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2017 DIGILAW 1835 (BOM)

Channappa @ Channu @ Channya Gangannawar v. State

2017-09-07

C.V.BHADANG, PRITHVIRAJ K.CHAVAN

body2017
JUDGMENT : C.V. Bhandang, J. 1. The appellant was tried for the offence punishable under sections 364, 366, 302 and 201 of Indian Penal Code (I.P.C for short) before the learned Additional Sessions Judge at Margao. The learned Sessions Judge convicted the appellant for the offence punishable under section 364, 302 and 201 of I.P.C., while acquitting him for the offence punishable under section 366 of I.P.C. For the offence punishable under section 302 of I.P.C., the appellant has been sentenced to imprisonment for life and to pay a fine of Rs.10,000/-, and in default to undergo simple imprisonment for 10 months. For the offence punishable under section 364 of I.P.C, the appellant has been sentenced to suffer rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5000/-, and in default to undergo simple imprisonment for a period of 5 months and for the offence punishable under section 201 of I.P.C., he has been sentenced to undergo simple imprisonment for a period of 3 years and to pay fine a of Rs.3000/- and in default to undergo simple imprisonment for 3 months. The substantive sentence of imprisonment have been directed to run concurrently. 2. The prosecution case may be briefly stated thus: That P.W.1, Yamnappa Hanganhalli was staying along with his wife (now deceased) Renuka in a room belonging to Mrs. Sandra Dias (P.W.8) situated at Borda, Margao. The appellant, who is related to P.W.1 was staying in the adjacent room also belonging to P.W.8, Mrs. Sandra Dias. P.W.1 was serving with Bhagappa Karzol (PW.5). Mallikarjun Kaditood (PW2) is the brother-in-law of P.W.1. On 18/9/2011, at about 8.30. am., P.W.1, (the husband of the deceased) left for the house of P.W.5 for work of cleaning of a water tank at Shankarwadi, Taliegao. There was a party at the house of P.W.2 (the brother-in-law of P.W.1). Hence the appellant and the deceased left at about 10 a.m, on a pulsar motorcycle to go to the house of P.W.2, where they stayed for the entire day and left at about 6 p.m. At 6.08 p.m. in the evening, PW.1 used the mobile phone of P.W.5 and called the appellant to drop the deceased to the house of P.W.2 in the night, as P.W.1 was required to stay back at his employer's place. On the same day, the deceased attended a birthday party of daughter of P.W.8 at about 8 p.m. and left the house of P.W.8 after having a soft drink. 3. On 19/9/2011 in the morning, the appellant called P.W.2 to inquire the whereabouts of the deceased as he wanted the phone number of his sister, who was staying at his native place in Karnataka. P.W.2 informed the appellant that the deceased had not come to his house, when the appellant informed P.W.2 that he (the appellant) had dropped the deceased, near P.W.2's house at around 6.00 p.m, the previous day. P.W.2 informed the same to P.W.1, who started searching for the deceased and was assisted by P.W.2 and P.W.12, Tuljappa Gangannawar, the father of the deceased. It is said that the appellant also assisted P.W.1 in searching for the deceased. Later on P.W.1's cousin Sangappa and one Kamlabai Gangannawar, P.W.11, the mother of the deceased, came down to Margao and joined the search. However, the deceased was not found. Hence on 22/9/2011, P.W.1 filed a complaint with P.S. Margao about the deceased having gone missing, which was registered by P.W.14, P.S.I Mohan Gaude. He obtained the photographs of the deceased, issued a lookout notice and circulated it to all the police stations in Goa. 4. According to the prosecution, at around 4 p.m. on 26/9/2011, P.W.1, P.W.2, P.W.11 and P.W.12 found gold ornaments of the deceased in a plastic container below the T.V cupboard in the room of the appellant. This was when the appellant was at Margao P.S. P.W.1 informed about the recovery to the police and then lodged a complaint (Exhibit 18) against the appellant for kidnapping/abducting his wife, on the basis of which an offence at Crime No.332 of 2011 was registered with P.S. Margao under section 364 of I.P.C.. The police along with the appellant came to the spot and attached the gold ornaments, under a panchanama (Exhibit 46 colly) and on the same day, the appellant came to be arrested at around 23.30 hours. 5. During the course of the investigation, the appellant is said to have made a confessional statement offering to show the place where he had disposed the dead body of Renuka and accordingly the dead body was recovered on 27/9/2011 by the side of the eastern bypass. 5. During the course of the investigation, the appellant is said to have made a confessional statement offering to show the place where he had disposed the dead body of Renuka and accordingly the dead body was recovered on 27/9/2011 by the side of the eastern bypass. The appellant also discovered a key chain with 2 keys and they were accordingly seized. The Investigating Officer, P.I. Santosh Dessai, (P.W.13) drew an inquest panchanama of the dead body (which was in a highly decomposed state). The dead body was sent for post mortem examination which was conducted by P.W.6, Dr. A. Pujari who was unable to give any opinion as to the cause of death on account of the skeletonization of the body. The I.O drew a spot panchanama, recorded statements of the witnesses. The seized articles were sent for the report of the chemical analyzer and on completion of the investigation a charge sheet came to be filed, which was committed to the Court of Sessions at Margao. 6. The learned Sessions Judge framed charge against the appellant for the offence punishable under section 364, 366, 302 and 201 of I.P.C. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant is one of total denial and false implication. 7. At the trial the prosecution examined in all 14 witnesses and produced the record of the investigation. The appellant did not enter the witness box nor did he examine any defence witness. 8. The learned Sessions Judge on appreciation of the evidence, convicted and sentenced the appellant as aforesaid, while acquitting him for the offence punishable under section 366 of I.P.C.. Feeling aggrieved, the appellant is before this Court. 9. We have heard Shri Raghunandan, the learned counsel for the appellant and Shri Amonkar, the learned Additional Public Prosecutor for the respondent/State. With the assistance of the learned counsel for the parties, we have gone through the record, the evidence led and the impugned judgment. 10. It is submitted by Shri Raghunandan, the learned counsel for the appellant that the case rests on circumstantial evidence. It is submitted that none of the 5 circumstances relied upon by the learned Sessions Judge are individually proved. It is submitted that the circumstances taken together do not form a complete chain so as to point to the guilt of the appellant. It is submitted that none of the 5 circumstances relied upon by the learned Sessions Judge are individually proved. It is submitted that the circumstances taken together do not form a complete chain so as to point to the guilt of the appellant. The learned counsel has then adverted to the individual circumstances in order to demonstrate that they are not established. It is submitted that P.W.2 and P.W.12 claim to have last seen the deceased in the company of the appellant at 6p.m., on 18/9/2011. However, the deceased was alive at least till 8p.m.when she attended a birthday party at the house of P.W.8 in the absence of the appellant. It is thus submitted that the theory of last seen together cannot be called into aid in this case. It is submitted that the learned Sessions Judge has observed that the evidence of P.W.8 does not support the case of the prosecution and this ought to have led the learned Sessions Judge to extend benefit of doubt to the appellant. It is further submitted that there is no proximity as to the time when the deceased was last seen together with the appellant i.e. at 6p.m. on 18/9/2011, when her dead body was recovered much thereafter on 27/9/2011 and thus the possibility of any other person intervening, being the author of the crime, cannot be ruled out. 11. It is then submitted that the finding of the learned Sessions Judge about conduct of the appellant having changed, as observed by the learned Sessions Judge, is misconceived. The conduct of the appellant as stated by P.W.1, P.W2 and P.W.12 cannot be said to be an incriminating circumstance. It is submitted that the conduct of the appellant would be normal in a situation where the relatives of the deceased had shown strong suspicion against the appellant. 12. It is submitted that the alleged recovery of the gold ornaments from the room of the appellant, in his absence, is of no consequence as there is a possibility of planting, to implicate the appellant. It is submitted that the case about recovery of the ornaments from the room of the appellant is highly improbable and is not supported by any independent evidence. 13. It is submitted that the case about recovery of the ornaments from the room of the appellant is highly improbable and is not supported by any independent evidence. 13. In so far as the recovery of the dead body at the instance of the appellant is concerned, it is contended that the same is from a public place and by the side of a highway. It is submitted that the place was accessible to one and all and was adjacent to a busy road and thus the possibility of the I.O having already noticed/recovered the dead body, cannot be ruled out. 14. In so far as the circumstance about the injuries found on the person of the appellant are concerned, it is submitted that Dr. Mandar Kantak, P.W.3, who had examined the appellant had opined that the injuries were caused within 3 to 7 days prior to the examination of the appellant on 30/9/2011. Thus, the injuries cannot relate back to a point of time, which would cover the date of alleged incident i.e. 18/9/2011 and 19/9/2011. 15. Lastly it is submitted that there was no abduction by the appellant as there was no force used for taking the deceased nor any deceitful means were employed for inducing the deceased to go from any place. It is submitted that the cause of death has not been established in this case and the missing report as well as the complaint is lodged belatedly. It is submitted that the exact time of death is not established and there were no incriminating articles found from the alleged spot of the offence i.e. the room of the appellant. It is submitted that the prosecution case about the appellant alone having taken the dead body from his room to the eastern side bypass road is highly improbable. On behalf of the appellant reliance is placed on the decision of the Supreme Court in the case of Bodhraj Alais Bodha and others Vs. State of Jammu and Kashmir (2002) 8 SCC 45 and in the case of Bankey Lal and others Vs. State of U. P. (1971) (3) SCC 184. 16. On the contrary, it is submitted by Shri Amonkar, the learned Addl. Public Prosecutor that P.W.2 and P.W.12 have last seen the deceased in the company of the appellant on 18/9/2011 at about 6p.m. and thereafter she has not been seen alive. State of U. P. (1971) (3) SCC 184. 16. On the contrary, it is submitted by Shri Amonkar, the learned Addl. Public Prosecutor that P.W.2 and P.W.12 have last seen the deceased in the company of the appellant on 18/9/2011 at about 6p.m. and thereafter she has not been seen alive. It is submitted that the discovery of the dead body at the instance of the appellant is properly established, including the identity of the dead body to be that of Renuka on the basis of the clothes and the ornaments. It is submitted that the dead body was found concealed by the side of the highway, which was within the exclusive knowledge of the appellant and this fact which distinctively relates to the recovery of the dead body is an incriminating circumstance under section 27 of the Evidence Act. It is submitted that the appellant also joined the search of the deceased and therefore, initially P.W.1 and others had no occasion to suspect the appellant and it was only when the ornaments of the deceased were found in the room of the appellant that P.W.1 lodged a complaint. Thus, the delay, if any, has been properly explained. It is submitted that the appellant was examined by P.W.3 on 30/9/2011 in which there were abrasions found on the person of the appellant and P.W.3 has opined that they could have been caused within a period of 3 to 7 days prior to the date of the examination. It is submitted that said period cannot be looked upon with mathematical precision and some allowance has to be made on either side, for few days. He submits that the learned Sessions Judge has meticulously gone through the prosecution evidence and each of the circumstance has been rightly held to be proved and they unerringly point to the guilt of the appellant. 17. We have carefully considered the rival circumstances and the submissions made. The prosecution had relied upon the following circumstances against the appellant: (i) That the appellant was last seen in the company of the deceased on 18/9/2011 at about 6p.m. after which she was not seen alive. (ii) motive. (iii) Injuries on the person of the appellant which have not been explained. (iv) Call details from the mobile phone of P.W.5, which P.W.1 used to call the appellant asking him to drop the deceased to the house of P.W.2. (ii) motive. (iii) Injuries on the person of the appellant which have not been explained. (iv) Call details from the mobile phone of P.W.5, which P.W.1 used to call the appellant asking him to drop the deceased to the house of P.W.2. (v) Conduct of the appellant. (vi) Recovery of the dead body at the instance of the appellant and (vii) Recovery of the gold ornaments of the deceased from the room of the appellant. 18. The learned Sessions Judge has relied upon five circumstances i.e. That the appellant was last seen in the company of the deceased on 18/9/2011 at about 6.00 p.m. after which she was not seen alive. (ii) motive (iii) Injuries on the person of the appellant which have not been explained. (iv) Call details from the mobile phone of P.W.5, which P.W.1 used to call the appellant asking him to drop the deceased to the house of P.W.2. (v) conduct of the appellant. However before adverting to the individual circumstances, we first propose to deal with the question of the identification of the dead body. 19. After the recovery of the dead body an inquest panchnama Ex C 40 was drawn at hospicio hospital at Margao on 28.9.2011 between 10 to 12.05 hrs. This panchnama was not disputed by the defence subject to identification of the dead body. The prosecution has examined one of the panch witnesses viz. Bhagappa Karjol (PW5) who also happens to the employer of PW.1 .It records that Renuka had gone missing since 18.30 hrs on 18.9.2011 to 9.00 hrs on 19.9.2011. It further records that the body was in a fully decomposed state and was wrapped in a saree. The face was seen decomposed and the facial features were not visible. The lower jaw was separated. The height was about 5 feet thin built. It was PW.1 i.e. the husband and PW.11 i.e. the mother of the deceased who identified the dead body from the saree, bangles and a payal (ornament worn in legs) on the dead body. The said articles have been seized .It would be worth while to reproduce the relevant portion of the panchanama as under: HEAD TO NECK: We see that the portion from head to neck is fully decomposed and only skull with some skin is seen. Eyes and nose are eaten by maggots/missing. A chunk of black hair is seen near the head. Eyes and nose are eaten by maggots/missing. A chunk of black hair is seen near the head. The lower jaw is seen open and the spine is seen from neck. No any injuries could be made out. NECK TO WAISTE: We see on this part a blouse and a saree. The same is removed i.e saree and blouse. The blouse is fully drenched in body fluids and is of black colour. The saree is fully drenched in body fluids and maggots and is seen of dark and light green printed design. The blouse of black colour and saree are cleaned of maggots and separately put in auto press polythene bag and sealed in two different envelopes and blouse marked Ex-A and saree marked Ex-B. This part is seen to be fully decomposed. The ribs and the spine is also seen. The decomposed flesh and maggots seen. In the left hand found three bangles of glass of reddish colour and two in the left hand which are identified by husband. The same are washed and again shown to complainant. He identified the same to be in the hands of his wife. The bangles are put in a auto press polythene bag and sealed in envelope and marked as Ex-C. No external injuries are visible on this part the hand bones of both hands are visible. Finger bones are also seen. WAISTE TO TOE:- On this part we see a brownish colour parker/ghagra. The same is removed and seen that the flesh is fully decomposed. The foots of the body are decomposed. We closely observe the body and found two rings of dark metal in the both feet fingers. Two dark colour metal payals also found in each foot. 20. We have gone through the evidence of PW.1 and PW.11, who have identified the dead body to be that of Renuka and have also identified the clothes and the bangles and the payal before the court. PW.6 Dr. Avinash Pujari states that the dead body was that of a female. We do not find any reason to discard or disbelieve this part of the evidence of these witnesses which we find to be acceptable. It is true that the facial feasures of the dead body were not available for identification on account of decomposition and the skeletnisation of the body. We do not find any reason to discard or disbelieve this part of the evidence of these witnesses which we find to be acceptable. It is true that the facial feasures of the dead body were not available for identification on account of decomposition and the skeletnisation of the body. However the identification by close relatives of the deceased namely her husband and the mother on the basis of the height, clothes and the ornaments cannot be doubted. The brownish colour Ghagra and a light colour underwear found on the dead body have been identified to be that of Renuka by PW.1 her husband. We find that the evidence of PW.1 and PW.11 on this aspect is one which inspires confidence. The learned Sessions Judge has also found, and in our view rightly so, that the description of the dead body tallies with the description given in the missing report. Thus we find no reason to take exception to the finding of the learned Sessions Judge about the establishment of the identification of the dead body of Renuka. 21. It is true that the exact time and the cause of death is not established in this case. The time of death as recorded in the autopsy report Exhibit C41 that is between 6.30 pm of 18.9.2011 and 9.00 am of 19.9.2011 may be reproduction from the complaint. This is because due to skeletnisation of the body it was not possible for the medical officer to give the cause and the time of death. This however in our opinion may not be decisive. We say so for the reason, that it is not always necessary that the cause and the time of death is established in each case. If the over all evidence direct or circumstantial or a combination of both, is otherwise sufficient to find the accused guilty a conviction can always be recorded, not withstanding the non establishment of the cause or the time of death. Let us take the extreme case where the dead body (corpus delicti) is not found. It is now well settled that even in such cases the accused can be found guilty if the evidence is otherwise sufficient. It is not necessary to multiply authorities on the point. However if we need one it can be found in the case of Ram Gulam Chaudhary and others (2001) 8 SCC 311 . It is now well settled that even in such cases the accused can be found guilty if the evidence is otherwise sufficient. It is not necessary to multiply authorities on the point. However if we need one it can be found in the case of Ram Gulam Chaudhary and others (2001) 8 SCC 311 . Thus the question essentially turns upon as to whether the prosecution evidence as a whole is sufficient and cogent to unerringly point to the guilt of the accused and the accused alone. Thus the contentions in this regard cannot be accepted. 22. Let us now consider each of the circumstances relied upon by the prosecution. Last Seen Together: It would be necessary to basically look into the evidence of PW.2, PW.8 and PW.12 in this regard. The evidence of PW.1 and PW.5 would also be material. The learned Sessions Judge has considered this circumstance in paras 46 onwards. It has clearly come on record that the PW.1 and the deceased were married and were residing in the rooms belonging to one Custodia Dias. PW.8 Santra Dias is the wife of Custodia Dias. There were two rooms rented to PW1. PW.1 was residing with the deceased in one of the rooms while the other room was occupied by the father of the deceased PW. 12 Tuljappa Ganganwar along with the appellant for some time. PW.12 had left the room about six months prior to the incident and thus it was the appellant who alone was staying in the said adjacent room. The appellant is known and related to PW1. PW.1 was working as a tiles fitter with PW.5. It has also come on record that on 18.9.2011 PW.1 had left in the morning for Shankarwadi Talegaon where he was supposed to do the work of the cleaning of the water tank. The evidence of PW.1 and PW.5 would also show that as the work could not be completed PW.1 was required to stay over for the night. PW.1 states that he had called the appellant on his mobile no. 9011167872 using the mobile of PW.5 (9822153577). The evidence of PW.1 and PW.5 would also show that as the work could not be completed PW.1 was required to stay over for the night. PW.1 states that he had called the appellant on his mobile no. 9011167872 using the mobile of PW.5 (9822153577). Apart from the oral evidence in this regard there is evidence in the form of the call details at Ex C-44 ( not disputed by the appellant under section 294 Cr.P.C) which corroborate the fact that there was a call made from the mobile no of PW.5 to the appellant on his mobile no referred to above at Borda. Parwati the sister of PW.1 was residing at Borda with her husband Mallikajoon Kaditood (PW.5). 23. The evidence of PW.2 and PW.12 shows that there was party at the place of PW.2 on 18.9.2011 and Renuka had attended the same from 10 am to 6 pm and the deceased left with the appellant on a motorcycle. We have carefully gone through the evidence PW.2 and PW.12 and we find that it is natural and one inspiring confidence. The principle contention on behalf of the appellant on the aspect of the last seen theory is that PW.8 the landlady states that the deceased had attended a birthday party of her daughter on 18.9.2011 till 8 pm. Thus it is contended that the deceased was in any case seen alive at 8 pm on that day when she had left the birthday party after having a cold drink and PW.8 does not state that appellant was seen with the deceased at that time. It is thus contended that the evidence of PW.2 and PW.12 about the deceased having been last seen with the appellant at 6 pm losses its significance. We would tend to disagree. We have carefully gone through the evidence of PW.8. She states in the chief examination that the deceased and the appellant (to whom she has referred to as a labourer working with PW.1) had attended the birthday party on that day. She identified the appellant through videoconferencing to be the same labourer who attended the party with the deceased. In cross examination she states that she had only seen the wife of Yamanappa, PW.1 i.e. the deceased in the party and had not seen the “labourer”. She could not say whether the deceased alone had a soft drink and then she left. In cross examination she states that she had only seen the wife of Yamanappa, PW.1 i.e. the deceased in the party and had not seen the “labourer”. She could not say whether the deceased alone had a soft drink and then she left. She cannot state as to when the deceased left and with whom she left. Thus although she initially states that the deceased and the appellant had attended the birthday party, in the cross examination she has attempted to feign ignorance as to with whom the deceased left. In our considered view the evidence of PW.8 is not sufficient to dislodge the evidence of PW.2 and PW.12. The submission on the basis of the evidence of PW.8 in our considered view cannot be accepted. Thus we find that the circumstance about last seen together is properly established in this case. 24. The second circumstance considered by the learned Session Judge is about the conduct of the appellant post the incident in which Renuka went missing. It has clearly come on record that the appellant had joined PW1 and others in searching for the deceased. The learned Sessions Judge has on the basis of the evidence of PW.11 and PW.12 found that later the behaviour of the appellant changed. He was not talking properly and was keeping quiet all the time. The learned counsel for the appellant has two submissions to make in this respect. It is submitted that the learned Sessions Judge has not stated as to in what manner the behaviour changed. It is next submitted that the only thing found is that the appellant was not talking properly and was keeping quiet all the time. It is submitted that this would otherwise be the normal behaviour of a person if suspected by the relatives. It is submitted that any person would become nervous if an unfounded suspicion is expressed on him. It is submitted that the appellant had in fact participated in the search of the deceased. Here we would tend to partially agree with the learned counsel for the appellant. The change in the conduct noticed by the witnesses would tend to be subjective at times. Such a circumstance would be quite weak as the only change of behaviour stated is that the appellant was not talking properly and was keeping quiet all the time. Here we would tend to partially agree with the learned counsel for the appellant. The change in the conduct noticed by the witnesses would tend to be subjective at times. Such a circumstance would be quite weak as the only change of behaviour stated is that the appellant was not talking properly and was keeping quiet all the time. However at the same time the fact that the appellant participated in the search of the deceased cannot by itself be indicative of innocence. At times accused would tend to participate in such search only to pretend innocence or to gloss over his deeds. Thus while we are not inclined to rely on the circumstance about the alleged change of behaviour of the appellant in this case at the same time we cannot accept that the participation of the appellant in the search operation shows his innocence. 25. Recovery of golden ornaments of the deceased from the room occupied by the appellant: This is the third circumstance relied upon by the learned Sessions Judge. It is the evidence of PW.1, PW.2, PW.11 and PW.12 that in their search of the room of the appellant on 26.9. 2011 that they found a plastic container under a wooden cupboard containing golden ornaments belonging to the deceased, which are M.O.1. The said ornaments consist of one yellow metal beads mala of 32 beads known as Bor Mala, one black and yellow metal double lined magalsutra with two shell shaped yellow metal pendents with two red beads and two safety pins attached to it one pair of yellow metal earrings called zumkas one pair of yellow metal ear stud with small yellow metal chain attached to each ear stud. The learned Sessions Judge had seen the photograph of the deceased attached to the missing report Exhibit 17 to find that the photograph clearly shows the beads necklace and the double lined magalsutra and also the ear studs with chains pulled above the ear worn by the deceased. 26. The criticism against this recovery is that it is effected in the absence of the deceased and without being witnessed by any independent witnesses. It is contended that the possibility of the ornaments being planted cannot be ruled out. We have given our anxious consideration to the submissions made and we are unable to accept the same. 26. The criticism against this recovery is that it is effected in the absence of the deceased and without being witnessed by any independent witnesses. It is contended that the possibility of the ornaments being planted cannot be ruled out. We have given our anxious consideration to the submissions made and we are unable to accept the same. It is true that the recovery by PW.1 PW.2, PW.11 and PW.12 is in the absence of the appellant and is not witnessed by any independent panch witness. It is therefore necessary to closely scrutinize the evidence in the context of the attending circumstances whether the recovery can be accepted and relied upon. PW.1 states that on 26.9.2011 at about 4 to 4.30 pm, he along with PW.2 PW.11 and PW.12 searched for the mobile of Renuka in the room of the appellant ,when a gold earrings with chain, necklace were found in the room of the appellant. At that time the appellant was at the police station. The ornaments were kept at the same place and then it was informed to the police. The police then came and seized the said articles. There is one contradiction brought on record as to whether the ornaments were found blow a steel cupboard or a wooden cupboard/wooden TV stand, which we do not find significant. It has come on record in the evidence of this witness that his cousin one Mr. Sangappa, who had come to join in the search of the deceased was staying with the appellant in the said room. They were going to the room of the appellant from 20.9.2011 to 26.9.2011, however it was for the first time that they searched the room on 26.9.2011. It appears that after this that PW.1 lodged a formal complaint against the appellant on the basis of which an offence came to be registered under section 364 of I.P.C at 20.10 hrs on 26.9.2011. PW.2 also states about finding of the articles in the room of the appellant at about 4 pm. In the cross examination PW.2 states that Renuka was wearing the yellow metal mala of beads (bor mala) and it was kept by her in a suitcase which used to be locked. Nothing much turns upon the said statement. PW.2 also states about finding of the articles in the room of the appellant at about 4 pm. In the cross examination PW.2 states that Renuka was wearing the yellow metal mala of beads (bor mala) and it was kept by her in a suitcase which used to be locked. Nothing much turns upon the said statement. This is because as a brother in law of PW.1 this witness cannot have such a knowledge about the manner in which the ornaments were worn by the deceased and as to where they used to be kept. That apart the learned Sessions Judge has found that in the photograph attached to the missing complaint the deceased is seen wearing the said Bor mala. We have also seen the said photograph (page 73 of the compilation), in which the deceased in seen wearing the said mala. Further more there is evidence that the deceased had attended a function/party at the place of PW.2 on the same day and also a birthday party at the place of PW.8 and thus in all probability the deceased was wearing the ornaments on her person on 18.9.2011. PW.11 and PW.12 have also stated about the tracing of the said ornaments in the room of the appellants. The said articles have been seized by PW.14 in the presence of panchas including PW.7 Uday Nipanikar soon after registration of the offence at about 21.00 hrs to 22.35 hrs. The question is whether the evidence is acceptable. It would be necessary to note a few circumstances in this regard. The appellant is the nephew of PW.1 being the son of PW.1's elder sister. The appellant was allowed to reside in one of the rooms taken on rent by PW.1 which was adjacent to the room where PW.1 and the deceased were staying. The appellant was also working as a tiles fitter along with PW1. The relations between PW.1 and the appellant appear to be not only cordial but one reposing confidence on the appellant which would be clear from the fact that PW.1 had asked the appellant to drop the deceased at the place of PW.2 as PW.1 was required to stay back for work overnight. Thus when PW.1 lodged a missing complaint on 22.9.2011 no suspicion was expressed on any body including the appellant. Thus when PW.1 lodged a missing complaint on 22.9.2011 no suspicion was expressed on any body including the appellant. Thus PW.1 and for the matter of that PW.2, PW.11 and PW.12 cannot be attributed with any intention to falsely implicate the appellant. On the contrary if we look at the sequence of events, it was only on recovery of the articles from the room of the appellant that a formal complaint was lodged against the appellant. We thus find the evidence of these witnesses to be natural and one inspiring confidence on which reliance can be placed. We are thus unable to accept the theory of planting as suggested on behalf of the appellant. Thus this circumstance in our view stands established. 27. Recovery of dead body, keychain and the keys at the instance of the Appellant: The discovery of the dead body is said to be on 27.9.2011. PW.10 Siddwa Kattimani is the panch to the said recovery. He has stated about the confessional statement by the appellant and his willingness to show the dead body which the appellant claimed to be covered in a yellow saree having small flower design. The appellant is alleged to have stated that the dead body was thrown in bushes near the power house. The appellant is also claimed to have stated that the deceased was wearing a green saree and a black blouse. The appellant then led the police and the panchas to the spot from where the dead body of Renuka was recovered. The appellant is also alleged to have shown willingness to discover a mobile phone and keys of the room of the deceased, from near their house. However the appellant could only find a key chain with two keys one big and one small. We have gone through the evidence of the discovery under section 27 of the Evidence Act and we do not find any reason to disbelieve the same. The discovery has been criticized and objected to on the ground that it is from a public place which is accessible to one and all. The reason why the courts are slow to accept and look with suspicion, a recovery from public place, are two fold. The discovery has been criticized and objected to on the ground that it is from a public place which is accessible to one and all. The reason why the courts are slow to accept and look with suspicion, a recovery from public place, are two fold. Firstly because the place being accessible to all, there is a possibility of any person other than the accused keeping or concealing the incriminating article at the place (which possibility is not there if it is a house or other place which may be accessible to the accused alone). Secondly there is a possibility of the investigating agency having already found the incriminating article which is then attempted to be passed off as a discovery under section 27 of The Evidence Act. However there is no rule of law or one of practice that a discovery from a public place has to be necessarily discarded. The question would depend on the facts and circumstances of each case. The law regarding discovery under section 27 of the Evidence act is too well settled to be restated. Section 27 has to seen as a proviso or an exception to section 25 and 26 of the Evidence Act. Section 27 partially lifts the embargo on the admissibility of a statement made by an accused in custody to a police officer. 28. Under section 27 of the Evidence Act so much of the information, whether or not it amounts to a confession, as it distinctly relates to fact discovered in pursuance of the statement of the accused is admissible and can be proved. The fact discovered is not synonymous with the object or the article discovered. The exclusive knowledge of the accused as to the said article and its concealment is a fact which is incriminating in nature. The learned counsel for the appellant strenuously urged that there is evidence which suggests that there was severe stench emanating from the dead body which was in a highly decomposed state and as such it is unlikely that it was not spotted by any body for over a week particularly when the place was adjacent to a high way. Here again we find that the evidence as to the discovery has to considered as a whole and appreciated in the context of the attending circumstances. Here again we find that the evidence as to the discovery has to considered as a whole and appreciated in the context of the attending circumstances. In the first place we find the evidence of the PW.10 and PW.14 on the point of the discovery to be convincing and acceptable. Nothing is brought on record to suggest that the body was already located or recovered by the police and which is tried to be passed off as a discovery. The portion of the confessional statement of the appellant which can be said to be admissible would show that the appellant had the knowledge about not only the clothes worn by the deceased but also that the dead body was wrapped in a yellow colour saree having small flower design. This exclusive knowledge along with the discovery of the body is the fact discovered which is incriminating in nature. Now it is true that the evidence suggests that there was foul smell as is usual on account of decomposition of the body. However that itself would not be sufficient to hold that it was noticed prior to the discovery by the appellant. We find that there are other possibilities in this regard. To hazard a guess for instance people and passers by tend to ignore or avoid such foul smell while riding on the high way. Such foul smell more often that not emanates from the carcasses of dead animals lying by the side of the road. There can be several such possibilities. However once the evidence of the discovery is found to be one inspiring confidence the same cannot be discarded for the reasons as urged on behalf of the appellant. Besides the dead body there is also the discovery of the key chain with two keys. We have carefully gone through the reasoning articulated by the learned Sessions Judge in this regard and we do not see any reason to take a different view. Thus we hold that the circumstance about discovery of the dead body and the keys is established on record. 29. Failure to explain injuries: The appellant was arrested on 26.9.2011 at about 23.30 hrs. and was examined by PW.3 Dr. Mandar Kantak on 30.9.2011.Following injuries were found on the person of the appellant: 1. Abrasion, 3 x 1cm, oblique for left frontal aspect of forehead, 3 cms above mid left eyebrow. 2. 29. Failure to explain injuries: The appellant was arrested on 26.9.2011 at about 23.30 hrs. and was examined by PW.3 Dr. Mandar Kantak on 30.9.2011.Following injuries were found on the person of the appellant: 1. Abrasion, 3 x 1cm, oblique for left frontal aspect of forehead, 3 cms above mid left eyebrow. 2. Abrasion, 2 x 0.2 cms, horizontal, present over mid distal third back of left forearm, 2 cms. proximal to left wrist crease. 3. Abrasion, 2 x 0.2 cms, horizontal present over lateral aspect distal third of back of right forearm, 2 cms. proximal to right wrist crease. 4. Abrasion, 1.5 x 0.2 cms., horizontal, present over medial aspect distal third of back of right forearm, 2cms proximal to right wrist crease. 5. Abrasion, 1 x 0.1 cms. for back of hypothenar aspect of right hand, oblique mid aspect. Injuries No.1 to 5 have reddish brown hard scab formation with partial scab separation and are of 03.07 days duration prior to the examination, are simple in nature and are caused by blunt force. The accused person did not state as to how these injuries were caused. After examination of the accused it was my opinion that - (i) On physical and genital examination of Channu Sarnapaa Gangannawar, there is nothing to suggest that he is incapable of sexual intercourse. (ii) No opinion as to recent sexual intercourse by Channu Gangannawar can be given. Urethral swabs and smear slides were preserved for serological examination. 30. The medical officer found that the injuries were of 3 to 7 days in duration. They were simple in nature and can be caused by blunt force. The appellant has not explained the cause of the injuries. Being within special knowledge of the appellant it is for him to explain about the same. It is contended by the learned counsel for the appellant that seven days counted from 30.9.2011 would at the most come to 23.9.2011, while Renuka went missing from 19.9.2011 and thus the injuries cannot possibly have any significance or relevance to show complicity of the appellant in the crime. It is not possible to accept the contention on behalf of the appellant. It is not possible to accept the contention on behalf of the appellant. This is because the estimation of the nature expressed by the medical officer on the period when the injuries could have been caused or about the age of the injury are always approximate estimates which admit of some reasonable allowance on either side. In any event the difference in the possible period or the age of the injuries as stated by the medical officer is not such as would be totally destructive of the possibility of the injuries being likely to be caused on or about 18th and 19 th June 2011. The non explanation of the injuries, in our considered view has rightly been held by the learned Sessions Judge to provide the missing link in the chain of circumstances. 31. We thus find that the conviction of the appellant under sections 302 and 201 of I.P.C is legal and proper and no interference is called for. 32. This takes us to the conviction for the offence punishable under section 364 of I.P.C.. Section 364 of I.P.C speaks of an offence of kidnapping or abduction. Section 359 of I.P.C provides that kidnapping to be of two kinds, namely, (i) kidnapping from India and (ii) kidnapping from lawful guardianship. Section 360 then proceeds to define the offence of kidnapping from India and Section 361 provides for kidnapping from lawful guardianship of a minor under 16 years of age, if a male or under 18 years of age, if a female. In the present case, both these offences under section 360 and 361 are ruled out in a much as there is neither kidnapping from India nor kidnapping from a lawful guardianship, as the deceased was a major and above 18 years of age. This takes us to Section 362 which defines the offence of abduction. It provides that whoever by force compels, or by deceitful means induces, any person to go from any place, is said to abduct that person. The prosecution case and the evidence on record would clearly show that the deceased and the appellant were known to each other. The appellant is a close relative of the husband of the deceased, and as noticed earlier, their relations were not only cordial but were one of confidence. The prosecution case and the evidence on record would clearly show that the deceased and the appellant were known to each other. The appellant is a close relative of the husband of the deceased, and as noticed earlier, their relations were not only cordial but were one of confidence. The evidence would further suggest that it was the husband of the deceased (PW.1) Yamnappa who had asked the appellant to drop the deceased to the house of PW.2. In such circumstances, in our considered view the possibility of the appellant having compelled the deceased by force or by deceitful means, “to go from any place” is ruled out. For these reasons we find that the appellant is entitled to be acquitted for the offence punishable under section 362 of I.P.C. In the result the following order is passed: ORDER: (i) The appeal is partly allowed. (ii) The conviction of the appellant for the offence punishable under Section 364 of Indian Penal Code (IPC) is hereby set aside. (iii) The appellant is acquitted of the offence punishable under Section 364 of IPC. (iv) The conviction and the sentence of the appellant for the offences punishable under Sections 302 and 201 of IPC, is hereby confirmed.