Karnataka High Court

M. Veeresh vs State Of Karnataka on 9 July, 2021

Author: S.G.Pandit And M.G.S.Kamal

                                1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 9TH DAY OF JULY 2021

                          PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                               AND
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

           CRIMINAL APPEAL NO.200141/2018

Between:

M. Veeresh S/o Kambayya
Aged about 32 Years
Occ: Labour R/at Chatla Mallapur Village
Tq. Gadwal, Mahaboobnagar
Andra Pradesh-509 125
                                                ... Appellant

(By Sri B.C. Jaka, Advocate)

And:

State of Karnataka
Through Raichur Rural Police Station
New represented by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
                                              ... Respondent

(By Sri Prakash Yeli, Addl. SPP)

       This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the impugned judgment of
conviction and order of sentence dated 09.07.2018 passed in
                              2



Spl.C.No.45/2016 by the I Addl. Dist. & Sessions Judge at
Raichur by allowing the appeal and consequently acquit the
appellant/accused of the charges leveled against him for the
offences punishable under Section 369, 377, 302, 394 and
201 of IPC and Section 4 of POCSO Act.

      This appeal having been heard and reserved for
judgment on 24.06.2021, coming on for pronouncement
of Judgment this day, M.G.S.Kamal J., delivered the
following:-

                       JUDGMENT

This appeal is filed under Section 374(1) of Code of

Criminal Procedure, 1976 (for short, 'Cr.P.C') by the

accused aggrieved by the judgment of conviction and

order of sentence dated 09.07.2018 passed in Spl. Case

No.45/2016 by the I Addl. District & Sessions Judge at

Raichur (for short, 'the trial court') convicting the

accused for the offences under Sections 369, 377, 302,

394 and 201 of Indian Penal Code, 1860 (for short, 'IPC)

and Section 4 of Protection of Children from Sexual

Offences Act, 2012 (for short, 'POCSO').

2. By the aforesaid judgment, the trial court has

passed the following sentence:

a) To undergo rigorous imprisonment for a period of

7 years and also to pay fine of Rs.5,000/- and in

default to pay the fine to undergo further rigorous

imprisonment for a period of six months for the

offence under Section 369 of IPC;

b) To undergo rigorous imprisonment for a period of

10 years and also to pay fine of Rs.25,000/- and

in default to pay to undergo further rigorous

imprisonment for a period of six months for the

offence under Section 377 of IPC;

c) To undergo rigorous life imprisonment and also to

pay fine of Rs.50,000/- and in default to undergo

further rigorous imprisonment for a period of one

year for the offence under Section 302 of IPC;

d) To undergo rigorous imprisonment for a period of

7 years and also to pay fine of Rs.5,000/- and in

default to undergo further rigorous imprisonment

for a period of six months for the offence under

Section 399 of IPC;

e) To undergo simple imprisonment for a period of 5

years and also to pay fine of Rs.5,000/- and in

default to pay the fine to undergo further simple

imprisonment for a period of six months for the

offence under Section 201 of IPC;

f) To undergo rigorous imprisonment for a period of

7 years and also to pay fine of Rs.10,000/- and in

default to pay the fine to undergo further rigorous

imprisonment for a period of six months for the

offence under Section 4 of POCSO.

3. Case of the prosecution:

a) P.W.1- Tayappa and P.W.2- Tayyamma are

the parents of deceased Mariswamy aged

about 5 years. That on 09.02.2016 at about

2.00 p.m. accused-Veeresh came to their

house situated at Shankarwadi village,

Raichur Taluk and had asked P.W.2-

Tayamma to give him food as he was hungry.

She served him food making him to sit

outside house. At that time, P.W.10-Sujatha

their neighbour had asked the accused as to

which village was he from, to which he

replied that he was from Chatla Mallapur.

That the accused stayed near the house for

some time. Deceased Mariswamy aged about

5 years was also present outside the house.

That the accused offered deceased

Mariswamy Mandalu (puffed rice) and

jaggery to eat and had asked him to show

him the house of his uncle in Telugu "Nee

Chinnappadi illu Ekkada Undi Choopi". By

saying so, he had kidnapped the said

Mariswamy and taken him to Raichur City

from Katlatkur border crossing through

Poornima Talkies and Chandramouleshwara

Circle. That he had purchased a blade from

the shop of P.W.17-Veeranjeneya situated

opposite to Sow Number Ganesh Beedi

Company and had thereafter taken the

Mariswamy near the Ishwar Temple situated

behind KSRTC Staff Quarters into thorny

bushes and at 9.30 p.m. he had unnatural

sexual intercourse with the said Mariswamy

and assaulted him over his head with a

stone, strangulated his neck by his hands

and killed him. Accused thereafter had

taken the golden ear rings (Muruvu) from the

ears of the deceased by cutting them with

blade and had thrown dead body of the

deceased in the said thorny bushes for

disappearance of the evidence.

b) That on 10.02.2016 at about 2.00 p.m.

accused had gone to Shri Balaji Jewelry

shop of P.W.9-K. Pranesh situated at

Gillesugur Camp and had pledged the golden

ear rings weighing 2 grams 780 mili worth

Rs.7,000/- stating that same belong to him

and taken Rs.4,700/- from him.

c) That upon the complaint filed by the P.W.1-

Tayyappa, the father of the deceased on

10.02.2016, case in Crime No.25/2016 was

registered initially for the offence punishable

under Section 369 of IPC (later offences

punishable under Sections 377, 302, 394,

201 of IPC and Section 4 of POCSO Act were

incorporated).

d) The accused was arrested on 10.02.2016 at

about 8.00 p.m. Thereafter, upon the

information furnished by the accused

Rs.4,200/- was seized from him and the

body of the child was recovered from thorny

bushes behind the Staff Quarters of KSRTC,

Raichur and the same was sent for

postmortem and that pursuant to the

voluntary statement given by the accused,

the police recovered golden ear rings, blood

stained stone and blade and also a half

burnt beedi used for commission of offence.

The accused was produced before the

jurisdictional Magistrate and was remanded

to judicial custody. After completion of

investigation, charge sheet came to be filed

against the accused. Since no grounds were

made out for discharge, charges were framed

for aforesaid offences, accused pleaded not

guilty and he was tried.

4. In order to prove the guilt of the accused, the

prosecution examined 27 witnesses as P.Ws.1 to 27 and

got marked 36 documents at Exs.P.1 to 36 besides

marking 4 material objects as M.Os.1 to 4. After

closure of prosecution side, accused has been examined

as required under Section 313(1)(b) of Cr.P.C. Accused

denied the incriminating circumstances appearing

against him and he neither examined any witness nor

got marked any documents in his defence.

5. The trial court after hearing both the sides and

weighing the material evidences available before it held

the accused guilty of the offences under Sections 369,

377, 302, 394, 201 of IPC and Section 4 of POCSO Act,

awarding the sentence as extracted herein above. Being

aggrieved by the same, the accused is in appeal before

this court.

6. Submissions on behalf of the accused:

Mr. B. C. Jaka, learned counsel for the accused

submitted that:

a) That the trial court erred in not appreciating

that the prosecution had not conducted the

test identification parade.

b) That P.W.1-Tayyappa, the complainant and

father of the deceased, P.W.2, the mother of

the deceased and P.W.10 - Mrs. Sujatha, the

neighbour of the complainant and P.W.6-Mr.

Narashimha had not identified the accused

to justify the allegation of he taking away the

deceased Mariswamy from their house.

c) That all these witnesses were untrustworthy

with regard to the accused having taken the

deceased and committing the offences

alleged.

d) That P.W.17 - Mr. Veeranjeneya, the owner

of Kirana shop did not support the case of

the prosecution and that the evidence of

P.W.18-Chandrashekhar, the Manager of the

Wine shop was not corroborated with

evidence of other witnesses.

e) That seizure of material objects are not

proved against the accused.

f) The postmortem report and FSL report are

contrary to the evidence of the witnesses

deposing to that effect.

g) That the judgment of conviction and order of

sentence passed in respect of the alleged

offence against the accused have not been

proved by the prosecution beyond

reasonable doubt. As such, the accused

deserves to be acquitted of the offences

alleged by allowing the appeal.

h) In support of the aforesaid submission, he

relied upon the judgment of the Apex Court

in case of Amar Nath Jha Vs. Nand

Kishore Singh & Ors. reported in (2018) 9

SCC 137.

7. Submissions on behalf of state:

Learned Addl. State Public Prosecutor for the

respondent - State submitted that:

a) That the prosecution having examined P.Ws.

1 to 27 and having marked Exs.P.1 to 36

and M.Os.1 to 4 has proved the guilt of the

accused beyond all reasonable doubt.

b) That the statements and evidences and the

chain of event from the time the accused

appearing near the house of the deceased till

commission of unfortunate incident and the

subsequent conduct of the accused have

been established beyond all reasonable

doubt.

c) In view of the facts and circumstances of this

case non-conducting of identification parade

would not be fatal to the case of the

prosecution and the accused has not made

out any special or exceptional case requiring

identification parade.

d) He relied upon the following decisions:

            i)       (2011) 3 SCC 654 (Sheo Shankar
                     Singh Vs. State of Jarkhand and
                     Anr.)

            ii)      Mehaboob Vs. State through

Yadgiri P.S. [Crl.A.No.3552/2013 disposed of on 28.01.2021]

iii) 2018 ACR 564 (Murugan v. State of Tamil Nadu)

8. Heard Mr. B.C. Jaka, learned counsel for the

appellant-accused and Mr. Prakash Yeli, learned Addl.

State Public Prosecutor for the respondent - State at

length. Perused the records.

9. The only question under the facts and

circumstances arises for consideration is:

Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt justifying conviction of the accused for the offences under Sections 369, 377, 302, 394, 201 of IPC and Section 4 of POCSO Act?

10. This case involves death of a child aged 5 years

with grievous injuries on head, multiple crescentic

scratch abrasions on the neck, both ears deeply cut

with removed parts of the ear missing and with signs

suggestive of forceful anal intercourse. Thus, the death

being homicidal is not in dispute. The case of the

prosecution being based on the "theory of last seen" and

"circumstantial evidence" is also not in dispute.

"Suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence": Mohd. Faizan Ahmad vs. State of Bihar: (2013) 2 SCC 131.

11. The approach to the present case has to be

extremely cautious keeping in mind the above principle

of law emphasized by the Apex Court inasmuch as the

prosecution case is solely based on the circumstantial

evidence. In this context, we consider it appropriate to

briefly encapsulate the depositions of the witnesses

examined by the prosecution as under:

Deposition of P.W.1- Complainant:

a) P.W.1 - Mr. Tayyappa, father of the deceased

Mariswamy and husband of P.W.2-

Tayyamma is the complainant in the case.

Reiterating the contents of the first

information report, he has deposed regarding

the manner in which he received the

information and the narration of the incident

by his wife P.W.2-Tayyamma and with

regard to the police summoning him on

11.02.2016 after the arrest of the accused

and also with regard to the voluntary

statement of the accused of having

committed the offence and with regard to

recovery of money and ear rings. His

complaint marked at Ex.P.1. Photograph of

the child which he had given at the time of

complaint marked as Ex.P.2. the golden ear

rings were identified and marked as M.O.1.

He pointed the identified accused before the

court and stated that it was he who

committed the above crime.

In the cross-examination, apart from general

suggestions of denial, it was suggested that

the wife of P.W.1 had also accompanied him

with the children for the purpose of grazing

the sheep, which was denied.

Depositions of last seen witnesses:

b) P.W.2 - Smt. Tayyamma is the wife of P.W.1

and the mother of the deceased Mariswamy.

In her chief-examination she stated that at

2.00 p.m. accused referring the name of her

father-in-law had asked for food. That she

had made him to sit outside her house and

served him food. That her son Mariswamy

was infront of the house. The accused

offered puff rice and jaggery to her son to eat

and then asked him to show the house of his

uncle in Telugu language, Mariswamy took

him to his uncle's house. After some time,

one Narashimha came to her house and

informed that someone was taking her son

on the way to Katlatkur village. She and

her brother-in-law searched her son

everywhere but did not find. Her brother-in-

law informed her husband over phone who

came home in the night and she narrated

the entire incident to him. She gave the

description of the unknown person being

tall, having long nose, wearing red shirt and

was conversing in Telugu. On the following

day, they went to Raichur Rural Police

Station and filed complaint. The police came

to her village and she shown them the place

of incident. The police prepared the

panchanama in the presence of P.Ws.3 and

4. Thereafter, on the following day, the

police had brought the accused to the Police

Station and called P.Ws.1, 2 and their

neighbour Sujatha (P.W.10), and

Shivu(P.W.3) and enquired the accused in

their presence. The accused confessed to

have taken her son behind KSRTC Staff

Quarters on 09.02.2016 at 9.30 p.m. and

after having unnatural intercourse assaulted

on the head with stone and killed her son by

strangulating the neck with his hands, cut

the ears with blade and had taken golden

ear rings. Thereafter, he had pledged the

said golden ear rings at jewelry shop in

Devasugooru Camp for Rs.4,200/-. The

photograph of the child was already marked

as Ex.P.2. The golden ear rings were

identified and already marked as M.O.1.

She identified the accused in the court and

stated it was he who committed the above

crime.

In the cross-examination, she denied the

suggestion of having gone with the children

to graze the sheep. She has stated that she

had enquired the accused and he informed

her that he is from Chatla Mallapura village.

She has deposed that her neighbour P.W.10-

Sujatha has seen the accused as she was

near her house. She has further stated that

P.W.6-Narashimha had informed her about

4.00 p.m. She has spoken about drawing of

panchanama and all other suggestions put

to her have been denied.

c) P.W.6 - Mr. Narshimha is the witness who

has spoken about he having last seen the

accused along with deceased Mariswamy

while they were proceedings on the way to

Katlatkur village and informing the mother

of the deceased at about 4.00 p.m. He has

also deposed regarding Police calling him to

the police station and enquiring the accused

in their presence and about accused

confessing of committing the crime. He has

deposed regarding identifying the accused in

the police station.

He has withstood the test of cross-

examination by reiterating the fact of he

seeing the accused earlier while he was going

with Mariswamy on the way to Katlatkur

village. Nothing has been elicited in the

cross-examination to discredit his evidence.

d) P.W.10 - Smt. Sujatha. She is the neighbour

of P.W.1, 2 and deceased Mariswamy. She

has deposed about the accused having food

at 2.00 p.m. at the house of P.W.1. She has

specifically spoken about she having

enquired the accused about his place to

which he had answered that he was from

Chatla Mallapur. She has also spoken about

the accused taking Mariswamy and about

Narashima informing her that the accused

was going with Mariswamy on the way to

Katlatkur village. She has spoken about she

identifying the accused in the police station

while confessing about the crime.

Except suggestions denying her evidence as

false, nothing has been elicited.

e) P.W.18 - Mr. Chandrashekhar, the Manager

of the Wine Shop has deposed that he was

the Manager of Manju Wine Shop and that

one evening accused along with child had

come to his Wine Shop and that he had

questioned why did he bring a small child.

Two days thereafter the police had

summoned him to the police station and

enquired him about accused.

In the cross-examination suggestions

denying he being the Manger of the Wine

Shop is made. He has categorically

answered that on the said evening he had

supplied liquor to the accused, nothing has

been elicited from this witness to discard his

evidence.

Witnesses to spot panchanama-Ex.P.3 and Inquest panchanama-Ex.P.4:

f) The P.W.3-Mr. Shivalinga and P.W.4-

Mr.Lingappa are the witnesses to the spot

panchanama - Ex.P.3 prepared at the house

of the P.W.1 from where the accused had

taken the deceased Mariswamy. It was

drawn on 10.02.2016 at 3.00 p.m. to 4.00

pm.

g) P.W.5-Mr. Girisha Poojary, P.W.7-Mallesh

S/o Seenayya are the witnesses to the

inquest panchanama - Ex.P.4 drawn at

Mortuary of RIMS Hospital in the presence of

P.W.14 - Mr. Mallesh S/o Sharanappa who

is the elder brother of the P.W.1 who

identified the body of the deceased. The

photograph of this is marked at Ex.P.5.

In the cross-examination, the said witnesses

have reiterated the contention of

panchanamas in their presence.

Recovery of Rs.4,200/- from the accused. Recovery of dead body and golden ear rings, stone, blade and half burnt beedi and drawing of panchanamas:

h) P.W.8 - Mr. Raju S/o Ramalu and P.W.11 -

Mr. Ranganatha Reddy are the witness to

seizure panchanama - Ex.P.6 drawn while

seizing Rs.4,200/- from the accused and

also to the spot panchanama - Ex.P.7 which

was drawn at the instance of accused

showing the place of crime and the recovery

of dead body at the spot of the crime and

regarding sending body to RIMS Hospital.

They have identified two photographs

marked as Exs.P.8 and 9.

In the cross-examination nothing has been

elicited to discredit to their evidence.

i) P.W.9 - Mr. K. Pranesh, owner of the jewelry

shop. He has spoken about the accused

visiting his shop seeking to pledge the ear

rings stating that his son was not well and

sought for money against pledging the

golden ear ring weighing 2.780 milligram for

Rs.4,700/-. He has also spoken about the

police bringing the accused to his shop and

enquiring pledging of golden ear rings and he

handing over the same along with the receipt

to the police. The police have taken five

photographs which are marked as Exs.P.10

to 14. He identified the golden ear rings

which are already marked as M.O.1. The net

cash has already marked as M.O.2. He has

also spoken about the panchanama drawn

by the police while seizing the ear rings as

per Ex.P.15 and identified his signature.

Nothing has been elicited in the cross-

examination of this witness to disbelieve his

statement.

j) P.W.12 - Mr. Hanumesh. He is the witness

to the panchanama Ex.P.16 drawn at the

spot of crime shown by the accused where

the stone, half burnt beedi and blood stained

blade of Vijaya Company were seized. The

photographs taken at the spot were marked

as Exs.P.17 and 18. He is also witness to

the panchanama at Ex.P.15, which was

drawn while seizing the ear rings. Nothing

has been elicited in the cross-examination to

discredit the said witness.

k) P.W.20 - Mr. Y. Abujar Gafari is the witness

who deposed that he had prepared the

sketch of the spot which is marked as

Ex.P.25 and he identified his signature

marked at Ex.P.25(a).

Circumstantial witness:

l) P.W.13-Mr. Ningappa. He is the younger

brother of P.W.1 and brother-in-law of

P.W.2. This witness has spoken about the

information received from the complainant

and about the searching of Mariswamy. He

has also narrated about the information he

received about the accused taking

Mariswamy and killing him behind the

KSRTC Staff quarters.

m) P.W.14 - Mr. Mallesh, the elder brother of

the complainant. He has spoken about being

the witness to the inquest panchanama at

Ex.P.4 at Mortuary at RIMS Hospital,

Raichur along with C.Ws. 7 and 8 and he

having identified the dead body of

Mariswamy and also with regard to the

photographs taken at the location.

n) P.W.21- Mr. Ramayya is the father of P.W.2.

He has spoken about he having gifted the

golden ear rings to the deceased Mariswmay

on the occasion of naming ceremony.

o) P.W.23-Mr. Parashuram. He is the younger

brother of P.W.2 and brother-in-law of

P.W.1. He is from the village Chatla Mallapur

from where the accused also hails. He has

spoken to the effect that after 3 days of

death of Mariswamy, the police had called

him to the police station and had shown the

photograph of accused and he identified

him. He has stated that the parents of the

accused had passed away. He has further

stated that the accused was in the habit of

asking money from people on the pretext of

his acquaintance with their relatives.

In the cross-examination there is no denial

of accused belonging to the village Chatla

Mallapur village. A specific suggestion was

put that there were no cases except the

present one filed against the accused.

Recording of CCTV footage and seizure of C.D.:

p) P.W.19- Mr. Venkatesh K is the witness who

deposed that he was working as System

Operator in the Office of the Superintendent

of Police, Raichur. He has deposed to the

effect that on 28.02.2016, C.P.I., Rural

Police Station had shown him a photograph

of a person asking him to identify the scene

of movement of that person. Accordingly,

the person in the photograph was moving

around on 09.02.2016 and was recorded in

the CCTV Camera and he had made the C.D.

of the movement of the accused as per the

instruction and the said C.D. was handed

over in the presence of C.Ws.19 and 20

under a panchanama. Photograph in this

regard has been taken and marked as

Exs.P.21 to 23. He has also identified the

C.D. marked at Ex.P.24 and has identified

the person in the CD to be the accused

person present before the court.

In the cross-examination, except suggesting

that he was deposing falsely and that the

person in the CD and the accused have no

connection, nothing has been elicited from

his mouth.

q) P.W.15 - Mr. Mallesh S/o Hanamanth and

P.W.16- Mr.Lingappa S/o Mallayya who have

spoken about seeing the CD in which the

accused was carrying Mariswamy near

Chandramouleshwara Circle, Raichur and

seizure of the said C.D. as per panchanama -

Ex.P.19. They identified their signatures

marked at Ex.P.19(a) and (b), respectively.

In the cross-examination, except suggesting

that they not having seen the contents of the

CD and affixing their signatures on the

blank paper, nothing has been elicited from

their mouth.

Only hostile witness:

r) P.W.17-Mr.Veeranjaneya. This witness has

been arrayed in the charge sheet by the

prosecution as the accused had purchased

the blade from his shop. However, this

witness has turned hostile and denied of

selling of blade and seeing the accused.

Medical evidence, postmortem report, FSL report and opinion of the doctor

s) P.W.22 - Dr. Sharanabasappa. This witness

has spoken about he conducting potency

test of the accused on 11.02.2016 between

2.00 p.m .and 3.00 p.m and other tests and

also sending items belongs to the accused to

RFSL, Kalaburagi. He has also submitted

the preliminary report which is marked as

per Ex.P.26 and his signature is at

Ex.P.26(a) and also of giving final report after

receiving the RFSL report as per Ex.P.26 (b)

and recording his opinion of accused having

potency. He has also spoken about

conducting of postmortem of the deceased

Mariswamy S/o Tayyappa aged about 5

years and the postmortem report was

marked at Ex.P.27 and he identified his

signature which is marked at Ex.P.27(a). He

has narrated in detail the injuries found on

the body of the deceased Mariswamy. He

has specifically spoken about the head

injury, the cut injury on both the ears and

the injuries on the private parts of the

deceased suggesting the intercourse. He has

also spoken about his opinion regarding

reason for the death being forcible assault

on the head resulting in blood oozing from

his brain. He has spoken about the death

having occurred about 24-36 hours back.

He has also stated that the death can occur

on account of the assault with the stone and

cutting of the ears by the blade. He has also

identified the stone and the blade used for

commission of the crime which is marked as

M.Os.3 and 4 and has opined that the

injuries can occur by assault using the said

stone and the blade and his opinion has

been marked as per Ex.P.28. After receipt of

the RFSL report he gave final report as per

Ex.P.30 and his report regarding potency of

the accused is marked at Ex.P.31. He

identified his signatures on the said reports.

In the cross-examination, he had denied the

suggestions that the police had not produced

M.Os.3 and 4. He has denied the suggestion

that no injury can be caused by M.O.3. He

has also denied the suggestion of he not

conducting the postmortem and giving the

reports as per Exs.P.26 to 31. Nothing has

been elicited to discard the evidence of this

witness.

Investigation witnesses:

t) P.W.24-Mr. Bhaskar- P.C. He has spoken

about carrying FIR in Crime No.25/2016 at

about 5.45 p.m. to the court. The FIR was

marked at Ex.P.32.

u) P.W.26- Mr. M.D. Rafiq-H.C. He has spoken

about carrying the items in a sealed cover

upon instructions of Deputy Superintendent

of Police to RFSL and with regard to the

receipt of the same.

v) P.W.27-Mr. Umesh, P.S.I. has spoken about

recording of complaint given by P.W.1,

registering of the same in Crime No.25/2016

and dispatch of FIR to the jurisdictional

Magistrate and inspecting the house of the

deceased and recording the statement of

P.W.2, preparing the panchanama in the

presence of C.Ws.3 and 4 as per Ex.P.3 and

taking into custody of accused on the same

evening at 8.00 p.m. and recording his

voluntary statement as per Ex.P.34 and

identified the signature of the accused as per

Ex.P.34(a) and signature as per Ex.P.34(b).

He has spoken about seizing of Rs.4,200/-

from the possession of the accused upon his

information and preparation of seizure

mahazar as per Ex.P.6 and his signature as

per Ex.P.6(c). He has further spoken about

going to the spot of crime as per the

information furnished by the accused along

with C.Ws.5 and 6 where the dead body of

Mariswamy was found in thorny bushes

behind the KSRTC Depot as shown by the

accused and taking photographs, preparing

the panchanama as per Ex.P.7 and his

signature as per Ex.P.7(c). Photographs

thereof Exs.P.35 and 36 and carrying of dead

body on the same day to the RIMS Hospital

and he has handed over the further

investigation and the accused to P.W.25 and

also for inclusion of Sections 302, 369, 201

& 392 of IPC. He has also identified the

accused present before the court.

w) P.W.25- Mr. Ravinath, who is CPI of Raichur

Circle P.S. deposed that he had taken over

the case paper for further investigation on

11.02.2016 from P.W.30. He has spoken

about the entire investigation process. He

has spoken about preparing of inquest

panchanama in the presence of father of

deceased, C.Ws.7 and 8 as per Ex.P.4. He

has spoken about handing over of dead body

to P.C.696 and 195 with instructions to

hand over the body to the relatives after

postmortem report. He has spoken about the

taking photographs at the time of inquest

which is already marked as Ex.P.5. He has

spoken about the voluntary statement of the

accused of having committed the offence and

giving information with regard to discovery of

blade, stone, burnt beedi, ear rings at the

jewelry shop. He has spoken about visiting

the spot along with C.Ws.9 and 10 and his

staff as shown by the accused behind the

KSRTC Sub-Division amidst thorny bushes

near disused well identified the stone which

was used by the accused to assault on the

head of the deceased and also the blood

stained blade of Vijaya Company used by the

accused to cut the ears of the deceased and

took the gold ear rings and also burnt beedi,

which is used by the accused to burn

testicles and waist of the deceased and

recording seizing of the said objects. He has

spoken about preparation of Ex.P.16. He

has further spoken about recovery of ear

rings from Balaji Jewelry Shop at

Gillisugooru Camp from P.W.9- K. Pranesh,

identified the accused having pledged the

golden ear rings on 10.02.2016 for

Rs.4,700/- and preparation of seizure

mahazar as per Ex.P.15 and the

photographs taken at the location. He

spoken about recording of the further

statement of P.W.1, P.W.2 and also recording

the statement of C.Ws.11 to 18 and making

remand application. He has spoken about

receipt of P.M. report, opinion of the doctor

regarding object used for causing injury. He

has spoken about statement of C.W.11

recorded under Section 164 of Cr.P.C. He

has also spoken about showing of

photographs containing accused and

Mariswamy moving near

Chandramouleshwara Circle to P.Ws.19 and

20 and seizing of the same by drawing

mahazar thereof and taking the photograph

at the location. He has spoken about

recording of the statement of C.Ws.23 and

24 and preparation of sketch as per Ex.P.25.

He has also spoken about the report from

C.W.26 regarding power supply on

09.02.2016 lit at Chandramouleshwara

Circle as per Ex.P.33 and his signature is

identified at Ex.P.33(a) recording of

statement of C.Ws.28 and 29 on 28.04.2016

and submitting of charge sheet on

29.04.2016. He also spoken about report of

RFSL as per Ex.P.29 and the final report of

the doctor as per Ex.P.30 and final opinion

at Ex.P.31.

Nature of injuries and opinion of the doctor:

x) The post mortem report at Ex.P.27 refers to

fractures over right fronto paricto occipital

bone and blood effuse around. Multiple

crescentic scratch abrasion over front of

neck at multiple sits on dissection

underlying muscle. Both ears lacerated

irregular and missing of removed part.

Further, provisional opinion as to cause of

death is shown "Death is due to head injury

sustained."

Perianal region examination:

Anal orifice dilated with loss of elasticity.

Anal opening admits two fingers. Morgins of

anal opening shows multiple small fissures

with large fissures at the lower quadrant.

Margins shows reddening faecal matter

present around anal orifice.

FSL Report:

y) Ex.P-28 is the Report submitted by Raichur

Institute of Medical Sciences, Raichur,

Department of Medicine and Toxicology

regarding furnishing opinion after weapon

examination. After examination of stone and

blade (M.Os. 3 and 4), the final opinion is as

under;

"After examination of stone and blade, I am of the opinion that, the injury number 1 & 2 mentioned in the post mortem report on page number 2 could be caused by the type of weapon examined stone) and can cause death. The injury

number 2 mentioned in the post mortem report on page number 3 could be caused by the type of weapon examined (Blade) and can cause separation of ears from body.

z) Ex.P.29(a) is the Certificate of Examination

issued by the Deputy Director, Regional

Forensic Sciences Laboratory, Naganahalli,

Kalaburagi in which the following material

items have been examined.

1. One Stone

2. One Blade

3. One half burnt Beedi

4. One shirt

5. One Trouser

6. Perienal swab

7. Perienal smear

8. Anal Swab

9. Anal Smear

10. Buccal swab

11. buccal smear

12. Blood

13. One Shirt

14. One Lungi

15. One Underwear

16. Coronal smear

17. Coronal swab

18. Penile Smear

19. Penile Swab

20. Pubic hairs

21. Nail Clippings

The opinion attached to the aforesaid report refers

to presence of human blood of 'O' group the stone

and blade.

aa) As per Ex.P.30(a), the Final Opinion dated

26.05.2017 is given by P.W.22 - Dr.

Sharanabasappa, which is as under;

"Final Report

On perusal of autopsy report, RFSL report I am of the opinion that death is due to head injury sustained. However there are signs suggestive of forceful anal intercourse/assault."

bb) Ex.P.31 is Final Opinion of RFSL report of

accused-M. Veeresh S/o Kambayya, which is

as under;

"Final opinion:

"There is nothing to suggest that he is incapable of performing an act like

that of natural/unnatural sexual intercourse."

Analysis of the case of the prosecution and evidence:

12. As in all criminal cases two important aspects are

to be considered, namely:

i) Whether the alleged offence was committed?

ii) If so who has committed the offence?

13. The postmortem report reveals that the death of

Mariswamy aged 5 years is due to the head injury

sustained. The death has occurred due to the forcible

assault on the head. The other injuries on the neck and

cut injury on the ears and the other parts present on

the dead body adds up to the ingredients of Section 302

of IPC.

14. The injuries at the anus area of the deceased,

which according to the opinion of the doctor are

suggestive of forcible unnatural sexual intercourse

falling within Section 5 of POCSO Act.

15. The FSL report establish the presence of human

blood on the stone and the blade. It also establish the

injuries found on the dead body to have been caused by

use of the stone and the blade.

16. Thus, the postmortem report and the FSL report

establishes the fact beyond reasonable doubt that the

injuries found on the dead body have resulted in the

death of Mariswamy aged 5 years.

17. Adverting to the second aspect of the matter as to

who has committed this offence, we will have to analyze

the material evidence produced by the prosecution

particularly in view of the fact that there are no

eyewitness to the incident. The entire evidence is

circumstantial. The needle of suspicion is on the

accused.

18. In this background of the matter, the first and

foremost thing required to be analyzed is from the angle

of the last seen theory. In this regard evidence of P.W.2,

the mother of the deceased which has remained

unshakable and unchallenged right from the day one

categorically indicate that she had served the food to the

accused. She had interacted with the accused. The

minor child Mariswamy was with the accused. While

she was feeding her baby inside the home. Her evidence

reveal that she had sufficient amount of time to have

interacted with the accused and the time to identify and

recognize the accused as she had provided food to the

accused. In her statement, P.W.2 has mentioned about

the name of P.W.6- Narashima informing her of he

having seen the accused with Mariswamy going on the

way towards Katlatkur. The evidence of P.W.6-

Narashma has also remained unchallenged. He has

been catogoric of he having seen the accused with

Mariswamy going towards Katlatkur. He has given

statement before the police on 10.02.2016 and has

recorded the same in his evidence. He been categoric

in identifying and recognizing the accused having seen

him prior to the incident and in the Police Station and

also in the court. P.W.2 has specifically given the

description of the accused to P.W.1, who has stated the

same in the complaint. This is much prior to the arrest

of the accused. The description given by P.W.2 was

recorded in the complaint of P.W.1 police and there is

no dispute in that regard.

19. Another crucial witness in this chain of last seen

theory is P.W.10 - Smt. Sujatha, who is the neighbour of

P.Ws.1 and 2 and the deceased Mariswamy. She has

spoken about the accused asking Mariswamy to show

the house of his uncle. She has also spoken about the

accused offering puff rice with jaggery to Mariswamy.

She also stated about she enquiring accused of his

place to which he replied he was from Chatla Mallapur.

She has thereafter seen the accused on 11.02.2016 in

the Police Station and also before the court. This

witness also has had time to have glimpse of the

accused sufficient enough to identify his appearances.

20. The other witness who has seen the accused along

with the deceased Mariswamy was P.W.18 -

Chandrashekhar, the Manager of the Wine shop. He

had objected accused bringing the child to the Wine

shop. He had served the liquor to the accused. He has

identified the accused in the Police Station and in the

court. The time gap between he serving the liquor to

the accused and identify him in the police station is just

about less than 24 hours.

21. Corroborating the evidence of these witnesses with

that of recording of CCTV footage in C.D - Ex.P.24

categorically establishes the fact that the accused has

taken the child from the house of P.Ws.1 and 2 and

had taken towards Katlatkur through

Chandramouleshwar Circle. There is no missing link in

the last seen theory established by the prosecution.

22. The prosecution has however required to establish

the link leading up to the conclusion of the accused

having committed the offence.

Discovery of facts upon the information furnished by the accused:

23. The prosecution has relied upon the voluntary

statement of the accused recorded as per Ex.P.34.

Pursuant to the information provided by the accused as

per Ex.P.34, the police have recovered Rs.4,200/-, dead

body, golden ear rings, stone, blade and half burnt

beedi. The question for consideration is whether

recovery of these material objects would amount to

'discovery of facts' admissible under Section 27 of the

Evidence Act.

24. The courts have to be circumspect in relying upon

the voluntary statement of the accused in view of the

bar contained under Sections 25 and 26 of the Evidence

Act. However, Section 27 of the Evidence Act provides

rule of exclusion and the bar contained in the said

sections. It is settled law that part of the information

given by a person, whilst in police custody, whether the

information is confession otherwise, which distinctly

relates "to the fact" thereby discovered but no more, is

provable in the proceedings in which he is charged with

the commission of offence.

25. The Apex Court in its judgment rendered in State

of Rajasthan Vs. Bhup Singh reported in (1997) 10

SCC 675 dealing with the conditions prescribed in

Section 27 of the Indian Evidence Act, 1872, has held as

under:

"14. It is clear from the above evidence that PW12 discovered the fact that respondent had buried Article 4 - pistol. His statement to the police that he had buried

the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act as it became admissible under Section 27. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) He should have been accused of an offence; (3) He should have been in the custody of a police officer when he supplied the information; (4) The fact so discovered should have been deposed to by the witness. If these conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4 -

pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of said fact became complete only when the pistol was recovered by the police.

15. In this context, we think it appropriate to quote the celebrated words of Sir John Beaumont in Pulukuri Kottaya vs. Emperor: (AIR 1947 PC 67):

"In the their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object

produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact.... Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife;

Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."

(emphasis supplied) The ratio therein has become locus classicus and even the lapse of half a century after its pronouncement has not eroded its forensic worth. We may point out that this court has approvingly referred to the said ratio in a number of decisions, e.g. Jaffer Husain Dastagir vs. The State of Maharashtra, AIR 1970 SC 1934; K.

Chinnaswamy Reddy vs. State of Andhra Pradesh & anr., AIR 1962 SC 1788;

Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Ranbir Yadev vs. State of Bihar, (1995) 4 SCC 392; Shamshul Kanwar vs. State of U.P., (1995) 4 SSC

430."

26. In the case of State of Karnataka Vs. David

Rozario and Anr. reported in (2002) 7 SCC 728 at

para-5, the Apex Court at para-5 has held as under:

"5. The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. V. Balakrishan reported in AIR 1972 SC 3 and Md. Inayatullah v. State of Maharashtra, reported AIR 1976 SC. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections were presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision

i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands, in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in the custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him.

This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so

recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor reported in AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. Reported (2000) 6 SCC

269. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."

27. In the case of Anter Singh vs. State of Rajasthan

reported in (2004) 10 SCC 657 the Apex Court has summed

up the various requirement of Section 27 of Evidence Act, as

under;

"16. The various requirements of the Section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

                  (2) The     fact   must   have    been
            discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

                  (4)  The  persons  giving           the
            information must be accused of           any
            offence.

                   (5) He must be in the custody of a
            police officer.

                  (6) The discovery of a fact in

consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

28. As already stated in the instant case, recovery of

sum of Rs.4,200/- from the accused and golden ear

rings from the shop of P.W.9 establishes the "fact" of

accused pledging the golden ear rings for money.

Recovery of dead body, recovery of stone used to assault

the minor child, recovery of blood stained blade and half

burnt beedi read in the light of postmortem report and

FSL report establish the fact of accused having

unnatural sexual intercourse, causing injuries with the

stone and blade. All these discovery of facts are at the

instance of the accused pursuant to the voluntary

statement made by him as per Ex.P.34. These recoveries

have been made under duly drawn panchanamas in the

presence of independent witnesses who have had no

occasion to come in contact either with P.W.1, P.W.2 or

with the accused. These discoveries of the facts are

completed with the seizure of the aforesaid material

objects and the entire process has been proved.

29. The doctor P.W.22 has deposed that such injuries

can be caused by the M.O. Nos.3 and 4 such as stone

and blade. These material objects as stated above were

discovered at the instance of the information given by

the accused. Under the aforesaid circumstances facts

can be inferred leading to irresistible conclusion that it

was the accused who has committed the crime.

30. As regards the offence under Section 4 of POCSO,

the injuries found on the private parts of the deceased

Mariswamy who was just aged about 5 years

corroborated the opinion of P.W.22-Dr. Sharanabasappa

would indicate commission offence of unnatural

intercourse by the accused. The potency test at Ex.P.26

indicate the capability of the accused.

Line of defence:

31. The line of defence on behalf of the accused is only

of bald denial. Even at the stage of recording statement

of accused under Section 313 of Cr.P.C. except denial,

accused has not chosen to rebut or lead any evidence

which are incriminating in nature. No, other theory or

defence line has been set up by the defence. There was

no any element of animosity or ill-will from P.Ws.1 and

2 or from others witnesses to implicate the accused into

the matter. All of them have encountered the accused

for the first time and just on the circumstances

narrated by them. Under any stretch of imagination

cannot be construed to be ill-intended or the case of

false implication of the accused into the crime.

Therefore, this feeble admitted to be set up cannot be

countenanced.

32. It is settled law that examining the accused under

Section 313 of Cr.P.C. after closure of evidence by the

prosecution is in furtherance to the fundamental

principle of 'Audi Alterem Partem'. It provide accused an

opportunity to explain each and every circumstance

appearing in evidence against him. It is a procedural

safeguard for an accused facing the trial to explain facts

and circumstance appearing against him in the

prosecution evidence. Though the accused always has

a right to remain silent if he wishes and the silence of

the accused must never be allowed, to any degree, to

become a substitute for proof by prosecution of its case.

It is for the prosecution to prove its case in the first

instance and not to rely on the silence of the accused.

Silence and failure of the accused to explain the

circumstances appearing in the evidence against him is

a strong circumstances which can be used against him.

The above principle is enunciated by the Apex Court in

the case of Avathar Singh Vs. State of Punjab

reported in (2002) 7 SCC 419 and in the case of Mani

Kumar Thapa Vs. State of Sikkim, reported in (2002)

7 SCC 157.

33. It may be apt at this juncture also to refer Sec.

106 of Evidence Act. Section 106 of the Evidence Act

envisage that when any fact is especially within the

knowledge of any person the burden of proving that fact

is upon him. The prosecution in the instant case has

established the fact of accused having seen last with the

deceased Mariswamy and the movement of accused with

deceased Mariswamy having been recorded in the CCTV

camera as per Ex.P.24 ought to have explained the

circumstances which are within his personal knowledge.

He not having explained the circumstances, adverse

inference would be drawn against him.

34. The accused has made no attempt to counter

check or to verify the veracity of the CCTV footage

except making bald suggestions of same being doctored.

35. Recovery of material objects at the instance of the

accused have not been discredited by the accused. The

photograph which was produced by the father of the

deceased at the time of filing of the complaint marked at

Ex.P.1, which was taken when the child was alive depict

the existence of ear rings comparison of the said ear

rings with that of the recovered from the shop of P.W.18

is supported by the evidence of P.W.21, the grandfather

of the deceased would establish that the ear rings

belonging to the deceased Mariswamy.

36. Though, P.W.17, the owner of the shop has turned

hostile regarding he having sold the blade the same is a

little consequence. The fact of the matter is the blade

made of Vijay Company stained with blood was

recovered at the instance of the accused from the scene

of crime. The report of P.W.22-Dr. Sharnabasappa

reveal that the ears have been cut by using of the blade.

It is therefore can be concluded that the accused used

the blade to cut the ears of the deceased to take the ear

rings which he had pledged with P.W.18-Mr.

Chandrashekhar for Rs.4,200/- which amount was

recovered and seized from the possession of the accused

in the presence of the panch witnesses.

37. There is no dispute or denial of the fact that the

accused belonging to Chatla Mallapur village. P.W.10 -

Mrs. Sujatha had specifically asked the accused to

which place he was belonged to which the accused

answered that he was from Chatla Mallapur.

38. The brother of P.W.1 and his wife deposed to the

effect that the accused belongs to Chatla Mallapur

village. There is no whisper denying this fact of the

matter. P.W.23-Mr. Parashuram, the brother of P.W.2

has also spoken about the conduct of the accused that

accused was in habit of asking money from the people

claiming acquaintance and relationship of one another.

Viewed from this prospect, it would be evident that the

accused had come to the place of P.W.2 apparently

finding out the details of their relationship and sought

for the food. He had also asked the house of uncle of

the deceased which suggest that accused had gathered

information about the family members of P.Ws.1 and 2.

This conduct of the accused also indicate the

commission of crime by the accused.

39. The aforesaid circumstances and the chain of

events leads to irresistible conclusion that it was the

accused who committed the offence. There are no other

possibilities of any other circumstances or person being

involved in the entire incident.

POCSO Act.

40. The prosecution having established through

medical evidence of the injuries on the anal area of the

deceased having been caused by acts in the nature of

penetrative sexual assault, the guilt of the accused

punishable under Section 4 of POCSO Act is

established.

41. Section 29 of the POCSO Act provides for

presumption of commission of the offence under Section

3, 5, 7 and 9 of the Act that such person has committed

or abetted or attempted to commit the offence as the

case may be unless the contrary is proved. Even in

terms of this statutory presumption, though rebuttable,

the accused has not led any evidence to rebut the

presumption. Except adopting the line of bald and

gentle denial, no attempt is made by the accused to

rebut this statutory presumption

Adverting to the arguments of the learned counsel for the appellant regarding non-conducting of test identification parade:

42. Learned counsel for the appellant-accused relying

upon the judgment of the Apex Court in Amarnath Jha

Vs. Nandakishore Singh and Ors. reported in (2018)

9 SCC 137, wherein the Apex Court referring to its

earlier judgment in the case of Kanta Prasad Vs. Delhi

Administration reported in AIR 1958 SC 350 and

Vaikuntam Chandrappa Vs. State of A.P. reported in

AIR 1960 SC 1340, on the aspect of effect of an

inadequacy of test identification parade has held that:

"It is well settled that non-conduction of TIP may not itself be fatal to the prosecution case but certainly it must be weighed in by the court while considering the facts and circumstances of each case"

has submitted that in the instant case the

prosecution has not conducted the test

identification parade and as such there is no

definite proof of the accused committing the

offence. He further submitted that in view of there

being no eyewitness to the incident, it was

incumbent on the part of the prosecution to have

conducted the test identification parade.

43. In response to the above contention of the learned

counsel for the appellant, the learned Addl. State Public

Prosecutor has relied upon the judgment of Apex Court

in the case of Sheo Shankar Singh Vs. State of

Jarkhand and another reported in (2011) 3 SCC 654,

wherein the Apex Court at paragraph-47 has held as

under;

"47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration."

The aforesaid decisions of the Apex Court relied upon by

the learned counsel for the appellant-accused as well as

the learned Addl. State Public Prosecutor reiterate the

settled legal principle that non-conducting of test

identification parade and its effect will have to be

determined in peculiar facts and circumstances in each

case.

44. In the instant case, P.W.2- Tayyamma, the mother

of deceased Mariswamy was the first person to have met

the accused when he appeared near her house on

09.02.2016 at about 2.00 p.m. asking for food taking

name of her father-in-law. She offered him food.

Thereafter, he sat near her house and was conversing

with the deceased, offered puff rice and jaggery to the

deceased before taking him on the pretext of going to his

uncle's house. Thus, P.W.2 had sufficient and ample

opportunity of seeing and conversing with the accused.

Further, in her narration to P.W.1, she had given

detailed description of the appearance of the accused

which has been reported by P.W.1 in his complaint to

the police. Another crucial aspect of the matter is that

the accused was arrested by the Police on the very next

day of the fateful day and P.W.2 was called to the Police

Station wherein she identified the accused to be the

person who had come to her house and had meal.

45. Similarly, P.W.6-Mr. Narashimha, who had seen

the accused taking the deceased on the way to

Katlatkur also identified the accused in the police

station. P.W.10- Mrs. Sujatha, who had also had an

opportunity to see the accused and enquire as to which

village he was from identified the accused in the police

station on 11.02.2016. P.W.18,the Manager of the

Manju Wine Shop, who had objected accused bringing

the small boy to wine shop also identified the accused in

the police station.

46. It is the same accused who found to be carrying

the minor child as captured in the CCTV installed at

Chandramouleshwara Circle, Raichur recorded in C.D.

Ex.P.24 in the presence of the mahazar witnesses who

have also recognized the person in the video to be the

accused.

47. The time gap between the aforesaid witnesses last

seeing the accused with the deceased Mariswamy alive

and the arrest of the accused was just about a gap of

one day. It cannot therefore be held that the evidence of

the aforesaid witnesses is untrustworthy. The last seen

evidence of the aforesaid witnesses stands corroborated

with the recording of the CCTV in the C.D produced at

Ex.P.24. The said C.D. was prepared by P.W.19 and

was handed over to police in the presence of panchas.

The depositions of mahazar witness to the C.D. player

namely, P.Ws.15 and 16 and P.W.19 has remained

unchallenged. The witnesses are not the interested

witnesses. They have simply deposed the factual aspect

contained in the C.D. categorically indicating the

accused carrying minor boy. The identification of the

accused person with that of the one seen in the C.D. is

not disputed. It is necessary to reiterate the observation

made by the trial court in its judgment at Paragraph-69

while referring to the argument of the counsel for the

accused that the C.D. is concocted one and not

believable, the court has observed as under:

"Then the court has directly asked the counsel for the accused, whether you are ready for seeing the CD through video player, may I play it through video player to show you, then the counsel for the accused not shown his interest to see the CD through video player i.e., Ex.P.24."

From the above depositions of the witnesses who have

last seen the accused with the deceased Mariswamy

when he was alive and the witnesses with regard to C.D.

at Ex.P.24, the prosecution has established beyond

reasonable doubt that it was the accused who was last

seen with the deceased when he was alive.

48. The Hon'ble Apex Court in the case of Yuvaraj

Ambar Mohite Vs. State of Maharashtra reported in

(2006) 12 SCC 512 referring to its earlier decision has

at para-17 stated as under;

"17. In Ramreddy Rajesh Khanna Reddy v. State of A.P., this court opined: (SCC p.181, para 27):

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. "

49. The accused has not offered any explanation in

respect of the aforesaid material circumstances

presented against him by the prosecution. Except

adopting total denial even at the state of recording

statement under Section 313 Cr.P.C., the accused has

not offered any explanation. The Apex Court in the case

of Murugan v. State of Tamil Nadu reported in (2018)

ACR 564 at para-32 has held as under;

"32. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two courts below against the appellant and we find no good ground to disturb this finding."

The aforesaid circumstances thus categorically indicate

the guilt of the accused.

50. The Hon'ble Apex Court in the case of Sampat

Tatyada Shinde vs. State of Maharashtra reported

in (1974) 4 SCC 213 at para-16 has held as under:

"16. The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent

value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in Court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also."

51. In the aforesaid facts and circumstances of the

case and the instances narrated hereinabove

established the following chain of events.

a) The accused appearing at 2.00 p.m. at the house of P.W.1 on the pretext of having food and thereafter disappearing with the minor child.

b) Accused going to the wine shop and carrying the child through Chandramouleshwar Circle.

c) The recording of the movements of the accused with the minor boy in the CCTV installed at Chandramouleshwara Circle.

d) Accused furnishing the information of he taking the minor child behind the Staff quarters of KSRTC and committing the crime of unnatural sexual intercourse and assaulting the minor child with

the stone, cutting the ears with blade and burning the hip and private parts of the minor child with half burnt beedi.

e) Discovery of dead body of the minor child with injuries as detailed in the postmortem report, material objects such as, stone, blade and half burnt beedi used by the accused to commit the offence recovered at the instance and information given by the accused.

f) The accused pledging the golden ear rings with P.W.9 for Rs.4,700/- which was recovered at the instance and information given by the accused.

Would complete the chain of events.

52. A child Mariswamy just about 5 years innocently

believed and followed the accused. Taking this hapless,

helpless and defenceless condition of the child, the

accused exhibiting his beastly character has committed

horrendous act of unnatural sexual assault followed by

assault on the head of the child with stone, even as

admitted by accused, strangulated the neck of child

with his hands and thereafter cut the ears of the child

with the blade to take golden ear rings which he later

pledged for sum of Rs.4,700/-, would deserve no mercy.