GILBERT PEREIRAversusSTATE OF KARNATAKA

                         GILBERT PEREIRA                                  A
                                   v.
                      ST ATE OF KARNA TAKA

                          AUGUST 24, 2004

         [P. VENKA TARAMA REDD! AND B.P .. SINGH, JJ.]                    B

     Penal Code, 1860:

       Sections 302 and 397-Murder-Robbery or dacoity-Circumstantial
evidence-Murder ofa young girl and robbing her ofher gold ornaments- C
Father of deceased girl had sent her to his house from his coconut garden
shortly before the incident-The accused was seen near the scene ofoffence
in the village shortly after the incident-Dead body of the deceased was
found in the bathroom of a house, to which the accused had access, he
being the son of the owner's brother-Gold ornaments worn by the D
deceased were missing when her dead body was recovered-These
ornaments and a knife were recovered at the instance of the accused-
Accused made extra-judicial confession to his father that he had killed the
deceased-Bloodstains found on the knife, clothes of the accused as well
as on the clothes of the deceased were human blood of group AB while
that of the deceased was A+ - injuries found on the person of the accused- E
Accused suffered from deformity offingers in both his hands-Trial court
rejected the prosecution case on the ground that the accused could not
have committed the offence in view of his physical handicap-Trial court,
therefore, acquitted the accused under Ss. 302 and 397 JPC but convicted
him under S. 379-But High Court convicted the accused under S.302- F
 Correctness of-Held: Although the accused is a physically challenged
person yet he is fully capable of using his arms as there is no abnormality
 in his arms-The circumstances proved against the accused are conclusive
 in nature, being consistent only with the hypothesis of his guilt-Once the
defence of the accused that he was not capable of committing the o;Jence G
on account of his physical handicap is rejected, the presumption under S.
 1I4 of the Evidence Act can also be drawn-Each circumstance is
 incriminating in nature and the totality of circumstances conclusively
 established the guilt of the accused-Hence, conviction under S. 302
justified-Evidence Act, 1872, S. 114.                                       H
                                   711
    712                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A        According to the prosecution, shortly before the incident the
    deceased was sent by her father to his house from his coconut garden.
    She was to bring tea for her father. However, she had not returned
    home and her father started searching for her.

B        Subsequently, the dead body of the deceased was found lying in
    the bathroom of PW-17. The house of PW-17 was being looked after
    by his brother (PW-13) to whom the keys of the house had been
    entrusted. The appellant-accused was the son of PW-13 who had access
    to the house of PW-17.

c        It was the further case of the prosecution that the accused was
    seen near the scene of the offence in the village shortly after the
    incident. The gold ornaments worn by the deceased were missing when
    her dead body was recovered. The recovery of these gold ornaments
D   and a knife was at the instance of the appellant. The appellant had
    made an extra-judicial confession to PW-13 that he had killed the
    deceased. There were also injuries found on the person of the accused.
    The bloodstains found on the clothes of the accused as well as on the
    clothes of the deceased and the knife were of human blood of group
    AB while that of the deceased was A+.
E
         The trial court found that the appellant, by reason of deformity
    in the fingers of both his hands, could not hold any object with firm
    grip with either hand. The Trial court, therefore, acquitted the accused
    of the offences under Sections 302 and 397 of the Penal Code, 1860 but
F   convicted him under Section 379 IPC. However, the High· Court
    convicted the appellant under Sections 302 and 397 IPC. Hence the
    appeal.

          Dismissing the appeal, the Court
G
         HELD: I. Since the clothes of the deceased, the clothes of the
    appellant and the knife were found stained with the same blood group
    of human origin it indicated that the accused was in close proximity
    with the deceased when she was fatally wounded. This itself was a
H   strong incriminating circumstance against the appellant. [723-A-Bl
                     GILBERT PEREIRA v. STATE                           713

     Ashok Kumar v. State (Delhi Administration), (1995) Supp. 3 sec A
626, relied on.

      2. The incriminating circumstance sought to he proved by the
prosecution was that soon after the occurrence injuries were found on
the person of the appellant, which was indicative of the fact that in the B
~ourse of the scuffle proceeding the murder of the deceased, he may
have sustained those injuries. This circumstance, if proved, buttresses
the case of the prosecution by adding one more drcumstance to the
chain of incriminating circumstances proved against the accused. It
was not possible for the prosecution to give the details of the occurrence C
in which the injuries were caused and the manner in which they were
caused, simply because there was no witness to the occurrence. The
prosecution could only establish as an incriminating circumstance the
fact that the appellant was found to have sustained injuries, which may
have been sustained in the course of the same occurrence, and this
circumstance had to be considered along with other circumstances D
proved at the trial. This circumstance at best provided an additional
link in the chain of incriminating circumstances pointing to the guilt
of the appellant. (728-F-H; 729-A-B]

      3.1. The trial court, even though it found many of the circumstances E
proved against the appellant, rejected the prosecution case on the
ground that having regard to the physical handicap suffered by the
appellant, he could not have committed the offence which involved
holding a knife in his hands and stabbing the deceased with the use of
sufficient force. [730-C]
                                                                              F
      3.2. It is no doubt true that the appellant is a physically challenged
person inasmuch as he suffers from deformity of fingers in both the
hands. So far as the arms are concerned, there is no abnormality and,
therefore, he is fully capable of using his arms like any other normal
person. The fact that he is not capable of holding any object with firm G
grip with either of his hands does not mean that he cannot hold a knife
at least in his right hand. His right thumb and index finger are
sufficiently strong. The evidence on record also proves that he can
write with his hand holding a pen. He can also take his meals holding
a spoon. If it is possible for the appellant to do all these things, one fails H
    714                  SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R.

A to understand why he could not have caused the injuries found on the
  person of the deceased. It is common experience that physically
  challenged persons since birth, as of necessity, improvise their own
  methods of doing things very much in the same manner as a normal
  person does. Having regard to the evidence on record there is no doubt
B that he must have committed the offence. (733-A-DI

        4. Though the circumstances proved against the accused are
  conclusive in nature, being consistent with his guilt, but once his defence
  that he was not capable of committing the offence on account of the
C physical handicap suffered by him is rejected, the presumption under
  Section114 of the Evidence Act, 1872 can also be drawn. In the instant
  case, the evidence discloses that only a few hours after the occurrence,
  the appellant sold the gold chain to PW-II, from whose custody the gold
  chain was recovered only 4 days later at the instance of the appellant,
  who had no explanation to offer as to how he came in possession of the
D gold chain belonging to the deceased. This presumption coupled with
  the other circumstances adverted to above especially the unexplained
  injuries on the hand of the accused and the blood of the same group
  being found on the clothes of the deceased as well as the accused, gives
  rise to a further presumption that the removal of the gold ornament and
E the fatal attack on the deceased should have taken place as part of the
  same transaction. (733-G-H; 734-A-C]

         5. The incriminating circumstances proved against the appellant
    form a complete chain of circumstances, which is consistent only with
F   the hypothesis of the guilt of the appellant. Each circumstance is
    incriminating in nature and the totality of the circumstances conclusively
    establish the guilt of the appellant. (734-C-D)

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
G 1s2 of 2003.

         From the Judgment and Order dated 30.10.2002 of the Karnataka
    High Court in Cr!. A. No. 87/97.


H         D.P. Chaturvedi, S.N. Bhat and N.P.S. Panwar for the Appellant.
             GILBERT PEREIRA v. STATE [B.P. SINGH, J.]               715

     Siddhartha Dave and Sanjay R. Hegde for the respondent.               A

     The Judgment of the Court was delivered by

      B.P. SINGH, J. : The appellant Gilbert Pereira was tried by the First
Additional Sessions Judge, D.K., Mangalore having been charged of the B
offences under Sections 302 and 397 !PC for having committed the murder
of a young girl Marita Margaret Pereira and robbing her of her gold
ornaments. The learned Additional Sessions Judge ar:quitted him of the
charges under Sections 302 and 397 !PC but found him guilty of the
offence under Section 3 79 !PC, since it found that the gold ornaments worn C
by the deceased shortly before her murder, and which were found missing
after her murder, were recovered at the instance of the appellant who could
offer no plausible explanation as to how he came in possession of the said
ornaments. Accordingly, he was found guilty of the offence under Section
379 !PC and sentenced to two years rigorous imprisonment and also to pay
a fine of Rs. 2000 and in default to undergo rigorous imprisonment for a D
period of three months.

        The State of Karnataka preferred an appeal to the High Court of
Karnataka against the order of acquittal being Criminal Appeal No.89 of
1997. The High Court by its judgment and order of October 30, 2002 E
allowed the appeal, set aside the acquittal ofthe appellant and sentenced
him to life imprisonment for the offence under Section 302 !PC and to pay
a fine ofRs.1000. He was also sentenced to undergo rigorous imprisonment
for seven years for the offence punishable under Section 397 !PC. The
sentences were ordered to run concurrently. In default of payment of fine F
of Rs.1500 the appellant was directed to undergo simple imprisonment for
three months.

        We may notice at the threshold that the accusation against the
appellant was sought to be proved by circumstantial evidence as no one
had witnessed the occurrence in which Marita was murdered. The case of G
the prosecution is that Marita (deceased) lived with her parents in Chokkadi
at village Yenagudde in Udupi Taluk. Her father Thobias Pereira PW- I was
an agriculturist. On April 6, 1995 Marita accompanied her father to the
coconut garden at about 7 a.m. for watering the coconut trees. After they
had worked for some time, at about 9.15 a.m. PW-I sent Marita (deceased) H
    716                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A   to their house with one plastic kerosene can and another small can with
    some implements in a nylon bag. She was to keep these items at home and
    bring tea for her father PW- I in the coconut garden. Till about 11 a.m.
    Marita did not return and, therefore, PW- I became anxious and started
    searching for her. He came to know from his wife that Marita had not
B   returned home. PW- I along with others searched for her till about 7.00 p.m.
    but they found no trace of Marita.

            On the following morning, they again started the search and when
    PW-I came near the house of PW-17 Smt. Juliana D'Silva he noticed that
    the small gate of the house was unlocked which was usually locked. He
C   reported this matter to PW-13 Joseph Pereira the brother of PW-17 who
    looked after the house in the absence of PW-17. It is the case of the
    prosecution that PW-17 was a permanent resident of Mumbai and used to
    visit the village occasionally, and in her absence the house was looked after
    by PW-13 her brother, to whom the keys of the house had been entrusted.
D   The appellant is the son of the aforesaid Joseph Pereira PW-13.

            Shortly', thereafter Cami! Pereira PW-9 came and informed him that
    the dead body of Marita was found lying in the bathroom of the house of
    PW-17. Immediately, PW-I went to the said house where many people had
E   gathered. He saw the dead body of his daughter Marita lying in the
    bathroom with cut injuries on her neck and below her left ear. Blood was
    found all over in the bathroom. He also noticed that the gold necklace and
    the ear studs worn by the deceased were missing. The black phstic
    kerosene can was found lying there. PW-13 Joseph Pereira was also present
F   and it is alleged that he told PW-I that on the earlier night his son had come
    with a bandaged hand and on questioning had confessed that he had killed
    Marita.

           PW-19 PSI of the Manipal Police Station on coming to know about
    the incident came to the place of occurrence and recorded the statement
G   ofThobias Pereira PW-I on the basis of which the formal FIR was drawn
    up and a case was registered as Crime No.51 of 1995. The Circle Police
    Inspector of Udupi PW-21 took up investigation of the case and held
    inquest proceeding in the presence of PW-5 Emilia Pereira and one other
    witness. The appellant was arrested, and pursuant to voluntary statement
H   made by him the accused got recovered a pair of gold ear studs (MO-7),
             GILBERT PEREIRA v. STATE [B.P. SINGH, J.)                717

a gold chain (M0-8), a knife (M0-14), nylon bag (M0-13), a plastic can A
with some articles kept in it (MOs-9 to 12). His pant and shirt having blood
stains were also recovered being MOs-15 and 16. The ASP Udupi PW-20
had obtained the post-mortem report and has proved the same. The
informant PW-I and Camil Pereira PW-9 identified the gold ornaments as
those belonging to the deceased. PW- I also identified the other articles B
which he had sent through her to be kept at home.

       As observed earlier no one had witnessed the occurrence in which
Marita had been killed but the prosecution relied upon several circumstances
which according to it conclusively proved the guilt of the appellant. The C
circumstances relied upon by the prosecution were the following:-

        I.   PW- I had sent Marita (deceased) to his house from his
             coconut garden shortly before the incident.

        2.   The accused was seen near the scene of offence in the village
                                                                             D
             shortly after the incident.

        3.    The dead body was found in the bathroom cum lavatory of
             the house of Smt. Juliana D' Silva PW-17 on 7.4.1995.
                                                                             E
        4.   Gold ornaments worn by the deceased were missing when
             her dead body was found lying in the bath room.

        5.   The appellant had an opportunity to gain entry into the house
             and for taking the deceased inside the house.                   F

        6.    The accused was arrested on 7.4.1995.

        7.   The gold ornaments worn by the deceased at the time of her
             death and other incriminating articles were recovered at the G
             instance of the accused.

        8.    Extra-judicial confession of the accused.

        9.    The injuries found on the accused.                             H
    718                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       The trial court on the basis of the medical evidence on record came
  to the conclusion that the death of Marita was homicidal. It also found the
  first circumstance established inasmuch as there was good evidence to
  prove that the informant PW-I had sent his daughter from his coconut
  garden to his house at about 9 .15 a.m. and that the deceased had occasion
B to pass by the road in front of the house of PW-17 in the bathroom of which
  her dead body was found. The second circumstance considered by the trial
  court was with regard to the accused being seen near the place of
  occurrence shortly after the incident. This part of the prosecution case was
  sought to be proved on the basis oftl1e evidence of PW-2 and PW-3. PW-
  2 stated that at about I 0 a.m. when he was coming to his house, on the
C path in front of the house of PW-17 h~ had seen the appellant going towards
  Katapadypete. The statement of PW-2 was recorded shortly after the dead
  body of the deceased was found. PW-3 deposed that at about 10.30 a.m.
  when he was going to the bus stand to catch a bus to Katapadypete he had
  seen the appellant going into the forest. The trial court, finding that there
D was no reason for these witnesses to falsely implicate the applicant,
  accepted their evidence. Their evidence was also consistent inasmuch as
   PW-2 had seen him half an hour earlier in front of the house of PW-17
   while PW-3 had seen him about half an hour later at a distance of about
   1-112 furlongs from the said house. The trial court, therefore, held that the
E second circumstance had also been established by the prosecution.
          The third circumstance related to the finding of the dead body of the
    deceased in the bath room of the house of PW-17 on the morning of 7th
    April, 1995. This fact has been deposed to by several witnesses namely,
F   PWs I, 2, 3, 5, 9, IO, 12, 19 and 21. PW-I is the informant himself who
    had rushed to the place of occurrence on hearing from his brother-in-law
    PW-9. PW-5 is a witness to the inquest report. PW-9 is the brother-in-law
    of the informant who had reported to the informant about the dead body
    found in the house of PW-17. PW-19 and PW-21 are the police officers
    who had reached the place of occurrence on getting the report about the
G   incident. Apart from them, there were other witnesses who had gathered
    at the place of occurrence. PW-I 0 was a witness to the scene of offence
    Panchnama, while PW-12 an Assistant Engineer, PWD had been requested
    by the police to prepare the sketch plan of the place of occurrence which
    he prepared (Ex.P-13). Considering the voluminous evidence on record to
H   prove this circumstance the trial coui1 held that the prosecution had proved
            GILBERT PEREIRA v. STATE [B.P. SINGH, J.]              719

this circumstance as well beyond reasonable doubt.                       A
      The fourth circumstances related to the missing of gold ornaments
which were worn by the deceased at the time of her death. The trial court
found this circumstance proved on the basis of the evidence of PW-I who
stated that when he saw the dead body of his daughter for the first time B
he noticed that her gold chain and ear studs were missing. The recovered
gold ornaments (MOs. 7 and 8) were shown to him which he identified
as those of his daughter.

      The fifth circumstance sought to be established by the prosecution C
was that the appellant had access to the house in question where the dead
body of the deceased was found. According to the prosecution, the owner
of the house PW-17 normally resided at Mumbai and she had, therefore,
left the keys of her house with her brother PW-13. The appellant was the
son of PW-13 and, therefore, had ample opportunity to enter the house
since the keys of the house were kept with his father PW-13. The keys of D
the house were available to him and he could, therefore, enter the house.
The trial court noticed that both PW-17 and her brother PW-13 turned
hostile to the prosecution and did not support the prosecution on vital
aspects of the matter. PW-17 Smt. Juliana D'Silva denied that she had left
the keys of her house with her brother who was requested to take care of E
the premises. She stated that though her house was looked after by her
brother PW-13, she had kept the key of the house with herself. She had
only given to PW-13 the keys of the locks put on the two outer gates of
the house, and not the key of the lock which was put on the main door
of the house.
                                                                         F
     PW-13 also resiled from his statement made in the course of
investigation and stated that the key of the lock which was put on the main
door of the house was with PW-17 and not with him. He admitted that he
had been looking after the house in the absence of PW-17 in the sense that
he had been looking after the coccnut trees and the compound but he did G
not possess the key of the lock put on the main entrance of the house. He
denied the suggestion that on the morning of 7th April, 1995 PW-I had
come to him to inform him that the lock put on the small gate of the
compound was unlocked and that he had gone to the house along with PW-
9 whom he met on the way and found that the lock of the small gate of H
    720                   SUPREME COCRT REPORTS [2004] SUPP. 3 S.C.R.

A the house was missing. He also denied the suggestion that he, thereafter,
  opened the main door of the house and entered the premises and that
  he was surprised as to how the dead body of the deceased was lying
  in the bathroom since the key of the house was with him and except
  for himself and his son, the appellant, no one else could enter the
B house. He also denied having questioned his son who admitted having
  committed the murder of deceased Marita and deprived her of her gold
  ornaments.

         Similarly, PW-17 denied the statement made by her, in her statement
    under Section 161 Cr.P.C. that PW-13 had come to her at about 4 p.m. on
C   9.4.1995 and had wept and told her that his son had committed the murder
    of Marita.

         It is, therefore, apparent from the evidence of PW-13 and PW-17 that
  they contradicted the case of the prosecution that the key of the main door
D of the house had been given by PW-17 to PW-13. So far as the evidence
  of PW-I and PW-9 is concerned, the trial court found that there was no
  consistency between the two versions given by these witnesses. While PW-
   1 stated that he had seen the outer gate of the house unlocked and informed
  PW-9 about it who i!1 turn informed PW-13, according to PW-9, he was
E with PW-1 when they found that the gate of the house was open and he
  went and informed PW-13 about it whereafter they both went to the house
  and opened the main door and found the dead body of the deceased. On
  the other hand, a suggestion was made to PW-13 in the witness box that
  PW-1 had himself come to him and informed him about the missing lock
F and then PW-13 went alone to the house, and on his way met PW-9 who
  also accompanied him to the house and was present when the door was
  opened. These inconsistencies found in the evidence of the aforesaid
  witnesses led the trial court to hold that the prosecution failed to establish
  this circumstance. According to the trial court if PW-13 possessed the key
  of the house, the investigating officer, would have certainly seized the said
G key. Upon such reasoning, the trial court came to the conclusion that the
  fifth circumstance had not been proved beyond reasonable doubt.

         The sixth circumstance related to the arrest of the accused on
    7.4.1995. The trial court found this circumstance established as the
H   evidence clearly proved that he was arrested by PW-21 on 7.4.1995.
             GILBERT PEREIRA v. STATE [B.P. SINGH, J.]               721

      The seventh circumstance related to the recovery of the incriminating A
articles. The trial court considered the evidence of PW-21 the Circle Police
Inspector to whom the appellant made a statement resulting in the recovery
of incriminating articles such as the gold ornaments etc. of the deceased.
In this connection, the trial court also relied upon the evidence of PW-4
the Panch witness and PW-20 as also on the evidence of PW-I I the B
proprietor pf the shop from where the gold chain was recovered at the
instance of the appellant. After considering the evidence of these and other
witnesses the trial court concluded that the prosecution had proved beyond
reasonable doubt that the gold ornaments belonging to the deceased were
recovered at the instance of the appellant pursuant to his voluntary
statement.                                                                 c
     The extra-judicial confession was relied upon by the prosecution as
the eighth eircumstance. However, in view of the fact that both PW-13,
before whom the confession was allegedly made and PW-17, to whom PW-
13 related the matter, became hostile to the prosecution, this circumstance D
could not be proved.

       The ninth circumstance related to the injuries found on the person
of the accused. The trial court noticed the injuries found on the person of
the accused which according to the prosecution may have been sustained E
by him in the scuffle while attempting to kill the deceased. The trial court
considered the evidence of PW-6 Dr. Mahabaleshwar Vaidya and PW-8
Dr. Vishnumoorthi Rao (declared hostile). Dr. Mahabaleshwar Vaidya
PW-6, the medical officer in Government Hospital, Udupi stated that he
had examined the appellant at about 9.15 p.m. on 7.4.1995 when he was F
brought to him by a police constable. The appellant had disclosed to him
that he had suffered the injuries while inflicting injuries with a knife on
the deceased. He found the following injuries on the appellant :-

         "I) Lacerated wound I "x W' x muscle deep obliquely situated
         over the palmar aspect of the right index finger over the junction G
         of the first and second phalanx.

        2) Lacerated wound measuring 2" x Yi" x muscle deep exposing
        the tendons over the proximal phalynx over the palmar aspect of
        the ring finger.                                                H
    722                  SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A           3) Lacerated injury of the size of I- Y2" x Yi" x muscle deep over
            the middle finger at the junction of the proximal and inter
            phalanges.

            4) Partly sutured wound l- 1/i'' long and exposing the underlying
            tendons and muscles at the junction of the first and second
B
            proximal phalanx of the little finger.

             5)-An incised wound measuring %'' x Yi" x skin deep over the left
             hand over the thenar eminence I" below the root of the left
             thumb".
c
        According to him, injuries numbers 2, 3 and 4 were grievous in mture
  and the other injuries were simple. He found injury number 4 to be sutured
  which indicated that the appellant had been treated earlier. He also deposed
  that ifthe accused held the blade of the knife (M0-14) during a scuffie,
D injury Nos. 1 to 4 could have been caused. However, in the wound
  certificate given by him EX.P-9 he had noted that injuries 1 to 4 could be
  caused by a blunt object. The trial court also noticed the evidence of PW-
  8 Dr. Rao to whom it was suggested that the accused had told him at the
  time of examination that he had sustained the injuries while chopping
E tender coconut. This was contradictory to what he is alleged to have stated
  before PW-6 Dr. Vaidya. The trial court further held that according to PW-
  6, the age of the injuries was 12 to 24 hours prior to his examination which
  took place at about 9.15 p.m. on 7.4.1995. If the injuries had been caused
  within 12 to 24 hours prior to the examination, the injuries would have been
F caused between 9.15 p.m. on 6.4.1995 and 9.15 a.m. on 7.4.1995 and not
   between 9.30 a.m. and 10 a.m. on 6.4.1995. The trial court, therefore,
  concluded that the prosecution had failed to prove the circumstance that
  the injuries suffered by the appellant were suffered during the course of
  scuffle with the deceased.

G          It was urged on behalf of the prosecution that the clothes of the
    deceased M.O. Nos. I to 4 had been seized under Inquest Panchnama
    Ex.PS and knife recovered at the instance of the appellant as well as his
    clothes M.O. Nos. 14 to 16 were seized i;ursuant to his voluntary statement
    Ex.P28. The seizures had not been challenged by the defence and since
H   the clothes seized as well as the knife had blood stains on them, they had
                 GILBERT PEREIRA v. STATE [B.P. SINGH, J.)                  723

    been sent for examination by experts. Chemical Examiner's report Ex.P25 A
    and Serologist's report Ex.P26 proved beyond doubt that the blood found
    on all these items were of human origin and were stained with the same
    blood group i.e. AB Group. Since the clothes of the deceased, the cl.othes
•   of the appellant and the knife were found stained with the same blood group
    of human origin it indicated that the accused was in close proximity with B
    the deceased when she was fatally wounded. This itself was a strong
    incriminating circumstance against the appellant. Reliance was placed on
    the decision of this Court in Ashok Kumar v. State (Delhi Administration),
    : [ 1995] Supp. 3 SCC 626. The trial court, however, held that the evidence
    of OW. I Dr. B. Jayaprakash Shetty and his report established that the
    appellant by reason of deformity in both his hands since birth could not C
    hold any object with firm grip with either hand. The Court also observed
    that the appellant had deformity in all the fingers of both hands and,
    therefore, it appeared that he could not possibly hold any object firmly with
    either hand. The appellant had filed an application seeking a direction to
    the Superintendent, District Prison, Mangalore, to produce him before Dr. D
    Jayaprakash Shetty, DW.1 of the District Wenlock Hospital, Mangalore,
    for examination of the deformity in his hands and to submit his report.
    Though this application was opposed by the prosecution, the Court allowed
    the application and direction was issued to the Superintendent, District
    Prison, Mangalore to produce the accused before OW.I, who thereafter E
    examined him and submitted his repo11. Dr. Shetty was examined as OW.I.
    He described the deformity of the fingers of both his hands and in his
    opinion the appellant was not capable of holding any object with firm grip
    with either hand. The deformity was there ever since his birth and,
    therefore, it was unlikely that he could hold a knife with firm grip and cause F
    injuries with it to any person. Based on his evidence the trial court reached
    the conclusion that having regard to the deformity of hands suffered by
    the appellant he could not have committed the murder since that involved
    inflicting of injuries with sufficient force. In view of this finding the trial
    court held that the presumption under Section 114 of the Evidence Act was
    of no avail to the prosecution since the accused was not capable of G
    committing the murder with the knife as alleged. In view of this finding
    it could not be presumed that the accused committed both murder and theft.
    Jn substance the trial court found that the presumption, if any, under
    Section 114 of the Evidence Act stood rebutted by the fact that the
    appellant was incapable of committing the murder with a knife in view of H
    724                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A the deformity of both his hands.

           In view of these findings the trial court acquitted the appellant of
    the offences punishable under Section 302 and 397 !PC giving him the
    benefit of doubt.                                                               •
B
            However, the trial court found the appellant guilty of the offence
    under Section 379 !PC holding that the gold ornaments which were missing
    after the murder of the deceased were recovered at the instance of the
    appellant who was unable to give any plausible explanation as to how he
C   came in possession of the same. The trial comt, therefore, held him guilty
    only of the offence under Section 379 !PC and sentenced the appellant to
    undergo rigorous imprisonment for a period of two years and to pay .:i fine
    of Rs.2,000 , in default to undergo rigorous imprisonment for a further
    period of3 months. The fine, ifrecovered, was directed to be paid to PW.I,
    father of the deceased.
D
          Aggrieved by the judgment and order of the trial court the State of
    Karnataka preferred an appeal before the High Court which was allowed
    by judgment and order dated 30th October, 2002 and the appellant was
    found guilty of the offences punishable under Section 302 and 397 !PC.
E
           To avoid prolixity, it is not necessary to advert to the evidence on
    the basis of which the High Court found the incriminating circumstances
    against the appellant proved by cogent evidence. So far as 6 of the 9
    incriminating circumstances are concerned, the trial court also found in
F   favour of the prosecution. Only in respect of 3 circumstances the trial court
    found that the. prosecution had failed to establish those circumstances
    which provided the missing links in the chain of circumstances sought to
    be proved by the prosecution. The extra judicial confession was discarded
    by the trial court and that finding has not been disturbed by the High Court.
    So far as the concurrent findings are concerned, with the assistance of
G   counsel for the parties, we have perused the relevant evidence on record
    and we find no reason to take a different view. That leaves us to the
    consideration of the two circumstances on which the High Court came to
    a different conclusion and held that those two circumstances also stood
    established. The trial court had also recorded a finding that in view of the
H   physical handicap suffered by the appellant, he was not capable of
             GILBERT PEREIRA v. STATE [B.P. SINGH, J.]                 725

committing the murder as alleged by the prosecution. The High Court A
disagreed with this finding. We shall, therefore, consider the relevant
evidence having a bearing on the findings on which the High Court has
differed from the trial court. We shall also consider the evidence which
relates to the physical handicap suffered by the appellant.
                                                                             B
        The trial court held that the evidence on record did not establish that
the appellant had access to the house in question from where the dead body
of the deceased was found. The trial court was of the view that the evidence
on record was not consistent as to who informed PW. I 3 about the small
gate of the premises remaining unlocked and in what manner the lock of C
the main entrance to the house was opened. PW. I 3, brother of PW-I 7, who
was the owner of the house as well as PW. I 7 in the course of investigation
had supported the prosecution story that PW. I 7 had handed over the keys
of the house to her brother PW- 13 who used to look after her house in her
absence. They resiled from their earlier statements while deposing in Court D
and both of them deposed that only the keys of the outer gates had been
handed over to PW.13 and the key of the lock put on the main entrance
of the house remained with PW. I 7 who resided at Bombay. PW-13 and
PW-I 7 were declared hostile and, therefore, the trial court concluded that
this circumstance had not been established by the prosecution.
                                                                             E
        On the other hand the High Court observed that PWs. 13 and I 7
had turned hostile since PW. 13 was the father of the appellant while PW. I 7
was the sister of PW. 13. There was no evidence to the effect that door of
the house or the lock put on the main entrance had been broken open or
tampered with. Obviously the lock had been opened before gaining entry F
inside the house and this could be done only with the help of a key. This
circumstance, therefore, eloquently supported the case of the prosecution
that the key of the lock put on the main entrance of the house was available,
and the lock had been opened with the key and the dead body found inside
the house. Therefore, the prosecution case- that the key of the lock put on G
the main entrance of the house remained with PW-13 could not be doubted.
Since the appellant was known to the deceased, his acquaintance may have
helped him in persuading her to go inside the house where she was
ultimately murdered. We find ourselves in agreement with the finding
recorded by the High Cou1i. Apa11 from over looking the significant H
    726                   SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A circumstance that the door had been opened by someone, the trial court
    also over-looked the evidence of Cami! Pereira, PW.9 in this regard. So
    far as PW-9 is concerned, there appears no reason to doubt his testimony
    as there is not even an allegation against him that he had any animosity
    towards the accused or his family members. PW-13 and PW-17 have
B thoroughly discredited themselves by turning hostile and, therefore, it may
    not be safe to rely upon their evidence. Their assertion at the trial that the
    key was at Bombay with PW-17 cannot be believed to be true, since the
  assailant had gained entry by opening the lock, and not by breaking it, and
  again locking it before leaving the place of occurrence. Even assuming that
C there was some inconsistency as to who informed PW-13 about the small
  gate remaining open, the evidence of PW-9 is quite clear and convincing
  that he came alongwith PW-13 to the house in question and it was PW-
  13 who opened the lock of the house whereafter they entered the house
  and saw the dead body of the deceased lying in the bath room. He thereafter
D immediately went and informed PW-I, father of the deceased, who also
  came rushing to t_he place where the dead body was found. We are,
  therefore, satisfied that the evidence on record does establish the fact that
  the key of the house was entrusted to PW-13 and the appellant being his
  son had access to the house in question. The circumstances clearly establish
E that the person who committed the murder of the deceased had the key of
  the house with the help of which he entered the house and after committing
  the offence locked the house and went away. In these circumstances there
   appears to be no reason to doubt the testimony of PW-9. The trial court
   completely failed to notice reliable evidence on record as also the very
   significant circumstance that the lock of the door had been opened by the
F assailant and again locked after committing the murder. The trial court
   having overlooked reliable and crucial evidence on record, the High Court
   was justified in setting aside its finding.

            As noticed earlier, the case of the prosecution is that the appellant
G had sustained injuries on his right hand which may have been sustained
    in the scuffle that preceded the murder of the deceased. The trial court took
    the view that the prosecution had miserably failed to establish that the
    arc used sustained the said injuries during the course of the incident, while
    the High Court has held that this circumstance was fully established by the
H   evidence on record.
                GILBERT PEREIRA v. STATE [B.P. SINGH, J.]                727

       The case of the prosecution is that on the date of occurrence i.e. 6th A
April, 1995 the appellant had gone to the clinic of Dr. Rao, PW.8 where
he got his wounds bandaged. After his arrest on 7th April, 1995 he was
sent to Dr. Vaidya, PW.6 , Medical Officer of the Government General
Hospital, Udupi for medical examination.
                                                                                B
       Dr. Rao, PW.8 denied the fact that the appellant had ever visited
him or that he had ever bandaged his injuries. He resiled from his statement
recorded under Section 161 Cr. P.C. and denied the fact that when
questioned by him, the appellant had informed him that he had sustained
those injuries while chopping coconuts.
                                                                                c
       The evidence of PW.6, Dr. Vaidya is to the effect that he examined
the appellant at 9.15 p.m. on 7th April, 1995 when he was produced before
him by a police constable on the request of the Circle Police Officer. The
appellant told him that he had suffered those injuries with the knife while
he was inflicting injuries on the victim. He found the following injuries D
on the person of the appellant.

         "i)    Lacerated wound measuring I x W' and muscle deep
                obliquely situated over the pal mar aspect of the right index
                finger. over the junction of the. first and second injuries.    E

         ii)    Lacerated wound of the size of 2" x Yz" muscle deep
                exposing the tendence over the proximal phalynux over the
                palmar aspect of the ring finger.

         iii)   Lacerated injury of the size of 1 Yz" x W' again muscle deep
                                                                                F
                over the middle finger at the junction of the proximal and
                inter phalyaline.

         iv)     Partly sutured wound 1 Yz" long to which the underly's
                tendence and muscles at the junction of the first and second G
                preveinal of the little finger.

         v)     An incised wound of the size of Yz" x Yz" and skin deep over
                the left hand over the tereon uniness I" below the root of
                the left thumb."                                             H
    728                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A        In his opinion those injuries could be caused by the knife shown to
  him, ifthe appellant had held the blade of that knife in the course of scuffle.
  Injury Nos. 2 to 4 were grievous in nature while other injuries were simple.
  Age of these injuries, according to him, was 12-24 hours before the medical
  examination. The trial court did not accept the case of the prosecution
B holding that PW.8 Dr. Rao was declared hostile and there was nothing to
  show that he was deposing falsely. If he had supported the .:ase of the
  prosecution in the course of investigation, the Investigating Officer could
  have got a 'wound certificate' from him and confronted him with that
  certificate. So far as the opinion of Dr. Vaiyda, PW.6 is concerned, the trial
  court held that his opinion was not acceptable because in the wound
C certificate issued by him he had mentioned that the injuries could be caused
  by a hard blunt substance. Moreover ifthe injuries were caused 12-24 hours
  before the examination of the accused by him, the injuries could have been
  caused between 9.15 p.m. on 6th April, 1995 and 9.15 a.m. on 7th April,
  1995, while the case of the prosecution is that the injuries were caused at
D about 9.30 or 10.30 a.m. on 6th April, 1995.

         The High Court on the other hand, after noticing the evidence of these
    two doctors, held that PW.8. who had been declared hostile was not
    speaking the truth. It was not denied by the defence that when the appellant
E   was examined by Dr. Vaidya, PW.6 injury No.4 was found to be a sutured
    wound, which proved that the appellant had received medical aid before
    he was produced before Dr. Vaiyda, PW.6. Moreover it was for the
    appellant to explain the injuries found on his person and no explanation
    has been offered by the appellant in this regard.

F
          Having considered the evidence on record and the reasons recorded
    by the trial court as well as the High Court, we find ourselves in agreement
    with the finding recorded by the High Court. The incriminating circumstance
    sought to be proved by the prosecution was that soon after the occurrence
    injuries were found on the person of the appellant, which was indicative
G   of the fact that in the course of scuffle preceding the murder of the
    deceased, he may have sustained those injuries. This circumstance, if
    proved, buttresses the case of the prosecution by adding one more
    circumstance to the chain of incriminating circumstances proved against
    the accused. It was not possible for the prosecution to give the details of
H   the occunence in which the injuries were caused and the manner in which
            GILBERT PEREIRA v. STATE [B.P. SINGH, J.]               729

they were caused, simply because there was no witness to the occurrence. A
The prosecution could only establish as an incriminating circumstance the
fact that the appellant was found to have sustained injuries which may have
been sustained in the course of the same occurrence, and this circumstance
had to be considered alongwith other circumstances proved at the trial
This circumstance at best provided an additional link in the chain of B
incriminating circumstances pointing to the guilt of the appellant.

      What, however, is very significant is the fact that the appellant has
offered no explanation whatsoever as to how he came to sustain those
injuries. That fact being within his special knowledge, it was incumbent C
upon him to explain those injuries. Not only that he did not offer any
explanation for the injuries, even when questions were put to him in his
examination under Section 313 Cr. P.C. relating to those injuries, he only
offered a general denial. In these circumstances we are persuaded to hold
that the prosecution has proved as an incriminating circumstance the fact
that the appellant when arrested on the next day was found to have D
sustained several injuries on his right hand which may have been sustained
by him in the course of the occurrence when resistance was offered by the
victim. In any event he offered no explanation as to how he came to suffer
those injuries. Of course this circumstance by itself does not conclusively
prove his complicity, but this circumstance has to be considered alongwith E
other incriminating circumstances proved on the basis of the evidence on
record.

        Another circumstance which is worth noticing at this stage is that
during the course of investigation the clothes of the deceased were seized F
under Inquest Panchnama Ex.8 and marked M.O. Nos. I to 4. Similarly
the knife in question had been recovered and seized at the instance of the
accused. His clothes were also seized. These items were sent for chemical
examination. Ex.P25 and P26 the Chemical Examiner's Report and
Serologist's Report respectively are to the effect that the blood found on
all these articles was human blood of AB Group.                            G

       It is evident from the evidence of PW7 Dr. Naik that the sample
blood of the accused was examined and it was found that the blood group
of the appellant was A+. Obviously, therefore, the blood found on the
clothes of the deceased, the weapon of offence and the clothes of the H
    730                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A appellant must have been the blood of the deceased. It therefore, follows
  that the accused was in close proximity with the deceased when she was
  fatally wounded. It was faintly urged before us by the counsel appearing
  for the appellant that the appellant did not kill the deceased and sought
  to explain the blood stains on his clothes saying that while snatching
B the ornaments from the deceased his clothes may have got stained with
  her blood, even though he did not actually kill the deceased. It is
  not possible for us to accept the above explanation in the facts and
  circumstances of this case. In any event no such explanation was offered
  by the appellant.

c           The trial court, even though it found many of the circumstances
    proved against the appellant, rejected the prosecution case on the ground
    that having regard to the physical handicap suffered by the appellant, he
    could not have committed the offence which involved holding a knife in
    his hands and stabbing the deceased with the use of sufficient force. For
D   this, reliance was placed on the evidence of OW.I, Dr. Shetty. As we have
    noticed earlier Dr. Shetty, OW.I was examined on the request of the
    counsel for the appellant, though the prayer was opposed by the prosecution.
    It is not possible for us to conjecture as to why the appellant particularly
    sought permission to examine Dr. Shetty, OW.I as a defence witness. It
E   is not his case that he was being regularly treated by Dr. Shetty or that at
    any time before the occurrence he was medically examined by him.

         Dr. Shetty stated that he had examined the appellant on 14th August,
    1996 when he was sent to him by the Superintendent, District Prison,
F   Mangalore pursuant to the direction of the Court. On examination of the
    accused he noticed the following :-

             "I.   On the right hand there is swan neck deformity of fingers
                   with the hyper extension of PIP and DIP (Proximal inter
                   phalengeal joint and Distal inter phalangeal joints).
G
             2.    He has less power of grip and pinch of grade II.

             3.    He has the absence of terminal phalinx of all the fingers with
                                                                                    •
                   deformity of residual power of grip of Grade II and with no
H                  pinch.
             GILBERT PEREIRA v. STATE (B.P. SINGH, J.]                  731

              With the above condition, the accused Gilbert Pereira is not A
              capable of holding any object with firm grip with his either
              hand."

        He referred to report Ex.D.4 where he had mentioned his above
observations. In his opinion having regard to the deformity in both hands B
of the appellant since his birth, it was quite unlikely that the appellant could
hold a knife like weapon with firm grip and cause any injury with it on
any person. This witness was shown the post-mortem report Ex.P.15. He
opined that injury Nos. I & 2 mentioned in that report could not have been
caused by the appellant holding the knife MO No.14 and assaulting the
deceased with it. The reason given by him was that for inflicting those C
injuries the knife had to be hit against the victim with sufficient force which
the accused could not do by reason of deformity in his hands. He, however,
admitted that the accused was capable of causing injury No.3 by assaulting
the deceased with the knife MO No.14. He denied the suggestion that it
was possible for the appellant to cause injury Nos. l & 2 by assaulting the D
deceased with the knife MO No.14 holding the same in his right hand. He,
however, stated that the accused was capable of writing and signing his
name holding a pen. The muscle power of the accused was Grade-II. The
accused could take his meals holding a spoon.
                                                                              E
        We may also notice the evidence of Dr. Vaidya, PW.6 who had
examined the appellant on the very next day of the occurrence. He deposed
that he had found injuries on the right hand of the appellant on its palmer
aspect. He also found that one of the injuries was sutured and, therefore,
it appeared that the appellant had been examined earlier by a medical F
practitioner. He had also seen the deformity in all the four fingers of the
left hand of the accused except the thumb. The left great toe was absent.
There was wasting of muscles in the left toe. In his opinion as well, the
appellant could not hold any object with his left hand by reason of
deformity of his fingers.
                                                                              G
       The trial court on the request of counsel for the appellant during
the course of arguments observed the fingers of both the hands of the
accused. It noticed that the accused had deformity in all the fingers in both
the hands. The accused had then submitted that he had been suffering this
deformity since ,his birth.                                                   H
    732                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A         It appears that the High Court as well observed the defonnity
  suffered by the appellant in both his hands for which he was required to
  appear before the High Court. The High Court noticed that all the fingers
  of the left hand including the thumb are not properly formed and the defect
  appears to be since birth. As far as the right hand is concerned his thumb
B and the index finger were sufficiently strong though the other fingers did
  not appear to be very strong. The appellant had told the Court that he had
  been eating food with a spoon holding the spoon in his right hand. The
  High Court also noticed that his anns were strong and he was physically
  and mentally sound and was a young man aged about 20 years on the date
C of occurrence. Except for the fingers he was otherwise physically fit.
           The trial court concluded that there was no reason to disbelieve the
    evidence of OW. I. His definite opinion was that with the defonnity of his
    hands suffered by the appellant since birth, he could not hold any object
    with firm grip with either hand and, therefore, injury Nos. I and 2
D   mentioned in the post-mortem report could not have been caused by him
    by using a knife. The trial court, therefore, held that the appellant could
    not have committed the murder of the deceased.

           The High Court, on the other hand, has considered the evidence on
E record and made its own observations regarding the physical handicap
  suffered by the appellant. It noticed that though PW.6 had examined the
  appellant only a day after the occurrence, and though the said doctor was
  cross-examined at length, no question was put to him in the c;·oss-
  examination with regard to the defonnity suffered by the appellant in his
F right hand and his ability to hold the knife or any other object in his right
  hand. It was not even suggested to Dr. Vaiyda, PW.6 that the appellant
  could not hold the knife in his right hand and cause injuries to the deceased.
  The High Court concluded that it was not possible to agree with the finding
  of the trial court and to hold that the appellant was incapable of causing
  the injuries found on the person of the deceased. So far as injury No.3 is
G concerned, even OW.I admitted that such an injury could be caused by
  the appellant using the knife MO No.14. He also stated that the appellant
  could write and sign holding a pen. The appellant could also take his meals
  by holding a spoon. His muscle power was of Grade-II. In view of these
  facts the High Court found that the view taken by the trial court that
H because the appellant had no firm grip, it was not possible for him to stab
             GILBERT PEREIRA v. STATE [B.P. SINGH, J.)                733

the deceased with the knife MO No.14, was palpably wrong. We find A
ourselves in agreement with the High Court, even keeping aside the
personal observations made by it.

        It is no doubt true that the appellant is a physically challenged
person inasmuch as he suffers from deformity of fingers in both the hands. B
So far as the arms are concerned, there is no abnormality and, therefore,
he is fully capable of using his arms like any other normal person. The fact
that he is not capable of holding any object with firm grip with either of
his hands does not mean that he cannot hold a knife atleast in his right hand.
As noticed by the High Court his right thumb and index finger are C
sufficiently strong. The evidence on record also proves that he can write
with his hand holding a pen. He can also take his meals holding a spoon.
Even according to DW.l he was capable of causing injury No.3 as
mentioned in the post-mortem report by assaulting the victim with the knife
M0.14. If it is possible "for the appellant to do all these things, one fails
to understand why he could not have caused injuries 1 & 2 found on the D
person of the deceased. It is common experience that physically challenged
persons since birth, as of necessity, improvise their own methods of doing
things very much in the same manner as a normal person does. Having
regard to the evidence on record we have no doubt that he must have
committed the offence. The circumstances found proved against him E
conclusively establish that he must have committed the offence. As against
that his defence that he was physically challenged and, therefore, not in
a position to cause the injuries is unbelievable. The circumstances are so
telling that even the trial court which placed implicit reliance on the
evidence of DW-1 felt compelled to hold that the appellant must have F
snatched the ornaments from the deceased, though he may not have
committed the murder. These ornaments were later recovered at the
instance of the appellant which is a strong circumstance to prove his
complictty.

        Though, in our opm10n, the circumstances proved against the G
appellant are conclusive in nature, being consistent only with the hypothesis
of his guilt, we may observe that once his defence that he was not capable
of committing the offence on account of the physical handicap suffered by
him is rejected, the presumption under Section 114 of the Evidence Act
can also be drawn. In the instant case, the evidence discloses that only a H
    734                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A few hours after the occurrence, the appellant sold the gold chain to PW-
  11, from whose custody the gold chain was recovered only 4 days later
  at the instance of the appellant, who had no explanation to offer as to how
  he came in possession of the gold chain belonging to the deceased. The
  presumption therefore arises that the appellant was the culprit who
B removed the gold chain from the person of the deceased. This presumption
  coupled with the other circumstances adverted to above especially the
  unexplained injuries on the hand of the accused and the blood of same
  group being found on the clothes of deceased as well as accused, gives rise
  to further presumption that the removal of gold ornament and the fatal
C attack on the deceased should have taken place as part of the same
  transaction.

         We are, therefore, of the view that the incriminating circumstances
    proved against the appellant form a complete chain of circumstances which
    is consistent only with the hypothesis of guilt of the appellant. Each
D   circumstance is incriminating in nature and the totality of circumstances
    conclusively establish the guilt of the appellant. We, therefore, find no
    merit in this appeal and the same is accordingly dismissed.

    v.s.s.                                                 Appeal dismissed.