Karnataka High Court
State By Central Bureau Of ... vs Santhosh Rao on 30 August, 2024
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NC: 2024:KHC:35279-DB
CRL.A No. 2150 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 2150 OF 2023
Between:
State by Central Bureau of Investigation
Special Crime Branch
Rajaji Bhavan, Basant Nagar,
Chennai-560090
Represented by its
Special Public Prosecutor
No.36, Ganganagar,
Bengaluru-560036.
...Appellant
(By Sri. Prasanna Kumar P., Advocate)
And:
Digitally signed Santhosh Rao
by VEERENDRA S/o. Sudhakar Rao
KUMAR K M Aged about 43 years
Location: HIGH R/at Sri Nava Durga Prasad,
COURT OF
KARNATAKA Near Housing Board Colony,
Kukkundooru Village,
Karkala Taluk,
Udupi District-576101.
...Respondent
(By Sri. Mohith Kumar K., Advocate)
This Criminal Appeal is filed under section 378 (2) of
Cr.P.C praying to set aside the judgment and order of acquittal
dated 16.06.2023 passed by the learned L Additional City Civil
and Sessions Judge, Children's Court (Special), Bengaluru
(CCH-51) in Spl.C.C.No.203/2016 thereby acquitting the
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NC: 2024:KHC:35279-DB
CRL.A No. 2150 of 2023
respondent/ accused of the charge under sections 376 and 302
of IPC and consequently convict the accused/ respondent of the
offence punishable under sections 376 and 302 of IPC.
Date on which the appeal was 02.07.2024
reserved for judgment
Date on which the judgment was 30.08.2024
pronounced
This appeal, having been heard & reserved, coming on for
pronouncement this day, judgment was delivered therein as
under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR) This appeal is against judgment of acquittal passed by L Additional City Civil and Sessions Judge, Children's Court (Special), Bengaluru, (CCH-51), in Spl.CC.203/2016.
2. On 09.10.2012, PW1-Chandappa Gowda, gave a report as per Ex.23 to Belthangady police station about the missing of his daughter Soujanya -3- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 (referred to as 'the girl' wherever necessary). She was a student of II year Pre-University at SDM College, Ujjire. She left home in the morning for college on 09.10.2012. Around 4.15 p.m she returned from college and alighted from the bus at Netravati bathing ghat to go to her house. But she did not go home and went missing. The police registered FIR in Cr.No. 250/2012. On the next day, i.e., 10.10.2012, PW2 Jagadish found the dead body of the girl in a forest place at Mannasanka while he and others were searching for her. He suspected that the girl might have been raped and killed and therefore gave a report as per Ex.P1 to the Belthangady police. On the basis of Ex.P1 the police included the offences punishable under sections 376 and 302 of IPC in the FIR already registered in Cr. No. 250/2012. The investigation was taken over by CID. Later the State Government entrusted the investigation to Central Bureau of Investigation (CBI) which -4- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 filed the charge sheet against the accused for the offences under sections 376 and 302 of IPC.
3. The prosecution examined 35 witnesses and got marked the documents as per Exs.P1 to P40 and the material objects as per MOs 1 to 26. After assessing the evidence, the trial court recorded findings that accused was not the person who might have committed the offence and therefore acquitted him of the offences charged against him. The trial court has given the following reasons for recording acquittal.
3.1. The case is based on circumstantial evidence. It is not the case of the prosecution that the accused was seen in the vicinity prior to incident nor the girl was seen with the accused.
3.2. Arrest of the accused and his voluntary statement leading to discovery is a circumstance projected by the prosecution. Ex.P15 is the -5- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 mahazar drawn by the investigating officer at the instance of the accused. The evidence given by PW15 shows that on 13.10.2012 around 3.30 p.m, he had been to the police station to see the accused and at that time the accused took him and the police to a place called Mannasanka situate at a distance of 200 meters from Dharmasthala Nature Care Hospital and showed his belongings to the police and then he gave his shirt and pants in the station. But the panchanama discloses very clearly that the articles seized there under did not belong to the girl and they belonged to the accused on account of which the seizure has no consequence.
3.3. DNA report-Ex.P19 issued by FSL is another evidence that the prosecution relies on. The report shows that six hair strands were found in the panche belonging to the accused. These hairs belong to two different male individuals. -6-
NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 Blood sample of the accused was also collected. Three hair strands matched with DNA of the accused. But the seminal stain or the hair of the victim was not found on the clothes of the accused. This circumstance is of no use at all. 3.4. Accused was subjected to forensic psychological assessment and report as per Ex.P21 issued by CFSL, Chennai, disclosed that the accused gave deceptive statements and therefore PW23, the expert opined that the accused might have been involved in committing crime. In the cross-examination PW23 admitted that a person would be annoyed if he was repeatedly asked irrelevant questions. For this reason it cannot be assumed unilaterally that accused was involved in the crime.
3.5. In Ex.P22-the FSL report it is mentioned that soil was found in the clothes of the girl and her vaginal swab. Same soil was found on both -7- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 the articles, but soil was not at all found in the clothes of the accused. There is nothing in the report connecting the accused with the crime.
3.6. The doctor has opined that nail scratch injuries were found on the body of the accused. The evidence shows that accused was beaten by the public after he was apprehended. When the nails of the girl were examined, they did not contain any skin tissues or blood marks of the accused.
3.7. The dead body was not detected at the instance of the accused, rather many people found the dead body when they went on a search.
3.8. It is the prosecution case that the accused showed the place to the investigating officer where he committed rape and murder; if it was the case the investigating officer should have called the expert to find out the clues such as the -8- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 hairs of the accused, foot prints, pieces of clothes and struggle marks. No such evidence was collected.
3.9. PW14-Mahabala Shetty examined the accused and gave findings similar to that of PW12. In the cross-examination PW14 admitted that a person having phimosis would suffer severe pain in his private part if he commits rape on a minor girl. In that event there will be ripping of the foreskin resulting in injuries. Both the doctors who examined the accused did not find injuries on the private part of the accused.
3.10. Above all the material witnesses have deposed that the accused is not involved in commission of crime.
3.11. Except the voluntary statement there is no evidence on record which connects the accused with the crime. It is doubtful that the accused -9- NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 single handedly dragged the girl inside the bushes, committed penetrative sexual assault on her and then killed by strangling with her school identity card tag. Thus the involvement of the accused in the commission of offence is not at all proved by the prosecution.
4. Assailing the findings of the trial court, Sri P.Prasanna Kumar, learned counsel for the appellant, argued that the trial court has failed to notice that all the circumstances point to the involvement of accused in commission of crime. His argument was that though nobody saw the accused along with the girl for the last time and for this reason the last seen theory would not emerge for consideration, there is evidence which shows that the girl alighted from the bus around 4.15 p.m. near Nethravathi bathing ghat and thereafter she went missing. To this effect there is evidence. After the arrest of the accused he
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 himself showed the place of incident to the police and at that place the police were able to recover the clothes of the accused. The FSL report shows that his hairs were found in the panche belonging to him. The doctors examined the accused and gave a report that there were injuries on the person of the accused. They noticed nail scratch marks and also an injury on his private part. It is true that three more persons were suspected in the commission of crime, but the investigation did not show their involvement. PWs1, 2 and 3 might have stated that accused was not involved in commission of crime, but their statements were contrary to the investigation. Ultimately the materials collected during investigation must be tested in the court of law and looked in this view the evidence that the prosecution placed before the court was sufficient enough to arrive at a conclusion that none other than the accused was involved in commission of crime. Thus seen the
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 accused should have been convicted and therefore the impugned judgment is to be set aside and the accused convicted and punished.
5. Sri Mohith Kumar K, learned counsel for the accused/respondent submitted that this is an appeal against acquittal judgment. It is a well established principle that there cannot be interference with acquittal judgment unless it is found that the trial court has appreciated the evidence perversely, or ignored or misread any evidence. In the case on hand the impugned judgment does not appear to be based on perverse findings. The trial court has assessed the evidence on every circumstance to draw a conclusion against the prosecution. Adverting to the arguments of Sri Prasanna Kumar, he argued that there is nothing strange if an hair strand of the accused is found in his clothing; it is not incriminatory at all. It is true that three hair
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 strands of another male individual were also detected in the panche of the accused, but it is to be noted that hair of any part of the girl was not detected in the clothing of the accused. The injuries found on his body occurred due to assault on him by public, about which some of the witnesses have stated. The doctor who examined him has given evidence that the accused had a disorder called phimosis in his genital part. This aspect has been noted by the trial court. A person with phimosis finds it difficult to have intercourse and therefore it is improbable that he would have committed rape. Above all, the prominent witnesses including the father of the girl have stated that the accused was not involved and they suspected some others. This being the evidence, the trial court is justified in acquitting the accused. Therefore appeal deserves to be dismissed.
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6. Sri P.Prasanna Kumar in reply referred to Ex.P12, the opinion of doctor and submitted that the accused was capable of performing sexual intercourse in spite of having phimosis, and presence of an injury on his penis shows that he might have indulged in forceful intercourse with the girl.
7. The entire evidence requires re- appreciation in the light of arguments of the learned counsel. There is no dispute as to the fact that the girl left her home in the morning of 09.10.2012 for college, she went missing while returning home. It is not the prosecution case that the accused was seen with the girl. The evidence given by PW3, PW4 and PW9 shows that all of them saw the girl alighting from bus around 4.15 p.m on 09.10.2012 at Netravati bathing ghat and walking towards her house. PW8 was the classmate of the girl and her evidence is that she
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 and the girl boarded KSRTC bus near their college around 3.45 p.m and the girl alighted from the bus at 4.00 p.m near Netravati bathing ghat. What happened after she got down from the bus is a mystery and therefore whether the other circumstances that the prosecution rely on point to the involvement of accused is to be examined.
8. The oral evidence of PW1, PW3 and PW4 shows that they and many people searched for the girl in the late evening of 9.10.2012 in the surrounding places but her dead body was not found, it was on the next day in between 10.00 and 11.00 a.m, the dead body was spotted near a place called Mannasanka. PW2 gave complaint to police as per Ex.P1 stating that some miscreants had killed the girl after committing rape. After conducting inquest as per Ex.P3 and completing other formalities, the dead body was shifted to general hospital, Belthangady, for postmortem
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 examination. PW12 and PW34 are the two doctors who conducted postmortem. Both of them gave an opinion as to cause of death being external compression of neck by a ligature. In Ex.P3, the inquest report it is written that a nylon tag was found tied around the neck of the girl. Therefore she might have been strangled to death. The evidence of PW12 shows that he noticed multiple injuries on the dead body. In Ex.P4, the postmortem report, injuries such as abrasions and contusions were found on upper arm, fore arm, both hands, upper and lower part of back, groin, inner part of both thighs and outer part of both thighs and legs. These were all ante mortem injuries. The vagina was found lacerated and bleeding; hymen was torn; mud particles were there on vulva and vagina. PW12 stated before court that there was sexual assault on the girl and injuries indicated the resistance offered by her during sexual assault. Since he noticed undigested
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 food in her stomach, he opined that she might have taken food around 6.00 p.m on 9.10.2012. The defence does not dispute the cause of death and sexual assault; line of defence was that accused was not involved in the incident and three or four others might have raped and killed her.
9. The next circumstance is apprehension of accused which is spoken to by PW16, PW29 and PW31. The gist of their evidence is that about two days after the incident, i.e., on 11.10.2012 as stated by PW29, they all went near Bahubali Betta around 7.00 p.m and saw a person sitting alone in dark. They all asked him to go away from that place as nobody was allowed to be there during night hours. He said that his relatives had gone up the hill and he was waiting for their arrival. PW31 has given a slightly different version. What he has stated is that he, PW16 and PW29 asked all the people present at that place to move, but the
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 accused did not move. Two police constables were present there in civil dress, and when they tried to catch hold of accused, he started running, and then local people caught hold of the accused and handed him over to police. Their evidence is that accused was sitting alone near Bahubali Betta and he was caught at that place.
10. After the accused was taken to police custody, he was subjected to medical examination. PW12 examined the accused also. He noticed abrasions on the dorsum of left thumb and wrist, nose, right thigh, knee, upper part of right side of back, nape of neck and middle one third of back. According to PW12 these injuries might have occurred about 48 hours before examining the accused. He also noticed abrasions over upper part of back, right arm, left side of back, right knee and left arm and these injuries appeared to
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 be 24 hours old. Ex.P7 is his medical examination report.
11. PW14 is another doctor who examined the accused and certified that he was sexually potent. Ex.P12 is the report of PW14. PW14 has also stated that he too found about 17 injuries, and opined further that injury Nos. 1, 2, 3 and 6 might occur by nails. Even according to PW14, some injuries were 48 to 72 hours old and some others were 24 hours old. Because in Ex.P7 it was mentioned by PW12 that prepuce was not retracting back, he was questioned about it in the cross-examination, and he admitted the suggestion that accused had phimosis. In Ex.P12 issued by PW14 there is a mention about phimosis. Another injury mentioned in Ex.P12 is a red coloured contusion around external urethral orifice.
12. Then the investigating officer-PW33 has stated about voluntary statement said to have
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 been given by the accused and recovery of certain articles based on disclosure made by the accused in his voluntary statement. PW33 being the police inspector of Belthangady police circle conducted part of the investigation. In his examination-in- chief it has stated that he interrogated the accused and recorded his voluntary statement. As the accused stated that he would show the place of commission of offence and produce the clothes worn by him at the time of commission of the offence, PW33 secured panchas and along with them and the accused, he went to the place of occurrence situated near Yoga Prakruthi Chikithsalaya at Mannasanka in Dharmasthala and seized 3 shirts, 1 shawl, 1 lungi, 2 tulasi malas and cash of Rs.3820.00 by drawing a mahazar as per Ex.P15. He thereafter seized a shirt, panche and underwear worn by the accused after conducting mahazar as per Ex.P16. PW15 was a witness to these two panchanamas and his
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 evidence also discloses that the accused himself showed the place of incident and his clothes. He identified the clothes seized by the police under two mahazars. Therefore there is corroboration to the testimony of PW33 from PW15.
13. The seized articles were sent to FSL for examination. PW18 and PW24 are the witnesses examined in this regard. PW18 was an Assistant Director in the Department of Toxicology, FSL, Madiwala, Bengaluru. He examined 18 articles which included the clothes of the girl and also the clothes of the accused. He stated that item at Sl.No.6, the nail clippings belonged to a female. Item No.15 was a panche belonging to a male and it contained six hair strands. Out of six three matched with the hairs samples of the accused and the rest three belonged to a different male individual. Item No.8 was the blood sample of the girl. The DNA examination revealed that the DNA
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 detected in the blood matched with DNA detected in the nail clippings. The evidence of PW18 also shows that vaginal swab of the girl was also subjected to DNA examination, but it was not successful because the swab was not collected properly and there was fungus in the swab. Above all, PW18 admitted in the cross examination that in the nails of the girl the blood stains of the accused were not found.
14. PW24 was also an Assistant Director at FSL, Madiwala, Bengaluru and he too subjected the seized articles to scientific examination. Some of the items included vaginal swab and the clothes of the girl and also the clothes of the accused. He found soil in the vaginal swab and in the clothes of the girl. The soil on the clothes of the girl and the vaginal swab matched with each other. But he did not find any soil in the clothes of the accused.
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15. The prosecution examined a professor at NIMHANS as PW17. His evidence shows that the accused was admitted as inpatient at NIMHANS for a month. He was in the team of Dr. C.R.Chandrashekar. Himself and Dr. C.R.Chandrashekar examined the accused. His evidence is that both of them did not find the accused suffering from any mental disorder.
16. The evidence of PW23 is also necessary to be referred here because she subjected the accused to forensic psychology analysis. Her evidence is that the accused appeared deceptive in his statements and her report is Ex.P21. In the course of cross examination she was specifically suggested that a person would become angry if irrelevant questions were put to him, and to this suggestion PW23 answered that if the person under examination was innocent, he would either give explanation or become aggressive. Her
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 answer has some relevancy which will be dealt with later.
17. The evidence thus referred to above clearly shows that none saw the accused being with the girl just before she went missing. All that PWs.3, 4 and 9 have stated is that they saw the girl going towards the house after alighting from the bus at Nethravathi bathing ghat. The prominent witnesses, namely, PW1 and PW2 do not suspect the involvement of the accused, according to them three or four others were responsible for the rape and death of the girl. Some of the injuries on the person of the accused might have occurred when public assaulted him. It is true that the doctors also noticed some old injuries age of which was more around 48 hours. PW14 in particular has stated that injuries 1, 2, 3 and 6 found on the person of the accused appeared to have occurred due to scratch by nails. This was
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 highlighted by Sri P.Prasanna Kumar to argue that the girl might have scratched the accused while resisting him. If it was so, in the nail clippings of the girl, the blood stains of the accused should have been detected, but blood stains were not detected. It is true that PW14 noticed one injury on the private part of the accused when he examined him on 12.10.2012. The first doctor who examined the accused was PW12. His examination was also on 12.10.2012. He did not find any injury on the private part of the accused. But both the doctors have opined that the accused had phimosis. Though accused was sexually potent, because of phimosis, as opined by the doctor sexual intercourse with a girl would be difficult and in case he would have intercourse, he would suffer pain. PW12 has admitted in the cross examination that since the girl was physically well built, the possibility of a single man like the accused having forcible intercourse was remote and there was
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 possibility of involvement of more than one person. The seizure of the clothes of the accused as stated by PW33 is of no use, the situation would have been different if the accused had concealed the clothes of the girl, which is not the case of the prosecution. The apprehension of the accused by PWs.16, 29 and 31 was for the reason that the former was found sitting alone near Bahubali Betta and all that they stated before the court was that they did not want him to be there during night hours and they asked him to come along with them to rest overnight somewhere in one of the guest houses of the temple. These three witnesses did not suspect the involvement of the accused in missing of the girl. In fact PW1 and PW3 suspect the involvement of some of PW16, 29, 31 and a few others. Only for the reason that three hair strands of the accused were detected, it does not connect him with the crime because those hair strands were found in his own panche, it is not the
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NC: 2024:KHC:35279-DB CRL.A No. 2150 of 2023 case of the prosecution that the pubic hair of the accused was found on the clothes of the girl or that the pubic hair of the girl was found in the clothes of the accused. Therefore the conclusion is that no circumstance is proved by the prosecution. The trial court has properly discussed the evidence. This is an appeal against acquittal judgment. There cannot be interference if the evidence appears to have been evaluated properly.
18. From the above discussion, we come to a conclusion that the appeal deserves to be dismissed and ordered accordingly.
Sd/-
(SREENIVAS HARISH KUMAR) JUDGE Sd/-
(J.M.KHAZI) JUDGE Ckl/kmv List No.: 19 Sl No.: 1