JUDGMENT Being aggrieved by the judgment of conviction and sentence dated 28-5-2002 passed by the learned Sessions Judge, Bangalore in S.C. No. 279 of 2001 finding the accused guilty of the offence under Sections 302, 363 and 201, IPC, the present appeal is filed. 2. The brief facts according to the prosecution giving rise to the present appeal are as follows: P.W. I-H. Jayaram and his wife Bhagyamma-P.W. 2, were residents of Bangalore. P.W. 1 is an autorickshaw driver by profession. According to the prosecution, the accused Kumar was also an autorickshaw driver and as such, P.W. 1 knew him very well. The couple-P.Ws. 1 and 2 had three children, out of whom, the victim Shwetha was aged three years at the relevant point of time. According to the prosecution, on 30-6-1993 as there was festival in the house of P.W. 1's mother, while he was taking Shwetha to his mother's house at Gayathrinagar, on the way, the accused met P.W. 1 and requested him to give drop till Gayathrinagar as he was proceeding to Gayathrinagar. As they were acquainted, it is alleged that P.W. 1 agreed to take him up to the house of his mother. It is alleged that at that time, the deceased Shwetha was wearing a pair of gold ear stud and a pair of silver leg chain. 3. According to the prosecution, when P.W. 1 stopped his autorickshaw in front of his mother's house in Gayathrinagar and went inside for some time, the accused took away the child from the autorickshaw and disappeared. As the accused was well-acquainted, after waiting for sometime, P.W. 1 goes to the jurisdictional police, lodges a missing complaint and only during their search comes to know from a neighbour P.W. 9-Jayamma that the accused was seen taking the girl from autorickshaw and going away. As such, having waited for sometime, as the needle of suspicion fell on the accused, P.W. 1 again goes to the jurisdictional police on the next day around 11.00 a.m. and points out his suspicion towards the accused in the disappearance of his daughter. P.W. 8-N.T. Athwart Narayana, PSI on duty, on the basis of the said statement, registers a case in Cr. No. 199/93 for the offence under Section 363, IPC against the accused and investigation is taken up. P.W. 8-N.T. Athwart Narayana, PSI on duty, on the basis of the said statement, registers a case in Cr. No. 199/93 for the offence under Section 363, IPC against the accused and investigation is taken up. Unfortunately, neither the accused nor the victim Shwetha are traced almost for a period of eight years and only on 17-1-2001 when the accused is seen and apprehended by the police, he is interrogated. On interrogation, the accused is alleged to have been made voluntary statement, admissible portion of which is marked as per Ex. P. 9. The same discloses that he had in fact kidnapped the child for taking away the gold and silver ornaments and after he removed the ornaments from the child by taking her to a remote place, when the child started crying, he hit her and unfortunately, it resulted in her death. Thereafter, I according to the prosecution, the accused stashed the body in a drainage and then pledged the articles with a pawn-broker on 1-7-1993. As this admissible portion was pointing towards the discovery of facts as well as the conduct of the accused, the police investigated in that line. The police and the mahazar witnesses are led by the accused to the pawn-broker shop of P.W. 6-Jaychand. As almost eight years had elapsed, by that time the pawn-broker as per the licence condition had already disposed of the ornaments pledged. However, he produced the necessary registers showing that on 1-7-1993, a person by name Kumar S/o. Rama Rao, resident of Mysore Road had pledged a pair of ear stud and a pair of silver leg chain for Rs. 250. The police took out a Xerox copy of the register maintained by P. W. 6. In spite of search, the body is not traced and ultimately, on completion of investigation, charge-sheet is filed against the accused for the offence under Sections 363, 302 and 201, IPC. 4. As the accused denied the charges and claimed to be tried, he is tried in S.C. No. 279/2001. In order to establish the guilt of the accused, the prosecution has relied upon the evidence of 11 witnesses and on exhibits P. 1 to P. 13. Total denial appears to be the defence version as is apparent from answers given under Section 313, Cr. P.C. No witnesses have been examined on behalf of the accused. However, the accused had got marked Ex. Total denial appears to be the defence version as is apparent from answers given under Section 313, Cr. P.C. No witnesses have been examined on behalf of the accused. However, the accused had got marked Ex. D. 1, a portion from the statement of P.W. 9. As already noted, the Trial Court, on appreciation of the entire evidence found the accused guilty on all the counts and sentenced him accordingly. Hence, the present appeal. 5. As the accused had filed the appeal as an indigent person through jail, this Court had requested Sri Muralidhar, learned Counsel to assist the Court as Amicus Curiae and argue the matter on behalf of the appellant. 6. We have heard Sri Muralidhar, learned Amicus Curiae and Sri N. Rudramuni, learned Government Advocate appearing for the State and perused the entire evidence. 7. This is a most peculiar case wherein neither the corpus of victim Shwetha is recovered nor the pledged ornaments. However, as noted by the Apex Court as long back as in the year 1981 in the case of Rama Nand and Others v State of Himachal Pradesh1, that where the dead body of a victim in a murder case is not found, other cogent and satisfactory proof can be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. The corpus delicti or the fact of homicidal death, therefore can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. In the case of Sevaka Perumal v State of Tamil Nadu1, it is laid down that "in a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. Corpus delicti in some cases may not be possible to be traced or recovered. In the case of Sevaka Perumal v State of Tamil Nadu1, it is laid down that "in a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. Corpus delicti in some cases may not be possible to be traced or recovered. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced". Keeping in view these principles as well as the other guidelines principles so far as appreciation of evidence of circumstantial in nature right from the case of Bhggat Ram v State of Punjab2; Bakshish Singh v State of Punjab3 and Ram Das v State of Maharashtra4 and the most important judgment in the case of Gambhir v State of Maharashtra5, wherein three tests for the appreciation of evidence by the Court are laid down. These tests are as follows: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else". 8. We have reconsidered and reappreciated the entire evidence. Out of the 11 witnesses examined by the prosecution, P. Ws. 1 and 2 are the parents of the victim Shwetha. P.W. 3 is paternal uncle of Shwetha and P.W. 4 is P.W. 3's wife, P.W. 9-Jayamma is a neighbour who is an important circumstantial witness along with P.W. 6-Jaychand a pawn-broker. P.W. 5 is a mahazar witness and P. Ws. 7,8, 10 and 11 are the members of the investigation team. 9. On perusal of the entire prosecution case and the evidence led in its support, the following circumstances have been projected by the prosecution to link or connect the accused in the disappearance of Shwetha, hardly three years innocent child of P. Ws. 1 and 2. The circumstances are: (1) The accused and P. Ws. 1 and 2 were well-acquainted. 9. On perusal of the entire prosecution case and the evidence led in its support, the following circumstances have been projected by the prosecution to link or connect the accused in the disappearance of Shwetha, hardly three years innocent child of P. Ws. 1 and 2. The circumstances are: (1) The accused and P. Ws. 1 and 2 were well-acquainted. The accused was also an autorickshaw driver as P.W. 1; (2) On 30-6-1993 at about 7.00 p.m. while P.W. 1 and his daughter Shwetha were proceeding towards Gayathrinagar, on the way, the accused sought drop from P.W. 1 and as such accompanied P.W. 1, the victim Shwetha in the autorickshaw upto Gayathrinagar i.e., till the house of P.W. l’s mother; (3) At Gayathrinagar, when P.W. 1 stopped the autorickshaw in front of the house of P.W. 1 leaving Shwetha in autorickshaw in the company of the accused, within short time saw the disappearance of the accused and Shwetha; (4) Shwetha on that day was wearing a pair of gold ear stud and a pair of silver leg chain as it was a festival day for P.W. 1 and in fact for that purpose, he was taking the child to the house of his mother; (5) After the arrest of the accused on 17-1-2001, he was interrogated and volunteered to show the place, whereafter taking the gold and silver ornaments from Shwetha, slapped and killed her and later stashed her body in a open flowing mori. He also pointed out the place where he had pledged the gold ornaments; and (6) Last but not the least, the total silence of the accused or his conduct. 10. So far as the first circumstance, namely, the accused and P. Ws. 1 and 2 and the child were acquainted with each other, we have the evidence of not only the parents, but also the uncle and aunt of the victim, viz., P. Ws. 3 and 4. After careful scrutiny of their evidence and more importantly, the searching cross-examination of these witnesses, we do not find any iota of evidence to suspect these persons having any grudge or remote ill-will towards the accused so as to falsely implicate him with the crime in question. All these witnesses have cogently, consistently and repeatedly spoken about the acquaintance of the accused with P. Ws. All these witnesses have cogently, consistently and repeatedly spoken about the acquaintance of the accused with P. Ws. 1 and 2 and also with the child as he was often accompanying P.W. 1 to the house. 11. The case of the prosecution does not stop here. So far as the date of the incident is concerned, namely 30-6-1993, after the accused accompanied P.W. 1 and the victim child in the auto rickshaw up to Gayathrinagar, neighbour P.W. 9-Jayamma had seen them. So also, she had noticed when P.W. 1 went inside his mother's house, the accused carrying the child away from the place where the autorickshaw was parked. It is thereafter, the victim is not seen till date. Here again, it is to be noted that P.W. 9 is totally unbiased, uninterested witness, in the sense, absolutely she had no grudge or ill-will to falsely implicate the presence of the accused or his act of taking away the child from the autorickshaw parked in front of the house of P.W. 1's mother. All these witnesses have specifically identified the accused before the Court as the person present on that day. In the absence of any contra-indicative material, we have to hold that the prosecution has succeeded in showing that it was the accused who accompanied P.W. 1 along with Shwetha, three years old child of P.W. 1 upto the house of P.W. l's mother at Gayathrinagar and was seen taking away the child, which thereafter not seen alive or dead. 12. This takes us to the next circumstance, namely, the arrest of the accused and his giving voluntary statement leading to the discovery of certain facts. The investigating officer has stated that the accused was arrested on 17-1-2001 and after his interrogation he volunteered to show the place where he had taken away the ornaments of Shwetha and when she started crying, gave her slap and because of which the child died and then stashed her body in a flowing mori. This voluntary statement, admissible portion of which is marked as per Exhibit P. 9. Thereafter, the investigation officer led by the accused and independent mahazar witness P.W. 5 have been taken to the place, including drainage (mori) where the dead body of Shwetha was stashed. But her body was not found, possibly due to flowing water and lapse of almost eight years from the date of the incident. 13. Thereafter, the investigation officer led by the accused and independent mahazar witness P.W. 5 have been taken to the place, including drainage (mori) where the dead body of Shwetha was stashed. But her body was not found, possibly due to flowing water and lapse of almost eight years from the date of the incident. 13. However, the most incriminating disclosure of the accused admissible under Section 27 of the Indian Evidence Act, 1872 is his leading the police to the pawn-broker shop of P.W. 6-Jaychand to show that immediately after robbing and after the death of Shwetha, the accused pledged the ear studs and the silver leg chains with P.W. 6. The evidence of P.W. 6 is very material. It is to be noticed that as by the time accused made voluntary statement leading to the discovery of the shop of P.W. 6 where the gold and silver ornaments of Shwetha had been pledged almost eight years had lapsed, according to P.W. 6, as was his normal practice, after three years of pledging, when the ornaments are not redeemed, they would be auctioned by issuing of public notice. In this regard, P.W. 6 had produced the register maintained to show the entry dated 1-7-1993, on which date one Kumar S/o. Rama Rao, Mysore Road (the name of the accused tallies with the name in the register) had pledged a pair of gold ear stud and a pair of silver leg chain and later the same came to be auctioned after issuing public notice. Thus, though the articles worn by the child Shwetha are not recovered due to time lapse, the fact that they were in fact pledged by the accused on 1-7-1993, i.e., on the day next to the alleged disappearance of Shwetha has an important bearing on the case on hand. The fact of ornaments being pledged, pointing to the shop of P.W. 6 where they were, and the evidence of P.W. 6 along with pledge Register, Ex. P. 12 can be attributed only to the knowledge of the accused and later, discovery of these facts. This evidence in our view is acceptable under Section 27 of the Indian Evidence Act, 1872. P. 12 can be attributed only to the knowledge of the accused and later, discovery of these facts. This evidence in our view is acceptable under Section 27 of the Indian Evidence Act, 1872. Once these circumstances are found by this Court, even on reappreciation as acceptable and true, the Court would next look forward to the accused as to whether he has any explanation to offer to explain the incriminating circumstances pointed out. It is to be noted that except denial of the prosecution case, the accused has not come out with any explanation either by way of cross-examination to the independent unbiased witnesses and also while he had the last opportunity to explain while being questioned under Section 313, Cr. P.C. This silence or denial of the entire prosecution case as merely false as laid down by the Apex Court in the case of Joseph v State of Kerala1, furnishes the additional link to make the entire chain of circumstances complete. 14. Thus, on appreciation of the entire evidence, we find that in the absence of corpus delicti, the prosecution has succeeded in showing that it was the accused and the accused alone, who took away the child Shwetha, daughter of P. Ws. 1 and 2 on 30-6-1993 from the autorickshaw parked in front of the house of P.W. 1's mother and thereafter, the child is not seen alive, coupled with the fact of accused pledging the ornaments worn by the deceased with P.W. 6. Once this conclusion is arrived at, as held by the Apex Court in Earabhadrappa v State of Karnataka2 and in the case of State of Uttar Pradesh v Ashok Kumar Srivastava3, the Court is also entitled to draw the presumption that it was the accused' who murdered Shwetha. The entire chain of circumstances, namely, the acquaintance of the accused with the deceased and P.W. 1, his taking away the child and thereafter, the child not seen alive, coupled with the fact that the accused did pledge the ornaments worn by the deceased with P.W. 6, a pawn-broker, having been established, leads to the only conclusion that not only the deceased robbed the deceased Shwetha, but also murdered her. Even in the absence of corpus delicti, as the entire chain of circumstances in all human probability point out towards the role of the accused in the entire fact scenario, we find that the conclusion of guilt arrived at by the Trial Court against the accused, namely, for the offence under Sections 363, 302 and 201, IPC are just and proper and needs no interference. 15. In the result and for the reasons stated above, we find the appeal is totally devoid of merits. Hence, the same is dismissed. 16. Before conclusion, placing on record our appreciation to the services rendered by the learned Amicus Curiae, we direct the office to pay an honourarium of Rs. 2,000 to him.