# GILBERT PEREIRA v. ST A TE OF KARNA T AKA

- **Citation:** [2004] Supp. 3 S.C.R. 711
- **Court:** Supreme Court of India
- **Decided:** 2004-08-24
- **Case number:** Criminal Appeal No. G 1s2 of 2003
- **Bench:** P. Venka T Arama Redd!, B.P .. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gilbert-pereira-v-st-a-te-of-karna-t-aka-20004
- **Pages:** 24

## Headnote

B
Penal Code, 1860:
Sections 302 and 397-Murder-Robbery or dacoity-Circumstantial
evidence-Murder of a young girl and robbing her of her 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 of offence
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 accusedAccused 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 of fingers 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
c
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.
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
E
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+.
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.
G
Dismissing the appeal, the Court
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

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GILBERT PEREIRA
A
v.
ST A TE OF KARNA T AKA
AUGUST 24, 2004
[P. VENKA T ARAMA REDD! AND B.P .. SINGH, JJ.]
B
Penal Code, 1860:
Sections 302 and 397-Murder-Robbery or dacoity-Circumstantial
evidence-Murder of a young girl and robbing her of her 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 of offence
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 accusedAccused 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 of fingers 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
c
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.
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
E
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+.
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.
G
Dismissing the appeal, the Court
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.
3.
The accused was seen near the scene of offence in the village
shortly after the incident.
The dead body was found in the bathroom cum lavatory of
the house of Smt. Juliana D' Silva PW-17 on 7.4.1995.
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.
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
instance of the accused.
8.
Extra-judicial confession of the accused.
9.
The injuries found on the accused.
D
E
F
G
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. PW2 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 PW9 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 PW1 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 c
statement.
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 PW13 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
A
B
c
722
SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.
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
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".
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 PW8 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 PW6, 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.
B
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.
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 3 79 !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
E
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.
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 PW13 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
F
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
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.
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.
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
B
c
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)
iii)
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.
Lacerated injury of the size of 1 Yz" x W' again muscle deep
over the middle finger at the junction of the proximal and
inter phalyaline.
F
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.