Karnataka High Court
Nagappa Masti Naik vs Venkatesh Krishna Harikantra on 23 July, 2021
Author: R.Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
Crl.A.No.100311/2017 c/w
Crl.A.No.100008/2018
IN CRL.A.NO.100311/2017
BETWEEN:
NAGAPPA MASTI NAIK,
AGE: 52 YEARS,
R/O HIREDOMMI, MAVALLI, MURUDESHWARA,
TQ.BHATKAL, DIST: UTTARA KANNADA
..APPELLANT/COMPLAINANT
(BY SRI.J.S.SHETTY, ADV.)
AND:
1. VENKATESH KRISHNA HARIKANTRA,
AGE: 30 YEARS, OCC: FISHERMAN,
R/O HIREDOMMI, MAVALLI, MURUDESHWARA,
TQ.BHATKAL, DIST: UTTARA KANNADA.
RESPONDENT NO.1/ACCUSED
2. THE STATE OF KARNATAKA,
BY ITS BHATKAL POLICE STATION AUTHORITIES,
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT NO.2
(BY SRI.RAVIKIRAN MURDESHWAR AND
SRI.VENKATESH M.KHARVI, ADVS. FOR R1,
SRI.V.M.BANAKAR, ADDL.SPP FOR R2)
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THIS APPEAL IS FILED UNDER SECTION 372 OF CR.P.C.
PRAYING THAT THE ORDER OF ACQUITTAL DATED 28.06.2017
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
UTTARA KANNADA, KARWAR, IN S.C.NO.32/2011 ACQUTTING THE
FIRST RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 376 AND 302 OF IPC MAY KINDLY BE SET ASIDE BY
ALLOWING THE APPEAL AND CONVICTING THE ACCUSED FOR THE
SAID OFFENCE AND IMPOSING PUNISHMENT AGAINST HIM.
IN CRL.A.NO.100008/2018
BETWEEN:
STATE OF KARNATAKA,
REP.BY THE POLICE INSPECTOR,
BHATKAL POLICE STATION, U.K., KARWAR,
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
..APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.SPP.)
AND:
VENKATESH KRISHNA HARIKANTRA,
AGE: 30 YEARS, OCC: FISHING,
R/O HIREDOMMI, MURDESHWAR.
...RESPONDENT/ACCUSED
(BY SRI.RAVIKIRAN MURDESHWAR &
SRI.VENKATESH M.KHARVI, ADVS.)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.06.2017 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UTTARA
KANNADA, KARWAR IN S.C.NO.32/2011; TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.06.2017 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UTTARA
KANNADA, KARWAR IN S.C.NO.32/2011 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376 AND 302 OF IPC.
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THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
13.07.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J.:
These two criminal appeals arise out of the judgment and order of acquittal passed by the Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.32/2011. The appeals are filed by the State of Karnataka and the complainant (P.W.9) father of the deceased.
2. The case of the prosecution is that, on 23.10.2010 at about 8.30 a.m., the daughter of the complainant by name Yamuna had been to the house of Mohammad Sadiq Donna for doing household work. The deceased Yamuna was working as a housemaid in 2-3 houses at Murdeshwar. However, since she did not return to the house till 3.30 in the afternoon, her mother went to the house of Mohammad Sadiq and she was informed that Yamuna did not come for work. The worried parents 4 searched for Yamuna at various places. Since the parents weresearching Yamuna frantically, they thought that they should continue to search and, if they do not find Yamuna, they should lodge a complaint the next morning. However, the next day morning, i.e., on 24.10.2010 at about 10.00 a.m. two persons came and informed them that the dead body of Yamuna was found in a shed in the backyard of the house of Mohammad Sadiq. Immediately, the parents and relatives of Yamuna rushed to the house of Mohammad Sadiq and they found Yamuna's body was found behind two drums. The parents found from the scene of occurrence that it was obvious that someone had committed rape and killed Yamuna. The complainant suspected Mohammad Sadiq, his sons Khasif, Mohammed Nasir and six other persons (totally 9 persons named in the FIR) to have committed the crime. The police drew the spot mahazar and inquest panchanama on 24.10.2010 and sent the body for postmortem. 5
3. However, on 25.10.2010, the complainant gave a further statement before the police that, when he informed his wife about the complaint he had lodged before the police, she told that one Venkatesh Harikantra was behind their daughter Yamuna. Yamuna had earlier informed her mother that whom she used to go to the houses of various persons including the house of Venkatesh Harikantra for vending milk, he used to misbehave with Yamuna and therefore, she stopped going to his house. The deceased Yamuna had informed her mother that Venkatesh Harikantra used to look at her indecently. When the body of Yamuna was discovered in the house of Mohammad Sadiq, there was a huge gathering and since there was a threat of communal harmony, the elders of the community advised them to lodge a complaint against Mohammad Sadiq and other residents of the house and accordingly, Mohammad Sadiq and other inmates of the house were named in the earlier complaint. However, after receiving information from 6 several sources, they suspected that it is Venkatesh Harikantra who has committed the crime against Yamuna and not the persons named in the original complaint.
4. It is the case of the prosecution that police apprehended the accused Venkatesh Harikantra on 29.10.2010. The accused gave a voluntary statement and admitted of committing rape and murdering Yamuna. He stated that if the police came along with him, he will be able to show the wooden log with which he assaulted Yamuna and killed her. He also admitted that he used a cloth found in the shed to strangulate Yamuna.
5. Accordingly, the Investigating Officer proceeded to collect the blood samples of the accused person and sent the same for DNA profiling along with the vaginal swab collected from the deceased. The final report was filed against the accused for the offence punishable under Sections 376 and 302 of IPC. As many as 51 witnesses were examined and 72 documents were marked on behalf of the prosecution along with 32 7 material objects including the wooden log said to have been used by the accused to assault the deceased on her head and face. The cloth piece used for strangulating the deceased was also produced as material object. It is the case of the prosecution that two hair strands were found in the hands of the deceased and the same was also sent for DNA profiling. The hair of the accused collected from his head, chest and pubic hair were also sent for DNA profiling. Ex.P65 is the DNA report where it was concluded that the biological fluid (semen) present on the vaginal swab and pubic hairs of the deceased did not match with the blood sample of the accused. The hair strand said to have been found in the hands of the deceased also did not match with that of the accused.
6. The trial court having noticed that there was no eye-witness and the case of the prosecution was based on circumstantial evidence, proceeded to examine the evidence on record. The trial court found that there were no fingerprints and footprints of the accused at the 8 spot; there were no bloodstains of the accused at the spot; DNA report concluded that there was no evidence of the involvement of the accused since vaginal swab taken from the deceased did not match with the blood samples of the accused; the hairs said to have been found in the hands of the deceased did not match with that of the accused; the Scientific Officer had clearly stated that semen found on the dead body did not belong to the accused. The trial court noticed that, accused had expressed before the Magistrate when he was first produced before him that the police had tortured the accused and they extracted voluntary statement from him forcibly. The trial court further noticed that though nine persons were named in the FIR, they were not arrested and neither samples of their hair, blood and semen were collected for the purpose of DNA profiling. The Investigating Officer had admitted in the cross- examination that, during the investigation he found that Yamuna had an affair with one Sudhakar S.Moger. He 9 admitted that, when he examined the postmortem report, he came to know that the hymen of deceased was torn and she was involved in sexual activity and the evidence of past sexual activity was present. He admits that the presence of Mohammed Khasif and Vakas Ahammed at the relevant point of time in the house of the Mohammad Sadiq could not be ruled out, although it was contended on behalf of the Mohammad Sadiq that the entire family had gone to attend a wedding ceremony in a relatives house and no-one was present in the house at the relevant point of time. Consequently, the trial court came to a conclusion that there was neither direct evidence nor clinching evidence to show that the accused had committed the offence charged against him. Accordingly, the trial court proceeded to acquit the respondent- accused.
7. In the light of the above discussion on facts and the evidence on record, the learned Additional SPP, appearing for the appellant-State submits that there are 10 two important aspects which remain consideration. Firstly, in the DNA report, the Scientific Officer has concluded that skin scraping of the accused and the DNA profile of the said skin scraping is from the deceased. Secondly, M.O.22 which is a register maintained by the group of fishermen along with whom the accused was admittedly working in the partnership, clearly shows that on the date of the event i.e., on 23.10.2010, the accused remained absent till afternoon and he has attended work in the second session, which clearly shows that the accused, as narrated in the voluntary statement saw the deceased Yamuna going into the house of Mohammad Sadiq at 8.30 a.m., while the accused was proceeding in his motorcycle for work. The accused did not attend to his work since he was perpetrating the crime at the relevant point of time. This, according to the learned Additional SPP clinches the issue and completes the chain of circumstances, which pointed out to the guilt of the accused person.
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8. Since the learned Additional SPP has argued on the two aspects, we have looked into the deposition of the relevant witnesses. There is no doubt that as per Ex.P64, Identification Form, the blood sample of the accused was collected and the blood sample was sent for DNA profiling. P.W.32 Dr.Shivanand Hegde, who is the Medical Officer from the Taluk Hospital, Bhatkal collected the blood sample, pubic hair, finger nails, urine, blood spot on filter paper and the skin scraping from the accused. In the cross-examination, P.W.32 has admitted that he does not remember from which part of the body of the accused skin scrapings were taken. He admits that there are no particulars regarding this aspect in the DNA report. He also admitted that superficial layer of the skin of any other body, if it is found on the skin of another person and if that person washes with water, the superficial layer of the skin will get washed away. He also admitted that, if a person scrubs his skin, even certain deep skin layer also may got washed away.
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9. In the light of the evidence on record, it is clear that the skin scraping of the accused was collected on 30.10.2010, the incident is said to have occurred on 23.10.2010. Therefore, even if the skin scraping of the accused was collected from his penis, it is impossible that the superficial layer of the skin from the private parts of the deceased was still found on the accused. More importantly, when the scientific report clearly concludes that the semen collected from the vagina of the deceased as vaginal swab did not match with the blood sample of the accused, it would be dangerous to conclude that the skin scraping of the deceased could be found on the skin of the accused, that too after a lapse of seven days from the date of the incident.
10. Regarding the second aspect viz., that the register M.O.22 would establish the fact that accused was absent at his work place, till afternoon of 23.10.2010, factually, this averment appears to be incorrect. We have secured M.O.22 and have perused the same. We found 13 that the accused has been penalized by deducting `50/- from his daily income for remaining absent on 24.10.2010 and not on 23.10.2010, as contended at the hands of the prosecution. In this regard, P.W.25-Sukra, who is one of the partners of Sri.Durgambika Prasad Mata Bala Group, which is the partnership formed along with the accused consisting of several persons, has stated in his evidence that on 23.10.2010, the accused was present at the work spot. The Accused had come for work on his motorcycle. On 24.10.2010 also the accused was present at the work spot at 8.00 a.m. and he worked till 12.00 in the afternoon. However, post lunch he did not come for work and therefore, he was penalized by deducting `50/- from his daily income.
11. It is by now well established that in a case based on circumstantial evidence, even if there is one missing link in the chain of circumstances, and there is doubt created in the mind of the court, the benefit should go to the accused. In a case based on circumstantial 14 evidence, unless and until all the circumstances form a complete chain and the court is convinced that the accused alone and not other person could have committed the crime, the courts should not convict the accused. We have gone through the impugned judgment of the trial court and we are convinced that the decision of the trial court in acquitting the respondent-accused is in terms of these established principles of criminal jurisprudence.
12. However, we are perturbed by the manner in which the Investigating Officer has given up the investigation against the persons named in the FIR. What prevented the Investigating Officer from collecting blood samples and other samples that were required for investigation, from the accused persons named in the FIR, as was done in the case of the accused herein, is a question that remains unanswered and disturbing. During the course of our examination of the evidence on record and the submission of the learned counsel for the 15 respondent-accused, we find that there are substantial material on record which point out a finger of suspicion against some of the persons named in the FIR. The Investigating Officer would have done well if the samples of all the persons named in the FIR was collected and sent for scientific analyzing and DNA profiling, as was done in the case of respondent-accused.
13. The Hon'ble Apex Court in the case of Dharam Pal Vs State of Haryana (2016) 4 SCC 160 has reiterated that Constitutional Courts can direct further investigation or investigation by some other investigating agency for the purpose of fair investigation and a fair trial. It was held that the power vested in the Constitutional Courts is for exercising constitutional power which is meant to ensure that fair and just investigation. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation means, not an investigation that reveals 16 itself as a sham one. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its eyes and accept the proposition that as the trial has commenced, the matter is beyond it? These questions have been answered by the Hon'ble Apex Court stating that constitutional powers vested in Constitutional Courts are not fettered.
14. In the criminal justice system, the law is set in motion by registration of a FIR and the investigating agency is required to investigate into the matter and file the final report based on the information collected during the course of the investigation. It is no-doubt true that during the course of investigation, the investigating agency may find information pointing out the guilt of a 17 person not named in the FIR, under such circumstances, the investigating agency may proceed to file final report (popularly known as charge sheet) against the person who may not be named in the FIR. But in the facts and circumstances of the present case, we find it unacceptable that Investigating Officer could proceed only against the respondent-accused even in spite of DNA report and scientific analysis turning negative as against the respondent-accused. Ultimately, the criminal justice system is propelled to arrive at the truth.
15. Learned counsel in the connected appeal filed on behalf of the complainant, father of the deceased, makes a fervent appeal that the victim had been supplementing the family income by doing daily chores in various houses to augment the necessities of the family. She was about 21 years old when the unfortunate incident occurred and her life was taken away. It is therefore, submitted that under the compensation scheme for women victims providing for payment of 18 compensation, this court should consider issuing directions to the State Legal Services Authorities to consider payment of compensation to the parents of the deceased. Learned counsel submits that under the scheme either the victim or her dependents are eligible for grant of compensation. It is pointed out that word 'dependent' has been defined in the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 of the National Legal Services Authority, to include father and mother.
16. We have considered the submission of the learned counsel and we find that under Section 357A of the Cr.P.C., a separate provision is made for victim compensation. It is mandatory for the State Government in co-ordination with the Central Government to prepare a scheme for providing funds for the purpose of compensation to the victims or her dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. Consequently, the State 19 Government has issued a notification dated 22.02.2013 and provided for "Karnataka Victim Compensation Scheme, 2011". As per the notification, victim includes her dependents also. The procedure for grant of compensation under the Scheme, 2011 is that the court may recommend or an application could be filed by the victim or her dependents to the District Legal Services Authority.
17. For the reasons stated above, we proceed to pass the following:
ORDER
i) The decision of the trial court in acquitting the respondent-accused is upheld. Consequently, both the appeals stand dismissed.
ii) The matter shall stand remitted to the trial court for the purpose of considering the case against the persons named in the FIR. 20
iii) On remand, the trial court shall direct collection of samples such as, blood, urine, finger nails of all the persons named in the FIR except accused No.8-Salma w/o Mahammad Sadik and accused No.9-Parvin w/o Ansar. The samples collected shall be sent for DNA profiling, to find out whether they match with the incriminating biological evidence collected from scene of occurrence, which is already available with the Centre for DNA Fingerprinting and Diagnostics, Hyderabad.
iv) The trial court shall proceed thereafter in accordance with law.
v) The present Inspector of Police of Murdeshwar Police Station shall be the Investigating Officer to conduct further investigation into the matter.21
vi) The District Legal Services Authority, Uttara Kannada, Karwar shall consider the case of the complainant for payment of compensation under the Karnataka Victim Compensation Scheme, 2011.
vii) It is ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE MBS/-