Karnataka High Court
Sri Sathish vs The State By Bantwal Police on 22 May, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1669 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL NO.1669 OF 2021
BETWEEN:
SRI SATHISH
S/O. GOPAL
AGED ABOUT 32 YEARS,
R/O. KASHEKODIMANE,
BALTHILA VILLAGE,
BANTWAL TALUK - 574 253
DAKSHINA KANNADA DISTRICT. ... APPELLANT
(BY SRI KRISHNAPPA N.R., ADVOCATE)
AND:
THE STATE BY BANTWAL POLICE,
DAKSHINA KANNADA DISTRICT,
REP. BY: S.P.P.,
Digitally signed by HIGH COURT BUILDING,
MAHALAKSHMI B M HIGH COURT, BENGALURU - 560 001. ... RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 02.12.2014 AND ORDER OF
SENTENCE DATED 09.12.2014 PASSED BY THE VI ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
S.C.NO.81/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 376 R/W 511, 302, 392 AND 201 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:-
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CRL.A No. 1669 of 2021
JUDGMENT
The accused has filed the present criminal appeal against the impugned judgment of conviction dated 02.12.2014 and order of sentence dated 09.12.2014 made in S.C. No.81/2013 on the file of the VI Additional District and Sessions Judge, Dakshina Kannada, Mangalore, sentencing the accused to undergo imprisonment for life which shall mean imprisonment for the remainder of natural life of accused with fine of Rs.10,000/- each for the offence punishable under Section 376 read with Section 511 and Section 302 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and accused to undergo imprisonment for a period of five years with fine of Rs.5,000/- and in default, to undergo simple imprisonment for two years for the offence punishable under Section 392 of IPC and also to undergo imprisonment for three years with fine of Rs.5,000/- and in default, to undergo imprisonment for one year for the offence punishable under Section 201 of IPC.
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2. It is the case of the prosecution on the basis of the complaint-Ex.P.1 by P.W.1-Nalinakshi-mother of the deceased Sowmya resident of Balthila Village, Bantwal Taluk, that her deceased daughter Sowmya studied upto TCI, working in a company at Manipal and resided in the hostel. On 24.02.2013, her daughter informed P.W.1 over the phone that she was not well enough and would go to her aunt Jalaja's house at Padubelle, Udupi and she would come back to home on 25.02.2013. Thereby, P.W.1 waited in the house till 2.00 p.m. on 25.02.2013. Since her daughter did not come to the house, another daughter of P.W.1 namely Maithri-P.W.4 called over the mobile of Sowmya. At that time, P.W.8-Vidya responded from the other side and told her that she found the mobile of Sowmya on the roadside of Kashekodi and asked her to collect the mobile. The same was informed to P.W.1. Immediately, P.W.1 and 4 and another daughter came to Kashekodi, saw the slippers and watch of Sowmya lying by the side of the road. When they peeped the slope, they saw the bushes were rumpled and after some distance, a -4- CRL.A No. 1669 of 2021 bag and chudidhar veil were found in the bush. P.W.1 identified the bag and veil as belonging to her daughter Sowmya and at the same spot, she found a towel (byrasu) where the pond was situated under the slope. She further stated in the complaint that after noticing all the belongings of Sowmya with byrasu, she was frightened and shouted loudly. Thereafter, her husband and son, along with others from villages came to the spot and searched in the water. P.W.10-Sadashiva Naika after a search in water, took out the dead body of Sowmya. P.W.1 and others noticed the contusion on the neck of dead body. Thereafter, P.W.6-Monappa Poojary informed that he heard the voice of the girl §zÀÄQ¸ÀÄ, §zÀÄQ¸ÀÄ in Tulu and saw the accused going from the other side of the tank. After seeing the belongings of her daughter, rumpled bushes and male towel (byrasu), P.W.1 analyzed that the accused might have dragged her daughter Sowmya on the bushes towards a sloppy area, attempted to rape her, committed murder after strangulation and thrown her into -5- CRL.A No. 1669 of 2021 the tank. Accordingly, she lodged a complaint to the jurisdictional police. Based on the complaint, the jurisdictional police registered a case in Crime No.33/2013 for the offence punishable under the provisions of Sections 376 read with 511, 302, 201, 392 of IPC and filed charge- sheet against the accused.
3. Since the offence was exclusively triable by the Sessions Court, the matter was committed to the Principal District and Sessions Court, Mangaluru in SC No.81/2013.
4. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge on 13.11.2013, read over the charge to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution, the prosecution examined 27 witnesses as P.Ws.1 to 27 and marked the documents at Exs.P.1 to P.41 and Material Objects at M.Os.1 to 17. After completion of the evidence -6- CRL.A No. 1669 of 2021 of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstantial evidence by the prosecution witnesses against him. However, he has not adduced any evidence on his behalf.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed the following points for consideration:
"1. Whether the prosecution proves beyond all reasonable doubt that on 25.02.2013 at about 2.00 P.M., at Dasakodi-Shambooru of Balthila village, when deceased Sowmya was proceeding towards her house the accused followed her and forcibly dragged her nearby hillock and attempted to commit rape and thereby committed an offence ?
2. Whether the prosecution proves beyond all reasonable doubt that on 25.02.2013 the accused after attempting to commit rape, committed murder of deceased with an intention causing death by gagging her mouth and throttling her neck with towel (byrasu) and thereby committed an offence ?-7- CRL.A No. 1669 of 2021
3. Whether the prosecution proves beyond all reasonable doubt that the accused after committing the murder of the deceased girl, robbed her gold chain and thereby committed an offence ?
4. Whether the prosecution has proved beyond all reasonable doubt that the accused after committing murder of deceased, robbery of gold chain, caused disappearance of the dead body by pushing into the pond thereby screened himself from legal punishment and committed an offence ?
5. Whether the prosecution has proved beyond all reasonable doubt that the accused has committed the offence punishable under Sec. 376 r/w 511, 302, 392 and 201 of IPC ?"
7. Considering both the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that on 25.02.2013 at about 2.00 p.m. at Dasakodi- Shambooru of Balthila Village, when deceased Sowmya was proceeding towards her house, the accused followed her and forcibly dragged her nearby hillock and attempted to commit rape, when she resisted, he committed murder -8- CRL.A No. 1669 of 2021 of Sowmya with an intention of causing death by gagging her mouth and throttling her neck with towel. Further recorded a finding that the prosecution proved beyond all reasonable doubt that the accused committed the murder of the deceased, robbed her gold chain and in order to disappear the dead body, he pushed dead body into the pond, screened himself from legal punishment and thereby, committed offence punishable under Sections 376 read with Section 511, 302, 201 and 392 of IPC. Accordingly, the learned Sessions Judge by impugned judgment of conviction and order of sentence dated 02.12.2014 convicted the accused for the offence punishable under the provisions of Sections 376 read with Section 511, 302, 392 and 201 of IPC. Hence the present appeal is filed by the accused/appellant.
8. We have heard the learned counsel for the parties to the lis.
9. Sri. N.R. Krishnappa, learned counsel for the appellant/accused would contend with vehemence that the -9- CRL.A No. 1669 of 2021 impugned judgment of conviction and order of sentence, sentencing the accused for the offence punishable under the provisions of Sections 376 read with Section 511, 302, 392 and 201 of IPC is erroneous and contrary to law and material on record and cannot be sustainable in law and liable to be set-aside. He further contended that the alleged eyewitness, witness-P.W.6-Monappa Poojary, if he heard the screaming voice of the girl as rescue and saw the accused going from the other side of the tank, why he did not attempt to attract the attention of the general public and why he did not attempt to catch hold of the accused has not been disclosed in the entire evidence. Thereby, the alleged eyewitness is created for the purpose of this case. Therefore, the accused is liable to be acquitted. He would further contend that in the entire complaint, there is no averment with regard to attempt to murder. Thereby, the learned Sessions Judge is not justified in convicting the accused for the offence punishable under Section 376 read with Section 511 of IPC and the learned Sessions Judge proceeded to convict the
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CRL.A No. 1669 of 2021accused for imprisonment life which shall mean the remainder of natural life for the offence punishable under Sections 376 read with Section 511 and 302 of IPC and the same cannot be sustained as the provision of Section 376 of IPC only contains imprisonment of either description for a term which shall not be less than seven years but which may extend to 10 years and shall also be liable to fine by virtue of amendment on 03.02.2013 and thereby, the learned Sessions Judge was not justified in convicting the accused for the remainder of his natural life. He would further contend that the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence, only considered the examination-in- chief of the witnesses. Hence, the impugned order cannot be sustainable. He would further contend that there were different versions with regard to the dead body of Sowmya. According to P.W.6 the dead body of Sowmya was floating in the pond however, P.W.14 stated that the dead body was found in the pond in Sy. No.350/5 which belonged to him. The allegation is that the accused
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CRL.A No. 1669 of 2021attempted to rape, but the learned Sessions Judge proceeded to convict the accused for the offence under Section 376 holding that the accused has committed rape. When there is no evidence with regard to rape and no injuries found on the private parts of the deceased, the conviction of the accused under Section 376 cannot be sustained. Thereby, the learned Sessions Judge was not justified in convicting the accused. Therefore, sought to allow the appeal.
10. Per contra, Sri. Vijayakumar Majage, learned Additional SPP-II for the State while supporting the impugned judgment of conviction and order of sentence passed by the Trial Court would contend that the evidence of P.W.2, 5, 6, 9 and 11 clearly depicts that they are eyewitnesses and last seen theories, which clearly indicate the involvement of the accused in the homicidal death of the deceased. He would further contend that the recovery of M.O.1-gold chain of the deceased from the accused in the mahazar drawn as per Ex.P.11 and the recovery of
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CRL.A No. 1669 of 2021M.O.6 and 7-chudidar veil and towel at the spot would clearly depict the involvement of the accused. He further contended that the medical evidence of P.W.18 clearly depicts that the deceased sustained as many as 16 injuries on her body and also examined the accused and issued a wound certificate as per Ex.P.14, wherein, the accused also sustained 5 injuries and the accused has not given any explanation as to how he has sustained the injuries. The evidence of the doctor clearly depicts that the injuries found on the accused might have been caused by the deceased when she tried to resist the attempt of rape and the accused has not explained how he sustained the injuries, thereby, the learned Sessions Judge was not justified in convicting the accused. He further contended that under the provisions of Section 376 read with Section 511 of the IPC the accused could have been punished with imprisonment for life with a fine and not a remainder of life as the incident occurred on 22.05.2013 and the provision of Section 376 of the IPC was amended on 03.02.2013. The learned Sessions Judge according to the
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CRL.A No. 1669 of 2021learned counsel was justified in convicting the accused and the appellant has not made out any ground to interfere with the impugned judgment and therefore, sought to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the appellant and the learned Additional State Public Prosecutor, the only point that arises for our consideration is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under the provisions of Sections 376 read with Section 511, 302, 201 and 392 of IPC in the peculiar facts and circumstances of the present case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the appellant as well as the learned Additional State Public Prosecutor and perused the entire material including the original record carefully.
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CRL.A No. 1669 of 2021
13. In order to re-appreciate the evidence of the prosecution witnesses, it is relevant to consider the evidence of the prosecution witnesses and the materials on record relied upon:
(i) P.W.1-Nalinakshi-complainant-mother of the deceased, based on the information given by P.W.8-Kum. Vidya that the mobile phone of the deceased was found on the road side and on information, she went to the spot along with P.W.4, where P.W.8 was waiting for them. On the way, she found slippers and a watch of her daughter Sowmya lying on the road. When they went further towards a sloppy area, they found bushes rumpled and mark of dragging at the same spot. They further saw the bag of Sowmya, her chudidhar veil and a male towel (byrasu) on the ground. P.W.6-Monappa Poojary came to the spot and disclosed that he heard the female voice as CªÀÄä, CªÀÄä and saw the accused at the same spot. Based on the information, she lodged the complaint as per Ex.P.1 before the
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jurisdictional police. Thereby, supported the case of the prosecution witness.
(ii) P.W.2-Smt. Loosi Sequira, an eyewitness, stated that she was appointed for pulse polio work on 24.02.2013 and when was on visit to the houses, who had not attended the pulse polio, on 25.02.2013 at 9.30 a.m. after parking her vehicle near Anganavadi, she visited the houses near the temple of Venkateshwara. At that time, about 1.30 p.m., she was on a call over the phone, she heard the female cry as CªÀÄä, CªÀÄä and when she turned back, she saw that the accused was dragging the deceased Sowmya towards a sloppy area, she was frightened and went to the house of C.W.3 and disclosed the same. However, later, villagers came to the spot and searched for the deceased Sowmya and found her dead body. She also saw the veil of Sowmya and a towel of the accused and identified them as M.O.6 and
7. She also made a statement before the learned Magistrate under Section 164 of the Cr.P.C. as per Ex.P.3 and supported the case of the prosecution.
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CRL.A No. 1669 of 2021
(iii) P.W.3-Devaki deposed that she knew the accused since the accused was from her village. She heard the voice of the girl on 25.02.2013 at 2.00 p.m. as CªÀÄä PÁ¥Ár. She made a statement on par with P.W.2 and supported the case of the prosecution.
(iv) P.W.4-Kum. Maithri, sister of the deceased and daughter of P.W.1 deposed that at the request of P.W.1, she called the mobile phone of the deceased on 25.02.2013 at 2.00 p.m. and P.W.8 responded to the phone, informed her that the mobile phone of the deceased was lying on the side of the road and asked her to collect the mobile phone. Herself and her mother went to the spot, collected the phone and while they were talking with P.W.8-Vidya, P.W.6- Monappa Poojary informed her that he had heard a female cry as §zÀÄQ¹, §zÀÄQ¹ and she supported the case of the prosecution.
(v) P.W.5-Mohan P.S. deposed that when he was working in the agricultural land on 25.02.2013 at about 2.00 p.m., he heard female voice "CªÀÄä, CªÀÄä §zÀÄPÀ¯É(CªÀÄä, CªÀÄä §zÀÄQ¸ÀÄ)"
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but he did not see anybody. Afterwards he came out and saw P.W.2 and 3 were talking with each other. Subsequently, as he asked P.W.3 whether she heard any voice, she disclosed that the accused was dragging Sowmya towards a sloppy area, as per P.W.2. Therefore, he ran to the spot and saw the accused was attempting to commit rape on the deceased and as she was resisting, he gagged his byrasu to her mouth and throttled her neck. When he went near the said spot, the accused pushed the deceased Sowmya into the water.
Afterwards, the accused was also drowned in the water and went from the other side of the tank to his house. P.W.5 also went inside the water upto to a depth of 20 meters, but as he was frightened, he came out of the water and went to the house of Sowmya to disclose the said incident. Thereby, supported the case of the prosecution.
(vi) P.W.6-Monappa Poojary deposed that he saw the accused on 25.02.2013 at about 2.00 p.m. when he was going to Dasakodi to bring his daughter and at that time, he heard the female voice as PÁ¥Ár PÁ¥Ár and after hearing the said voice, he saw both sides of the road and did not find
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anything. Again he went towards Kashekodi at that time, he saw the accused hurriedly going to his house from the side of a hillock and he was in wet clothes wearing black shirt and grey pant. When he was proceeding towards Kashekodi junction, he saw P.W.1 and P.W.4 talking with P.W.8 in a disturbed manner. When he questioned the complainant, she stated that the mobile phone of Sowmya was lying on the road side, which was found by Vidya. Thereby, they went in search of Sowmya. They saw the slippers and a watch of Sowmya lying on the road side. After some distance, her bag and veil were found on the ground. At that time, P.W.5 disclosed the screaming voice of a female and he also saw the accused in wet clothes. Thereby, supported the case of the prosecution.
(vii) P.W.7-Sitharam, father of the deceased Sowmya and husband of P.W.1 deposed that on 25.02.2013 at 2.00 p.m., himself and his son were proceeding towards Kashakodi junction and at that time, his wife and daughter were crying, seeing the slippers, bag and veil of Sowmya and supported the case of the prosecution.
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CRL.A No. 1669 of 2021
(viii) P.W.8-Kum. Vidya, who informed P.W.4-Maithri that she found the mobile phone on the road and supported the case of the prosecution.
(ix) P.W.9-Arun deposed that he saw the accused following the deceased on 25.02.2013 at about 1.45 p.m. at a distance of 20 feet. As both of them were neighbors, he has not shown any interest and has gone away towards Kaladka. Afterwards, he came to know of the murder of the deceased by the accused after an attempted rape and supported the case of the prosecution.
(x) P.W.10-Sadashiva Naik deposed that on 25.02.2013 at about 2.00 p.m. when he was going on Kashakodi-Baltila Road to his house, he heard a female voice, saw P.W.1, 4, 6 and 7 and also saw slippers. Then P.W.1 informed him that the veil, bag and slippers belonging to Sowmya were lying on the road. He took out the dead body at bund and supported the case of the prosecution.
(xi) P.W.11-Chandrashekara Shetty deposed that he saw the accused standing nearby the hotel on 25.02.2013 at
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CRL.A No. 1669 of 2021about 1.30 p.m. and at that time, the deceased Sowmya came in the bus, got down at the Dasakodi bus stop and proceeded towards her house. The accused followed her in the same road. Both P.W.9 and 11 noticed the towel (byrasu) on the shoulder of the accused and the same was identified before the Court as M.O.7, supported the case of the prosecution.
(xii) P.W.12-Valerian Dias deposed that the accused harassed his daughter, pulled her hand about eight to nine years back and then her daughter escaped from accused. When he enquired with the accused, he fumbled and then oral complaint was given to police stated about the conduct of the accused and supported the case of the prosecution.
(xiii) P.W.13-Prabhakar Jogi, who is an inquest witness, observed the injuries on the dead body, identified M.O.4 to 9 and supported the case of the prosecution.
(xiv) P.W.14-Guruprasad deposed that he came to know about the death of the deceased when he was in his shop on 25.02.2013 at 4.00 p.m. He deposed that the dead body
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CRL.A No. 1669 of 2021thrown in the tank belongs to him and supported the case of the prosecution.
(xv) P.W.15-Dinesh, deposed that he has given SIM to deceased, which was used by her till her death. When mobile was surrendered by father of the deceased, he was present and signed mahazar as per Ex.P.7 and identified mobile as M.O.10 and SIM as M.O.17. Thereby, supported the case of the prosecution.
(xvi) P.W.16-Krishnappa Poojari, who is seizure witness deposed that in his presence, the police recovered M.O.11 to M.O.14 i.e., clothes of dead body, chuddidar pant, top, undergarment, nose stud and silver toe ring as per Ex.P.10 and recovered M.O.15 and 16 - clothes of accused as per Ex.P.11 and supported the case of the prosecution. (xvii) P.W.17-Nagaraj, Jewellery shop owner, deposed that he weighed the golden chain-M.O.11, which was 5.50 grams, valued Rs.13,000/- and the same was seized from the house of the accused and supported the case of the prosecution.
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CRL.A No. 1669 of 2021(xviii)P.W.18-Dr. Mahabalesh Shetty, who conducted the postmortem of the deceased deposed that he found as many as 16 injuries on the dead body and issued postmortem report as per Ex.P.12 and also examined the accused and issued a wound certificate as per Ex.P.14 and specifically stated in the cross-examination that the injuries sustained by the accused might have been caused by the nails of the victim and supported the case of the prosecution. (xix) P.W.19-Dr. Geethalakshmi, FSL Officer deposed that she conducted analysis of M.O.11 to M.O.14 and issued FSL Report as per Ex.P.18 and serology report as per Ex.P.19 and supported the case of the prosecution. (xx) P.W.20-Chidambara Swamy, Assistant Executive Engineer deposed that he has visited the spot on the request made by the jurisdictional police and prepared a spot sketch as per Ex.P.20 and supported the case of the prosecution. (xxi) P.W.21-Dr. Sanjay Bhandari, deposed that he knew P.W.2 and she was appointed in the pulse polio vaccination
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CRL.A No. 1669 of 2021programme. As per Ex.P.21, he has given information to the police and supported the case of the prosecution. (xxii) P.W.22-Subramanya, police constable deposed that he submitted complaint-Ex.P.1 and FIR-Ex.P.22 to the jurisdictional Court and supported the case of the prosecution.
(xxiii)P.W.23-Chitralekha, women police constable deposed that she was author of inquest report-Ex.P.9 and guarded the dead body and given dead body to the relatives of the victim and clothes of the deceased to C.W.36-mahazar witness as per Ex.P.11 and supported the case of the prosecution.
(xxiv) P.W.24-Monappa Gowda, police constable deposed that he took accused to the hospital for treatment and supported the case of the prosecution.
(xxv) P.W.25-Pradeep .T, police constable deposed that he took photos of dead body as per Ex.P.23 to Ex.P.26 and CD as per Ex.P.37 and apprehended the accused and produced
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CRL.A No. 1669 of 2021the accused before the police officer and supported the case of the prosecution.
(xxvi) P.W.26-Shekar, PSI deposed that he visited the spot, saw the dead body, registered the complaint and forwarded FIR to the Court and supported the case of the prosecution. (xxvii) P.W.27-Kulkarni, Investigating Officer deposed that he visited the spot, saw the dead body, conducted an inquest, sent the dead body to the hospital, recorded the voluntary statement of the accused, seized the clothes worn by the accused at the time of the incident, and after the completion of the investigation, filed a charge-sheet and thereby, supported the case of the prosecution.
Based on the aforesaid material on record, the learned Sessions Judge proceeded to convict the accused for the offence punishable under Sections 376 read with Section 511, 302, 392 and 201 of IPC.
14. A careful perusal of the evidence of P.W.1, who is mother of the deceased and P.W.4, who is sister of the
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CRL.A No. 1669 of 2021deceased, makes it clear that based on the information given by P.W.8-Vidya that the deceased's mobile phone was found on the road and based on the information given by her, P.W.1 along with P.W.4 rushed to the spot and on the way, they saw slippers, the bag of the deceased, her veil, and a male on the ground. When P.W.1 was talking with P.W.8 in a disturbed manner, P.W.6 informed P.W.1 that on 25.02.2013 at about 2.00 p.m., when he was going to Dasakodi to bring his daughter, he heard a female voice saying PÁ¥Ár PÁ¥Ár. On seeing both sides of the road, he did not find anything and returned to his house and hence, he proceed towards Kashekodi. At that time, he saw the accused hurriedly going to his house from the hillock side and clothes were wet and he was wearing black shirt and grey pant. Based on the information, P.W.1 lodged the complaint against the accused.
15. The evidence of P.W.2- Loosi Sequira, eye witness depicts that when she was on duty of pulse polio on 24.02.2013, she has to visit the houses of people, who
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CRL.A No. 1669 of 2021were not attended the pulse polio. On 25.02.2013 at about 9.30 a.m. she had been for the same work in her two wheeler, after parking of her vehicle near Anganawadi, she visited the houses near the temple of Venkateshwara. At about 1.30 p.m. she received a call from her higher authority and when she was on call over the phone, she heard a female voice as CªÀÄä, CªÀÄä when she turned back, she saw the accused dragging the deceased Sowmya towards a sloppy area. She was frightened and went to the house of C.W.3 and disclosed the same. Later, the villagers came to the spot, searched her and found her dead body. She also saw the veil of Sowmya and the towel of the accused, which were lying on the ground towards the pond. She also noticed the same towel on the shoulder of the accused on the very day and identified the towel that was found at the spot. After seeing the accused dragging Sowmya towards the tank area and her belongings being found by the side of the road, she assumed that the accused might have committed rape on
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CRL.A No. 1669 of 2021her and thereafter committed her murder. She gave a statement before the jurisdictional police under Section 164 of Cr.P.C. as per Ex.P.3. She has affirmed her evidence in the chief-examination while being cross- examined by the defence.
16. P.W.5-Mohan PS deposed that he has agricultural land situated by the side of his house. On 25.02.2013 at about 2.00 p.m. when he was working in the land, heard a female voice CªÀÄä, CªÀÄä §zÀÄPÀ¯É. But he did not see anybody when he saw the place from where he heard the voice. Afterwards, he came out and saw P.W.2 and 3 were talking with each other in a disturbed manner. Subsequently, he asked P.W.3 whether she heard any voice, she disclosed that the accused was dragging a girl towards a sloppy area as per P.W.2 and then, he ran to the spot and saw the accused has attempted rape on the girl and as she was resisting, he gagged his byrasu to her mouth, throttling her neck. When he went near the spot, the accused pushed Sowmya into the water and the
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CRL.A No. 1669 of 2021accused was also drowned in the water and went away from the other side of the tank to his house. He also went inside the water upto a depth of 20 meters, but as he was frightened, he came out of the water and went to the house of Sowmya to disclose the said incident. The evidence of P.W.5 clearly depicts the attempt of rape and murder of Sowmya by the accused. He immediately went to the house of the deceased, in the meantime, the villagers came near the tank, made a search in the pond and found her dead body. There is a connection between the accused dragging her to the sloppy area, which was seen by P.W.2 and P.W.5, the commission of rape and murder of the deceased by the accused. Nothing has been elicited to disbelieve the evidence of P.W.2, who is eye witness to the incident.
17. P.W.6- Monappa Poojary deposed that he saw the accused on 25.02.2013 at about 2.00 p.m. when he was going to Dasakodi to bring his daughter and at that time, he heard the female voice as "PÁ¥Ár PÁ¥Ár" and after
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CRL.A No. 1669 of 2021hearing the said voice, he saw both sides of the road and did not find anything and he went towards Kashekodi. At that time, he saw the accused hurriedly going to his house from the side of a hillock and he was in wet clothes. When he was proceeding towards Kashekodi junction, he saw P.W.1 and P.W.4 talking with P.W.8 in a disturbed manner. When he questioned the complainant, she narrated that the mobile phone of Sowmya was lying on the road side, which was found by P.W.8.. Thereby, they went in search of Sowmya. They saw the slippers and a watch of Sowmya lying on the road side. After some distance, her bag and veil were found on the ground. At that time, P.W.5 disclosed hearing the voice of a female and he also saw the accused in wet clothes. Thereafter, the villagers gathered at the spot, P.W.10-Sadashiva Naik searched Sowmya in the pond and took out her dead body and he noticed the contusion on the neck of dead body. Accordingly, the statement was recorded as per Ex.P.6. He identified the slipper, watch, bag and veil of the deceased as M.O.5, 6, 8 and 9 and also identified a black
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CRL.A No. 1669 of 2021shirt and grey pant worn by the accused on the date of the incident, when he saw him going from the hillock side as M.O.15 and 16. The evidence of this witness clearly depicts that he heard a female voice on 25.02.2013 at about 2.00 p.m. thereafter, he saw the accused in wet clothes, saw P.W.1, 4 and P.W.8 and the dead body of Sowmya taken out from the pond are trustworthy as deposed in a natural manner and there are no possibilities of false implication of accused in the case.
18. P.W.9-Arun deposed that he knew P.W.1 and her family members. He also knew the accused and stated that he saw the accused following the deceased at the distance of 20 feet on 25.02.2013 at about 1.45 p.m. when she was proceeding towards her house by walk. As both neighbors, he has not shown any interest and went away towards Kaladka. Afterwards, he came to know of the murder of the deceased by the accused after an attempted rape on her and thereby, supported the case of the prosecution.
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19. P.W.11-Chandrashekar Shetty also deposed that he saw the accused standing nearby the hotel on 25.02.2013 at about 1.30 p.m. and at that time, the deceased Sowmya came in the bus, got down at the Dasakodi bus stop and proceeded towards her house. The accused followed her in the same road. Both P.W.9 and 11 noticed the towel (byrasu) on the shoulder of the accused and the same was identified before the Court as M.O.7.
20. It is made out from the evidence of these witnesses that they knew the accused as well as the deceased and the accused was the neighbor of the deceased, who was working as a loader in the lorry. Therefore, their evidence is believable, as there is no reason for them to depose falsely against the accused. Nothing has been elicited in the cross-examination to disbelieve the evidence of P.W.9 and P.W.11, who have deposed in categorical terms that they saw the accused following the deceased prior to her death on 25.02.2013 in
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CRL.A No. 1669 of 2021between 1.30 and 2.00 p.m. Her dead body was found in the pond at about 2.30 to 3.00 p.m. P.W.2 also saw the accused dragging Sowmya towards a sloppy area at Hillock. Thereby, the involvement of the accused in an attempted rape and in causing the homicidal death of the deceased was clearly proved by the prosecution.
21. Apart from above evidence, it is also not in dispute that P.W.18-Dr. Mahabalesh Shetty who was working as a Professor and Forensic in the Medical Department of Justice K.S. Hegde, conducted autopsy of deceased Sowmya on 25.02.2013 at the request made by Circle Inspector of Police, Bantwal Police. After examination, he issued a postmortem report and found external injuries on the dead body, which is as under:
"1. Contusions, 2 in number, each measuring around 2x2 cm were present over an area of 4x2.5cm on the right upper eyelid and zygoma.
2. Multiple abrasions, of varying sizes, measuring 0.3x0.3 to 0.2x0.2 were present over
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an area of 2x1 cm, situated 1cm away and 2cm below the left angle of mouth.
3. Contusion of whole of outer aspect of upper lip and in the inner aspect on the right side was present over an area 6x3cm, corresponding to area from right central incisor to right canine.
4. Contusion over the outer aspect of lower lip on left side over an area 3.5x2cm and on the inner aspect involving the lip and gingival measuring 5x1cm, was present over an area corresponding to right lower lateral incisor to left lower canine.
5. Contusion, measuring 8x2.5cm, obliquely placed, was present, in front of the neck extending from a point 4cm below the right angle of mandible to a point 2cm away from midline on the left side.
6. Contusion, measuring 3x1cm, obliquely placed, was present in front of neck in the mid line, 1.5cm below injury no 5 and 5 cm above suprasternal notch.
7. Contusion, measuring 6x1cm, obliquely placed, was present extending from a point 1cm away front midpoint of injury no 6 to a point 3cm below the left angle of mandible.
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8. Grazed abrasion, measuring 15x11cm, obliquely placed directed from above downwards and from right to left was present on the outer aspect of right upper arm.
9. Multiple linear abrasions, 7 in number, of varying sizes, measuring 2x0.2cm to 3x0.2cm was present over an area of 5x4cm on the outer aspect of the lower one-third of right arm 2cm above elbow joint.
10. A curvilinear scratch abrasion, measuring 6x0.3cm, was present on the outer aspect of right forearm 6cm below the elbow joint.
11. An abraded contusion, measuring 3x1cm was present on the back of right hand, 1cm below the wrist joint.
12. A contusion measuring 3x1.5cm was present on the inner aspect of right leg, 4cm below the knee joint.
13. 4 curvilinear scratch abrasions, each measuring 6x0.2cm and multiple abrasions of varying sizes measuring from 2x0.1cm to 1x0.1cm, were present on the outer aspect of left upper arm over an area of 8x10cm, 16cm below the left shoulder tip.
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14. Multiple curvilinear scratch abrasions, 8 in number, of varying sizes measuring 1x0.1 to 2.5 x 0.1cm were present at the back of left arm over an area 8.3cm, 5cm above the elbow joint.
15. Multiple abrasions, of varying sizes, measuring from 2x1 to2x2 cm with diffused underlying contusions were present over an area of 7x4cm on the back of left elbow.
16. An abraded contusion measuring 5x1cm was present on the posterior flank on the right side 16cm above and 12cm away from anterior superior iliac spine.
The aforementioned injuries were fresh and antemortem in nature."
22. He further deposed that the nature of contusion found on the neck of dead body described as blood less dissection of neck was done as there were contusions on the neck externally. There were contusions of strap muscles of the neck. Muscles surrounding the superior horn of thyroid on both sides were contused. Contusions were present anteriorly on the body of thyroid cartiage and on the arytenold cartilages. Multiple sub epithelial
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CRL.A No. 1669 of 2021hemorrhages were present below the vocal cord, superior horn of thyroid was intact. Hyoid bone was intact. The vessels of the neck, both common carotid arteries were unremarkable (larynac and trachea sent for histopathological examination). Accordingly, he gave opinion as to the cause of death "due to throttling (external compression of the neck by hand) in association with smothering." Further the diagrammatic revision of injuries in autopsy prepared by him clearly proves the injuries noticed by the eye witnesses marked by the Medical Officer. The nature of injuries found on the dead body proves the attempt of rape by the accused which was resisted by her resulted in the murder.
23. P.W.18 who examined the accused on 26.02.2013, deposed that he found the injuries on the accused and issued a wound certificate as per Ex.P.14. The injuries occurred between 12 and 24 hours after the examination. The prosecution case shows the death of the deceased took place between 2.00 and 2.30 p.m. on
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CRL.A No. 1669 of 202125.02.2013. The same corroborates the injuries found on the accused, which he sustained within 12 to 24 hours prior to examination by the Medical Officer. The accused has not explained how he sustained injuries while recording statement under Section 313 of Cr.P.C. In the absence of any explanation offered by the accused, an adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon'ble Apex Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438] wherein at paragraph No.11, it has been as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
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24. P.W.18 doctor after examination of the accused, issued a potency certificate of the accused as per Ex.P.15, which clearly depicts the external injuries present on his body mentioned in the wound certificate. His blood group shown "O" Positive and has given opinion that the accused was capable of performing sexual intercourse. The clothes wore by the accused at the time of incident with sample of tank water subjected to Diatom Test and the opinion given by him relating to Diatom Test was marked at Ex.P.16. The possibilities of the injuries sustained by the accused from the deceased as affirmed by him in writing under Ex.P.17 particularly the injuries found on the accused said to have been caused by the victim's nail injuries. No doubt, this establishes the resistance made by the deceased at the time of an attempted rape. The other possibilities of injuries sustained by the accused mentioned in Ex.P.14 as suggested in cross-examination due to a fall on the hard surface were denied. Thereby, the evidence of P.W.18 proves the cause of death of the deceased was due to throttling and gagging her mouth.
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25. P.W.19-Dr. Geethalakshmi P., Scientific Medical Officer, who received four packets with a seal in Crime No.33/2013 from Bantwal Police Station containing chudidhar pant, chudidhar top, one slip and one tight, were subjected to chemical examination, which contained blood stains and the same was sent to examination. After serological examination, it was found that the blood stains found on the clothes were from human beings and related to the "O" positive blood group. Further serology report given as per Ex.P.19, which proves the "O" positive group of blood found on the A, B, C, D items subjected to chemical examination.
26. Further, P.W.18-doctor, who issued the post mortem, found the injuries on the deceased and also found the injuries on the accused. The injuries found on the deceased as noted in the post mortem corroborates the injuries found on the accused mentioned in Ex.P.14. The doctor also deposed that the possibilities of the injuries found on the accused might have caused by the
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CRL.A No. 1669 of 2021nails of the deceased. Therefore, other possibilities of sustaining injuries by the accused have not been explained before the Court. Therefore, both injuries on the victim and the accused clearly establish the attempt of rape made by him and possibilities of throttling her neck when she resisted and committed her murder.
27. The aforesaid evidence clearly depicts that the prosecution proved beyond all reasonable doubt that the accused on 25.02.2013 at about 2.00 p.m. at Dasakodi- Shambooru of Balthila Village, when the deceased Sowmya was proceeding towards her house, he followed her and forcibly dragged her nearby hillock and attempted to commit rape and when she resisted, the accused gagged her mouth and throttling her neck with towel. Thereby, committed offence under Sections 376 and 302 of IPC and further prosecution proved that the accused had committed murder of the deceased, robbery of gold chain, caused disappearance of the dead body by pushing into the pond thereby, the prosecution proved beyond all
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CRL.A No. 1669 of 2021reasonable doubt the offence punishable under Sections 392 and 201 of IPC.
28. The Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Mahendra Alias Golu reported in (2022) 12 SCC 442 while considering the provisions of Section 302 read with Section 511 or Section 354 of IPC at paragraph Nos.19, 20, 21 and 25 held as under:
"19. The difference between "attempt" and "preparation" in a rape case was again elicited by this Court in Koppula Venkat Rao v. State of A.P, laying down that: (SCC p. 606, paras 10-11) "10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its
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actual commission consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
(emphasis supplied)
20. In light of the statutory provisions as construed by this Court from time to time in the cited decisions, let us examine whether the
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CRL.A No. 1669 of 2021respondent attempted to commit rape of the prosecutrices or there was only preparation on his behalf?
21. We may at the outset explain that what constitutes an "attempt" is a mixed question of law and facts. "Attempt" is the direct movement towards the commission after the preparations are over. It is essential to prove that the attempt was with an intent to commit the offence. An attempt is possible even when the accused is unsuccessful in committing the principal offence. Similarly, if the attempt to commit a crime is accomplished, then the crime stands committed for all intents and purposes.
x x x
25. In our considered opinion, the act of the respondent of luring the minor girls, taking them inside the room, closing the doors and taking the victims to a room with the motive of carnal knowledge, was the end of "preparation" to commit the offence. His following action of stripping the prosecutrices and himself, and rubbing his genitals against those of the victims was indeed an endeavour to commit sexual intercourse. These acts of the respondent were deliberately done with manifest intention to commit the offence aimed and were reasonably
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CRL.A No. 1669 of 2021proximate to the consummation of the offence. Since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, the trial court rightly held him guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence."
29. When the prosecution proved beyond all reasonable doubt that the accused involved in the attempted rape and in the homicidal death of the deceased, he is liable to be convicted for the offence punishable under Sections 376 and 302 of IPC. The incident took place on 25.02.2013 and as on that date, the punishment was imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years under Section 376.
30. The learned Sessions Judge has proceeded to convict the accused for imprisonment of life, which shall mean a remainder of natural life under Sections 376 read
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CRL.A No. 1669 of 2021with Section 511 and Section 302 of IPC, which is erroneous and contrary to material on record and same needs to be modified to that extent.
31. For the reasons stated above, the point raised for consideration in the present appeal has to be answered partly negative holding that the accused has not made out any case to interfere with the judgment of conviction and order of sentence convicting the accused for imprisonment of life for the offence punishable under Sections 376 read with Section 511 of IPC and Section 302 of IPC with fine of Rs.10,000/- each offences with default clause and has not made out any case to interfere with the judgment of conviction and order of sentence convicting the accused for five years with fine of Rs.5,000/- under Section 392 of IPC and three years with fine of Rs.5,000/- for the offence under Section 201 of IPC. Further, the accused has made out a case to modify the imprisonment for the remainder of natural life in both the provisions of Sections 376 read with Section 501 of IPC and Section 302 of IPC and to that
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CRL.A No. 1669 of 2021extent, the impugned judgment of the Trial Court is modified.
32. In view of the above, we pass the following:
ORDER i. Criminal appeal filed by the accused/appellant is allowed-in-part.
ii. The impugned judgment of conviction dated 02.12.2014 and order of sentence dated 09.12.2014 made in S.C. No.81/2013 on the file of the VI Additional District and Sessions Judge, D.K., Mangalore, sentencing the accused to undergo imprisonment for life with fine of Rs.10,000/- each offence, for the offence punishable under Sections 376 read with Section 511 and 302 of the Indian Penal Code and also to undergo imprisonment for a period of five years with fine of Rs.5,000/- for the offence punishable under Section 392 of IPC
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and to undergo imprisonment for a period of three years with fine of Rs.5,000/- for the offence under Section 201 of IPC are hereby confirmed.
iii. The impugned judgment of conviction imposing imprisonment for the remainder of natural life of the accused is hereby set-aside.
iv. All the sentences shall run concurrently. v. Office is directed to return the Trial Court records.
Sd/-
JUDGE Sd/-
JUDGE MBM