Bangalore District Court
SPL.C/227/2014 on 30 September, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 28th DAY OF SEPTEMBER, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 227/2014
COMPLAINANT :
The State of Karnataka by Mico-
Layout Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
1. Sukumar
S/o Narayan Devadiga
Aged 26 years, r/at
"Sridevi Krupa", Shalininagar,
Bajegoli Post,
Karkala Taluk,
Udupi District.
[Rep. by Sri.M.Shashidhara, Advocate.]
2. Suresh
S/o Chambala,
Aged 25 years, r/at
/2/ Spl.C.C.No.227/2014
Balaji Veg hotel, 7th cross,
BTM II Stage,
Bengaluru.
Permanent address at
Deedimiri Gudde,
Shalininagar,
Bajegoli, Karkala,
Udupi District.
[Rep. by M/s.CR & CK Associates,
Advocates.]
3. Harish
S/o Rama Pujari
Aged 19 years, r/at
Devarachikkanahlli road,
Belikahalli,
Bengaluru-76.
Permanent address at
Bengaluru Rural
Bajegoli,
Karkala Taluk,
Udupi District.
[Rep. by Sri.S.S.Mahendra & Company,
Advocates.]
***
JUDGMENT
Mico-Layout Police, Bangalore City have charge sheeted the accused for the offences punishable under Sections 376, 377, 302, 109 R/w Section 34 of I.P.C.
/3/ Spl.C.C.No.227/2014
2. The case of the prosecution, in brief, is as under :
Accused No.1 is the relative of C.W-18 Krishna Devadiga, who was tenant in the second floor of the building belonging to CW1-B.E.Venkatesh, the complainant. Accused No.2 and 3 are the friends of accused No.1. Accused No.1 used to visit the house of C.W-18. He was the taxi driver. Deceased Chandrika, the daughter of C.W-8, Yellamma was residing with C.W-1, the complainant. The complainant and his family alongwith deceased was residing in one of the houses in ground floor. On 24/01/2007 at about 3-
3.45pm deceased Chandrika alongwith C.W-5, Lakshmi, the daughter of C.W-1's brother came outside searching the 1½ year baby of the complainant. Then the accused No.1 brought the key of the house of C.W-18 by taking the same from the shop of C.W-18. On being seen Chandrika he made a plan to commit sexual harassment on her, with that intention he asked her to open the door lock as he /4/ Spl.C.C.No.227/2014 could not open it, Lakshmi did not accompany them, on that pretext he took away Chandrika to the second floor, immediately after she opened the door he pushed her inside the house and closed the door. When the Chandrika tried to shout, he immediately took the medium size onion from the kitchen, inserted in her mouth to avoid her shouting, committed rape on her and also had carnal intercourse against the order of nature with her by force. By that time due to smothering and chocking she died. On coming to know of her death, he made a call to accused No.2 and 3 to rescue him as the door automatically had got locked from outside. Accused No.2 and 3 made an attempt to open the door of which became futile. Then they approached C.W-18 by disclosing the fact. After seeing the deceased lying on the floor in the kitchen, he locked the door from outside and intimated the complainant who is the owner of the house, in turn they intimated the Mico-Layout police. The police rushed to the spot immediately, by that time the /5/ Spl.C.C.No.227/2014 publics were beating accused No.2 and 3, they were sent to Police Station by the police who arrived there. After opening the lock of the door, apprehended accused No.1 who was inside, received complaint from C.W-1 and sent to Police Station to register the case, and spot Mahazar was drawn. After registering the case, the Post Mortem was conducted on dead body. The inquest Mahazar and also again spot Mahazar were drawn. Investigating Officer recorded the voluntary statement of accused No.1 to 3 and also other prosecution witnesses. By completing the investigation, submitted the charge sheet against accused No.1 to 3 for the aforesaid offences.
3. The chargesheet was submitted to VI ACMM Court and the same was committed to court of Session as it is triable by Sessions Court. After registering the case in S.C No.490/2007, it was entrusted to CCH-46 C/c CCH-55. Then learned Presiding Officer of CCH-46 after hearing both the sides, had framed the /6/ Spl.C.C.No.227/2014 charge for the offences punishable under Sections 376(2)(f), 377, 302, 201 of I.P.C. After conclusion of evidence, case was posted for arguments, as per notification No.RSB No.67/2014 dated 08/05/2014, this case was transferred to this Court on the point of jurisdiction.
4. On prosecution side got examined as many as 27 witnesses as P.W.1 to P.W.-27 out of 36 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P.47, MO-1 to MO-18, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
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6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.1 on 24/01/2007 between 3.00 to 3.45pm had committed rape by pressing his genitalia into the genitalia of Chandrika who was at the age of 12 years, the daughter of C.W-8, Yellamma and C.W-9 Anjanappa in the house No.64 in II floor of the building belonging to ownership of C.W-1, B.E.Venkatesh taken on lease by C.W-18, Krishna Devadiga, the uncle of accused No.1 punishable under Section 376(2)(f) of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.1 on the aforesaid date, time and place had committed voluntarily carnal intercourse against the order of nature by inserting his genitalia into the anus /8/ Spl.C.C.No.227/2014 of Chandrika, the minor daughter of C.W-8, Yellamma and C.W-9, Anjanappa punishable under Section 377 of I.P.C ?
3) Whether the prosecution has proved beyond reasonable doubt that accused No.1 on the aforesaid date, time and place intentionally or knowingly had committed murder of Chandrika by gagging with onion when she was about to shout during the course of commission of offence of rape and unnatural offence by accused No.1 punishable under Section 302 of I.P.C ?
4) Whether the prosecution has proved beyond reasonable doubt that accused No.2 and 3 in furtherance of common intention immediately after commission of the aforesaid offence by accused No.1 made an attempt to cause disappearance of evidence of offence committed by accused No.1, with intention to screen him from legal punishment /9/ Spl.C.C.No.227/2014 punishable under Section 201 R/w Section 34 of I.P.C ?
5) What order ?
7. My findings on the above points are as under:-
Point No.1 : In the Affirmative.
Point No.2 : In the Affirmative.
Point No.3 : In the Affirmative.
Point No.4 : In the Negative.
Point No.5 : As per final orders for the
following:
REASONS
8. Point Nos.1 to 3 : These points are taken
together for common discussion as they are
interconnected to each other and they are inseparable. There are 3 accused in all. According to prosecution accused No.1 is alleged to have committed rape, unnatural offence and murdered Chandrika who was under the age of 12 years during the course of / 10 / Spl.C.C.No.227/2014 committing rape and unnatural offence. Accused No.2 and 3 are said to have made an attempt to cause disappearance of evidence by rescuing accused No.1 from the place of occurrence and with intention to screen him from legal punishment. Accused No.1 is in judicial custody. Accused No.2 and 3 are on bail.
9. The prosecution made serious allegations against accused No.1 that he had taken away Chandrika, the minor daughter of P.W-5, Yellamma and C.W-9, Anjanappa on the pretext of that he was unable to open the door lock of house No.64 taken on lease by P.W-11, Krishna Devadiga, the uncle of accused No.1, when she went to open the door lock immediately after opening the door lock by Chandrika, he pushed her inside and closed the door forgetting the key in the door itself, the door had automatically got locked of which did not then come to his knowledge, subsequently by dragging her inside, removed her / 11 / Spl.C.C.No.227/2014 bottom, taking her to kitchen and committed rape and unnatural offence.
10. According to prosecution, Chandrika is the niece of P.W-1, B.E.Venkatesh, the complainant. He is the owner of the building consisting of ground floor, first floor and second floor wherein he built up several houses and let out to tenants and lessees. Likewise P.W-11, Krishnadevadiga had taken house bearing door No.64 in the second floor on lease basis from P.W-1. This building is behind Vijaya Enclave, 9th cross, 11th main, Belakahalli, Bengaluru. P.W-11, Krishnadevadiga is the uncle of accused No.1. Accused No.1 is the son of sister of his wife. Accused No.1 to 3 and P.W-11 are from Karkala Taluk. P.W-11 was working as Tailor in the tailoring shop belonged to P.W-9, Sanjeeva. Accused No.1 was working as car driver with the owner of Ink Makers Company at Devarachikkanahalli, Bengaluru. He was staying in company guest house itself. Accused No.3 Harisha is / 12 / Spl.C.C.No.227/2014 from Bendur village, Karkala Taluk, accused No.2 Suresh is from the same village of accused No.1 i.e., Didimeer Gudde village, Shalininagar, Karkala Taluk. Accused No.2, Suresh and accused No.1 are childhood friends. Accused No.2 was working in Bakery at 7th cross, II phase, BTM layout, Bengaluru since one year prior to the incident. Prior to that he was in Bombay for 12 years. Accused No.3 Harisha was running auto in Bajegoli in his village. 2 months prior to the incident he came down to Bengaluru and started working in Bakery belonging to P.W-6, Karunakar. Accused No.1 Sukumar used to visit his uncle's house (P.W-11) bearing door No.64. He was on leave from 04/01/2007 in order to go to Shabarimalai. Again he attended the duty from 20/01/07, again he was on leave from 23/01/07 on the ground of illhealth. After his return from Shabarimalai, the factory guest house was under repairs. Hence, he used to sleep in his aunt Hemalatha's house who is the wife of P.W-11, Krishnadevadiga. His aunt was going to coir factory.
/ 13 / Spl.C.C.No.227/2014
11. Accused No.1 is not the stranger to the inmates of P.W-1, complainant and also deceased Chandrika who was studying in 7th Standard. On 24/01/2007 in the afternoon he took key from P.W-11 in his tailoring shop and came to the building of P.W- 1, at about 2.45pm, while he was climbing the staircase to go to second floor, PW1-Venkatesh had seen him. P.W-1 had been to the house for his lunch. At about 3.00pm P.W-1 already left the house, accused No.1 came down and had seen deceased Chandrika and P.W-3, Lakshmi, the minor daughter of P.W-1's brother coming outside the house of P.W-1. Having culpability in mind to cause sexual abuse, he called the girls by stating that he is unable to open the door lock as his hand was hurt. P.W-3, Lakshmi refused to help him, but Chandrika agreed to help him in opening the door lock, innocent girl accompanied accused No.1 to second floor, she opened the door with key obtaining from accused No.1, he suddenly dragged her inside and closed the door. He removed her pyjama, panty in / 14 / Spl.C.C.No.227/2014 the hall and thereafter dragged her to kitchen. She struggled to escape from him. During the course of her struggling the water in Bindige was poured on the floor, she was about to shout for help, then accused No.1 suddenly took one onion from onion basket which was in the kitchen and gagged with the onion, he committed rape on her and also he voluntarily had carnal intercourse against the order of nature by way of inserting his penis into her anus. He grabbed her genitalia with his fingers, inserted his fingers inside her vagina, during the course of carnal intercourse she stopped her struggling. Thereafter, he noticed her death, he made an attempt to come outside the house, but he failed in his attempt due to his inability to open the lock of the door. Due to automatic lock of the door, he could not open it. He immediately contacted his friend Suresh over phone and disclosed the commission of rape and death of victim, and automatic lock of the door. He sought help from him. Due to fear he had hidden himself on sajja in kitchen. After / 15 / Spl.C.C.No.227/2014 sometime, accused No.2 Suresh and his friend accused No.3 Harish rushed to the house and made an attempt to open the lock, but went in vain. Both of them approached P.W-11 in his tailoring shop and disclosed that accused No.1 had murdered one girl inside the house, they could not open the door, requested him to open it. He accompanied them, peeped through the kitchen window where he found legs of one small girl lying on the floor of the kitchen, he kept the door locked safely and telephoned to P.W-1, Venkatesh, the complainant who is the owner of the house, thereafter P.W-1 also immediately came to the house, they had the discussion and went to Police Station after revealing the incident to neighbours. P.W-27, K.Nagabhushan, then Police Inspector in Mico-layout Police Station on receiving the information of murder of one small girl by accused No.1, mentioning the same in the diary rushed to Belekahalli with his personnel and the complainant, Venkatesh. On being verified, he found the door itself had got locked he peeped into the / 16 / Spl.C.C.No.227/2014 window and found legs of a girl, inspite of instructions to the person inside the house to open the door it was not opened, he got the door opened by pushing it forcibly, then the door lock with screws came out. When they went inside, found 12 years old girl lying half naked, found blood clot in the mouth and nostrils and other injuries on the body, also found the blood profusing from her genitalia and it was clot, there was only top and petticoat on her body, her underwear and pyjama, a pair of chappal lying on the floor, beeds of one local made navaratna chain scattered in the kitchen. She was found dead. They came to know the deceased is none other the Chandrika as identified by the complainant. They also found accused on the sajja in kitchen, publics gathered, in order to maintain the law and order, P.W-27 got the police force. At the request of complainant and others, who were under the impression that she might be alive, Chandrika was immediately shifted to Rajashekar hospital. He sent accused No.2 and 3 found on the spot, with his / 17 / Spl.C.C.No.227/2014 personnel to Police Station to avoid the further complication from the public, he took the custody of accused No.1 at 6.00pm, he got P.W-17, Manohar, then Head Constable, the Photograher, he received the written complaint from complainant prepared from 6.00 to 7.00pm on the spot, obtaining his signature sent the same to the Police Station through Shivakumar, PC 7572 directing the P.W-26, Dakshinamurthy, ASI, then SHO to register the case. After registering the case, he got the crime number. In presence of panchas he got accused No.1 down from sajja, seized mobile at MO-1 which was with accused No.1, arrested him, he drew the spot Mahazar on the same day, again on 25/01/2007 he drew the Mahazar on spot. He recorded the voluntary statement of the accused on 24/01/2007 night itself. After receiving the death memo he drew inquest panchanama in presence of panchas.
/ 18 / Spl.C.C.No.227/2014
12. He drew another Mahazar on the spot, seized clothes of victim, chappal, clothes, door lock and navaratna chain in the presence of panchas, drew rough sketch. On 26/01/07 he recorded the voluntary statement of accused No.2 and 3 and also seized one mobile from accused No.2 Suresh. He also received the post mortem report as per Ex.P.21 wherein the doctor opined the death was caused due to asphyxia as a result of combined effect (Act) of smothering and chocking (homicidal in nature). This is the case of the prosecution.
13. On looking to the facts of the case itself, accused No.1 is the principal accused who is said to have committed rape, carnal intercourse and murder. The learned counsel for the accused No.1 has strenuously argued the case was registered at 7.30pm and F.I.R was despatched, the spot Mahazar was drawn at 7.00pm i.e., prior to registering the case, / 19 / Spl.C.C.No.227/2014 accused No.1 was in custody of the police before registering the case. It vitiates the proceedings.
14. The learned Public Prosecutor has argued that immediately after receiving the information from the complainant, P.W-27, Investigating Officer became alert as culprit was said to have been inside the house i.e., on place of occurrence, anticipating the aggravating circumstances that may be arisen on spot and to save the life of the accused, mentioned in diary, he immediately rushed to the spot, after opening the door he found accused No.1 on the sajja, one girl lying dead on the floor in kitchen with profusing blood. He received the complaint on spot itself from the complainant and sent the complaint through his personnel to register the case by then SHO i.e., P.W- 26, ASI. Simultaneously he drew the spot Mahazar, because aggravating circumstances then prevailed the spot Mahazar could not be complete, he had given attention towards maintaining the law and order, / 20 / Spl.C.C.No.227/2014 because of that reason he got the police force. It is cognizable offence. Accused No.1 was caught redhanded on spot itself, under the circumstances, taking the custody of accused No.1 on the spot and drawing of Mahazar simultaneously does not vitiate the proceedings. On this point he has placed his reliance on 1987 Cri.L.J 200 Kerala High Court Full Bench (Dr.V.Rugmini V/s State of Kerala and others). The Hon'ble High Court of Kerala Full Bench has held therein :
"Steps taken by the Police pursuant to information regarding cognizable offence amounts to investigation under Section 2(b)- Non-registration of F.I.R- on such information is merely an irregularity which does not lead to miscarriage of justice so as to quash proceedings in exercise of inherent powers."
Ex.P.1 is the complaint lodged by P.W-1, Venkatesh on 24/01/08 from 6.00pm to 7.00pm at spot. P.W-27, Police Inspector received the complaint and transmitted through PC 7572 with instructions to SHO / 21 / Spl.C.C.No.227/2014 to register the case under Section 376, 302 of I.P.C and sent F.I.R. The said shara finds place in Ex.P.1. Even there is also another shara made by then SHO, PW26-Dakshinamurthy, ASI that he received the complaint from PC 7572 at 7.30pm and registered the case on 24/01/07 at 7.30pm in Cr.No.18/2007 for the offences under Sections 376, 302 of I.P.C. There are two spot Mahazars at Ex.P.2 and Ex.P.3. Ex.P.2 was drawn on 24/01/07, it was incomplete at that time. Ex.P.3 was drawn on 25/01/07 under which some articles were seized by the Investigating Officer from the spot. There is clearly mentioned in Ex.P.2 that due to lack of time and to rescue the life of the accused from the attack by public gathered, seized mobile only from accused No.1 drawing Mahazar. He had got taken the photos on the spot through P.W-17, Head Constable, Photographer.
15. Section 2(h) of Cr.P.C provides investigation includes all the proceedings under this code for the / 22 / Spl.C.C.No.227/2014 collection of evidence conducted by the police officer or by any person (other than Magistrate) who is authorized by the Magistrate in this behalf. It is cognizable offence. He received the complaint on spot and sent the same to Police Station, he started the investigation by way of taking the custody of accused No.1 by drawing Mahazar under Ex.P.1 on spot. In reality the investigation commences when the police officer receives the information in regard to the offence and starts the investigation. The investigation may be started either on information or otherwise. When information regarding the cognizable offence is furnished to the police that information will be recorded as F.I.R and the steps taken by the police pursuant to such information would amount to "investigation". Thus, all enquiries by the police subsequent to information regarding a cognizable offence would be treated as investigation even though the formal registration of F.I.R takes place only later. Non-registration of F.I.R on information regarding / 23 / Spl.C.C.No.227/2014 commission of cognizable offence received by police officer may be an irregularity, it would not vitiate the proceedings when such investigation would not lead to miscarriage of justice. Therefore, I do not find any force in the arguments addressed by the learned counsel for the accused No.1 that proceedings are vitiated by registration of F.I.R later.
16. Now the question arises whether the prosecution has proved its case beyond reasonable doubt. In order to prove its case the prosecution has got examined as many as 27 witnesses. Out of them P.W-1, the complainant as well as the owner of the said building, P.W-11, Krishnadevadiga, the lessee of the said house where the offence committed by accused No.1, P.W-3, Lakshmi who had lastly seen the deceased Chandrika with accused No.1. There are also other prosecution witnesses to speak about each link of the chain. If one event is missing the chain would not complete.
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17. I have already discussed in detail in supra about the facts of the prosecution case. On looking to the evidence of the prosecution witnesses and the cross-examination done on accused No.1's side, there is no dispute with respect to blood relationship between the deceased Chandrika and P.W-1, the blood relationship between the accused No.1 and P.W-11, the relationship of lessor and lessee between the P.W- 1, Venkatesh and P.W-11, Krishna Devadiga, the blood relationship between the deceased Chandrika and P.W-3, Lakshmi. Having looked into the defence taken on accused No.1's side is total denial of the prosecution case. Ofcourse during the course of arguments, the learned counsel for the accused No.1 has also argued that there was no rape committed by accused No.1, no evidence to attract the ingredients of Section 376, even does not attract the ingredients of Section 302. I will come to little later with respect to the line of arguments addressed by the learned counsel for the accused No.1 at length. But looking / 25 / Spl.C.C.No.227/2014 into defence taken during the course of oral evidence it is total denial. Therefore, the Court shall have to carefully go through the whole materials available before the Court, is there missing of link in the chain. In order to complete the chain even a single link should not be missed.
18. As discussed the facts of the case at the beginning itself it begins with taking away the key from P.W-11, Krishna Devadiga by accused No.1 to go to his house on 24/01/07 in the afternoon. Thus, there are several links to complete the chain of this offence alleged to have been committed by accused No.1.
19. The learned counsel for the accused has strenuously argued that accused No.1 has nothing to do with the present crime. He had never committed any offence as alleged by the prosecution. There is no believable and sufficient evidence to connect him with the alleged crime i.e., offence of rape or murder. For the sake of arguments it is taken that accused was / 26 / Spl.C.C.No.227/2014 found on spot. It does not attract the ingredients of Section 302 or 376 of I.P.C. There is no credible evidence to say that offence of rape was committed. According to allegations by the prosecution case itself accused No.1 had carnal intercourse, there was no penetration in the vagina of the deceased. Based on the case of the prosecution itself it is not an offence of rape, but an offence under Section 377 of I.P.C i.e., unnatural offence. It is also further argued by him that it is borne out from the facts and circumstances of the prosecution case itself that accused had no intention or knowledge of causing death of deceased girl. There is absence of motive. There is absence of intention either to cause death or to cause grievous injuries as is likely to cause death. There is even absence of knowledge that it would cause injury as is likely to cause death or in all probabilities it would be sufficient to cause death of deceased girl. For the sake of arguments, if the Court comes to the conclusion that accused No.1 has caused the death, it falls within / 27 / Spl.C.C.No.227/2014 the purview of Section 304 part II only, but not within the squares of Section 302 of I.P.C.
20. The learned counsel for the accused No.1 has also extensively argued that according to prosecution, the accused No.1 had given the voluntary statement as per Ex.P.35. The confession statement given by the accused before the police does not tantamount to confession, there is bar under Section 25 of Indian Evidence Act. Section 25 of the Indian Evidence Act says "no confession made to a police office shall be proved as against a person accused of any offence". If it is used against the accused then Section 25 is a bar and it cannot be admitted but if it is tobe used in favour of the accused, there is no bar under Section 25 and the confession can well be admitted. It is also further argued that the confession statement consists of two parts, one is exculpatory, another is inculpatory. Section 25 attracts only to those portions of the statement which discloses the killing by the / 28 / Spl.C.C.No.227/2014 culprit and rest of the statement is not attracted by Section 25. Hence, the rest of the statement which amounts to exculpatory can be made use in favour of the accused. As per the statement of the accused No.1 he had no intention of causing death, he had put a onion into her mouth when she was about to shout for help. On spur of moment that act was done by the accused due to sudden grave and provocation, of which does not tantamount to offence of murder.
21. The learned counsel for accused No.1 has placed his reliance on number of rulings with respect to Section 25 of Evidence Act, he has referred me to the following rulings reported in :
1) CDJ 1965 S.C 96 (AIR 1966 S.C 119) in the case of Aghnoo Nagesia V/s State of Bihar.
2) AIR (39) 1952 Madras 586 (C.N.540)
3) 1972 Cri.L.J 1226 ( In re Rayappa)
22. Regarding Section 3 of Evidence Act, he placed his reliance on :
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1) CDJ 2004 S.C 403 (AIR S.C 2004, 1497) (Aman Kumar and Another V/s State of Haryana).
2) Crl.A.No.374/2001 (Krishna V/s State of Karnataka by Hebbagodi Police Station)
3) 2014(4) AICLR 843 (Murlidhar Shivaram Patekar & Anr. V/s State of Maharashtra) I have gone through the aforesaid rulings. Ofcourse, Section 26 makes wholly inadmissible any confession made by a person while he is in the custody of a police officer unless it is made in the immediate presence of a Magistrate. Section 27 is in the form of A proviso which makes admissible the information by an accused person, leading to discovery, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
23. The learned counsel for the accused No.1 has argued there is absolutely no material placed by the prosecution to prove the offence of rape or murder by accused No.1. Causing of death is not intentional but / 30 / Spl.C.C.No.227/2014 under the sudden grave and provocation it happened. It amounts to culpable homicide, in case Court comes to the conclusion the death was caused by him due to insertion of onion, it was done without any motive or intention, it was not pre-arranged, there is lack of pre- determination. Therefore, it does not attract Section 302 of I.P.C at any stretch of imagination.
24. The learned Public Prosecutor has argued based on the evidence of the prosecution witnesses very particularly the complainant, PW11-Krishna Devadiga, PW3-Lakshmi who had lastly seen the deceased with accused No.1, Investigating Officer and the Medical experts coupled with medical evidence and inquest Mahazars that they are explicit enough to say that death of deceased is intentional one, in all probabilities it would be sufficient enough to cause death, he had also knowledge that it would likely to cause injury as is likely to cause death, during the course of commission of sexual abuse, intentionally / 31 / Spl.C.C.No.227/2014 and also he had knowingly caused the death by inserting the onion into her mouth. Therefore, the rulings cited by the learned counsel for accused No.1 do not help to rescue accused No.1 from the clutches of law. The benefit of exculpatory as argued by the learned counsel for the accused No.1 cannot be given to the accused under the present circumstances of the case. There is no question of admissibility of the rest of the statement apart from the incriminating statement admissible under Section 27 of Indian Evidence Act. The voluntary statement of accused No.1 can be made use for the purpose of discovery of facts which was within his knowledge. Even as argued by the learned counsel for the accused No.1 the rest of the statement of accused No.1 was taken into consideration also does not lift him from ditches of the crime. From the evidence on record it is crystal clear that there were multiple injures found on the private parts i.e., vagina and anus of which attracts Section 376 as well as Section 377 of I.P.C.
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25. In the backdrop of the arguments addressed by the learned counsel for the accused No.1 and learned Public Prosecutor if I go through the oral testimony of the prosecution witnesses though the case of the prosecution is rested on circumstantial evidence and there is no eye witness to commission of offence of murder, rape and unnatural offence by accused No.1, there are may aspects of which fix the accused No.1 with the alleged crime. There are many factors to be looked into to find out the implicity of accused No.1 in the present crime. In order to complete the chain very particularly when it is rested on circumstantial evidence if one link is missed, the whole case of the prosecution case goes away. According to prosecution, there are many factors to be considered in the present case. On looking to the evidence of P.W-1, the complainant, P.W-11, Krishna Devadiga, the uncle of accused No.1, PW3-Lakshmi who had lastly seen the deceased Chandrika with accused No.1, there are strong circumstances of which positively established / 33 / Spl.C.C.No.227/2014 the offence committed by the accused No.1. In the present case, the charges against accused No.1 are three in number. One is under Section 376, another is Section 377 and thirdly Section 302 of I.P.C. They are all interconnected to each other. According to prosecution, the act of the accused No.1 who had culpability in his mind begins with seeking help from deceased and P.W-3 to open the door lock. Prior to that he got the key from P.W-11 from his tailoring shop. Therefore, the factum of taking the key from P.W-11 by accused No.1 is the first and foremost point to be looked into. There are several factors to be considered in the present case. They are :
1. Taken key by accused No.1 from P.W-11.
2. Entered the building in which the house No.64 taken on lease by P.W-11 is situated.
3. Taken away the deceased Chandrika on the pretext that he was unable to open the door lock.
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4. Help sought by accused No.1 from accused No.2 and 3- Received the information by P.W-11 about the untoward incident.
5. Intimation by P.W-11 to P.W-1 and then to police.
6. Investigation begins with presence of police on spot, opened the door forcibly and found deceased Chandrika lying dead in the kitchen with profusing blood from private parts and mouth and also found accused No.1 on the sajja in kitchen of house No.64 itself.
7. Medical evidence as to cause of death. With respect to aforesaid factors is there convincing, trustworthy, corroborative and cogent evidence placed by the prosecution is to be seen.
26. If the aforesaid first factor is to be taken into consideration the evidence of P.W-9 and 11 is very material.
/ 35 / Spl.C.C.No.227/2014
(i) P.W-9 is Sanjeeva who was running the tailoring shop in which P.W-11, Krishna Devadiga was working. In view of his oral testimony on 24/01/2007 at 2.30pm accused No.1 Sukumar obtained the key from P.W-11, Krishna Devadiga with intention to go to his house. He has also identified accused No.1 that he is the person who had been to his tailoring shop for key. He is subjected to cross-examination by learned counsel for accused No.1. Nowhere suggested he had never been to his shop and got the key from P.W-11 who was in tailoring shop on that day. The relationship between the accused No.1 and P.W-1 is not denied. The cross-examination led on accused No.1's side would disclose that accused No.1 used to take the key from P.W-11 from his tailoring shop. From the evidence of P.W-9, there is no doubt that accused No.1 was on visiting terms. Accused No.1 is not a stranger to P.W-9.
/ 36 / Spl.C.C.No.227/2014
(ii) P.W-11 is another material witness to speak about the key taken by accused No.1 from him on that day. In view of his oral testimony accused No.1 Sukumar used to take key from him to go to his house, likewise on the date of alleged incident, he had gone to his shop and taken the key from him at about 3.30- 400pm. Ofcourse according to prosecution by about 2.30pm he had gone to his shop and taken the key, around 3.00pm P.W-1, complainant had seen the accused No.1 climbing the stairs while going to P.W- 11's house. It is pertinent to note there may be some discrepancies with respect to timings of taking key from P.W-11 in his tailoring shop, climbing the upstairs in the said building, but it does not take away the whole case of the prosecution. Because there is no dispute that there was unnatural death occurred on that day. Homicidal is of two kinds, one is lawful and another is unlawful. Though there is total denial on accused No.1's side, but from the oral testimony as well as the medical evidence the death of Chandrika / 37 / Spl.C.C.No.227/2014 occurred on 24/01/2007 in the afternoon in the house of P.W-11 is a proved fact. Therefore, the evidence of P.W-11 assumes more importance in the present case. Merely because there are some minor discrepancies with respect to timings of taking the key by accused No.1 from his tailoring shop is not of such substantial nature which could throw out the prosecution case as unbelievable.
(iii) Though P.W-11 is subjected to cross- examination on accused No.1's side there is suggestion made in his cross that he had not given any statement before the police. The another statement extracted from his mouth is he has not produced any rent karar made with P.W-1 with respect to house No.64 taken on lease basis from P.W-1. It is pertinent to note at the first instance not denied on accused No.1's side that P.W-11 was residing in that house belonging to the ownership of P.W-1. Secondly Ex.P.45 is the copy of mortgage deed which came into existence between / 38 / Spl.C.C.No.227/2014 P.W-1 and P.W-11. Therefore, nothing is extracted from the mouth of P.W-11 of which defeats the case of the prosecution or of which tends his oral testimony in his chief examination to be uncredible.
(iv) From the evidence of P.W-9 and P.W-11 it is proved beyond reasonable doubt that accused had taken the key of house No.64 from P.W-11. The aforesaid first circumstance is proved by the prosecution of which subsequently leads to other acts done by the accused.
27. The second circumstance to be considered here is entering of accused No.1 to the building wherein P.W-11's house is situated. In this matter evidence of P.W-1, the complainant, and P.W-3 plays important role.
(i) According to prosecution, P.W-1 complainant had seen the accused No.1 on 24/01/2007 when accused No.1 was climbing the staircase, at that time / 39 / Spl.C.C.No.227/2014 P.W-1 had come home for his lunch. P.W-1 has unequivocally stated in his chief examination at para No.3 page No.3, he had been to his house on that day at 2.25pm for lunch, at that time deceased Chandrika and P.W-3, Lakshmi had also come to his house from the school. All of them had the lunch, he was about to go to his house on his vehicle, at that time he had seen accused no.1 climbing the staircase to go to the house of P.W-11. It is better to reproduce as under :
£Á£ÀÄ ZÀA¢æPÁ Hl ªÀiÁrzɪÀÅ. £ÀAvÀgÀ £Á£ÀÄ ªÉÆÃmÁgï¸ÉÊPÀ¯ï£À°è CAUÀr PÀqU É É ºÉÆÃzÉ£ÀÄ. CzÉà ªÉüÉAiÀÄ°è DÉgÀÆæ-1 ¸ÀÄPÀĪÀiÁgï £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌ ªÉÄnÖ®Ä ºÀwÛPÉÆAqÀÄ ªÀĺÀr ªÉÄÃ¯É PÀȵÀÚ EªÀgÀ ªÀÄ£É PÀqÉUÉ ºÉÆÃzÀ£ÀÄ.
(ii) The evidence of P.W-3 and P.W-1 are corroborative. P.W-3, Lakshmi has stated that on 24/01/2007 they had the school function, hence after changing her dress in the house, straightway she had come to the house of P.W-1. She has further stated / 40 / Spl.C.C.No.227/2014 that her uncle i.e., P.W-1 after the lunch went to the shop. When she and Chandrika came outside to go to his aunt's house to see baby, then accused No.1 Sukumar came from behind by stating that "his hand was hurt, he had tied the handkerchief to his hand, requested to open the door", she flatly rejected his request, but the innocent girl Chandrika sympathized at accused No.1, she went with him. When the grandmother enquired her return to the house, she disclosed the same i.e., Chandrika accompanied accused No.1 to open the door. The relevant portion is reproduced as under :
"£ÀªÀÄä aPÀ̪ÀÄä£À ¥Á¥ÀÅ£À £ÉÆÃqÀ®Ä £Á£ÀÄ ªÀÄvÀÄÛ ZÀA¢æPÁ ºÉÆgÀnzÉݪÀÅ. DUÀ 1£Éà DgÉÆæ ¸ÀÄPÀĪÀiÁgï £ÀªÀÄä »A¢¤AzÀ PÉÊUÉ PÀað¥sï PÀnÖPÉÆAqÀÄ PÉÊ £ÉÆêÁVzÉ, Qà vÉUÉzÀÄPÉÆr JAzÀÄ PÉýzÀ. £Á£ÀÄ ¨ÉÃqÀ mÉÊA DUÀÄvÉÛ JAzÀÄ ºÉýzÉ. DUÀ ZÀA¢æPÁ ¥Á¥À PÉÊ ªÀÄÄj¢zÉ ©ÃUÀ vÉUÉzÀÄPÉÆlÄÖ §gÀÄvÉÛÃ£É JAzÀÄ ºÉý ¸ÀÄPÀĪÀiÁgÀ£À eÉÆvÉ ªÀÄ£ÉUÉ ºÉÆÃzÀ¼ÀÄ".
/ 41 / Spl.C.C.No.227/2014
(iii) The evidence of P.W-1 and 3 are read together, they are more than enough to believe the version that he is none other than the accused No.1 who had taken the deceased just before her death. P.W-3 is the witness who had lastly seen the deceased in the company of accused No.1, who took her to the house where the occurrence took place. The second aspect also is proved by the prosecution beyond reasonable doubt. From the cross-examination of P.W-3 itself, and her statement given in the chief examination do not appear to be untrustworthy. There is only denial of taken away the deceased by accused No.1 to open the door lock. Mere denial of the said aspect does not make her statement unsustainable.
28. Another circumstance against the accused is he sought help from accused No.2 and 3 who were on their duty in their respective places, when they failed in their attempt to open the door, they had approached / 42 / Spl.C.C.No.227/2014 P.W-11 in his tailoring shop and brought him to open door. That is the case of the prosecution.
(i) Accused No.2 and 3 brought him by stating that accused No.1 is inside the house, he murdered one girl. He sought help from them. The charge against accused No.2 and 3 is proved by the prosecution or not will be discussed later. P.W-11 received the information about indulgence of accused No.1 in commission of rape with murder and he was still inside the house No.64. Ofcourse then he was not knowing of who was that girl murdered by him. P.W-11 rushed to his house, on being seen unnatural things happened, he did not open the door but informed P.W- 1, the complainant who is the owner of the building. In this matter the evidence of P.W-9 and 11 and also P.W-1 is very material.
(ii) Accused No.1 is not a stranger to either to complainant or to P.W-3 or to P.W-9, owner of the tailoring shop. Since he was often visiting the tailoring / 43 / Spl.C.C.No.227/2014 shop and also to the house of P.W-11, they had acquaintance with accused No.1. P.W-9 has stated in his evidence after accused No.1 had taken the key to go to the house of P.W-11, accused No.2 and 3 had been to the shop of P.W-11, Krishna Devadiga, P.W-11 accompanied them, accused No.2 and 3 had come to his shop on bicycle. He was cross-examined on accused No.1's side. He could withstand the cross- examination. There is nothing on record to disbelieve his version that accused No.2 and 3 approached P.W- 11 and took him at that time. Now if I go through the evidence of P.W-11, he corroborates P.W-9. He has stated in his very chief examination that :
"3.00 gÀAzÀ 4.30gÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀ CAUÀrAiÀÄ ºÀwÛgÀ ¸ÀÄgÉñÀ ªÀÄvÀÄÛ ºÀjñÀ §AzÀÄ ¤ªÀÄä ºÀÄqÀÄUÀ MAzÀÄ ºÀÄqÀÄVUÀÉ gÉÃ¥ï ªÀiÁr ªÀÄqÀðgï ªÀiÁrzÁÝ£É JAzÀÄ ºÉýzÀgÀÄ. £ÀAvÀgÀ £Á£ÀÄ CªÀj§âgÀ eÉÆvÉ £ÀªÀÄä ªÀÄ£ÉUÉ ºÉÆÃzÉ, £Á£ÀÄ ºÉÆÃzÁUÀ £ÀªÀÄä ªÀÄ£É Qà ¨ÁV°£À¯Éèà EvÀÄ.Û £Á£ÀÄ ºÉÆgÀUÉ ¯ÁPï ªÀiÁrzÉ.
/ 44 / Spl.C.C.No.227/2014
M¼ÀUÀqɬÄAzÀ DgÉÆæ ¸ÀÄPÀĪÀiÁgï ¨ÁV®Ä a®PÀ
ºÁQPÉÆArzÀÝ".
The aforesaid portion of his evidence proves the 4th circumstance that accused No.2 and 3 brought him to his house since unlawful act stated to have been done by accused No.1. After that immediately P.W-11 contacted P.W-1. In the cross-examination done on accused No.1 side, I do not find any discrepancy or contradictions to brush aside his version in his chief examination. If the evidence of P.W-9 and 11 alongwith P.W-1, the complainant is read on this aspect, they are consistent which proves the 4th circumstance. P.W-1 in his chief examination at page No.3 para No.3 has stated that :
"¸ÀAeÉ 5.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è PÀȵÀÚ J£ÀÄߪÀªÀgÀÄ £À£ÀUÉ ¥ÉÇÃ£ï ªÀiÁr CeÉðAmÁV ªÀÄ£É ºÀwÛgÀ ¨Á CAvÀ ºÉýzÀgÀÄ.
DUÀ £Á£ÀÄ ªÀÄ£É PÀqÉUÉ CzÀsð zÁj §AzÁUÀ £ÀªÀÄä
¨ÁrUÉzÁgÀgÁzÀ PÀȵÀÚ JzÀÄjUÉ §AzÀÄ, PÀȵÀÚ CªÀgÀ
/ 45 / Spl.C.C.No.227/2014
ºÉAqÀwAiÀÄ CPÀÌ£À ªÀÄUÀ DgÉÆæ-1 MAzÀÄ ºÀÄqÀÄVAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ ¸Á¬Ä¹zÁÝ£É CAvÀ £À£Àß ªÀÄÄAzÉ ºÉýzÀ£ÀÄ.
PÀȵÀÚ ªÁ¸ÀªÁVzÀÝ ªÀÄ£É ºÉÆgÀUÀqɬÄAzÀ a®PÀ, ©ÃUÀ ºÁQvÀÄÛ. DUÀ £Á£ÀÄ ªÀÄvÀÄÛ PÀȵÀÚ vÀPÀÌt ªÉÄÊPÉÆïÉÃOmï ¥Éǰøï oÁuÉUÉ ºÉÆÃV «µÀAiÀÄ w½¹zɪÀÅ".
The aforesaid portion of evidence of P.W-9,11 and 1 has proved the 4th aspect beyond reasonable doubt, of which also against accused No.1.
29. The next circumstance of which links to the overt-act by accused No.1 is the presence of police, forcibly opened the door and his presence was inside the house i.e., he was on the place of occurrence itself of which shows close proximity between him and the crime alleged to have been committed by him. The investigation taken place by way of opening the door forcibly. The evidence of P.W-1, P.W-11 and P.W-2 W/o P.W-1, P.W-4, the brother of P.W-1 and / 46 / Spl.C.C.No.227/2014 Investigating Officer carry more weight. According to prosecution the police could not open the door easily, atlast opened the door by force, then the door lock with screws came out, found deceased Chandrika lying dead in the kitchen with multiple bleeding injuries, blood clots on her private parts, the another material aspect in the present case is they found accused No.1 on the sajja in that house itself. This aspect has been stated by many witnesses who had seen the dead body lying in the kitchen and also found accused No.1 on the sajja in the kitchen.
(i) P.W-1, the complainant has stated in para No.4 at page No.3 when they went inside with the police found dead body of Chandrika in the kitchen, accused No.1 was on sajja. P.W-11 who is none other than the uncle of accused No.1, also corroborates P.W-1. He has stated in his chief examination in page No.2 that accused No.1 was on sajja in the kitchen. After police broke open the lock went inside found the dead body of / 47 / Spl.C.C.No.227/2014 Chandrika and also found accused No.1 on sajja in the kitchen.
(ii) P.W-9, Sanjeev, owner of tailoring shop had also been to that place when P.W-11 did not return to tailoring shop, he found the gathering. In page No.2 he has specifically stated he found dead body of Chandrika inside the house of P.W-11 and also accused No.1 inside the house.
(iii) P.W-2, Shashikala is the wife of the complainant. She has also stated in her chief examination at page No.2 her husband made telephonic call revealing the incident, immediately she rushed to the spot, found gathering of public, the police broke open the lock, found dead body of Chandrika in the kitchen, top dress only was on her body and her bottoms lying on the ground, blood profusing from her mouth and from vagina, slippers and onion scattered on the floor.
/ 48 / Spl.C.C.No.227/2014
(iv) P.W-4, Shankarappa, who is the brother of the complainant has also stated in consonance with the other witnesses. In his chief examination in page No.3 he has stated that police forcibly opened the door, found Chandrika lying dead in the kitchen, her pyjama and kacha were on the floor itself, accused No.1 was on sajja in the kitchen.
(v) P.W-27, K.Nagabhushan, then Police Inspector, the Investigating Officer in the present case has also spoken in para materia with that of aforesaid witnesses with respect to dead body of Chandrika lying in the kitchen, accused No.1 was on the sajja in kitchen of the house of P.W-11. This is the strong piece of circumstantial evidence against accused No.1 of which shows the complicity in the alleged crime. I do not find any omissions or contradictions in the evidence of aforesaid witnesses, which may defeat the case of the prosecution. They are all probable witnesses. There is nothing highlighted on defence / 49 / Spl.C.C.No.227/2014 side whether they had any illwill or enimity against accused No.1. That is not at all the defence on accused No.1's side. P.W-3 is a small girl. What vengeance she has against accused No.1 to say that accused and deceased Chandrika were last seen together just before the incident and it is the accused who had taken her to the house of occurrence. Therefore, there wouldn't be hazardous to come to conclusion about the involvement of accused No.1 in present crime. How she was murdered, what was the cause for her death will be seen later. At the first step the nexus between the incident and the accused No.1 has to be determined. From the oral testimony of the aforesaid witnesses, there is no manner of doubt about involvement of the accused No.1 in the present crime. There is a close proximity between taking away deceased Chandrika by accused No.1 and the death of deceased. It is very clear from the evidence of P.W-3 which does not appear to have been tutored. The aforesaid aspect of dead body was found in kitchen / 50 / Spl.C.C.No.227/2014 and accused No.1 was also found in the place of occurrence are the strong pieces of evidence of which would fasten the guilt on the accused No.1.
30. The 6th circumstance is also supported by the spot panchas to Ex.P.2 and Ex.P.3. Ex.P.2 was drawn immediately after they found dead body and accused No.1 on the scene of occurrence, under Ex.P.2, mobile from accused No.1 was seized by P.W-27, Investigating Officer.
(i) P.W-14, B.R.Virupaksha is one of the spot pancha to Ex.P.2. He is the neighbour of the complainant. He is one of the probable witness. After coming to know of the incident, he had come to the spot. He was also present when the police broke open the lock and entered inside the house of P.W-11. He has also reiterated as stated by the aforesaid prosecution witnesses with respect to dead body and accused No.1 on spot of occurrence. He has also / 51 / Spl.C.C.No.227/2014 stated in page No.2 of his chief examination that police drew Mahazar as per Ex.P.2.
(ii) Ex.P.3 is another Mahazar to which P.W-14 is one of the signatory, drawn on very next day itself due to the time constraintment and the situation prevailed last evening. Ex.P.3 was written in detail by the Investigating Officer with respect to scene of occurrence found immediately after the incident. This is very material document of which throws the light about the happenings taken place between the accused and deceased. Under Ex.P.3 number of articles were seized. Ex.P.2 speaks that pyjama and her panty were in the hall, broken potlock with two screws on the floor. Page No.3 of Ex.P.3, Mahazar would show struggling of the deceased to escape from the hands of accused No.1. The vessels in the kitchen, grains, onion scattered. It is better to reproduce relevant and material portion of Ex.P.3 as under :
/ 52 / Spl.C.C.No.227/2014
"CrUÉ ªÀÄ£ÉAiÀÄ ¨ÁV® ¥ÀæzÉñÀ zÁégÀzÀ M¼ÀUÉ
JqÀ¨sÁUÀzÀ°è ¨É¼ÉUÀ¼ÀÄ qÀ§â ©zÀÄÝ ZÉ°gÀÄvÉ.Û FgÀÄ½î §ÄnÖ ¨ÉÆÃgÀ¯ÁV ©zÀÄÝ FgÀĽîUÀ¼ÀÄ ºÉÆgÀUÀqÉ ©¢ÝgÀÄvÉ"Û .
"CªÀ¼À£ÀÄß M¼ÀUÀqÉ zÀ©Pâ ÀÆAqÀÄ §AzÀÄ ¨ÁV®£ÀÄß ¨ÀszÀæ¥Àr¹ CªÀ¼À ¥ÉÊeÁªÀÄ ªÀÄvÀÄÛ M¼À GqÀÄ¥ÀÅ£ÀÄß QvÀÄÛ ©¸ÁQ, CªÀ¼ÀÄ PɸÀUÁqÀĪÀ ¸ÀªÀÄAiÀÄ, CªÀ£ÀÄ zÀsj¹PÉÆArzÀÝ ««zÀs §tÚzÀ £ÀªÀgÀvÀß ªÀiÁ¯É 2 vÀÄAqÀÄUÀ¼ÀÄ ºÁ°£À°è ©¢ÝgÀ§ºÀÄzÉAzÀÄ £ÁªÀÅ C©ü¥ÁæAiÀÄ ¥ÀqÀÄvÉÃÛ ªÉ".
"¸ÀdÓ PɼU À ÀqÉ £É®zÀ ªÉÄÃ¯É ¥Áè¹ÖPï PÉÆqÀ¥Á£ÀUÀ¼ÀÄ, EvÁå¢ ¥ÁvÉæ, ªÀUÉÊgÉ ºÁUÀÆ ¹Öïï PÉƼÀUÁ ¸ÀºÀ EzÀÄÝ CªÀgÀ ªÀÄÄA¨sÁUÀ §®UÀqÉ UÉÆÃqÉ PÀqÉ 2 ºÀªÁ¬Ä ©½ §tÚzÀ ZÀ¥À° à UÀ¼ÀÄ ©¢ÝzÀÄÝ EªÀÅ ¥ÁågU À Á£ï PÀA¥À¤AiÀÄzÁVgÀÄvÉÛ".
(iii) P.W-1, complainant has identified two Hawaii chappals of deceased Chandrika. Even the clothes of Chandrika were also identified by P.W-1 and 2. The / 53 / Spl.C.C.No.227/2014 aforesaid articles were seized under Ex.P.3, they are marked at MOs-2 to 6.
(iv). From the aforesaid scene noted in Ex.P.2 and Ex.P.3 coupled with oral testimony of panchas and other aforesaid witnesses who entered inside the house with police, there is no doubt to say that accused No.1 is directly involved in the present crime. The attending circumstances of the case and the evidence of these witnesses establish the nexus between accused No.1 and the death of deceased Chandrika. There is nothing to disbelieve the version of these witnesses. Their evidence is untainted and uninfluenced.
31. The last factor to be looked into is with respect to cause of death. The evidence of experts in medical field and the medical report are very material to determine the cause of death. P.W-21, Dr.S.Venkataraghava is then Assistant Professor in Forensic Medicine, Victoria hospital, Bengaluru.
Ex.P.21 is the Post Mortem report. Ex.P.22 is the
/ 54 / Spl.C.C.No.227/2014
carbon copy of the requisition given by the
Investigating Officer for Post Mortem. Ex.P.23 is the original requisition given by the Investigating Officer for post mortem. Ex.P.24 is the opinion given by P.W- 21 with respect of cause injuries and cause of death. Ex.P.25 is the medical report with respect to medical examination of accused No.1 Sukumar. It is very essential to look into the injuries found on the dead body. P.W-21 has stated in his evidence in consonance with Ex.P.21 about the internal injuries and also external injuries found on the dead body. There were multiple injuries found on the dead body.
32. According to prosecution, accused No.1 is alleged to have committed rape, carnal intercourse, he also caused the death of Chandrika during the course of sexual/carnal intercourse. The external injuries found on the dead body are as under :
/ 55 / Spl.C.C.No.227/2014
1. Contusion present over the middle of forehead.
3cms from the root of nose measuring 2cms X 0.5cms.
2. contusion over the middle of nose measuring 3cms X 1cms.
3. Nail scratch abrasion cresentric, present over outer aspect of left eyebrow measuring 2cm X 0.2cms.
4. Nail scratch abrasion, cresentric, present over leftsde of face, 3cms outer to left angle of mandible measuring 0.5cm X 0.2cm.
5. Nail scratch abrasion, cresentric, present over outer aspect of right side of upperlip measuring 0.5cm X 0.2cms.
6. Contusion present over inner aspect of right side of upperlip measuring 2cms X 0.5cms.
7. Contusion over outer aspect of right lip involving the angle of mouth measuring 1cm X 0.3cms.
/ 56 / Spl.C.C.No.227/2014
8. Laceration 1cm inner to angle of mouth lowerlip measuring 3mm X 1mm X tissue deep
9. Multiple lacerations measuring from 2mm X 1mm to 3mm X 1mm over inner aspect of upperlip corresponding to underlying teeth.
10. laceration over inner aspect of leftside of lowerlip measuring 3cm X 0.5cm X tissue deep.
11. Nail scratch abrasion, cresentric, outer middle of left mandible measuring 0.5cm X 0.2cm.
12. Nail scratch abrasion, cresentric, out front of leftside of neck measuring 0.2cm X 0.1cm.
13. Contused abrasion over right middle of neck 3.5cms below right angle of mandible measuring 2cm X 1cm.
14. Nail scratch abrasion, cresentric, present over inner aspect of right thigh measuring 0.5cm X 0.2cms, 11cms above knee point.
On dissection of neck, blood extravasacation present around both sides of thyro-hyoid muscles, thyroid cartilage and hyoid bone are intact.
/ 57 / Spl.C.C.No.227/2014 A medium sized onion measuring 17cms in
circumference 3cms in length and 5cm in breadth is found in the pharynx blocking the wind pipe. Blood extravasacation present in the pharynx, epiglottis and opening of larynx.
The internal injuries found in cranium and spinal cord are also very material. On reflection of scalp blood extravascation present over mid frontal region measuring 2.5cm X 1cm. Skull intact. Membranes intact. Brain intact and while matter shows multiple petechiae.
In thorax so far as concerned to heart and large vessels they are intact and congested. Surface shows petechiae.
The aforesaid injuries are concerned to upper part. So far as concerned to genitalia, external genitalia-
vulva swollen and congested. Hymen shows fresh
/ 58 / Spl.C.C.No.227/2014
tears cut 8 'o' clock, 5 'o' clock and 3 'o' clock position. Torn edges are reddish, swollen with blood. So far as concerned to anus, bleeding is seen in anus. After cleaning it is observed that anus is swollen and dilated with marked congestion. Two unear abrasions measuring 1cm X 0.2cms and 0.8cms X 0.3cms X muscle deep is seen over the posterior aspect of anal canal. On internal examination it admits two fingers with considerable loss of tone.
33. P.W-21 has opined that abrasions are red in colour and contusions are red in colour. All injuries are ante-mortem in nature. He opined death is due to asphyxia as a result of combined effect (Act) of smothering and chocking (Homicidal in nature). P.W- 21 has given his evidence in detail about the meaning of smothering and chocking. He has stated that "ªÀÄÈvÀ¼À ¸ÁªÀÅ ºÉÆgÀV£À ±Áé¸ÀgÀAzÀsæU¼ À À£ÀÄß ªÀÄÄaÑzÀÝjAzÀ smothering ºÁUÀÆ M¼ÀV£À ±Á鸣À Á¼ÀªÀ£ÀÄß PÉÆ¯É ªÀiÁqÀĪÀ ¥ÀæAiÀÄvÀßzÀ°è ªÀÄÄaÑzÀÝgÀ / 59 / Spl.C.C.No.227/2014 chocking ¥ÀjuÁªÀÄ¢AzÀ GAmÁzÀ G¹gÀÄPÀlÄÖPɬÄAzÀ ¸ÁªÀÅ ¸ÀA¨Às«¹gÀÄvÀÛzÉ JAzÀÄ £Á£ÀÄ £À£Àß C©ü¥ÁæAiÀÄ ¤ÃrgÀÄvÉÛãÉ."
34. Ex.P.25 is the medical report of the accused. P.W-21 has also stated about the injures found on the body of the accused that there are multiple nail scratch abrasions over the lower part of front of neck, over right side of neck, over right side of nose, inner side of right lower lip. All abrasions are bright red in colour. He has further stated that on examination of his genitalia found scratches and small tears, also shows some fecal matter, stains of fecal matter over glans.
35. He has given his definite opinion with respect to under what circumstances the injures found on the body of the deceased Chandrika could be caused and also about cause of death. With respect to cause of injuries that he found in and around genitalia and anal part, he opined that they could be caused if sexual intercourse is forcibly done. Even he has also / 60 / Spl.C.C.No.227/2014 further opined that injuries found in and around genitalia and anal part, the injuries found on the penis of the accused could be caused if there is protest during forcible sexual intercourse and assault. The another material to be noted here is stains of fecal matter over glans, scratches and small tears on penis. In page No.9, P.W-21 has clearly stated that if carnal intercourse is done the stains of fecal matter are found over glans, even the injuries found on glans could be caused if the intercourse is forcibly done. It is better to reproduce as stated by him in his evidence :
ªÀÄÈvÀ zÉúÀzÀ ºÉÆgÀV£À d£À£ÉÃA¢æAiÀÄ, UÀÄzÀzÁégÀ ºÁUÀÆ vÉÆqÉAiÀÄ ªÉÄÃ¯É PÀAqÀÄ §AzÀAvÀºÀ ±ÀªÀ ¥ÀjÃPÀëÁ ªÀj¢AiÀÄ°è £ÀªÀÄÆ¢¹zÀ UÁAiÀÄUÀ¼ÀÄ §®ªÀAvÀªÁV ¯ÉÊAVPÀ ¸ÀA¨sÉÆÃUÀ £ÀqɸÀ§ºÀÄzÁzÀAvÀºÀ ¸ÀAzÀ¨ÀsðzÀ°è ºÁUÀÆ ºÀ¯ÉèAiÀÄ ¸ÀAzÀ¨ÀsðzÀ°è DUÀ§ºÀÄzÁVzÉ.
ªÀåQÛAiÀÄÄ ¥ÀæwgÉÆÃzÀs ªÀåPÀÛ¥Àr¹zÁUÀ DUÀĪÀ
UÁAiÀÄUÀ¼ÁVgÀÄÛªÉ. DgÉÆæ ¸ÀÄPÀƪÀiÁgÀ£À ªÉÄÃ¯É DzÀ
UÁAiÀÄUÀ¼ÀÄ VÃgÀÄ UÁAiÀÄUÀ¼ÀÄ §®ªÀAvÀªÁV ¸ÀA¨sÉÆÃUÀ
/ 61 / Spl.C.C.No.227/2014
ªÀiÁrzÁUÀ DUÀĪÀ UÁAiÀÄUÀ¼ÁVgÀÄvÀª
Û .É DgÉÆæ
¸ÀÄPÀĪÀiÁgÀ£À d£À£ÉÃA¢æAiÀÄ ZÀĪÀÄð gÀ»vÀ ªÀÄÄA¨sÁUÀPÉÌ CAn PÉÆArzÀÝ ªÀÄ® ¥ÀzÁxÀð UÀÄzÀ ¸ÀA¨sÉÆÃUÀ ªÀiÁrgÀĪÀÅzÀjAzÀ DVgÀÄvÀz Û .É
36. P.W-21 has been subjected to cross- examination on accused No.1's side. Ofcourse there is one suggestion made in his cross that the age of injuries is not mentioned in the Post Mortem report. He has accepted the same. However, in further he has stated that though he has not mentioned the age of the injury, but mentioned the colour of the injury. The colour of the injuries are red in colour. That itself shows they are fresh injuries, it does not require any further explanation about the age of injuries. The post mortem was done on the same day.
37. On accused No.1's side suggested that P.W-21 did not conduct post mortem examination, no injuries / 62 / Spl.C.C.No.227/2014 were found on the body of the accused. They have been specifically denied by P.W-21.
38. The injuries found in and around anal part and injuries found in and around of upper parts of deceased Chandrika and, injuries found on the body of the accused and also his penis have left no manner of doubt that he had carnal intercourse, he has committed unnatural offence punishable under Section 377 of I.P.C. The oral evidence of P.W-21 coupled with post mortem report at Ex.P.21, the medical report of accused at Ex.P.25 and evidence of other witnesses who found injuries on the body of deceased Chandrika are read together, the Court has no hesitation in accepting the evidence of medical expert, other aforesaid witnesses, the opinion given by the doctor in post mortem report of the deceased and medical report of the accused. The medical evidence is to the effect that there is recent carnal intercourse. This evidence is also corroborated by Investigating / 63 / Spl.C.C.No.227/2014 Officer, P.W-27. There are sufficient materials to prove the guilt of the accused punishable under Section 377 of I.P.C.
39. So far as concerned to offence under Section 376 of I.P.C, the learned counsel for the accused No.1 has strenuously argued it does not attract the ingredients of Section 376 of I.P.C, there is no evidence to prove the offence of rape, ofcourse there may be evidence with respect to carnal intercourse, accused is entitled to be acquitted for the offence under Section 376 of I.P.C.
40. It is pertinent to note as discussed in supra by looking into the medical evidence consisting of Post Mortem report, medical report of the accused and the oral testimony of P.W-21, the Doctor and also the opinion given by him clearly establish there are multiple injuries found in and around vagina. As per Post Mortem report itself hymen shows fresh tears at 8 'o' clock, 5 'o' clock and 3 'o' clock positions, torn edges / 64 / Spl.C.C.No.227/2014 are reddish and swollen with blood. In view of oral testimony of P.W-21, the injuries found on the body of accused and also on the body of the deceased Chandrika could be caused during the course of forcible sexual intercourse. Therefore, I do not find any force in the arguments addressed by the learned counsel for the accused No.1 that there is no evidence of rape by accused. In the cases like this nature, eye witnesses may not be available, such offences usually takes place within the four corners. In the present case also inside the house it took place. The injuries found on the body of deceased, in and around the vagina, the injuries found on the body of the accused and on his vital part would show the commission of rape by him. He has committed not only the offence of rape, but also the carnal intercourse. There is no other evidence to discredit the medical evidence. The prosecution has proved beyond reasonable doubt the guilt of the accused for the offence of rape.
/ 65 / Spl.C.C.No.227/2014
41. Lastly the question arises with respect to whether accused has committed the murder of deceased Chandrika, whether it falls within the purview of Section 302 of I.P.C. As already discussed in supra, as per the arguments by the learned counsel for the accused No.1, there was no intention of committing murder, under sudden grave and provocation it was done, it does not attract the ingredients of definition clause of Section 300, when he had no intention or even the knowledge of consequences of the same, it does not fall under Section 302 of I.P.C, it may fall under Section 304 Part II of I.P.C. It is also further argued by him that benefit of exculpatory in voluntary statement of the accused No.1 should be given to him.
42. I have gone through the voluntary statement of the accused No.1. As argued by learned counsel for the accused No.1 I do not find that there was a situation of which would cause grave and sudden / 66 / Spl.C.C.No.227/2014 provocation. The circumstances under which he was placed would not provoke him to loose his self control or cause grave and sudden provocation to accused No.1 so as to bring his act within the first exception to Section 300 of I.P.C. Even to invoke exception 4 to Section 300, 4 requirements must be satisfied, namely
1) it was a sudden fight 2) there was no pre-meditation
3) the act was done in a heat of passion and 4) the assailant had not taken any undue advantage or acted in a cruel manner. But in the case on hand there was no sudden quarrel, there was no heat of passion found, but it is the accused No.1, the offender had taken undue advantage of innocence and helplessness of the deceased girl and acted in cruel manner. It is clear case of murder, because from the attending circumstances, it is crystal clear that when she was about to shout for help, he gagged with onion, he had committed rape as well as the unnatural offence. Under the circumstances, it cannot be said that murder was caused in heat of passion or under / 67 / Spl.C.C.No.227/2014 sudden grave and provocation. On looking to whole evidence on prosecution side as well as the defence taken on accused No.1's side it is of total denial. It is not the defence that there is no homicide. It is a clear case of homicide. As mentioned in supra, homicide is of two kinds, one is lawful homicide and another is unlawful. Homicide is killing of human being by an human being. Culpable homicide is of two category namely 1) culpable homicide not amounting to murder
2) murder 3) rash or negligent homicide 4) dowry death and 5) suicide. "Culpable homicide" is genus and "murder" is the specie. All murder are culpable homicide but not vice versa.
43. Indian Penal code recognized 3 degrees of culpable homicide, 1) culpable homicide of first degree- this is the gravest form of culpable homicide, which is defined in Section 300 as murder. 2) culpable homicide of the second degree- This is lower or lesser form of homicide not amounting to murder as defined under / 68 / Spl.C.C.No.227/2014 Section 299 of I.P.C. This is punishable under first part of Section 300 of I.P.C. 3) culpable homicide of third degree-This is lesser type of homicide which is punishable under second part of Section 304 of I.P.C.
44. I have discussed in supra according to the arguments canvassed by the learned counsel for the accused No.1, in case if the Court comes to the conclusion that death was caused by accused, it may fall within the purview of second part of Section 304. On accused No.1's side claims that it is caused because of sudden and grave provocation, secondly there was no intention, no knowledge of committing murder. If the first part of his arguments is taken regarding grave and sudden provocation, from the facts on record itself positively establishes that victim girl herself struggled for her life, to escape from his clutches, she was of just 12 years only, accused No.1 is a person at the age of 26 years. At no stretch of imagination it can be said that there was sudden grave / 69 / Spl.C.C.No.227/2014 provocation. He was doing an unlawful act i.e., he was sexually harassing the victim girl. In order prevent her from shouting that means in order to complete his unlawful act he gagged with onion, that itself shows his intention was to complete his act. The evidence of culpable homicide presupposes the intention or knowledge of likelihood or causing death. As claimed on accused No.1's side, for the benefit of grave and sudden provocation, the four requisites must be satisfied in order to invoke explanation 4 under Section 300 of I.P.C. The following requisites are essential to satisfy the Exception 4 of Section 300 of I.P.C :
1) it was a sudden fight
2) there was no premeditation
3) the act was done in a heat of passion and
4) The assailant had not taken any undue advantage or acted in a cruel manner.
/ 70 / Spl.C.C.No.227/2014 But in the present case, he had taken away the deceased girl in order to satisfy his lust, when she was about to shout he inserted the onion into her mouth.
The intensity of insertion of onion is also very material in the present case. In view of medical evidence because of insertion of the onion it caused smothering and chocking, consequently caused death of Chandrika. There patently appears there was no sudden fight or no situation of heat of passion. It cannot be said that assailant had not taken any undue advantage. Therefore, the benefit of exception 4 under Section 300 is not available to the accused No.1.
45. In view of Section 300 of I.P.C, culpable homicide is murder.
1) If the act is done with intention of causing death or
2) If it is done with an intention of causing such bodily injury as offender knows it to be likely to cause death / 71 / Spl.C.C.No.227/2014
3) If it is done with an intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or
4) If the person committed the act knows that it is so eminently dangerous that utmost, in all probabilities, cause the death or such bodily injury as is likely to cause death.
Though it is forthcoming from the attending circumstances that he had taken away the deceased to satisfy his lust, however, death was caused by him knowingly that it is so eminently dangerous that it must in all probability cause death or bodily injury as is likely to cause death. The act of the accused i.e., insertion of onion into her mouth itself shows he had the intention of causing such type of bodily injury and insertion of onion into her mouth is sufficient in ordinary course of nature to cause bodily injury and it would likely to cause death. Merely because he had not taken away the girl with intention to murder, it / 72 / Spl.C.C.No.227/2014 cannot be said that he has not committed the murder when he had the intention of causing bodily injury by way of inserting the onion in order to complete his another unlawful act. It is not the case that he inserted the onion and fled away or did not do anything in further. After gagging with the onion he had committed the offence of rape and also carnal intercourse. That itself shows the culpability of the accused, the mental attitude of the accused. The positive photos of dead body found on the spot are produced on prosecution side at Ex.P.4 to Ex.P.8, Ex.P.14 to Ex.P.19. Very particularly Ex.P.7, 14 would show the intensity of insertion of onion. Even the injuries caused due to consequence of gagging with onion would also show the mental attitude of the accused and also the knowledge of the accused. It can be perceived not only from the circumstances, but also from the act done by the accused before and also after insertion of the onion. Therefore, according to my opinion, it is a clear case of murder caused by the / 73 / Spl.C.C.No.227/2014 accused in order to complete his another unlawful act. It falls within the purview of clause 3 and also clause 4 of Section 300. The prosecution has placed sufficient materials to show the guilt of the accused under Section 302 of I.P.C. The rulings cited by the learned counsel for the accused No.1 are not helpful to the accused No.1 in the present case due to the facts and circumstances of the case on hand is altogether different. Totality of the circumstances appear on record of the case disclose that accused No.1 had committed the offence of rape, unnatural offence and also murder of deceased. I do not find any flaw or infirmity in the evidence of P.W-1,2,3, 9,11, 21, 27. The circumstances mentioned in supra are very strong against accused No.1 to accept the evidence of these witnesses and to come to conclusion of guilt of the accused No.1. The evidence of those witnesses has been carefully scrutinized, no material contradictions, which entitle the accused No.1 for any benefit whatsoever shown in the case are found. There has / 74 / Spl.C.C.No.227/2014 been consistent case proved by the prosecution by examining the material witnesses with regard to forcible sexual intercourse, carnal intercourse and also murder by accused No.1. Aforesaid circumstances at Sl.No.1 to 5 mentioned in page No.34 are strong piece of evidence that has gone against accused No.1. Factors at Sl.No.7 and 8 therein are also proved by prosecution from trustworthy, corroborative and cogent evidence of those material witnesses as discussed in supra.
Though it is rested on circumstantial evidence the chain of events is proved by prosecution that within all human probability the offences have been committed by the accused. Chain of evidence is complete with fully established circumstances not to leave any reasonable ground for a conclusion consistent with innocence of accused No.1. Accused No.1 is found guilty of offence of rape, unnatural offence and murder. The prosecution has proved the guilt of the / 75 / Spl.C.C.No.227/2014 accused beyond reasonable doubt. Hence, I hold point No.1 to 3 in the Affirmative.
46. Point No.4 : Lastly the question arises with respect to guilt of accused No.2 and 3. The learned counsel for accused No.2 and 3 have vehemently argued that there is absolutely no evidence on record to show the involvement of accused No.2 and 3 for the purpose of causing disappearance of evidence of offence alleged to have been committed by accused No.1 or giving false information to screen the accused No.1 from legal punishment.
47. The learned Public Prosecutor has submitted that P.W-11, the uncle of accused No.1 has stated that accused No.2 and 3 had approached him by disclosing their inability to get accused no.1 outside the house as the door itself had got locked, they could not open it. It is also further argued by him that the bicycle of accused No.1 Suresh has been seized by police for which P.W-10 Ramesh supported the prosecution.
/ 76 / Spl.C.C.No.227/2014
48. According to prosecution, the intention of accused No.2 and 3 was to rescue accused No.1 from the place of occurrence as he was unable to go outside due to automatic door lock. When he closed the door immediately after he dragged the victim girl inside the house and the door key was in the lock of the door itself outside. The door kept locked automatically. It is also the case of the prosecution that accused No.2 Suresh by calling to public booth nearby his shop wherein he was working. Thereafter accused No.2 alongwith accused No.3 rushed to the spot, but they also could not open the door, hence they approached P.W-l1, after the public gathered accused No.2 and 3 were beaten up by the publics as they made an attempt to rescue accused No.1 though they had the knowledge that accused No.1 had committed rape and murder.
49. The initial burden lies upon the prosecution to establish the participation of accused No.2 and 3 in / 77 / Spl.C.C.No.227/2014 causing disappearance of evidence of offence, committed by accused No.1. The charge against accused No.2 and 3 is for the offence under Section 201 of I.P.C. Section 201 of I.P.C consists of two parts, one is causing disappearance of evidence of offence, second part is giving false information to screen the offender. Is there any evidence found on record with respect to giving false information or act of the accused for disappearance of evidence of the offence in order to screen accused No.1 from legal punishment. On this aspect according to prosecution, P.W-9, owner of the tailoring shop, P.W-11, uncle of accused No.1, P.W-10, Ramesh are the material witnesses and also Investigating Officer who recorded the voluntary statement of accused No.2 and 3. It is pertinent to note there is no clinching evidence to show the active participation of accused No.2 and 3 in causing disappearance of offence committed by accused No.1 or giving false information.
/ 78 / Spl.C.C.No.227/2014
50. On going through the evidence of P.W-11, if read in its entirety does not incriminate either accused No.2 or accused No.3. As per his statement on oath before the Court, after accused No.1 took key from him when he was in shop, at about from 3.00 to 4.30pm accused No.2 and 3 came to his shop and disclosed before him that accused No.1 had committed rape with murder. Except this he has stated nothing against accused No.2 and 3. The aforesaid version of P.W-11 does not implicate either accused No.2 or accused No.3 for the offence under Section 201 of I.P.C. What the aforesaid portion of his evidence would reveal, it is only accused No.1 contacted them disclosing the crime committed by him. Even for a while it is taken that he telephoned them seeking their help to rescue him, it is on the prosecution to establish that accused No.2 and 3 did something for disappearance of evidence of the offence committed by accused No.1 or they gave false information to screen him from the clutches of law. Mere presence of accused No.2 and 3 does not / 79 / Spl.C.C.No.227/2014 implicate them for the alleged crime under Section 201 of I.P.C. There is absolutely no evidence on record to show that accused No.2 and 3 made an attempt to open the lock of the door. The facts of the prosecution case itself would speak that accused No.2 and 3 approached P.W-11 that accused No.1 was inside the house and he has committed rape as well as murder. Merely because of giving information to P.W-11 by accused No.2 and 3, in the absence of any materials before the Court, the presumption cannot be safely drawn to convict the accused No.2 and 3 for the offence under Section 201 of I.P.C. As already stated in supra, nothing is emerged in the evidence of P.W-11 to convict the accused No.2 and 3.
51. P.W-10, Ramesh is spot pancha with respect to seizure of bicycle of accused No.2. He has stated in his chief examination that accused No.2 Suresh was stating before the police that accused No.1 called them to open the door, therefore he came on cycle, the said / 80 / Spl.C.C.No.227/2014 cycle was seized by police at Ex.P.11. It is pertinent to note the statement of the accused before the police is inadmissible in evidence as it is hit by Section 25 of Indian Evidence Act. Ofcourse, discovery of facts as laid down under Section 27 of Indian Evidence Act is admissible in evidence but that is not so here. Merely because the accused No.2 came on his bicycle and parked his bicycle near the house of P.W-10 and informed P.W-11 about the offence committed by accused No.1, does not lead to draw any inference against them.
52. Even P.W-9, Sanjeeva, the owner of the tailoring shop in which P.W-11 was working has not given any statement of which connects accused No.2 and 3 with the alleged crime. He has stated that accused No.2 and 3 had come to his shop and took P.W-11. This does not positively establishes that accused No.2 and 3 caused or made an attempt to cause for destruction or disappearance of evidence of offence committed by / 81 / Spl.C.C.No.227/2014 accused No.1 or they had the intention of screening him from legal punishment. In the absence of clear and independent proof on this aspect, accused No.2 and 3 cannot be convicted for the aforesaid offence. The totality of the facts, circumstances and conduct of the accused in relation to the incriminating evidence of which he has shown to have the knowledge is to be seen. The evidence on record shows that because accused No.1 contacted accused No.2 and 3, they came and informed P.W-11. Admittedly in that building there are number of houses in which the tenants, lessees were residing. It is a residential area. There is no evidence of independent witness that accused No.2 and 3 had entered the building to open the door with intention to rescue accused No.1. Ofcourse there is evidence that they informed P.W-11, but it does not incriminate them to convict for the offence under Section 201 of I.P.C. The prosecution has failed to place believable, convincing and satisfactory evidence to convict the accused No.2 and 3 / 82 / Spl.C.C.No.227/2014 for the alleged crime under Section 201 of I.P.C. The prosecution has failed to make out its case beyond reasonable doubt against accused No.2 and 3 for which they are entitled to the benefit of doubt. Hence, I hold point No.4 in the Negative.
53. Point No.5: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.2 and 3 are hereby acquitted for the offence punishable under Section 201 of I.P.C.
Accused No.1 is found guilty of the offences punishable under Section 376(2)(f), 377 and 302 of I.P.C.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 28th day of September, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*****
/ 83 / Spl.C.C.No.227/2014
ORDER ON SENTENCE
Heard on both the sides regarding the sentence. The learned counsel for the accused has submitted that accused is of 26 years. He is also having aged parents, brothers and sisters. During the course of recording accused statement he has stated that he has not committed any offence. Though accused is found guilty of the offences under Section 376(2)(f), 377 and 302 of I.P.C, the minimum sentence may be imposed. For the offence of rape death penalty is not attached. However, the offence under Section 302 of I.P.C is punishable with death penalty or imprisonment for life and shall also be liable to pay fine. But according to prosecution case itself there was no pre-plan made by accused No.1 to murder deceased Chandrika, because of the situation arose at that time he gagged with onion as a result she died. When he came to know / 84 / Spl.C.C.No.227/2014 about the death of Chandrika he became afraid of it, of which finds place in his voluntary statement itself. That itself shows he had fear in the mind and he had no intention of causing murder.
Therefore, the present case does not fall under category of rarest of rare cases. There are 3 categories namely 1) normal cases of murder, 2) rare cases of murder and 3) rarest of rare case of murder. The present case falls under first category i.e., normal cases of murder. The punishment for offence of murder, life imprisonment is a rule, capital punishment is an exception. Totality of facts and circumstances have to be considered while assessing the quantum of punishment. No weapon was used by accused No.1 to murder Chandrika, since she was shouting he had put the medium size onion into her mouth of which has resulted in her death. On that day accused No.1 was emotional and disturbed since he was removed from the job / 85 / Spl.C.C.No.227/2014 of driver by his owner as he was intoxicated while driving in the morning. Because of having faith in god he had worn mala during that time. That itself shows there is a probability of rehabilitating him. The learned Public Prosecutor has argued that there is no chance of reforming him since he had committed murder while he was observing vratha of 48 days as he had worn Ayappa mala. But as argued earlier he has faith in god, he has fear about the god. At this stage it cannot be said that he will not be reformed. The learned counsel for accused No.1 has argued as in supra by placing his reliance on :
1. CDJ 2003 S.C. 722 (Amit @ Ammu V/s State of Maharashtra)
2. CDJ 1999 S.C 1978 (Akhtar V/s State of Uttar Pradesh)
3. CDJ 2007 S.C. 051 (Jameel V/s State of Maharashtra) / 86 / Spl.C.C.No.227/2014
4. CDJ 2010 Kar. H.C 085 (Jayarama & Mamma V/s State of Karnataka)
5. CDJ 1980 S.C. 455 (Bachan Singh & Others V/s State of Punjab and others)
6. Law commission of India- Report No.262. The Death Penalty- August 2015.
2. It is also further argued by him that he is not previously convict, no other criminal cases are pending against him, he is the first offender.
Hence, keeping in view all the aforesaid facts and circumstances of the case minimum sentence may be imposed.
3. The learned Public Prosecutor has submitted that accused is found guilty of the offences punishable under Section 376(2)(f), 377 and also under Section 302 of I.P.C. The fact remains that during those days accused No.1 was observing Ayappa vratha, he had worn Ayappa mala, just few days prior to the incident he had / 87 / Spl.C.C.No.227/2014 been to Shabarimalai. Even otherwise he could not control his desire. Victim was of 12 years girl. He behaved inhumanly. Aggravating circumstances are to be looked into. As discussed in Bachan Singh's case aggravating and mitigating circumstances be considered, but in the present case there are no mitigating circumstances to reduce the sentence. Now accused is at 30s'. There is no probability of rehabilitating him. He may continue similar offences when he comes outside. Capital punishment is proper in the present case as it falls under the category of rarest of rare cases. He has argued as in supra by placing reliance on:
1) 1980 Cri.L.J 636(1) (Bachan Singh V/s State of Punjab)
2) 2005 Cri.L.J 1428(1) (State of U.P V/s Satish) / 88 / Spl.C.C.No.227/2014
3) 2014(4) Crimes 337 (SC) (Vasanta Sampat Dupare V/s State of Maharashtra)
4. In the present case there were 3 accused, accused No.2 and 3 are acquitted for offence under Section 201 R/w Section 34 of I.P.C. Accused No.1 is found guilty of the offences punishable under Section 376(2)(f), 377 and 302 of I.P.C. The victim girl was of 12 years at that time. He has committed not only the rape but also unnatural offence i.e., carnal intercourse, during the process of commission of sexual abuse, he committed murder as he gagged with onion of which caused smothering and chocking.
As could be seen from the facts and circumstances of the present case she was about to shout when he tried to commit rape, then he had inserted the onion into her mouth of which has resulted in her death, after commission of aggravated sexual assault, he came to know / 89 / Spl.C.C.No.227/2014 about the death of deceased. He had brought the girl to that house with intent to satisfy his lust, but during the course of commission of the sexual offences, death was caused due to the reasons assigned in supra. Ofcourse, he behaved inhumanly, caused the death of a girl. I have gone through the rulings cited on both the sides. Having regard to facts and circumstances of the present case, according to my opinion it does not fall under category of rarest of rare cases for which capital punishment is required to be imposed. Ofcourse, while awarding sentence the Court must keep in view the nature of the crime, the social background of the accused, the personal factors connected with the accused which are some of the relevant factors. The antecedent of accused No.1 is also another important factor. At the same time the Courts have an obligation while awarding sentence to impose appropriate punishment so as to respond / 90 / Spl.C.C.No.227/2014 to society's cry for justice against such criminals. It is the duty of each Court to award proper sentence having regard to nature of the offence and the manner in which it was executed or committed. In recent years the crime against women are on the rise. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Court must not only keep the rights of the criminals, but also the rights of the parents of the deceased and society at large while considering the imposition of appropriate punishment. As on the date of incident accused No.1 was of 26 years, the incident took place in the year 2007, now he is in 30s'. According to submission on accused No.1's side he has his family consisting of parents, brothers and sisters. There is nothing before the Court to show that he is previously convict for any offence, no other cases are pending against him. He had no other criminal / 91 / Spl.C.C.No.227/2014 antecedents. Whoever commits offence ; i) Under Section 376(2)(f) shall be punishable with rigorous imprisonment for a term which shall not be less than 10 years, but which may be for life and shall also be liable to fine, ii) Under Section 377 of I.P.C shall be punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine, iii) Under Section 302 of I.P.C shall be punished with death or imprisonment for life and shall also be liable to fine. There are no special reasons or mitigating circumstances to reduce the imprisonment less than minimum punishment. Having regard to nature of offence in which perpetrated the accused deserves no mercy and he should suffer for his deeds. Having regard to all these facts and circumstances of the case, the ends of justice could be met by imposing / 92 / Spl.C.C.No.227/2014 sentence as under. Hence, I proceed to pass the following :
ORDER Acting under Section 235(2) of Cr.P.C. accused No.1 is hereby convicted for the offence punishable :
a) Under Section 376(2)(f) of I.P.C. and sentenced him to undergo Rigorous Imprisonment for a term of 10 years and shall also be liable to fine of Rs.3,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of one year.
b) Under Section 377 of I.P.C and sentenced him to undergo Rigorous Imprisonment for a term of 7 years and shall also be liable to fine of Rs.2,000/-, in case of default to pay the fine amount, he shall undergo Simple / 93 / Spl.C.C.No.227/2014 Imprisonment of eight months.
c) Under Section 302 of I.P.C and sentenced him to undergo Rigorous Imprisonment for life and shall also be liable to fine of Rs.5,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of one year two months.
d) All the above sentences shall run concurrently.
The J.C. period of accused No.1 from 24/01/2007 till date (in all J.C period of 8 years 8 months 6 days) be setoff as laid down under Section 428 of Cr.P.C.
After deposit of fine amount , the same be paid to P.W-5 Yellamma, the mother of the deceased Chandrika as compensation after appeal period is over.
MO-1 and MO-17 be confiscated to State, MO-2 to 16 and 18 are / 94 / Spl.C.C.No.227/2014 ordered to be destroyed as worthless after appeal period is over.
Issue copy of judgment free of cost to the accused No.1 forthwith.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 30th day of September, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Venkatesh P.W.-2 Shashikala P.W.-3 Lakshmi P.W-4 Shankarappa P.W-5 Yellamma P.W-6 Karunakar P.W-7 Muniyellappa P.W-8 Varanesh P.W-9 Sanjeeva P.W-10 R.Ramesh / 95 / Spl.C.C.No.227/2014 P.W-11 Krishna Devadiga P.W-12 Hemalatha P.W-13 Venkatesh P.W-14 B.R.Virupaksha P.W-15 M.Ravi P.W-16 B.Nanjundappa P.W-17 Manohar P.W-18 Srinivas P.W-19 Shanthala P.W-20 Rajanna P.W-21 Dr.S.Venkataraghava P.W-22 Nagaraj P.W-23 Shivakumar P.W-24 Guruswamy P.W-25 B.S.Shivakumar P.W-26 C.Dakshinamurthy P.W-27 K.Nagabhushan LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of P.W-1 Ex.P.2 Spot Mahazar Ex.P.2(a) Signature of P.W-1 Ex.P.3 Seizure Mahazar Ex.P.3(a) Signature of P.W-1 Ex.P.4 to Photos Ex.P.8 / 96 / Spl.C.C.No.227/2014 Ex.P.9 Inquest Mahazar Ex.P.9(a) Signature of P.W-7 Ex.P.9(b) Signature of P.W-8 Ex.P.10 Seizure Mahazar Ex.P.10(a) Signature of P.W-10 Ex.P.11 Photo Ex.P.12 FSL Ex.P.12(a) Signature of P.W-16 Ex.P.13 Sample seal Ex.P.13(a) Signature of P.W-16 Ex.P.14 to Photos Ex.P.20 Ex.P.21 PM report Ex.P.21(a) Signature of P.W-21 Ex.P.22 Requisition copy Ex.P.22(a) Signature of P.W-21 Ex.P.23 Requisition copy Ex.P.23(a) Signature of P.W-21 Ex.P.24 Opinion Ex.P.24(a) Signature of P.W-21 Ex.P.25 Medical report of accused Ex.P.25(a) Signature of P.W-21 Ex.P.26 F.I.R Ex.P.26(a) Signature of P.W-21 Ex.P.27 Photo Ex.P.27(a) Signature of P.W-21 Ex.P.28 Photo Ex.P.28(a) Signature of P.W-21 Ex.P.29 Photo / 97 / Spl.C.C.No.227/2014 Ex.P.30(a) Signature of P.W-21 Ex.P.31 Photo Ex.P.31(a) Signature of P.W-27 Ex.P.32 Report Ex.P.32(a) Signature of P.W-27 Ex.P.33 Seizure Mahazar Ex.P.33(a) Signature of P.W-27 Ex.P.34 Sketch Ex.P.34(a) Signature of P.W-27 Ex.P.35 Voluntary statement of accused Ex.P.35(a) Signature of P.W-27 Ex.P.36 Voluntary statement of accused Ex.P.36(a) Signature of P.W-27 Ex.P.37 Voluntary statement of accused Ex.P.37(a) Signature of P.W-27 Ex.P.38 Letter dated 23/02/2007 Ex.P.39 Letter dated 18/04/2007 Ex.P.40 PF No.3/2007 Ex.P.40(a) Signature of P.W-27 Ex.P.41 PF No.4/2007 Ex.P.41(a) Signature of P.W-27 Ex.P.42 PF No.5/2007 Ex.P.42(a) Signature of P.W-27 Ex.P.43 PF No.6/2007 Ex.P.43(a) Signature of P.W-27 Ex.P.44 PF No.7/2007 Ex.P.44(a) Signature of P.W-27 Ex.P.45 Mortgage deed copy Ex.P.46 Serology report / 98 / Spl.C.C.No.227/2014 Ex.P.47 Call details LIST OF MATERIAL OBJECTS MARKED MO-1 Mobile phone MO-2 Pink coloured pyjama MO-3 Blue coloured shorts MO-4 Hawai chappal MO-5 Navaratna chain MO-6 Door lock MO-7 Turkey towel MO-8 Greenish blue top MO-9 White slip MO-10 Shirt MO-11 Underwear MO-12 One jeans pant MO-13 Two white ribbons MO-14 Anal swab MO-15 Three vaginal swab MO-16 Nail clippings MO-17 Mobile phone MO-18 CD LIST OF WITNESSES EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
/ 99 / Spl.C.C.No.227/2014 ***