Sema, J. -
(1.)Four appellants-Anthony Dsouza, Anil Kumar alias Anil Dsouza, Seril Dsouza and George Dsouza alias Babli were tried by the Additional Sessions Judge, Chickmagalur and convicted for the offences under Section 143, I. P. C. Section 396 read with 149, I. P. C. and Section 201 read with 149, I. P. C. and sentenced to undergo S. I. for six months for the offence under Section 143, I. P. C. rigorous imprisonment for life for the offence under Section 396 read with Section 149, I. P. C. and a fine of Rs. 5,000/- each. In default of payment of fine SI for three months and to undergo two years RI and to pay a fine of Rs. 2,000/- each for the offence under Section 201 read with Section 149, I. P. C. and in default of payment of fine, SI for three months. All the substantive sentences were ordered to run concurrently. On appeal their conviction and sentence is confirmed by the High Court. Hence the present appeal.
(2.)Briefly stated facts are as follows :
Deceased Vittal Shetty and Paul were employed as driver and cleaner in a lorry bearing Registration No. CNO 8928 belonging to Kiran Transport Company owned by PW-5 Sri Castelino and his son PW-16 Kiran Castelino. On 17-2-1992, PWs. 5 and 16 had sent the lorry driven by substituted driver PW-15 Puttumonu along with deceased Paul to Penambur to take delivery of 200 bags of Mangala Urea from its factory to be taken to Mysore Coffee Curing Works at Balehonnur. PW-9 Balakrishna was the clerk of Venkatadri Transport Company which has a office by the side of Mangalore Chemical Fertilizer Factory, got the fertilizer bags loaded between 11.30 a.m. to 3.30 p.m. After handing over necessary documents including the delivery note, the driver and the cleaner left for Mangalore. Sometime at about 5.00 p.m. the regular driver deceased Vittal Shetty reported back to his duty and he was asked by PW-5 to proceed to Balehonnur with the loaded lorry of fertilizer bags. Deceased driver along with his cleaner deceased Paul then proceeded towards Balahonnur at about 7.30 p.m. on 17-2-1992. It is stated that at about 1.30 in the night both the deceased halted the lorry at Kottigehara at Bharath Hotel run by one Ibrahim PW-12 for taking tea. When both the deceased were about to leave along with the lorry, it is stated that all the four appellants along with one juvenile offender boarded the truck after some talk and left Kottigehara. Since then nothing has been heard about the truck or the driver. It is only on 18-2-1992, one Parswanatha Jain PW-1, a resident of Jenugudde village receives information of finding a dead body in a culvert. He booked a trunk call to the police at Balehonnur Police Station. On receipt of phone message, SHO of Balehonnur Police Station proceeded to the Jenugudde along with the staff and observed some injuries on the dead body. He came back to the police station and suo motu registered a case in Crime No. 16/92 for the offence under Section 302, I. P. C. against an unknown offender. Thereafter, the investigation is taken over by Mallikarjunappa PW-33, the PSI of Balehonnur Police Station. In course of investigation, the prosecution examined as many as 36 witnesses and finding a prima facie case, challan was filed against the appellants. Admittedly, there is no direct eye witness and the prosecution case rests entirely on circumstantial evidence. The prosecution relied on the following circumstantial evidence :- (a) On 18-2-1992 at about 9.15 a.m. the four appellants along with juvenile offender went to Belagodu Primary Health Unit and informed Gangadhariah PW-17 who was a Group "D" employee, that they were injured in a lorry accident and asked for immediate medical treatment. On noticing the serious injuries on one of the accused, PW-17 directed them to go to Sakleshpur General Hospital.
(b) The appellants then went to a Coffee Estate run by Rafiq Ahmed PW-27 at Belagodu and sought his assistance to go to Sakleshpur. PW-27 noticed the condition of the injured and contacted his relative at Sakleshpur to arrange a taxi so as to provide transportation to the injured to Belagodu.
(c) PW-30 Feroze Khan the owner of taxi was engaged and sent to Belagodu being driven by himself. PW-30 took the injured to Government Hospital. Sakleshpur and received his taxi charges of Rs. 60/- from the accused.
(d) At Government Hospital Sakleshpur, the injured disclosed their names as J. Dsouza s/o. Joseph, Anil S/o. Joseph, Manjunatha (Juvenile Offender) to the Medical Officer Dr. Prakash Inamdar PW-28. They also informed PW-28 that they sustained injuries in a truck accident near Belagodu village on 18-2-1992.
(e) PW-28 made necessary entries in the Medico-Legal case registered vide Ex. P. 32(a)(b) and (c) at pages 243 and 244 of the register. The doctor also noticed serious injuries on the person called J. Dsouza. He accordingly advised them to go to a major hospital at Mangalore.
(f) The accused went to the taxi stand and again met PW-30 and engaged his taxi to take them to Mangalore. The taxi of PW-30 went out of order near Uppinangadi and PW-30 asked them to engage another vehicle. Accused did not have enough money for paying the full charges. They paid Rs. 200/- in addition to one wrist watch worn by one of them. They, however, promised PW-30 that they would come back and pay the balance and take back the wrist watch after about three or four days.
(g) The accused on reaching Mangalore after engaging another vehicle, two of them went to Wenlock Hospital at about 4.00 p.m. and Dr. Vasanth Kumar, PW-26 treated them. Doctor noticed one of the injured persons, named as George Dsouza, was serious accompanied by another injured named Sunil (later established as Anil). They also told the doctor that they had received injuries in a road accident. Doctor entered the same in the Medico-Legal Case Register and sent the MLC to the jurisdictional police.
(h) On 18-2-1992 at about 5.40 p.m. PW-35 Vasudeva ASI and SHO of Mangalore South Police Station went to the hospital and noticed that one of the injured was in a serious condition and others with simple injuries were able to talk. He recorded the statement of able injured who disclosed his name as Sunil Fernandis and that of seriously injured as George Dsouza. He also told PW-35 that they sustained injuries in the motor accident near Belagodu. He has recorded the statement vide Ex. P. 49 and also registered a case in Crime No. 57/92 for the offences under Sections 279 and 337, I. P. C. against the unknown lorry driver. PW-35 having noticed that the accident had taken place within the jurisdiction of Sakleshpur Police Station transferred the case to the jurisdictional police.
(i) The case was then re-registered in crime No. 25/92 at Sakleshpur Rural Police Station and PW-32 located the lorry bearing registration No. CNO 8928 and from the lorry he found out that it belongs to PWs 5 and 16 and contacted them over the phone intimating them that the lorry had met with an accident near Belagodu village and three persons named George, Anil and Manjunath had received injuries in the accident and that they were being treated at Wenlock Hospital at Mangalore.
(j) On receipt of the information PWs 5 and 16 went to Wenlock Hospital and on inquiry came to know that the injured got themselves discharged against the advice of the doctor PW-26 and gone to KMC Hospital, Bijai. In KMC Hospital, they found that one injured person by name George was serious and was admitted in Intensive Care Unit and unable to talk. PW-5 left behind PW-16 to get the particulars.
(k) Sometime in the evening PW-16 noticed that three persons along with a young boy came to the KMC Hospital, Bijai and when the three persons went to ICU leaving behind the boy, PW-16 out of curiosity made enquiry and learnt from the boy that all the three persons and the juvenile were injured in the lorry which met with an accident at Belagodu. The boy further alleged to have revealed that he was working as a coolie and on 17-2-1992 the four accused brought him to hotel at Kottigehera at about midnight. When the lorry stopped at the hotel they requested the driver to take them as passengers. All of them sat in the cabin and after going some distance one of them got the lorry stopped on the pretext of attending calls of nature and then Anil (A-2) tried to strangulate the driver with a plastic rope and when the driver and the cleaner tried to run away they were hit with the wooden block called as Katte and killed both of them. The boy further alleged to have revealed that after taking the money from the person of the driver as well as the wrist watch accused (A-1) and other took the vehicle towards the forest in order to dispose of the dead bodies. The boy further alleged to have disclosed that when they kept the body of the driver in a culvert near Jenugudde and before they could dispose of the body of the cleaner in the same way they heard the sound of approaching vehicle and they proceeded ahead in the lorry and thereafter the body of cleaner was also kept under a culvert. The boy further alleged to have disclosed that thereafter the lorry was driven to the estate of one Rajegowda PW-13 and after unloading the fertilizer bags, while they were proceeding towards Belagodu, the lorry met with an accident and all of them got injured.
(3.)This is how the accused were roped in with the crime by the circumstances as recited above.