Karnataka High Court
Bavuddin S/O Kajesab Patel vs The State Of Karnataka Through Talikoti ... on 23 December, 2020
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL No.3565 OF 2013
BETWEEN:
BAVUDDIN
SON OF KAJESAB PATEL
AGE:53 YEARS
OCC: COOLIE
R/O KADAWALAGA, TQ:INDI
ALSO RESIDING AT
CHORAGASTI ONI
TALIKOTI, TQ:MUDDEBIHAL
DIST:BIJAPUR
(NOW IN DARGA JAIL, BIJAPUR)
... APPELLANT
(BY SRI: SUDHEER KULKARNI, ADV)
AND:
THE STATE OF KARNATAKA
THROUGH TALIKOTI POLICE STATION
BIJAPUR
REP BY ADDL. SPP
CIRCUIT BENCH AT GULBARGA
... RESPONDENT
(BY SRI: PRAKASH YELI, ADDL. SPP) 2 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE INCLUDING FINE DATED 12.12.2011 PASSED IN SESSIONS CASE NO.138 OF 2008 BY II ADDL. SESSIONS JUDGE AT BIJAPUR WHEREIN CONVICTING THE ACCUSED-APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 302 AND 201 OF IPC; ACCUSED-APPELLANT IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS.10,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND IN DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEAR; ACCUSED-APPELLANT IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS.10,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC IN DEFAULT OF PAYMENT OF FINE, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEAR;
ACCUSED-APPELLANT IS SENTENCED TO UNDERGO IMPRISONMENT FOR 7 YEARS AND TO PAY A FINE OF
RS.5,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC IN DEFAULT OF PAYMENT OF FINE, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS. ALL THE SENTENCES SHALL RUN CONCURRENTLY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD BY THE DIVISON BENCH OF THIS COURT AND THE BENCH HAVING 3 DIVIDED IN ITS OPINION, IS LAID BEFORE THIS COURT FOR OPINION, HEARD AND DELIVERED THE FOLLOWING:
J U D G ME N T This appeal was heard by the Division Bench and having been divided in its opinion, is laid before this court for opinion as provided under Section 392 Cr.P.C., as per the order of Hon'ble the Chief Justice dated 14.10.2020.
2. The appellant-accused has preferred this appeal aggrieved by the impugned judgment of conviction dated 12.12.2011 and order of sentence dated 17.12.2011 passed in SC No.138 of 2008 on the file of the learned II Additional Sessions Judge, Bijapur (for short 'the Trial Court'), convicting him for the offences punishable under Sections 376, 302 and 201 of the Indian Penal Code (for short 'IPC') and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and in default to pay fine, to undergo simple imprisonment for a period of one year, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to pay fine 4 to undergo simple imprisonment for a period of one year for the offence punishable under Section 376 of IPC and to undergo imprisonment for a period of seven years and to pay fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for a period of six months for the offence punishable under section 201 of IPC.
3. Brief facts of the case are that, the informant Nazir Ahmed lodged the first information against unknown person on 22.04.2008 with Talikote Police stating that his daughter aged six years was found missing since 5.00 p.m. on the previous day. Even after due search, she could not be found and on the date of lodging of first information, in the morning, he received information that dead body of a girl in half burnt position is found in the open defecation land belonging to the Municipality, near Panch Shahi Darga. Immediately, the informant along with his wife and other relatives went to the spot and found the dead body of his daughter with the burn injuries on her face, back and other parts of the body. The dead body was naked and the hair was burnt partially. The informant suspected that somebody 5 might have caused her death and with an intention to cause disappearance of evidence of committing the crime, burnt the dead body and thrown it in that place. Therefore, the informant requested the police to register the case and to trace the culprit.
4. On the basis of this information, FIR in Crime No.49 of 2008 was registered by Talikote Police against unknown person for the offences punishable under Sections 302 and 201 of IPC and the investigation was undertaken. During investigation, it was found that the accused induced the victim girl by offering biscuits and taken her to his house and committed rape on her on 21.04.2008 at about 7.30 p.m. and thereafter, committed the murder by strangulating her neck, as he was afraid that the little girl may disclose about the commission of the offence before her parents and subsequently with an intention to cause disappearance of the evidence of committing the crime, poured kerosene and lit fire to the dead body. Subsequently, the half burnt dead body was carried in a gunny bag and thrown in the open defecation land and thereby, committed the above said offences. Accordingly, the 6 Investigating Officer filed the charge sheet against the accused for the offences punishable as stated above.
5. After filing of the charge sheet, the learned Magistrate took cognizance of the offence and committed the matter to the learned Sessions Judge, who in turn made over the matter to the Trial Court. The Trial Court secured the presence of the accused who pleaded not guilty for the charges leveled against him and claimed to be tried.
6. The prosecution in order to prove its contention, examined 23 witnesses, got marked 23 documents and identified 9 material objects. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. However, he got marked Exs.D1 and D2, in support of his defence during cross examination of the prosecution witnesses. The Trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt 7 of the accused beyond reasonable doubt for the above said offences and convicted and sentenced him as stated above.
7. Aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused preferred this appeal on various grounds. The appeal was initially heard by the Division Bench of this Court and the learned Judges having divided in their opinion, the same is ordered to be laid before this Court for opinion as provided under Section 392 of Cr.P.C. Hon'ble Mr.Justice B.A.Patil recorded the opinion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt and therefore he is entitled for acquittal. On the other hand, Hon'ble Mr.Justice Hanchate Sanjeev Kumar, recorded his opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the above said offences and therefore he is liable to be convicted. It is also opined that the sentence of imprisonment for life for the offences punishable under Sections 376 and 302 IPC is to be explained to have the meaning of imprisonment till remainder of his natural life/biological life. It is also opined that 8 the sentence of imprisonment for life awarded for the above said offences shall run consecutively, but not concurrently.
8. After the matter is placed before this Court, I have heard Sri.Sudheer Kulkarni, learned Counsel for the appellant- accused and Sri.Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State, afresh.
9. Learned Counsel for the appellant relied on the reasonings and the opinion expressed by the Hon'ble Mr.Justice B.A.Patil and prayed for allowing the appeal by acquitting the accused and setting aside the impugned judgment of conviction and order of sentence passed by the Trial Court.
10. Per contra, the learned Additional State Public Prosecutor relying on the reasonings given and the opinion expressed by Hon'ble Mr.Justice Hanchate Sanjeev Kumar, prayed for confirming the judgment of conviction and order of sentence recorded by the Trial Court by dismissing the appeal. Learned Additional State Public Prosecutor, however, fairly submitted that in the absence of an appeal preferred by the 9 State seeking interference in the quantum of sentence imposed by the Trial Court, the imprisonment for life could not have been meant till remainder of natural life/biological life of the accused and also the sentence ordered to be suffered concurrently, could not have been ordered to run consecutively.
11. The learned Additional State Public Prosecutor relied on the following decisions in support of his contentions.
1) BHARWADA BHOGINBHAI HIRJIBHAI Vs STATE
OF GUJARAT [(1983) 3 SCC 217];
2) SHIVAPPA AND OTHERS Vs STATE OF
KARNATAKA [(2008) 11 SCC 337];
3) MURUGAN Vs STATE OF TAMIL NADU [(2019 4
SCC (Cri) 735];
4) PATTU RAJAN Vs STATE OF TAMIL NADU
(2019) 4 SCC 771];
5) PRAHLAD Vs STATE OF RAJASTHAN [(2019) 14
SCC 438];
6) STATE OF U.P Vs SATISH [2005 AIR SCW
905].
12. Perused the materials including the Trial Court records, impugned judgment of conviction and order of sentence 10 and the judgments rendered by both the learned Judges, in the light of the rival contentions.
13. It is the contention of the prosecution that the accused had induced the minor girl by promising to offer biscuits and taken her to his house and committed sexual assault and thereafter, strangulated her neck and caused the death. It is further contended that, with an intention to cause disappearance of the evidence of commission of the offence, poured kerosene on the dead body and lit fire and thereafter, taken the dead body in a gunny bag and thrown it in the open defecation land near Panch Shahi Darga. It is stated that PW3 had seen the accused carrying a gunny bag on the date of incident between 11.00 to 12.00 in the night and the witness had identified the said gunny bag carried by the accused as that of the bag in which the dead body of the deceased said to have found. PW5 had seen the accused taking the deceased girl to his house at about 7.00 p.m. on the date of incident. PW6 the owner of the house in which the accused was residing and where the incident had taken place, had also seen the accused inducing the deceased by 11 offering biscuits and taking her inside his house at about 7.00 p.m. on the date of incident.
14. It is stated that on the basis of the statements of these witnesses who have seen the deceased in the company of the accused on the date of incident, the accused was apprehended and on enquiry, he had given his voluntary statement, offering to take the Investigating Officer to show the scene of offence and also to produce the incriminating materials such as his clothes worn at the time of incident etc., On the basis of this voluntary statement, the accused led the police and the mahazar witnesses to his house and showed the scene of offence, where he had committed sexual assault on the victim and thereafter, caused her death and subsequently burnt her body partially by pouring kerosene and litting fire. He also produced the clothes worn by him during the commission of the offence. It is the further contention of the prosecution that the accused after partially burning the dead body of the deceased, carried the same in the gunny bag and thrown it in the open defecation land belonging to Municipality, during mid night. The 12 said gunny bag along with the dead body was noticed by the general public in the morning and informed to the family members.
15. The prosecution is relying on the evidence of PW1 Neelamma who is the witness to the inquest panchanama marked as Ex.P1. As per this document, the dead body of the deceased was found with burn injuries on the head, face, hands, abdomen, back and thigh. The blood had oozed from the vagina.
16. PW2 is the father of the deceased who lodged first information as per Ex.P2.
17. PW3 is the witness who had seen the accused carrying the gunny bag on 21.04.2008 at about 11.00 p.m. and proceeding towards Darga. This witness identified MOs.1 to 4 and stated that MO1 is the gunny bag carried by the accused. MOs.2 to 4 were worn by him at that time.
18. PW4 is the circumstantial witness, but has not supported the case of the prosecution.
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19. PW5 is the witness who is said to have last seen the deceased in the company of the accused on 21.04.2008 at about 7.00 p.m. Initially, this witness has not supported the case of prosecution and has been treated hostile. During cross examination by the learned Public Prosecutor, witness admitted that on the date of incident, the deceased was playing near Darga, where he was sitting and the accused had taken her to his house. During cross examination by the learned counsel, the witness stated that he is working as Hamali in the commission agency shop, where the accused is working as a clerk. Witness stated that he informed the fact that he had seen the accused taking the deceased to his house on the date of incident, to PW2 after about 2 to 3 days and the police have enquired him about ten days after the incident. Witness admitted that on the date of incident, there was a marriage procession near Darga and many persons have gathered there. Witness admitted that on the said date at about 6.00 p.m. he had gone to the bazaar and returned to the house only at 1.00 in the mid night.
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20. PW6 is the owner of the house in which the accused was residing and where the incident is said to have taken place. It is the contention of the prosecution that on 21.04.2008, at about 7.00 p.m. this witness had seen the accused taking the deceased to his house by offering biscuits. Initially, this witness has also not supported the case of the prosecution and he stated that on the next day morning, when he had gone to defecation area, noticed the dead body of the deceased and on the previous day, her mother was searching for the deceased and the accused had suggested her to announce in the Darga regarding missing of the deceased, in the speaker. He also stated that he had not stated before the police that he had seen the accused inducing the deceased by offering biscuits and taking her to his house. Witness stated that, he came to know that the accused had caused the death of the child but he had not stated so before the police. Therefore, the witness was treated hostile. During cross examination by the learned Public Prosecutor, witness stated that on 25.04.2008, the accused was brought to his house and from there the accused had taken them to the place where the dead body of the deceased was found. He identified MOs.1, 5 15 and 6 and stated that those articles were found near the dead body. During cross examination by the learned Counsel for the accused, witness stated that he was also present when the accused suggested to the mother of the deceased to announce in the Masjid regarding missing of her daughter. It was about 8.00 in the evening. But the said information was not announced in the loud speaker. Witness stated that he has not stated either before the police or before the mother of the deceased that he had seen the accused inducing the deceased by offering biscuits and taking her to his house.
21. PW7 is the mahazar witness to Ex.P5 i.e., the spot mahazar where the dead body of the deceased was found and Mos.5 to 7 were recovered. Witness stated that when he had gone to the spot, the dead body was lying and the gunny bag was near by the dead body.
22. PW8 is the mahazar witness to the recovery mahazar Ex.P6. Witness stated that the accused has given his voluntary statement as per Ex.P23 and has led the police to his house and 16 showed the spot where he committed sexual assault on the deceased, strangulated her neck and burnt the dead body by pouring the kerosene and litting the fire. A kerosene can and a match box were shown by the accused which were recovered under the mahazar Ex.P6 and identified the same as MOs.7 and
8. Witness stated that the accused thereafter produced a lungi, banian, boots and a gunny bag which were seized under Ex.P7 and identified the same as MOs.2 to 4 and 9. Witness stated that the accused taken them near Panch Shahi Darga and showed the place where he had thrown the dead body where Ex.P8 was drawn.
23. During cross examination, witness stated that the door of the house of the accused was locked and the accused himself had opened the door and taken the police and panchas inside. Witness admitted that he had signed all the three panchanamas in the police station. However, denied the suggestion that the accused has not led the police, nor showed the scene of occurrence, nor produced any material objects. 17
24. PW9 is the grand mother and PW10 is the mother of the deceased and both these witnesses have spoken regarding missing of the deceased on the date of incident and finding the dead body on the next day.
25. PW11 is an independent witness who deposed that about 3 years back he found the dead body of a child which was half burnt and lying in the open defecation land near Panch Shahi Darga. Several persons were gathered there and he identified the dead body as that of the daughter of PW2. There were injuries near the private part. A pair of chappal and a piece of nighty were also lying nearby. Witness identified these objects as MOs.5 and 6. Witness further stated that about three days thereafter, the police have brought the accused to the spot and the accused stated that he had taken the deceased offering to give biscuits, committed sexual assault and after burning the dead body thrown at that place.
26. PW12 is the scribe who wrote the first information Ex.P2. PW13 is the Head Constable who carried the FIR which is 18 as per Ex.P9 and submitted to the jurisdictional Magistrate. PW14 is the Police Constable who carried the seized articles and submitted to the Regional Forensic Science Laboratory (for short 'RFSL'). PW15 is the Police Constable who carried the dead body to the hospital for postmortem examination.
27. PW16 is the Medical officer who conducted postmortem examination and gave report as per Ex.P11 and the final report as per Ex.P12. Witness stated that he found six external injuries viz., 1) deep burn over left arm measuring 1"
above the left elbow joint measuring 2" x 1"; 2) fracture of right upper 1/3rd of the left shoulder, 3) superficial burns over the back, posteriorly extending upto lumbar region, 4) fracture of the C2 and C3 cervical bones, 5) lacerated wound measuring 2"
x 1" cm, fracture of frontal bone and 6) fracture of left parietal bone. He found fracture of frontal bone and left parital bone. He also found forchettes tear with widening of vaginal opening and contusion over the vaginal wall. He is of the opinion that the death of the deceased was due to coma, as a result of head injuries sustained and recent signs of penetration present in the 19 form of abrasion and contusion in and around geniteria. Witness stated that except the burn injuries, all other injuries were ante- mortem in nature. He collected the vaginal swab to find out the presence of seminal stains and the spermatezonia and sent it for RFSL examination. The RFSL examination report is as per Ex.P13. Witness stated that due to burns, there is possibility of perishing of seminal stains in the vaginal swab.
28. During cross examination, witness admitted that if a healthy grown up man commits sexual intercourse on a tender aged girl, there is every likelihood of tearing of vaginal parts and heavy bleeding. However, witness denied the suggestion that as there is no tear of vaginal parts or bleeding from vagina, it could be concluded that no intercourse had taken place. Witness stated that as there was burn injuries on the back, he could not find any ante-mortem injuries and he had not noticed any injuries in the back portion of the body, in the burnt area.
29. PW17 is the medical officer who examined the accused and gave his opinion as per Ex.P14. Witness stated that 20 he collected the pubic hair, semen and underwear of the accused and sent the same to RFSL examination through the police. Witness identified the RFSL report as per Ex.P15 and stated that as per the report, seminal stains were found in the sample semen. The underwear and the pubic hair tested negative for its presence.
30. PW18 is the Junior Engineer, PWD who drawn the sketch of the spot where the dead body of the deceased was found as per Ex.P17. PW19 is the Police Constable who carried some of the seized material objects to RFSL, Belgaum, for examination. PW20 is the Sub-Inspector of Police who apprehended the accused and submitted the report as per Ex.P18. PW21 is the Sub Inspector of Police who registered the FIR as per Ex.P9 and handed over the further investigation to Circle Inspector of Police. PW22 is the Investigating Officer who completed the investigation and filed the charge sheet against the accused.
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31. PW23 is the Investigating Officer who carried out major portion of the investigation. This witness stated that he recorded the statement of the witnesses, conducted spot and inquest mahazar. Witness stated that after apprehending the accused, recorded his voluntary statement and on the basis of the said statement, the accused has taken him and the panchas to the scene of occurrence, where he had seized the kerosene can and the match box under mahazar Ex.P6. Witness further stated that the accused produced a lungi, a half banian, two black boots and a gunny bag which were seized under the seizure mahazar Ex.P7. Thereafter, the accused taken him to the spot where the dead body was thrown where he drawn Ex.P8. Witness stated that the voluntary statement of the accused is as per Ex.P23. During cross examination, witness admitted that he had not mentioned the details of the material objects seized at the instance of the accused, in the remand list i.e., Ex.D2.
32. Ex.P13 is the RFSL report regarding the vaginal swab. It is reported that the presence of seminal stains was 22 negative in the said item. Ex.P21 is the RFSL report relating to MO.2 banian and MO.4 lungi and as per the report, the test for the presence of seminal stains in both these items tested negative.
33. Before adverting to analyze the oral and documentary evidence, let me consider the decisions relied on by the learned Additional State Public Prosecutor in support of his contention.
34. In Bharwada Bhoginbhai Hirjibhai (supra), the Hon'ble Apex Court considered the finding of the guilt recorded by the Sessions Court as affirmed by the High Court which has been challenged mainly on the ground of minor discrepancies in the evidence. But the same was not accepted by the Hon'ble Apex Court and it is held that much importance cannot be attached to the minor discrepancies and listed the reasons for the same as under:
"(1) By and large a witness cannot be expected to possess a photographic memory and to 23 recall the details of an incident. It is not as if a video tape is replayed on the mental screen;
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore, cannot be expected to be attuned to absorb the details;
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another;
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder;
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, 24 people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends. On the 'timesense' of individuals which varies from person to person;
(6) Ordinarily a witness cannot be expected
to recall accurately the sequence of events which
take place in rapid succession or in a short time
span. A witness is liable to get confused, or
mixed up, when interrogated later on;
(7) A witness, though wholly truthful, is
liable to be overawed by the court atmosphere
and the piercing cross examination made by
counsel and out of nervousness mix up facts; get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a 25 psychological defence mechanism activated on the spur of the moment."
35. In Shivappa and Others (supra), the Hon'ble Apex Court held that the minor discrepancies or some improvements would not justify rejection of the testimonies of the eye witnesses, if they are otherwise reliable. It has also held that some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they gave their depositions in court.
36. The Hon'ble Apex Court in Murugan (supra) held in para 32 as under:
"32. A theory of "accused last seen in the company of the deceased" is a strong circumstances against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged."26
37. In PattuRajan (supra), the Hon'ble Apex Court observed in para 63 as under:
"63. It is needless to observe that it has been established through a catena of judgments of this Court that the doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances."
38. The Hon'ble Apex Court in Prahlad (supra) considered the theory of last seen the accused in the company of the deceased and held that no explanation is forthcoming from the statement of the accused under Section 313 of Cr.P.C. as to when he parted the company of the victim. It is also observed that the silence on the part of the accused in such a matter, 27 wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
39. The Hon'ble Apex Court in Satish (supra) again considered the evidence under last seen theory and held at para 23 as under:
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."28
40. In the light of these settled position of law, let me consider the ocular and documentary evidence relied on by the prosecution to prove its contention.
41. It is the contention of the prosecution that the deceased died a homicidal death. In order to prove this fact, it relies on the inquest mahazar-Ex.P1. As per this document, the dead body was found lying in the open defecation area belonging to the Municipality on a sack bag and burn injuries were found on several parts of the body and it is stated that the oozed blood was found in the private part. Prima facie, it is felt by panchas that somebody might have caused the death of the child and burnt it, in order to cause disappearance of the evidence of the commission of offence. The prosecution has also relied on the postmortem report-Ex.P11 and the opinion of the doctor about the cause of death which is as per Ex.P12. As per the postmortem report, the burn injuries were found on the dead body and the said injuries are post mortem in nature. Fracture of right upper 1/3rd of left shoulder, fracture of C2 and C3 bone, fracture of left parietal bone were also found. Deep burns over 29 left arm and above left elbow, superficial burns over the back posteriorly extending upto lumbar region, lacerated wound on the parietal region were also noted. It is stated that charred burn injuries were found over the chest, abdomen and upper and lower limbs, edema of upper thigh left anterior aspect of the lower limbs. The cause of death mentioned in the postmortem report is due to coma, as a result of the head injuries sustained, with recent signs of penetration present in the form of abrasion, contusion in and around geniteria. However, further opinion was kept pending for the microscopic evidence for the presence of spermatezonia.
42. PW1 is the pancha for inquest panchanama-Ex.P1. PW2 is the father of the deceased who lodged the first information as per Ex.P2. PW9 is the grand mother and PW10 is the mother of the deceased and PW11 is an independent witness. These witnesses deposed before the court that they saw the dead body of the deceased in the open area. All these witnesses have categorically stated that the deceased was done to death and the dead body was found with external injuries. 30 The post mortem report also refers to the fracture measuring 2"
x 1" on frontal bone, which is said to be the cause of the death of the deceased. In addition to these materials, the prosecution examined PW16 who had conducted post mortem examination of the deceased and issued postmortem report. The witness re- iterated about the cause of death and stated that except the burn injuries, all other injuries were ante-mortem in nature. The tenor of cross examination of these witnesses by the learned Counsel for the accused do not suggest anything to dispute homicidal death of the deceased. Even the burn injuries found post-mortem in nature also supports the contention of the prosecution regarding homicidal death of the deceased. Hence it can be safely concluded that the deceased died a homicidal death due to head injuries and multiple fractures noted in the postmortem report.
43. It is the contention of the prosecution that the deceased was subjected to sexual assault before causing her death. To prove this contention, the prosecution has again relies on Ex.P1-inquest mahazar. As per this document, blood had 31 oozed and dried in the private part of the child. As per postmortem report - Ex.P11, minor abrasions were noted in the geniteria. A tear on the left side of labia major and abrasion over the left major measuring 2" x 2" with forchettes tear, widening of vaginal opening and contusion over the vaginal wall were noted.
44. PW16 deposed before the Court that he had collected vaginal swab and had sent to RFSL for examination. But as per Ex.P13 - RFSL report the vaginal swab tested negative for the presence of seminal stains. He is of the opinion that due to burn injuries, there is possibility of perishing of seminal stains in the vaginal swab. During cross examination, witness admitted that since there were no burn injuries found on the genital area, there is no possibility of perishing of seminal stains in the vaginal swab. He also admitted that there was no bleeding from vagina. However, he denied the suggestion that in the absence of seminal stains and spermatozonia in the vaginal swab, it cannot be said that there was sexual intercourse. Witness admitted that if a healthy and grown up person commits forcible sexual 32 intercourse on a tender aged girl, there is every likelihood of tear of vaginal parts with heavy bleeding, while denying the suggestion that as there was no tear of vaginal parts or bleeding from the vagina, it has to be concluded that no intercourse was committed on the girl.
45. PW7 is the doctor who examined the accused and collected samples for sending it to RFSL. Pubic hair, semen and underwear belonging to the accused were collected and sent for RFSL examination. As per Exs.P15 and 16, semen and underwear tested positive for the presence of seminal stains, while pubic hair tested negative. These materials placed before the Court do not prove that the deceased was subjected to sexual assault before causing her death. Even though, in the inquest mahazar Ex.P1, it is stated that the blood had oozed and dried on the private part of the deceased, the same is not supported by the evidence of PW16 who conducted the postmortem examination. On the other hand, he specifically admitted during cross examination that there was no bleeding from the vagina. According to this witness, he found only 33 abrasion and contusion in the genital organ. Therefore, no materials are placed before the Court to conclude that there was sexual assault on the deceased, just before causing her death. However, it could be suspected that some such act must have been committed on the child, which resulted in abrasion and contusion in the genital organ. But same is not sufficient to accept the contention of the prosecution in this regard.
46. It is the contention of the prosecution that it is the accused who is the author of the crime. It is stated that the accused induced the deceased and took her to his house and committed sexual assault and caused her death. He poured kerosene on the body and set fire to cause burn injuries and thrown the dead body in the open defecation area in order to cause disappearance of evidence of the crime.
47. It is contented that PW3 had seen the accused carrying the gunny bag on his shoulder on the date of incident at about 11.00 and 12.00 in the mid night and going towards Panch Shahi Darga. It is also contended that PWs.5 and 6 have last seen the accused taking the deceased to his house at about 7.00 34 p.m. on the said date. Therefore, it is the contention of the prosecution that the deceased was last seen in the company of the accused just before the dead body of the deceased was found in the open defecation area. But he failed to explain about these incriminating circumstances and also not explained as to when he parted with the company of the deceased. On the basis of these materials the prosecution contends that it is the accused who is the author of the crime.
48. PW3 in his evidence has stated that his house is situated near Panch Shahi Darga and he sells omelet in the push-cart. On the date of incident at about 11.00 to 12.00 in the midnight, he was returning to his house. He used to park the push-cart near Panch Shahi Darga and accordingly, he parked it near the Darga and was carrying the articles to his house. In the meantime, he had seen the accused carrying the gunny bag on his shoulder and proceeding from Choragasti Oni towards Darga. Witness further stated that on the next day morning at about 7.00 a.m. he had been to defecate in the open area and found the very same gunny bag which he had seen the 35 accused carrying on the previous night. Witness also stated that the accused was wearing a lungi, black coat and a pair of black shoes and he identified those articles as Mos.1 to 4. During cross examination, this witness admitted that it was not possible to identify a person in the night hours. However, he states that while he was clearing the articles on his push-cart and was shifting to his house, he had seen the accused. Witness denied that as he was busy in clearing and carrying the articles to his house, he had not noticed the clothes which the accused was wearing. This witness states that when he saw the gunny bag on the next day morning in the open defecation area, the same was tied and the chappal of the girl was lying nearby. He had not seen anything else at the spot. However, as per inquest mahazar-Ex.P1 and evidence of PW.1, the dead body was not found in the gunny bag with tied ends. But was lying in the open place. PW3 stated that even though he had seen the gunny bag, he was not present when the inquest mahazar and the spot mahazar were drawn at the spot. Interestingly, this witness stated during cross examination that either MO1 or MOs.5 and 6 were not found in the place where the dead body was lying. 36 When the witness states that it was about 11.00 or 12.00 in the midnight when he had seen the accused carrying the gunny bag and also states that it is difficult to recognize the person during that time, his evidence identifying the accused, along with the gunny bag, wearing the lungi and also the shoes which he identifies before the court appears to be artificial and it is difficult to accept the same. When the witness specifically states that he was busy in collecting the items on his push-cart to carry it to his house, it is strange that he could notice the details of the clothes, gunny bag and even the shoes the accused was said to have wearing at that time.
49. The prosecution relies on the evidence of PW5 who is said to have seen the deceased in the company of the accused on the date of incident at about 7.00 in the evening. Witness stated that he was sitting near Panch Shahi Darga on the date of incident and thereafter went to the market. On the next day morning, he learnt that the dead body of the deceased was found in the open defecation area. He had gone there and saw the dead body and noticed that the deceased had sustained burn 37 injuries. There was bleeding from the private part. Her chappals were also lying there. But this witness has not supported the case of the prosecution initially regarding he seeing the deceased in the company of the accused on the previous evening. Therefore, the witness was treated partially hostile and the learned Public Prosecutor cross examined him. During cross examination, witness admitted that on the previous day at about 7 p.m., the deceased was playing near Panch Shahi Darga, where he was sitting and the accused had taken her to his house. On the next day morning, he came to know that the deceased had died and her dead body was lying in the open defecation area. The learned Public Prosecutor elicited from this witness during cross examination in detail about the so called confessional statement given by the accused after his apprehension which is totally inadmissible in law and the same is not helpful to the prosecution in any manner.
50. During cross examination by the learned Counsel for the accused, witness stated that on the previous day at about 6.00 p.m. he had gone to market and had returned to his house 38 only at 1.00 in the midnight. Witness also stated that on the next day at about 5.00 a.m., he had seen the dead body of the deceased, but he had not informed the same to her family members nor he informed it to the police. About two or three days thereafter, he informed the father of the deceased about the accused taking the deceased to his house. About 10 days thereafter, he had given statement before the police in that regard. Witness admitted during cross examination that the accused had not stated anything regarding commission of the offence in his presence.
51. If the evidence of this witness is taken into consideration, he is not wholly reliable as he has not supported the prosecution at the initial stage, but later he has admitted the suggestions put to him by the learned Public Prosecutor. He has also admitted regarding the so called extra judicial confession given by the accused before the police, but however, during cross examination by the learned Counsel for the accused, he stated that he had gone to the market on the previous evening at 6.00 and he had returned only at 01.00 in the mid night and 39 that the accused had not stated anything regarding commission of offence in his presence. Further the witness states that, even though the dead body of the deceased whom he was knowing was seen near the open defecation area, he never bothered to inform the same to her father or to any other members of his family. On the other hand, he met the father of the deceased after 2 to 3 days and informed that he had seen the deceased in the company of the accused on the date of incident and had given statement before the police about 10 days thereafter. This conduct on the part of the witness makes his evidence hard to believe regarding he seeing the deceased in the company of the accused at the relevant point of time.
52. One more witness relied on by the prosecution is PW6 who is the owner of the house in which the accused was staying and the incident said to have taken place. This witness has also not supported the case of the prosecution initially. However, he stated that on the date of incident, the mother of the deceased was searching for the girl and the accused was also there and suggested to announce in the Darga regarding missing 40 of the child. Witness stated that he had seen the accused taking the deceased to his house by offering to give biscuits, but he had not stated anything before the police that the accused had committed the offence. This witness was treated hostile and the learned Public Prosecutor cross examined him. During cross examination, witness admitted that on 25.04.2008, police have brought the accused to his house where the accused was residing and thereafter to the spot where the dead body was found. The so called confessional statement given by the accused before the police is also re-iterated by the witness regarding commission of offence, which is wholly inadmissible in law.
53. During cross examination by the learned Counsel for the accused, witness stated that on the date of incident, when the mother of the deceased was searching for her child, he was also with her and the accused was also very much present there. It was about 8.00 p.m. that the accused suggested to the mother of the deceased to announce in the loudspeaker of the Darga regarding missing of the child. Witness stated that from 41 about 4.00 p.m. till 8.00 in the evening, the mother of the deceased was searching for the child, but he has not stated either before her parents or before the police that the accused had taken the child by offering to give biscuits. This conduct on the part of the witness is quite strange and unacceptable. When the mother of the deceased was searching for the girl and when the accused suggested to announce regarding missing of the child in the Darga, nothing prevented the witness to inform the mother about the accused taking the child to his house. Witness stated that even thereafter, he never bothered to inform the parents of the deceased or to the police about the fact that the deceased was taken to the house of the accused by offering biscuits. This conduct of the witness is very strange and it is hard to believe. If at all, he had seen the accused taking the deceased to his house by offering biscuits, when the mother of the deceased was searching for her, the natural conduct would be to inform the mother or enquire the accused about the deceased after he had taken her to his house. Therefore, I am of the opinion that the evidence of this witness gives rise to a reasonable suspicion regarding his conduct. 42
54. The prosecution heavily relies on the voluntary statement said to have given by the accused to the Investigating Officer as per Ex.P23. The entire statement of the accused is marked as Ex.P23. During cross examination of PWs.5 and 6, the learned Public Prosecutor elicited regarding the details of the so called voluntary statement given by the accused which is wholly inadmissible in law. But the learned Trial Judge was unfortunately a mute spectator and recorded all such evidence and exhibited the entire statement as per Ex.P.23, which shows that the learned Trial Judge was not attentive either in recording the evidence or in marking the documents.
55. As per Section 27 of the Evidence Act, only such information received from the accused which led to any discovery/recovery may be proved as it will lend some guarantee that the information which was exclusively with in the knowledge of the accused was proved to be true by such discovery/recovery.
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56. PW8 is the mahazar witness to Exs.P6 to P8. However, both Ex.P5 and Ex.P8 are the spot mahazars which are drawn at the spot where the dead body of the deceased was found. Exs.P6 and 7 are said to be recovery panchanama drawn in the house of the accused after he leading the Investigating Officer to the spot on the basis of the voluntary statement given by him. It is stated that Mos.2 to 4, 7 to 9 were recovered at the instance of the accused from his house. As I have already stated the entire voluntary statement as per Ex.P23 is before the Court. Even if the procedural lapses to be ignored, the evidence of this witness goes to show that the accused had led him and the police to his house, where there were kerosene can and match stick (MOs.7 and 8) and the same were seized under Ex.P6. Thereafter, the accused produced the lungi, banian, shoes and a gunny bag which were as per Mos.2 to 4 and 9 and seized under Ex.P7.
57. As per Ex.P6, the accused had led the police and panchas to his house and showed the spot, where he committed sexual assault and caused the death of the deceased and 44 thereafter, set fire to the dead body by using kerosene and the match stick. A kerosene can and a match stick was found in the house and the same were seized by the Investigating Officer which are as per Mos.7 and 8. It is not the accused who produced these material objects as per this document. Moreover extensive charred burn injuries were found on the dead body of the deceased as per post mortem report. But strangely no traces of burning the body was found at the scene of occurrence. Except finding the kerosene can and the matchstick in the house of the accused, the Investigating Officer or panchas have not noticed any traces of burning at the spot. It is stated by PW8 that the house of the accused was under lock and key when the accused led them to his house and the lock was opened by the accused who went inside the house and showed the scene of occurrence. As per postmortem report, charred burn injuries were found on the dead body of the deceased especially on chest, abdomen, upper and lower limb including upper thigh, left anterior aspect of the lower limbs etc., 45
58. It is pertinent to note that Ex.P6 the recovery mahazar was drawn on 25.04.2008 and as per the case of the prosecution, the incident had taken place on 22.04.2008. It is the contention of the prosecution that during the period from 23.04.2008 to 25.04.2008, the accused was absconding. When the accused led the police with panchas to his house, the same was under lock and key. Under such circumstances, naturally there should have been some traces of burning the dead body inside the house of the accused. Not offering any reasonable explanation by the prosecution for not finding any such traces, is fatal to its contention.
59. As per Ex.P7, the accused produced his lungi, banian, and the shoes which he was wearing at the time of incident and the same were seized under the mahazar. The lungi and banian were sent for RFSL examination and the report is as per Ex.P21. As per this report, no seminal stains were found in these articles and there is no whisper about the presence of contents of kerosene. If at all, the accused was wearing these clothes and committed sexual assault, burnt the 46 dead body by pouring kerosene and carried the dead body in the gunny bag on his shoulder, definitely some traces of seminal stains or atleast the presence of kerosene should have been found in these articles. But there are no such materials to connect the accused to the offence in question and there is no reasonable explanation for their absence.
60. In the present case, there are no eye witness to the incident. The prosecution is relying on the circumstantial evidence to prove its contention and the guilt of the accused. The prosecution is mainly relying on the last seen theory as spoken to by PWs.5 and 6. It also relies on the voluntary statement and corresponding recovery of material objects i.e., kerosene can, match sticks, lungi, banian, shoes of the accused at his instance. It is well settled proposition of law that when the prosecution relies on the circumstantial evidence, it has to prove all such circumstances to form a complete chain of circumstances which un-mistakenly points accusing finger towards the accused. There should not be any other hypothesis 47 on appreciation of the circumstantial evidence relied on by the prosecution.
61. In this regard, reliance can be placed on the decision in Rukia Begum Vs Sate of Karnataka [AIR 2011 SC 1585], wherein, the Hon'ble Apex Court discussed at length regarding the appreciation of circumstantial evidence to lead an inference of guilt of the accused and held in para 10 as under:
"10. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and 48 incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."
62. In view of the above, it is settled that the prosecution is required to prove each and every circumstances relied on by it, so as to form a complete chain of circumstances and it should lead to the only conclusion towards the guilt of the accused, but inconsistent with his innocence. In the present case, even though the prosecution is very much relying on the last seen theory and the recovery of incriminating materials at the instance of the accused as material circumstances, no satisfactory evidence is forthcoming to hold that these circumstances are proved to connect the accused to the offences in question.
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63. In the present case, even though the prosecution is successful in proving that the deceased died a homicidal death, it is not successful in proving that there was sexual assault on her. Even though the prosecution relied on the evidence of PWs.5 and 6 to prove that they had seen the deceased in the company of the accused on the date of incident, the above discussions go to show that the same is not helpful to the prosecution. Even the evidence of PW3 who says that he had seen the accused carrying the gunny bag on the mid night on the date of the incident, is also not acceptable and will not provide any support to the case of the prosecution.
64. The decisions that are relied on by the learned Additional State Public Prosecutor which are referred to above, laid down the proposition of law regarding the deceased seen in the company of the accused immediately before the incident, as the strong circumstance against the accused. The decisions in Murugan, PattuRajan, Prahlad and Satish (supra) re-iterated the well settled proposition of law. But in the present case, since 50 the prosecution failed to prove the said circumstance, reliance cannot be placed on the same.
65. In the other decisions relied on by the learned Additional State Public Prosecutor i.e., Shivappa and Others and Bharwada Bhoginbhai Hirjibhai (supra), the Hon'ble Apex Court re-iterated the proposition of law that minor discrepancies or some improvements in the evidence of the eye witnesses is to be ignored and much importance cannot be attached to such minor discrepancies. The Hon'ble Apex Court in Bharwada Bhoginbhai Hirjibhai(supra), listed some of the reasons for non attaching importance to the minor discrepancies. But in the present case, the discussions held above discloses that the discrepancies found in the evidence of PWs.3, 5 and 6 are not minor in nature, but they are material discrepancies which goes to the root of the matter. Strong and reasonable suspicion arises about the evidence deposed by these witnesses. Therefore such evidence cannot be relied on to convict the accused.
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66. The golden rule of criminal jurisprudence is that the prosecution has to prove the guilt of the accused beyond reasonable doubt and when there are reasonable doubt, it shall enure to the benefit of the accused. Even though, the prosecution is successful in placing some materials against the accused to contend that he is the author of the crime, same are not sufficient to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Therefore, I am of the opinion that the prosecution is not successful in connecting the accused as the author the of offence in question and as the reasonable doubt expressed above will enure to the benefit of the accused, he is liable to be acquitted.
67. Even though, the learned Trial Judge and learned Justice Sanjeev Kumar Hanchate have pointed out and noted several links to form a complete chain of circumstances in proof of those circumstances by the prosecution, the discussions held above discloses that there is no legal evidence in proof of such circumstances relied on by the prosecution. 52
68. In view of the discussions held above, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside and the accused is entitled to be acquitted.
69. The opinion expressed above as per Section 392 of Cr.P.C. be placed before the Division Bench which heard the matter earlier, for pronouncement of judgment as held by this court in B.Subbaiah Vs State of Karnataka [(1992)1 Kant LJ 419(DB)].
Sd/-
JUDGE *bgn/-