Karnataka High Court
Anand @ Sathineni Anand @ Balappagari ... vs State Of Karnataka -Chelur P.S. on 5 October, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 05TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.927 OF 2014
BETWEEN:
ANAND @ SATHINENI ANAND @ BALAPPAGARI ANAND
S/O VENKATARAMANAPPA,
AGED ABOUT 28 YEARS,
CLEANER,
RESIDING AT NAGAMANI KOTHAPALLI
TALAPALA MANDALAM
KADIGI TALUK-583135
ANDHRA PRADESH.
... APPELLANT
(BY SRI: NARAYANA SWAMY H R, ADVOCATE)
AND
STATE OF KARNATAKA -CHELUR P.S.
REPRESENTED BY S.P.P.
HIGH COURT BUILDING,
BENGALURU.
... RESPONDENT
(BY I.S.PRAMOD CHANDRA, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:24.3.2014,
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PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE,
CHIKKABALLAPUR, IN S.C.NO.75 OF 2011 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376 & 302 OF INDIAN PENAL CODE AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR 10 YEARS FOR THE OFFENCES
PUNISHABLE UNDER SECTION 376 OF INDIAN PENAL CODE AND
TO PAY FINE OF RS.5000/- AND IN CASE OF DEFAULT OF
PAYMENT OF FINE, TO UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF 1 YEAR. FURTHER, APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO LIFE IMPRISONMENT AND ALSO
LIABLE TO PAY A FINE OF RS.5000/- AND IN CASE OF DEFAULT
OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT
FOR 1 YEAR, FOR THE OFFENCES PUNISHABLE UNDER SECTION
302 OF IPC.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, who is convicted for the offences punishable under sections 376 & 302, Indian Penal Code is before this Court challenging the judgment of conviction and order of sentence dated 25.03.2014 in S.C.No.75/2011.
2. The case of the prosecution in a nutshell is as follows:-
The accused person was working as a cleaner in HMS private bus. Every night the bus used to halt near the house of 3 PW-3. This bus was owned by PW-7. PW-3 had joined as an apprentice/cleaner in the said bus. On account of this relationship, the driver, conductor as well as the cleaner viz., the accused herein used to take meals in the house of PW-3. According to the prosecution, on 06.02.2011, the bus halted during night near the house of PW-3. The driver, conductor and the accused had their meals in the house of PW-3. At about 10.00 p.m., the accused is stated to have taken the deceased child, who was then aged five years, on the pretext of buying some biscuits. He took her to the petty shop of PW-2, purchased few biscuits and a pack of beedi. On the next day, PW-1 the father of the deceased having failed to see the child, a frantic search was made. In the evening, at about 3.00 p.m., PW-20 informed PW-1 that the deadbody of the child was found near the farm land of PW-8. The body was found without any clothes.
There were injuries and burnt marks on the body. The deceased appeared to have been raped and murdered. Within short time, the police arrived to the scene. PW-1 lodged a complaint which was reduced into writing, based on which, a case was registered against the accused under sections 376 and 302 of Indian Penal 4 Code. The accused was secured under body warrant on 07.03.2011. On completing the investigation, a charge sheet was laid against him for the above offences. The accused denied the charge and claimed to be tried.
3. In order to bring home the guilt of the accused, the prosecution examined 20 witnesses and produced in evidence 11 documents marked as Exs-P1 to P11 and the material objects as M.Os.1 to 10.
4. On considering the evidence, by the impugned judgment, the trial court found the appellant/accused guilty of both the above offences and accordingly, convicted and sentenced him as under:-
"Accused is hereby sentenced to undergo rigorous imprisonment for a period of ten years for the offence punishable under section 376 of Indian Penal Code and to pay fine of Rs.5,000/- and in case of default of payment of fine, to undergo simple imprisonment for a period of one year.
Further, for the offence punishable under section 302 of Indian Penal Code, the accused is hereby sentenced to undergo life imprisonment and also liable to pay a fine of Rs.5,000/- and in case of default of payment of fine, to undergo simple imprisonment for one year."5
5. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the appellant/accused has preferred this appeal.
6. We have heard Sri. Narayana Swamy, the learned counsel appearing for the appellant/accused and Sri. I.S. Pramod Chandra, learned SPP-II appearing for the respondent - State and have examined the records.
7. The learned counsel for the appellant/accused contends that the impugned judgment is not sustainable in law. The material on record does not conclusively establish the guilt of the accused. The medical evidence does not support the theory of rape. The accused was not subjected to any medical examination. All the witnesses relied on by the prosecution are the related witnesses and therefore, he pleads for acquittal of the appellant/accused by allowing the appeal.
8. Learned SPP-II however contends that the prosecution has adduced clear and cogent evidence in proof of the guilt of 6 the accused. The accused was seen taking the child from the house of PW-3. The last seen circumstance is conclusively established by the evidence of PWs-2 and 3 and their evidence has not been discredited in the course of cross-examination. The accused has failed to offer any explanation as to when he parted company of the deceased. On the other hand, the circumstances proved in evidence indicate that from the time of commission of the offence, the accused remained absconding. The nature of the injuries sustained by the deceased and the circumstances proved in evidence clearly establish that the alleged offence was committed by the accused. The recovery of the gold earrings and the silver anklets of the deceased at the instance of the accused directly connect him to the alleged offence of murder and therefore there is no error or infirmity in the findings recorded by the trial court warranting interference by this Court.
9. Considered the submissions and examined the records. PW-1 is the complainant and the father of the deceased child. He has stated that on the next day morning i.e. on 07.02.2011, he came to know through PW-2 that accused No.1 had taken his 7 child to the shop of PW-2 and had purchased some biscuits and a pack of beedi. He has further stated that after arrival of the police to the spot, he lodged the complaint as per Ex-P1.
10. In this complaint, it is noticed that he has narrated the sequence of events right from the time the accused took the child from the house of PW-3 till her dead body was discovered by PW-20. We do not find anything in the cross-examination of this witness to doubt or disbelieve his evidence with regard to the contents of the complaint and the sequence of events narrated by him in his evidence. He has offered acceptable explanation for the delay in lodging the complaint and has stated that he did not search for the child in the night on the impression that the child might have been sleeping in the house of his parents and it is only on the next day i.e., on 07.02.2011, on not seeing the child, he searched for her. He has specifically stated that during enquiry, in the morning itself, he came to know through PW-2 that the accused had taken the child. Further, it is elicited that he continued the search and only after tracing of the child, the police were called to the scene. There is 8 absolutely no reason to doubt or disbelieve the explanation offered by PW-1 which in the fact situation of the case, constitutes a sufficient cause for the delay in lodging the compliant. From his evidence, it is established that at the earliest point of time, the accused was implicated in the alleged incident. The role played by him has been narrated with specific details, which finds suitable corroboration in the evidence of other witnesses.
11. PW-2 was the owner of a petty shop. This witness has deposed that HMS bus used to halt in his village during night. Further, he has stated that on the date of the incident, appellant/accused had come to his shop alongwith the deceased child. The accused bought biscuits for the child and a beedi pack for himself and went away. This witness has further stated that on the next day, the father of the deceased had come in search of the deceased child and at that time, he narrated the circumstances of the accused coming to his shop and purchasing biscuits and a beedi pack. This evidence also has not been falsified in his cross-examination. Therefore, in our view, this 9 evidence fully corroborates to the testimony of PW-1 as well as the contents of the complaint Ex-P1. The contents of the complaint are in conformity with the statement of this witness, which lend intrinsic corroboration to the case of the prosecution. Therefore, we treat this evidence as fully reliable and accordingly we accept his evidence in proof of the fact that the accused and the deceased were seen together immediately preceding her disappearance.
12. PWs-4 and 5 are circumstantial witnesses examined by the prosecution. They are the residents of the same village. These witnesses have stated that on 06.02.2011, at about 10.00 p.m., they saw the accused and the child near HMS bus. The evidence of these witnesses also has not been discredited in their cross-examination and no worthwhile material is brought out in their evidence to doubt or disbelieve their testimony. Undisputedly, they are independent and disinterested witnesses. No circumstances are brought out in their evidence to suggest that they had any reason to falsely implicate the accused in the 10 alleged offence. Their evidence therefore deserve to be accepted.
13. Thus, on cumulative consideration of the evidence of PWs-2, 3, 4 & 5, we hold that the prosecution has conclusively established the fact that the deceased and the accused were last seen together at about 10.00 p.m. on 06.02.2011.
14. The testimony of the above witnesses is further corroborated by the evidence of PW-6- the conductor of the said bus. As already stated above, PWs-2, 3 and 4 have specifically deposed that the driver, accused as well as PW-6 were having their meals together in the house of PW-3. Even this witness has stated that on the date of the incident, the accused had meals with them in the house of PW-3 and thereafter the accused took the child with him. This evidence also has not been falsified in the cross-examination. We find that this evidence lends full support and corroboration to the testimony of PWs-2, 3 and 4, thereby establishing the last seen circumstance propounded by the prosecution.
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15. The other evidence produced by the prosecution would indicate that the dead body of the deceased was traced at about 3.00 p.m. on 07.02.2011 by PW-20. Her name also finds place in Ex-P1 complaint. The contents of the inquest mahazar Ex-P3 and the medical evidence indicate that the deceased had sustained the following injuries:-
1. Contusion measuring 2.5 cm x 2 cm situated below the angle of mandible (left side) 5cm below the ear lobule.
2. Contusion measuring 2 cm x 0.5 cm situated 2 cm below the right ear lobule.
3. Contusion measuring 2 cm x 0.5 cm situated 2 cm below the injury No.2.
4. Contusion in circular fashion measuring 0.5 cm., inner circle measuring 4cm x 3cm around the rightly nipple.
5. Contusion measuring 0.5 cm width circular fashion. Inner circle measuring 5 cm x 4 cm situated 1 cm above and medial to the left nipple.12
6. Abrasion measuring 5 cm x 0.5 cm situated 3 cm below and lateral to right interior, superior, ilialespain.
7. Abrasion measuring 4cm x 0.25 cm situated 4 cm below left anterior superior ilialespain.
8. Blood stains around the vagina and inner aspect of left thigh.
9. Lacerated wound red discolouration measuring 2 cm x 2 cm in vaginal mucosa extending from posterior vaginal wall.
10. Multiple small abrasion present over both legs.
11. Multiple small abrasions over medial and posterior aspect of left arm.
12. Multiple burn injuries on both legs.
13. Contused abrasion measuring 5 cm x 2 cm situated over left shoulder.
14. Contused abrasion measuring 2.5 cm x 1cm over right scapula.
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16. The medical officer, who conducted the post-mortem examination PW-11 has stated that the deceased died due to throttling/compression of neck. In his evidence, he has opined that having regard to the age of the child and the nature of the injuries sustained by her, possibility of death being caused on account of sexual assault could not be ruled out. We find no worthwhile cross-examination of this witness with regard to the cause of death as well as the opinion given by him with regard to the fact that the death of the child could have been caused on account of the sexual assault and the attending injuries sustained by her. Even otherwise, a perusal of the nature of the injuries as reflected in the post-mortem report Ex-P5 indicates that there were lacerated wound in vaginal mucosa extending posterior vaginal wall and abrasion over both legs which are indicative of the violent sexual assault on the child of a tender age.
17. Though it is contended that medical evidence does not support the theory of rape, as the FSL report does not mention the presence of seminal stains in the vaginal swab, but, 14 having regard to the circumstances discussed above and in the light of the medical evidence of PW-11, we find no hesitation to hold that the victim was sexually assaulted. Therefore, we do not accept the contention of the learned counsel for the appellant in this regard. Moreover, PW-19-the Scientific Assistant, Biology Section, Forensic Science Laboratory, Bengaluru, who issued the said FSL report-Ex-P6 has specifically stated that due to time lapse, there is possibility of non-detection of such traces. Therefore, this opinion in our view does not militate against the positive evidence produced by the prosecution.
18. The law is well settled that when the accused is found in the company of the deceased, the burden shifts on the accused to explain the circumstances as to when he parted company of the deceased. The accused has failed to offer any such explanation. The surrounding circumstances proved in evidence indicate that after taking the child with him, the deceased was found with fatal injuries. The death is homicidal. There is specific mention in the inquest mahazar as well as in the evidence of PW-1 that the gold earrings and silver anklets worn 15 by the deceased child were missing. After the arrest of the accused, the said ornaments have been recovered at the instance of the accused. In proof of this circumstance, the prosecution has examined PW-12, a panch witness to the recovery mahazar Ex-P7. The testimony of this witness also has not been discredited in the cross-examination. We find no reason to disbelieve his evidence. The ornaments recovered under this mahazar have been duly identified by PW-1-the father of the child.
19. Thus the prosecution has conclusively established the following facts:-
1. On 6.2.2011, the accused took the child from the house of PW3.
2. The child and the accused were seen together in the shop of PW-2.
3. They were also seen near the HMS bus stationed in the village by PWs-4 and 5 and about 10 p.m. on 6.02.2011.16
4. The dead body of the deceased was recovered at 3.00 p.m. on 07.02.2011.
5. The death was homicidal.
6. The nature of the injuries indicate that the deceased was raped and sexually assaulted.
7. The accused was found absconding from the night of 06.02.2011.
8. The gold earnings and the silver anklets of the deceased were recovered at the instance of the accused.
20. The trial court has considered all these pieces of evidence in proper perspective. The trial court has analysed each and every aspect of the case and has arrived at the findings of guilt of the accused based on legal evidence. Even on reconsideration of the entire material, we do not find any reason to differ with the view taken by the trial court. We do not find any merit in this appeal. Accordingly, the appeal is 17 dismissed. The judgment of conviction and the order of sentence dated 25.03.2014 passed by the learned Addl. District & Sessions Judge, Chikkaballapur in S.C.No.75 of 2011 is hereby affirmed.
Sd/- Sd/-
JUDGE JUDGE
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