits P.2 and P.15, the bodies were pulled to the riverbank only around 10 ‘o’ clock. Thereafter, the complaint as per Exhibit P.1 is written and filed with the police, and different procedures as required in law are conducted. As such, the contention that there is delay either in lodging the first information or filing the FIR with the learned magistrate cannot be accepted. In

¶148

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any event, it is settled that either the delay in lodging the first information or in filing the FIR with the jurisdictional magistrate by themselves would not be fatal to the prosecution’s case, nor would any lapse in the investigation by the investigating agency by itself be fatal to the prosecution’s case unless and until it is shown that such lapses have adversely affected the accused. The circumstances relied upon by the learned counsel for the appellant, in the backdrop of the unimpeached and consistent credible testimony of all the witnesses, are fully established and there is no room for reasonable doubt about the appellant being seen with the two deceased children between 4 ‘o’ clock and 8 ‘o’ clock of 24.01.2014 and the dead bodies being found in the river in the vicinity of the bridge the next morning after 8 ‘o’ clock. The appellant, in the aforesaid circumstances, cannot take advantage of the nonexamination of his father or either of his two sisters.

¶150

It has also been held by the Hon’ble Supreme Court that mere circumstance that an accused

¶151

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¶152

was last seen with the deceased could be an unsafe premise to find a conviction on a charge of murder unless the lapse of time between the point when the appellant was last seen with the deceased and the time of death is minimal. A minimum lapse of time between these two points would exclude the possibility of a supervening event resulting in the death of the deceased at the hands of another. The recent decision in this regard in the line of a number of decisions is in Ganpat

¶153

Singh v. State of Madhya Pradesh⁶ , and it has been held:

¶154

“ The last seen theory comes into play where the time gap between the point of time when the accused and the deceased was seen last a life and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in

¶155

6 (2017) 16 Supreme Court Cases 353

¶156

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¶157

between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together it would be hazardous to come to a conclusion in those cases ”.

¶158

The prosecution has cogently and firmly established by way of unimpeachable positive evidence a complete chain of events which, in our considered opinion, unerringly point out that the appellant was last seen with the deceased children. Further, the appellant, who was arrested on 29.01.2014 i.e., 5 days from 25.01.2014 when the children went missing, has not explained his conduct during these days. The Hon’ble Supreme Court in Deonandan Mishra v. State of Bihar⁷ has declared that:

¶159

“ It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of innocence of the accused. But in a case like this where the various links as

¶160

7 AIR 1955 Supreme Court 801

¶161

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stated above have been satisfactorily made out and circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for the conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain ”.

¶163

In reiteration of this enunciation, the Hon’ble Supreme Court in the recent decision of Anjan Kumar Sarma v. State of Assam⁸ has held as follows:

¶164

“It is clear from the above that in a case where the other links have been satisfactorily made out and circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory

¶165

8 (2017) 14 Supreme Court Cases 359

¶166

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¶167

explanation cannot be made the basis of conviction.”.

¶168

The recent decision of the Hon’ble Supreme Court in Rajender vs. State (NCT of Delhi)⁹ in this regard would also be helpful. It has been held:

¶169

“Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him.”

¶170

The appellant, who on 25.01.2014, indisputably, lost his two minor sons to drowning after going missing on 24.01.2014, has not explained his

¶171

9 (2019) 10 Supreme Court Cases 623

¶172

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conduct, and this failure is an additional link, which completes the entire chain of incriminating circumstances pointing to the guilt of the appellant and none else, is established.

¶174

The learned counsel for the appellant argued that the prosecution is not able to establish any motive. He pointed out that the prosecution’s case against the appellant insofar as motive is that the appellant suspected his wife’s fidelity and he always picked quarrel with his wife stating that the two deceased children were not born to him. He further points out that the evidence on record is that the appellant and his wife were living together and all the expenses, including the educational expenses of the deceased children, were met by, even according to the prosecution, by the appellant’s family members. The wife has also not been able to substantiate why the appellant doubted her fidelity.

¶175

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It is seen from the cross-examination of P.W.14, for the first time, it is suggested that appellant’s father-in-law had re-married and she did not have any children: one of her relatives, who practised black magic, could have caused the death of the deceased children being jealous of this witness. This suggestion is of course denied. The evidence on record is that the appellant would regularly pick quarrel with his wife alleging infidelity, and the elders from the wife’s family counselled him on a number of occasions. The prosecution has failed to establish the reason for the appellant doubting his wife’s fidelity. But, the settled law is that when the chain of circumstances, other than motive, establishes beyond reasonable doubt that it is the accused alone who has committed the offence, the courts cannot conclude that the accused is not guilty because motive is not established by the prosecution.

¶177

A useful reference in this regard could be made to the decision of the Hon’ble Supreme Court in

¶178

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Vivek Kalra v. State of Rajasthan¹⁰ wherein the Hon’ble Supreme Court while so declaring has referred to its earlier decision in Ujjagar Singh versus State of Punjab¹¹ where it is held:

¶180

“ It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy”.

¶181

The recent decision of the Hon’ble Supreme Court in this regard is in Sukhpal Singh v. State of Punjab¹² wherein, the Hon’ble Supreme Court, while addressing the question whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to its case, has opined that

¶182

10 ( 2014) 12 Supreme Court Cases 439

¶183

11 ( 2006) 12 Supreme Court Cases 306

¶184

12 ( 2019) 15 Supreme Court Cases 622

¶185

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¶186

“We would think that while it is true that if the prosecution establishes a motive for the accused to committed a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is a far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution.”

¶187

In the light of afore discussion, the points for consideration in this appeal are answered against the appellant and concluded there is no reason for

¶188

interference in this appeal. The appeal is accordingly dismissed.

¶189

Sd/JUDGE

¶190

Sd/JUDGE

¶191

Rsh

Veeresh S/O Chandrashekharayya Hiremath v. the State of Karnataka

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Veeresh S/O Chandrashekharayya Hiremath v. the State of Karnataka

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