Karnataka High Court
Prashanth Mogaveer vs State Of Karnataka on 24 January, 2024
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NC: 2024:KHC:3432-DB
CRL.A No. 852/2018
C/w CRL.RC No.4/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 852/2018 (C)
C/w
CRIMINAL REFERRED CASE NO.4/2018
CRL.A.NO. 852/2018:
BETWEEN:
PRASHANTH MOGAVEER
S/O SHEKHAR MOGAVEER
NOW AGED ABOUT 25 YEARS
PREVIOUSLY R/AT
PUJARI RAMA KANCHANA HOUSE
BEHIND CHIKKAMMA TEMPLE
GOPADE VILLAGE - 576 222
KUNDAPUR TALUK
PRESENTLY IN CENTRAL PRISON
BALLARI ...APPELLANT
Digitally
signed by K S
RENUKAMBA (BY SRI D NAGARAJA REDDY, ADVOCATE)
Location: AND:
High Court of
Karnataka
STATE OF KARNATAKA
REP. BY CPI, KUNDAPUR POLICE STATION
NOW REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION
DATED 14.02.2018 AND SENTENCE DATED 20.02.2018 PASSED BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI
(SITTING AT KUNDAPURA) IN S.C.NO.14/2015 CONVICTING THE
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NC: 2024:KHC:3432-DB
CRL.A No. 852/2018
C/w CRL.RC No.4/2018
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 448, 451, 392, 376(h) & 302 OF IPC.
CRL. RC.NO.4/2018:
BETWEEN:
PRINCIPAL DISTRICT AND SESSIONS JUDGE
UDUPI ...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
AND:
PRASHANTH MOGAVEERA
AGED ABOUT 22 YEARS
S/O LATE SHEKHARA MOGAVEERA
R/AT POOJARY RAMA KANCHANA HOUSE
BEHIND CHIKKAMMA TEMPLE
GOPADI VILLAGE, KUNDAPURA TALUK ...RESPONDENT
(BY SRI D.NAGARAJA REDDY, ADVOCATE)
CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED
UNDER SECTION 366 (1) OF CR.P.C. FOR CONFIRMATION OF
DEATH SENTENCE AWARDED TO ACCUSED PRASHANTH
MOGAVEERA BY JUDGMENT DATED 14.02.2018 AND SENTENCE
DATED 20.02.2018 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA) IN
S.C.NO.14/2015 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 448, 451, 392, 376(h) & 302 OF IPC.
THIS CRIMINAL APPEAL AND CRIMINAL REFERRED CASE
COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the order of conviction and sentence passed against him, the accused in S.C.No.14/2015 on the file of the Additional District & Sessions Judge, Udupi, sitting at Kundapura has preferred the above appeal. Whereas -3- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 Crl.R.C.No.4/2018 is filed seeking confirmation of death sentence passed against the accused.
2. By the impugned judgment and order, the trial Court has convicted the appellant for the offences punishable under Sections 448, 451, 392, 376(h), 302 of IPC and sentenced him to various terms of sentence as follows:
Offence Fine
Sl. Sentence of Default
punishable amount
No. imprisonment sentence
U/s. in Rs.
1. 448 of IPC RI of 1 year 1,000/- SI of 15 days
2. 451 of IPC RI of 4 years 2,000/- SI of 1 month
3. 392 of IPC RI of 10 years 30,000/- SI of 1 year
4. 376(h) of IPC RI of 10 years 40,000/- SI of 1½ years
5. 302 of IPC Death Sentence 50,000/- SI of 2 years
3. The appellant was the sole accused before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.
4. The accused was tried in S.C.No.14/2015 by the trial Court for the charges for the offences punishable under Sections 448, 451, 392, 376 and 302 of IPC on the basis of the charge sheet filed by Kundapura police in Crime No.110/2015 of their police station. Crime No.110/2015 was -4- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 registered initially against unknown persons on the basis of the complaint Ex.P1 filed by PW.1 Prathima.
5. The case of the prosecution in brief is as follows:
(i) PW.1 is the niece. PW.2 is the sister. PW.9 is the elder brother and CW.12 Anand Kundar is the husband of deceased Indira.
(ii) The accused was a vagabond and addicted to vices. In some theft case, he was sent to judicial custody and got associated in the wrong company. For his extravagancy, he thought of committing theft in some houses. On 11.04.2015 between 4.00 and 4.30 p.m. he entered the house of the victim Indira. At that time, she was five months pregnant and working in the room which was meant for storing the firewood.
(iii) The accused picked up money from the offering box situated at pooja room in the veranda of the house. Then he noticed gold mangalya chain/MO.9 hanging in the neck of Indira. To rob that he accosted her from hind side and throttled her neck. While struggling with him, she fell on the ground and became unconscious. At that time the accused committed penetrative sexual assault on her, bit her neck etc. He then robbed her mangalya chain, by that time, she -5- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 regained consciousness. On noticing that, the accused dropped the stone MO.1 on her head, committed her murder and escaped from there with MO.9.
(iv) PW.1 noticing that Indira did not return from the firewood shed went in search of her and found unresponsive Indira with bleeding injuries and in untidy position. She raised alarm. Then her neighbours rushed to the spot and found Indira dead and her gold chain and ear studs were missing.
(v) PW.14 the Police Sub Inspector of Kundapura police station who was on patrol duty on receiving the information about murder, visited the scene of offence. PW.1 filed the complaint as per Ex.P1 before him against unknown persons. On his return to the police station and based on Ex.P1 he registered first information report as per Ex.P13. Then he handed over further investigation to PW.18.
(vi) PW.18 the Circle Inspector of Police, Kundapura police station, visited the scene of offence, conducted the spot mahazar as per Ex.P2. During mahazar he seized MOs.1 to 8 the stone used in the commission of the offence, blood stained mud, unstained mud, blood stained wood, broken -6- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 bangle pieces, nicker, footwear etc, recorded the statements of PWs.1 to 6, prepared Ex.P4 the sketch of scene of offence.
(vii) The staff deputed by him apprehended and arrested the accused and produced before him. PW.18 arrested him and interrogated him. The accused gave confessional statement as per Ex.P15 regarding his involvement in the crime and to show the place where he concealed the robbed articles and his blood stained clothes. Then the accused led PW.18 and panchas PWs.7 and 8 to his house and produced MO.9 the robbed mangalya chain and his blood stained pant MO.10, blood stained clothes MOs.11 to
14. The same were seized under mahazar Ex.P7.
(viii) During investigation, PW.18 conducted the inquest on the dead body under the mahazar Ex.P8, got subjected the dead body to postmortem examination through PW.13 and obtained postmortem report as per Ex.P10. He sent the incriminating materials for FSL examination, collected FSL reports, postmortem report etc. On 12.05.2015, PW.18 produced the accused before Judicial Magistrate/PW.23, requested for recording his statement under Section 164 of Cr.P.C. which was recorded as per -7- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 Ex.P16/P28. On completing investigation, PW.18 filed the charge sheet against the accused as aforesaid.
6. The trial Court on hearing the parties, framed the charges against the accused for the offences punishable under Sections 448, 451, 392, 376 and 302 of IPC. The accused denied the charges and claimed trial. Therefore the trial was conducted.
7. In support of the case of the prosecution, PW.1 to P23 were examined and Exs.P1 to P31 and MOs.1 to 20 were marked. The accused after his examination under Section 313 of Cr.P.C. neither filed any defence statement nor adduced defence evidence.
8. The trial Court on hearing the parties, by the impugned judgment and order convicted and sentenced the accused as aforesaid holding that though the prosecution case was based on the circumstantial evidence, the circumstances set up by the prosecution were proved by cogent and consistent evidence. Since the accused is sentenced to death for the offence under Section 302 of IPC, the matter is referred to this Court under Section 366 (1) of Cr.P.C. for the confirmation of death sentence which is -8- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 registered in Crl.R.C.No.4/2018. The accused has preferred Crl.A.No.852/2018 questioning the judgment and order of conviction and sentence passed against him.
9. Submissions of Sri D. Nagaraja Reddy, learned Counsel for the appellant/accused:
(i) There was no eyewitness to the incident. The case is based only on the circumstantial evidence. Though PWs.2 and 3 claim to have seen the accused running away from the spot soon after the incident, their names did not appear in the complaint. There was delay in recording the statements of PWs.2 and 3. Therefore, the trial Court should not have accepted their evidence.
(ii) The other circumstances relied on by the trial Court were recovery of shirts of the accused and mangalya chain of the deceased under Ex.P7 that were allegedly recovered at the instance of the accused. PWs.7 and 8 panchas were the interested witnesses and their evidence was not consistent regarding discovery.
(iii) The evidence regarding the seizure of MOs.10 to 12, the belongings of the deceased under Ex.P14 was also not satisfactory. As per the prosecution version, the accused committed sexual assault on the victim after she becoming -9- NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 unconscious. Whereas, the medical evidence namely the evidence of PW.13 who conducted postmortem examination states that the victim has suffered certain injuries while resisting the sexual assault on her. Therefore, there is inconsistency in the prosecution version and the evidence of PW.13 regarding the manner of occurrence of the offence.
The injuries mentioned in Ex.P10/postmortem report of the victim could not have been caused by a single person. Despite the accused naming three other persons as culprits, the Investigating Officer did not conduct investigation about their role.
(iv) PW.15 says that MOs.10 to 12 the clothes of the accused were seized under Ex.P14. But as per the prosecution, they were seized under mahazar Ex.P7 and there was delay in filing the complaint. No Test Identification Parade was conducted to get the accused identified by PW.5. Though Investigating Officer/PW.18 claims that he secured the dog squad and fingerprint expert to the spot, their reports were not produced in the investigation. As per Ex.P7 the seizure mahazar and PW.18 (Investigating Officer), the panchas were secured directly to the spot of the seizure. Whereas, PWs.7 and 8 state that they were first summoned
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 to the Police Station and from there they were taken to the spot. Therefore, the evidence of PWs.7, 8 and 18 in that regard is inconsistent.
(v) Recovery under Ex.P7 is not in accordance with Section 27 of the Indian Evidence Act, 1872 ('the Evidence Act' for short). Though the accused was allegedly arrested and recovery said to have been effected on 12.04.2015, the statement of the accused Ex.P16/P28 was recorded after one month of the incident. Therefore, the trial Court should not have relied on that. There were inconsistencies in the medical evidence and forensic evidence. Investigation was fishy. The trial Court without sound appreciation of the evidence and applicable law has erroneously convicted and sentenced the accused, therefore the same is liable to be set aside.
(vi) The accused was aged hardly 22 years at the time of incident. The trial Court while imposing the death sentence, did not consider his age. The State had not produced any material to prove the probability of the accused being threat to the society, he not being in a position to reform or rehabilitate. Imposition of death sentence is
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 contrary to the judgment of the Hon'ble Supreme Court in Chhannu Lal Verma v. The State of Chhattisgarh1.
10. Submissions of Sri Vijayakumara Majage, learned SPP-II:
(i) Though the case was based on the circumstantial evidence, circumstances set up by the prosecution were established by cogent and consistent evidence. So far as last seen circumstance, PWs.2 and 3 being the neighbors and the relatives of the deceased and PW.5 coming to the said village on the date of incident were not in dispute. It was also not disputed that the victim was five months pregnant.
Therefore, the evidence of PWs.2 and 3 that they had gone to see her is probable.
(ii) The victim was done to death in a very ghastly manner. In such a shocking state, though PWs.2 and 3 sighted the accused, they not informing PW.1 before filing complaint was not unnatural. To clarify that, the Investigating Officer recorded the further statement of PW.1. During the course of the evidence of PWs.1 to 3, it was clarified that since PWs.2 and 3 were acquainted with the accused, there was no need for conducting any test identification parade. Even if the evidence of PW.5 is not accepted for want of test 1 (2019)12 SCC 438
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 identification parade, the evidence of PWs.2 and 3 was sufficient to hold that the last seen circumstance was proved. Moreover the accused himself in his statement Ex.P16 admitted his presence at the scene of offence at the relevant time, but he tried to implicate some other persons. That was sufficient to hold that the last seen circumstance was proved. It is true that the name of accused was not mentioned in the complaint. But the inquest mahazar Ex.P8 was conducted soon after the incident. During inquest proceedings PW.9 and CW.12 said to have mentioned about PWs.2 and 3 sighting the accused on the date of the incident at 4.30 p.m. near the scene of offence. PWs.2, 3 and 5 explained/clarified the reason for nondisclosure of the name of the accused in the complaint at the earliest point of time. Though PW.2 did not stand to her ground during the cross-examination, the evidence of PW.3 and other evidence on record was sufficient to hold that the last seen circumstance was proved.
(iii) So far as the recovery of incriminating materials at the instance of the accused, though there are minor discrepancies in the evidence of PWs.7 and 8 mahazar witnesses, but they were consistent regarding the accused leading to the place of concealment and recovery of his
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 bloodstained shirt and robbed mangalya chain. The witnesses were examined after one year of the incident. Therefore, such minor inconsistencies were bound to occur due to fading of the memory etc.,
(iv) The medical evidence and FSL evidence show that the clothes of the accused were stained with blood of the deceased. The accused did not have any explanation for that. Even his nail clippings were found with 'B' group blood. The evidence adduced by the prosecution was cogent and consistent and that was further corroborated by the statement given by the accused himself before the learned Magistrate. Therefore, after the accused giving further statement implicating PWs.6, 8 and one Pradeep (additional charge sheet witness), the Investigating Officer conducted further investigation, but did not find any substance for implication of the said persons. Therefore, there is no merit in the contention that no further investigation was conducted after the statement of the accused under Section 164 of Cr.P.C was recorded.
(v) Admittedly, the victim was a pregnant woman. The accused has committed very heinous offences not only against the victim but her unborn child. Considering the
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 same, the trial Court rightly convicted and sentenced him to death penalty. The order of sentence is in accordance with the judgment of the Hon'ble Supreme Court in Bachan Singh v. State of Punjab2.
11. In support of his arguments, he further relies on the judgment of the Hon'ble Supreme Court in Balwan Singh v. State of Chhattisgarh3.
12. Considering the submissions of both side and materials on record, the questions that arise for consideration of this Court are:
(i) Whether the impugned judgment and order of conviction is sustainable?
(ii) Whether the impugned order of sentence is sustainable ?
Analysis:
Reg. Point No.1:
13. According to the prosecution on 11.04.2015 at 4.30 p.m. the accused entered the house of the victim situated in Gopadi village of Kundapura Taluk with an intention to commit theft/robbery. In the course of robbing 2 (1980) 2 SCC 684 3 (2019) 7 SCC 781
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 the victim of her gold mangalya chain, he throttled her. When she was unconscious, he committed sexual assault on her. When she was regaining consciousness, he dropped the stone MO.1 on her head and committed her murder. On such murder, he fled away with her mangalya chain.
14. The accused also belongs to Gopadi village only. The accused did not dispute the death of the victim in her house or the injuries found on her. But he disputed his involvement in the crime. There were no eyewitnesses to the incident.
15. The case was based on the circumstantial evidence. The circumstances relied by the prosecution were as follows:
(i) Motive - To commit robbery the accused entered the house of the victim and while committing robbery he also committed rape on her;
(ii) Last seen circumstance - Soon after the incident, the accused was seen by PWs.2, 3 and 5 while he was running away from the house at beach;
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(iii) Recovery of robbed chain MO.9 and the blood stained shirt of the accused at his instance under mahazar Ex.P7;
(iv) Recovery of clothes MOs.9 to 12;
(v) Medical evidence, Forensic evidence, the
evidence of official witnesses and injuries found on the accused.
(vi) Statement of the accused given under Section 164 of Cr.PC.
Reg. Nature of injuries:
16. PW.13 the Assistant Professor of Manipal Hospital deposed that on the requisition of the police she conducted postmortem examination on the dead body of Indira on 12.04.2015 between 11.55 a.m. and 2.30 p.m. and issued postmortem report as per Ex.P10. She further deposed that on examination of the victim she found the following external injuries:
1. Bilateral black eye was present.
2. Abraded contusion, reddish in colour, measuring 1 x 0.5 cm, was present over the forehead in the midline, situated 3 cm above and 2 cm away from the right supra orbital region.
3. Contusion, reddish blue in colour, measuring 12 x 9 cm, was present over the left side of the face involving
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 the left eye, situated 5 cm above the left supra orbital region.
4. Split laceration, measuring 2 x 0.7 cm x bone deep, was present over the inner aspect of the right eyebrow situated 1 cm away from the right supra orbital ridge, with underlying fracture of the frontal bone.
5. Split laceration, measuring 2 x 1 cm x bone deep, was present over the left supra orbital ridge, with underlying fracture of the frontal and nasal bones.
6. Abraded contusion, reddish in colour, measuring 2.5 x 1 cm, was present over the root of the nose and on the right side, with overlying two superficial lacerations, each measuring 0.5 x 0.2 cm x subcutaneous deep and 0.6 x 0.2 cm x subcutaneous deep.
7. Laceration, measuring 0.6 x 0,1 cm x muscle deep, was present over the outer aspect of the upper lip on the right side, situated 2 cm inner to the right angle of the mouth, with surrounding abraded contusion, reddish in colour, measuring 2.3 x 0.5 cm.
8. Laceration, measuring 0.7 x 0.1 cm x muscle deep, was present over the outer aspect of the upper lip in the midline, situated 1 cm below the columella, with surrounding abraded contusion, reddish in colour, measuring 1.3 x 0.3 cm
9. Laceration, measuring 1 x 0.3 cm x muscle deep, was present over the inner aspect of the upper lip on the right side, situated 2 cm inner to the right angle of the mouth.
10. Laceration, measuring 2 x 0.3 cm x muscle deep, was present over the inner aspect of the lower lip in the midline, situated 3 cm inner to the left angle of the mouth.
11. Two superficial lacerations, curvilinear in shape, each measuring 1x0.3 cm and 0.7 x 0.2 cm, with a gap of 1.5 cm, were present over the outer aspect of the lower lip on the right side and left side, situated 2.7 cm inner to the right angle of the mouth, with surrounding contusion, measuring 4.5 x 1.5 cm.
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12. Laceration, measuring 4 x 0.3 cm x muscle deep, was present over the inner aspect of the lower lip in the midline, with surrounding contusion, measuring 4 x 0.5 cm, situated corresponding from the right lower canine to the left lower canine.
13. Five lacerations, curvilinear in shape, each measuring 0.6 x 0.2 cm x muscle deep, 0.8 x 0.2 cm x muscle deep, 0.7 x 0.2 cm x muscle deep, 0.7 x 0.2 cm x muscle deep and 0.7 x 0.2 cm x muscle deep, with a gap of 0.3 cm, 02 cm, 0.1 cm and 0.1 cm, respectively between the lacerations, were present over the front of the mandible in the midline, starting at a point 2 cm below the right angle of the mouth and ending at a point 1 cm above and 1.5 cm away from the symphysis menti on the left side, with surrounding abraded contusion, measuring 3 x 2 cm. (Bite Mark).
14. Multiple lacerations, over an area of 2 x 1 cm, were present over the left side of the face, varying in sizes from 0.8 x 0.1 cm to 0.2 x 0.1 cm, situated 2 cm below the left angle of the mouth.
15. Contusion, reddish in colour, measuring 3.5 x 3 cm, was present over the chin in the midline and left side, starting from the symphysis menti, with overlying laceration, measuring 0.5 x 0.1 cm.
16. Contusion, reddish in colour, measuring 1x0.5 cm, was present over the neck on the right side, situated below the right mastoid.
17. Abrasion, reddish in colour, measuring 0.5 x 0.3 cm, was present over the neck on the right side, situated 7 cm above the sternal end of the right clavicle.
18. Abrasion, reddish in colour, measuring 0.7 x 0.3 cm, was present over the neck on the right side, situated 6 cm below the right angle of the mandible.
19. Curvilinear abrasion, reddish in colour, measuring 2.5 cm in length, was present over the front of the neck in the midline, situated 6 cm above the supra sternal notch, with associated superficial laceration, measuring 0,5x0.3 cm, situated over the upper end of the abrasion.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
20. Two horizontally placed contusions, each measuring 6 x 1 cm and 7 x 1 cm, with a gap of 1 cm, were present over the front of the neck in the midline, starting at a point 5 cm below the sympysis menti and ending at a point 8 cm above the supra sterna notch.
21. Scratch abrasion, reddish in colour, measuring 0.7 x 0.2 cm, was present over the front of the neck on the left side, situated 5 cm above and 2 cm away the stemal end of the left clavicle.
22. Two abraded contusions, reddish in colour, each measuring 0.5 x 0.2 cm and 0.4 x 0.3 cm, with a gap of 1 or was present over the left side of the neck, situated 7 cm below the left angle of the mandible.
23. Multiple contusions, reddish in colour, over an area of 3.5 x 3 cm, were present over the upper aspect of the chest on the left side, varying in sizes from 1 x 0.5 cm to 0.5 x 0.2 cm, situated 5 cm inner and 6 cm below the left shoulder tip.
24. Two linear scratch abrasions, reddish in colour, each measuring 2 x 0.5 cm and 1.3 x 0.2 cm, with a gap of 05 cm apart, were present over the left side of the chest, situated 9 cm below the mid-point of the left clavicle.
25. Multiple abraded contusions, reddish in colour, over an area of 6 x 4.5 cm, were present over the left side of the chest around the areola, varying in sizes from 3 x 1 cm to 0.3 x 0.2 cm, starting at a point 10 cm away and 7 om below the supra sterna notch on the left side (Bite Märk).
26. Curvilinear shaped contusion, reddish in colour, measuring 5 cm in length, was present over the outer aspect of the left breast, with surrounding contusion, bluish in colour, measuring 3,5 x 3 cm. (Bite Mark).
27. Contusion, reddistrin colour, measuring 2.5 x 2 cm, was present over the lower part of the left areola, with overlying superficial laceration, measuring 0.3 x 0.1 cm. (Bite Mark).
28. Abraded contusion, reddish in colour, measuring 1.3 x 0.5 cm, was present over the left side of the chest
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 situated 1.5 cm away from the xiphoid process on the left side.
29. Curvilinear shaped abrasion, reddish in colour, measuring 0.7 x 0.2 cm, was present over the mons pubis on the right side, situated 2.5 cm above and 2.5 cm away from the symphysis menti on the right side.
30. Curvilinear shaped superficial laceration, measunng 1.5 x 0.5 cm, was present over the mons pubis on the right side, situated 0.5 cm below the previous injury.
31. Abraded contusion, reddish brown in colour, measuring 2 x 1.5 cm, was present over the back of the right elbow.
32. Multiple linear scratch abrasions, reddish in colour, over an area of 9 x 7cm, were present over the back of the right hand and wrist, varying in sizes from 3.5 x 0.1 cm to 1 x 0.1 cm, starting from the right wrist.
33. Multiple abrasions, reddish in colour, were present over the back of all the fingers of the right hand, varying in sizes from 0.3 x 0.2 cm to 0.2 x 0.1 cm.
34. Linear scratch abrasion, reddish in colour, measuring 0.5 x 0.2 cm, was present over the outer aspect of the right thigh, situated 21 cm above the right knee.
35. Multiple linear scratch abrasions, reddish in colour, over an area of 7 x 3 cm, were present over the front and inner aspect of the right thigh, varying in sizes from 1.3 x 1 cm to 0.5 x 0.1 cm, starting at a point 10 cm above the right knee.
36. Multiple linear scratch abrasions, reddish in colour, over an area of 10 x 7 cm, were present over the outer aspect of the right thigh and knee, varying in sizes from 4 x 4 cm to 1 x 0.5 cm, starting at a point 6 cm above the right knee.
37. Multiple abraded contusions, reddish in color, over an area of 9 x 4 cm, were present over the front and outer aspect of the right knee and leg, varying in sizes from 3 x 1.5 cm to 1.5 x 1 cm, starting from the right knee.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
38. Multiple abraded contusions reddish in colour, over an area of 9 x 5 cm, were present over the front and outer aspect of the left knée, varying in sizes from 2 x 1.5 cm to 0.5 x 0.5 cm.
39. Abraded contusion, reddish in colour, measuring 2 x 1 cm was present over the back of the left hand situated 7 cm below the left wrist.
40. Partially healed wound with reddish brown scab, measuring 2 x 1.5 cm, was present over the back of the left hand, situated 6 cm below the left wrist.
41. Abraded contusion, reddish in colour, measuring 1 x 0.5 cm, was present over the back of the left elbow. All the aforementioned injuries were antemortem in nature.
17. PW.13 further deposed that deceased was pregnant carrying female fetus aged about five months. The observation of the doctor in Ex.P10 regarding organs of generation, external and internal are as follows:
4) Organs of generation, external and internal: Uterus and its appendages weighed 1600 g; Uterus measured 22.5 x 19 x 8 cm in size. Surface was congested and mucous plug was present at the external OS. Contusion was present over the posterior vaginal wall. Uterine cavity contained single intrauterine female fetus. Fetus weighed 580 g. Crown rump length was 19 cm. Crown heel length was 28 gm. Gestational age of Crown the fetus was approximately 5 months. No nails were present. Palpebral fissure was fused. Placenta was situated at the posterior aspect of the lower uterine segment with thinning of the walls of the uterus. Ovaries
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 were normal and corpus luteal cyst was present on cut section.
Genital Examination:
Pubic hairs: Present, non-matted.
Vulva : Unremarkable, No injuries noted. Vagina : Rugosity Present. Contusion, measuring 2 x 1,5 cm, was present over the posterior wall of the vaginal introitus.
No perineal tears.
Hymen : Healed hymenal tears were present. Extra Genital Examination:
Breast : Multiple contusions and abrasions (Bite Marks) were present as mentioned under the external injuries Thighs and arms: Multiple scratch abrasions were present as mentioned under the external injuries.
18. PW.13 further deposed that during postmortem examination she collected sperm and saliva from the body of the victim and sent for FSL examination. She deposed that on postmortem examination she found that the death was due to cumulative effect of manual strangulation and blunt force trauma to the head and before her death the victim was subjected to forced sexual intercourse. She deposed that on the requisition of the police, she examined MO.1 the weapon and submitted her report as per Ex.P12. Her opinion Ex.P12 is to the effect that the head injuries found on the dead body could be caused by such weapon and abrasion mentioned in Ex.P10 could be caused if the victim is assaulted with nails.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 She further deposed that she gave her final report as per Ex.P11 on examining RFSL report.
19. In the cross-examination of PW.13 the injuries found on the victim were not disputed. It was only suggested to her that the victim might have survived for sometime after infliction of those injuries, during the course of such assault there is possibility of she screaming and those injuries could be caused by multiple assailants. For that PW.13 says that she cannot comment on that. She denied the suggestion that those injuries were not on account of forced sexual assault. The accused himself suggested to PW.13 that the injuries found on the dead body could be caused due to stiff resistance posed by the victim during the crime. Nothing could be elicited in the cross-examination of PW.13 to impeach her opinion that the death was due to throttling and dropping of the stone on the head and prior to the death the victim was subjected to forced vaginal penetrative intercourse and during the course of resistance, she has suffered those injuries.
20. To seek corroboration to the evidence of PW.13, the prosecution relied on the evidence of PW.19 who
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 examined the accused and collected his nail clipping sample etc., and sent that to the forensic analysis, PWs.20 to 22 FSL experts, the reports given by them and the evidence of PW.23 the judicial magistrate who recorded the statement of the accused under Section 164 Cr.P.C.
21. PW.19 deposed that on the requisition of police on 12.04.2015 he examined the accused and found the following injuries:
External injuries:
1. Multiple linear abrasions, reddish in colour, over an area 1.5 x 1 cm, were present over the back of the right arm, varying in sizes from 0.3 cm to 0.1 cm in length, situated 15 cm below the left shoulder tip.
2. Curvilinear abrasion, reddish in colour, measuring 0.4 cm in length, was present over the front of the right forearm, situated 12 cm below the right elbow.
3. Linear abrasion, reddish in colour, measuring 6 cm in length, was present over the back of the right forearm, situated 1 cm below the right elbow.
4. Multiple abrasions, reddish in colour, over an area 3 x 2 cm, were present over the front of the right wrist, varying in sizes from 3 x0.1 cm to 0.2 x 0.1 cm.
5. Multiple abrasions, reddish in colour, over an area 4 x 1 cm, were present over the back of the right hand, varying in sizes from 0.3 x 0.1 cm to 0.1 x 0.1 cm, situated 1.5 cm below the right wrist
6. Curvilinear abrasion, reddish in colour, measuring 0.5 cm in length, was present over the back of the right hand, situated 6.5 cm below the right wrist.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
7. Linear abrasion, reddish in colour, measuring 0.6 cm in length, was present over the back of the right index finger, situated 6 cm below the base of the right index finger.
8. Linear abrasion, reddish in colour, measuring 0.6 cm in length, was present over the front of the left forearm, situated 10 cm below the left elbow.
9. Linear abrasion, reddish in colour, measuring 0.8 cm in length, was present over the inner aspect of the left forearm, situated 6.5 cm below the left wrist.
10. Linear abrasion, reddish in colour, measuring 1 cm in length, was present over the back of the left forearm, situated 8 cm above the left wrist
11. Multiple linear abrasions, reddish in colour, over an area 3 x 1 cm, were present over the outer aspect of the left wrist, varying in sizes from 0.5 cm to 0.2 cm in length.
12. Linear abrasion, reddish in colour, measuring 0.6 cm in length, was present over the left palm corresponding to the base of the left thumb.
13. Multiple linear abrasions, reddish in colour, over an area 7 x 2 cm, were present over the back of the left wrist, varying in sizes from 0.7 cm to 0.2 cm in length, starting from the left wrist.
14. Linear abrasion, reddish in colour, measuring 3 cm in length, was present over the outer aspect of the right thigh, situated 10 cm below and 4 cm behind the left anterior superior iliac spine.
15. Partially healed wound with reddish brown scab, measuring 1 x 1 cm, was present over the front of the right thigh, situated 23 cm below the right anterior superior illac spine.
All the above mentioned injuries were fresh and antemortem in nature.
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22. PW.19 further deposed that he collected blood sample, nail clippings and hair of the accused during his examination and gave his report as per Ex.P21. He deposed that the injuries found on the accused were aged 28 hours prior to the examination. Five findings were given in Ex.P21 regarding queries of the Investigating Officer, out of them question Nos.1 and 2 are relevant for the purpose of connecting the accused to the crime. In the chief examination of PW 19 it was elicited that the accused was not incapable to perform sexual acts. He further deposed that as per blood test reports, the blood group of the accused was 'B' positive.
23. PW.20 deposes about she examining MOs.1 to 8, the weapon of offence i.e. stone, blood stained mud, unstained mud, blood stained wood, broken bangle pieces, inner wear, slippers, fire wood and coconut stems which were seized from the scene of offence, MOs.11, 13 and 14 shirts of the accused, MOs.15 to 17 clothes of the deceased, MOs.18 to 20 cotton balls, hairclip packets, toe nail clippings and finger nail clippings. On examination, she gave the report as per Ex.P24. She further states that blood and saliva found on the said articles were of human origin.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
24. The evidence of PW.13 the doctor who conducted postmortem and her final opinion Ex.P11 shows that blood group of the deceased was also 'B positive'. Ex.P24 shows that the weapon of offence, clothes of the deceased, her broken bangles, soil and wood found at the scene of offence were stained with 'B' blood group which was the blood group of the accused and the deceased both. The clothes of the accused and the deceased in Ex.P23 at Sl.Nos.8 to 15 are marked as (J) to (Q). In the cross-examination of PW.20, nothing was elicited about common blood group found on the clothes of the accused and the deceased. It was only asked whether they belong to female/male, for which she says that cannot be determined.
25. In the later part of the judgment, the trial Court held the evidence of the forensic expert and medical expert is sufficient to connect the accused to the crime as he failed to explain how he got the blood stains on his clothes and injuries on his body, though he admitted his presence at the scene of offence in his statement at Ex.P16/P28.
26. To connect the accused to the crime based on the aforesaid evidence, the circumstance of recovery of the
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 articles at the instance of the accused has to be proved. That aspect is being discussed in the later part of this judgment and how that circumstance is proved.
27. The evidence of PW.23/the Judicial Magistrate shows that on the requisition of the Investigating Officer she recorded the statement of the accused on 12.05.2015 at 4.00 p.m. in the open Court. She also deposed that she made known to the accused of his right and also that the statement given by him is likely to be used against him. She says that she also examined whether he is giving the statement with free will. She further deposed that on being satisfied with that, he gave the statement voluntarily and she recorded the same as per Ex.P28 in the language known to the accused and took his signature on the same. She further deposed about she forwarding the statement Ex.P28 along with copy of the order sheet Ex.P29, copy of the requisition of the Investigating Officer under Ex.P30 under covering letter Ex.P31 to the concerned Court. Her deposition shows that for recording the statement the accused was not produced from the police custody, but he was produced from the judicial custody. Nothing was elicited in the cross-examination to show that he gave such statement under any coercion or
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 inducement. After such statement, he was sent to judicial custody. Therefore Ex.P28 can be relied as a piece of evidence in the case as the same is compliant of Section 164 Cr.P.C. and Sections 26 & 29 of the Evidence Act.
28. In Ex.P28 the accused has admitted his presence at the scene of offence at the time of the incident and tried to implicate three other persons as assailants. He says that other three persons by name Suresh (PW.6), Ullas (PW.8) and Pradeep (CW.4 in additional charge sheet) asked him to come to the house of the victim to commit robbery and they sent him to the room to search if there is any money, when he was searching in the offering box in the pooja room, he heard some dog barking and came out. At that time, PWs.6, 8 and CW.4 (in additional charge sheet) ran away and he found the victim Indira lying on the floor in untidy manner with stone on her face. When he removed the stone, his shirt and pant were also stained with blood. On seeing the victim he became panic, at that time one of the relatives of the victim came there, on seeing her he ran away along with blood stained clothes. He came to his aunt's house and revealed the incident to her. He further states that his aunt suspected him and threw him out of the house along with his
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 clothes and then the police arrested. By such statement he admitted his presence at the scene of offence, blood stains of the victim on his clothes and victim being subjected to homicidal injuries and sexual abuse. If he had no role in the incident, he need not have escaped from there. That conduct of the accused is relevant as enumerated under Section 8 of the Evidence Act.
29. So far as the contention of the Investigating Officer not implicating Suresh, Ullas and Pradeep in the case as the accused, it is relevant to note that the incident took place on 11.04.2015. The accused was arrested on 12.04.2015 and he gave voluntary statement before the Investigating Officer on the same day. Soon after his arrest, he was produced before the jurisdictional Magistrate. Between 12.04.2015 to 11.05.2015 he was produced before the jurisdictional Magistrate several times for remand purpose. On all those occasions, he did not reveal before the learned Magistrate that he was not the culprit, but some others were culprits and he was falsely implicated in the case. For the first time, after one month he goes before PW.23 and states that PWs.6, 8 and CW.4 Pradeep in the additional charge sheet were culprits. It is material to note that by that
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 time, recovery proceedings under the mahazar Ex.P7 had taken place on 12.04.2015.
30. Obviously, PWs.7 and 8 were the witnesses to the recovery of incriminating articles from the possession of the accused. Though Pradeep was cited as CW.4 in the additional charge sheet, he was not examined. His statement shows that it was he who had taken PW.8 Ullas to the scene of offence and he was relative of PW.8. The accused was aware of the circumstance of recovery. The history given by the accused before the doctor PW.19 shows that he was addicted to alcohol and tobacco six to seven years prior to such examination. That means he got into such habit when he was hardly 16 years of age. The evidence on record shows that he had fallen into the company of wrong people and he was aware of the implications of his illegal acts. He was acquainted with the Court proceedings and the police procedure. He tries to implicate PWs.6, 8 and additional charge sheet witness No.4 in the case after one month of his arrest only because they became mahazar witnesses. By the above facts and circumstances and the evidence, it becomes clear that the death was homicidal and soon before her death the victim was subjected to forced sexual intercourse.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 Reg. Recovery of MOs.1 to 8 under mahazar Ex.P2 and MOs.9 to 14 under mahazar Ex.P7
31. To prove such circumstances, the prosecution relied on the evidence of PWs.7, 8 and 18 and Exs.P2 and P7. According to the prosecution, the Investigating Officer on 12.04.2015 secured PWs.7 and 8 to the scene of offence and conducted spot mahazar Ex.P2 and during such spot mahazar, he seized MOs.1 to 8 between 12.30 p.m. and 2.00 p.m. and during mahazar he prepared the sketch of the scene of offence as per Ex.P4. PW.18 further states that the scene of offence was shown by PW.1. PWs.7 and 8 supported the proceedings under Ex.P2 and seizure of MOs.1 to 8.
32. As per prosecution, then Investigating Officer secured the panchas PWs.7 and 8 to the police station, the accused led the police and panchas PWs.7 and 8 to the bush near his house and produced MOs.9 to 14 from the said place. They were seized under mahazar Ex.P7. So far as Ex.P7, PWs.7 and 8 deposed that on the requisition of the police, they visited the police station and the accused was under the police custody. The accused took them to the house situated near Chikkamma temple and produced the
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 cover containing his blood stained pants and shirts MOs.10 to 14 which were seized under mahazar Ex.P7.
33. PW.7 denies the suggestion that he has subscribed his signature in the office of the Investigating Officer. He says that he has subscribed one signature in the house of the deceased and another signature in the house of the accused, though he did not read the contents of Exs.P2 and P7. Though initially he stated that he witnessed seizure of those articles in the house of the accused, he further states that at that time he had not gone into the house of the accused. PW.8 also deposed to the same effect regarding mahazar Exs.P2 and P7. Much was tried to be argued relying on his evidence that himself and PW.2 were not neighbours of the deceased and the evidence of PW.8 that he does not know who dictated third page of Ex.P2. However, so far as core evidence regarding seizure of the articles and material objects under Exs.P2 and P7, they have supported the prosecution version. Moreover the accused himself in his statement under Section 164 of Cr.P.C. admitted that his clothes were stained with blood. Therefore there was no reason to discard the evidence of PWs.7 and 8 regarding seizure of the above said material objects under Exs.P2 and
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 P7. Referring to some sentences in the evidence of PWs.7 and 8 that both of them are friends and Ganesh PW.9 elder brother of the deceased also was their friend, an attempt was made to contend that they were interested witnesses. Merely because they were known to PW.9, they cannot be termed as interested witnesses, unless it is shown that the conviction of the accused enures any benefit to them. But nothing on that count was elicited in their cross-examination.
34. The evidence of PWs.7 and 8 is further corroborated by the evidence of PW.18 Investigating Officer, the medical evidence, forensic evidence and the statement of the accused himself before the learned Magistrate. Therefore the trial Court was fully justified in holding that the circumstance of seizure of MOs.1 to 14 was proved. Reg. Last seen theory:
35. To prove that the accused was found near the scene of offence soon after the incident, he was found running away and his clothes were stained with blood, prosecution relied on the evidence of PWs.2, 3 and 5 who were the cousin sister, sister in law of the deceased and neighbour respectively. PWs.2 and 3 say that on the date of
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 the incident at 4.15 p.m. they went to the house of the deceased to see her as she was pregnant and at that time, they saw the accused running away near the house in a panic condition. PW.5 another neighbour states that on that day, he had gone with his family to have sea-bath and he found accused with blood on his body. The main challenge to the evidence of these witnesses is that they claim that soon after hearing screaming of PW.1 the complainant, they went to the scene of offence and after that they had seen the accused running away, if so they should have revealed the same to PW.1 and their names should have been reflected in the complaint Ex.P1.
36. PW.4 is the elder sister of the deceased. The evidence of PWs.1, 4 and 9 show that PWs.1, 4 and the deceased along with their family were in the same house. PW.1 deposed that on the date of the incident at 4.00 p.m., she was in the kitchen, her mother had gone to work in the land and aunt was collecting firewood in the cow shed situated in the veranda of their house. She further stated that as the victim did not return for long time, she went in search of her and found the injured victim, then she raised alarm and at that time, PWs.2, 3, her mother and neighbour came
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 to the scene of offence. She further deposed that on seeing the victim they came to know that the victim was dead and her mangalya chain and ear studs were missing. They came to know that some persons have committed rape on her aunt, murdered her and robbed her jewellary. She further deposed that within 1½ hours the police visited the scene of offence and she gave the complaint as per Ex.P1 before them.
37. PW.14/Sub Inspector of Police of Kundapura Police station deposed that on 11.04.2015 in the evening when he was on patrol duty, he received information about commission of murder of woman in Padugopadi village. He visited the scene of offence and during his visit PW.1 gave a written complaint as per Ex.P1. He returned to the police station with the said complaint and based on that he registered the first information report as per Ex.P13 and handed over further investigation to the Circle Inspector of Police PW.18.
38. PW.2 says that while coming to the house of the victim, she found the accused running away behind the cow shed of the house of the victim. PW.3 says that while herself and PW.2 were coming to the house of the victim, she found
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 the accused running away from the cow shed of the house of the victim. PW.2 says that on seeing dead body of the victim she suspected the accused. PW.3 says that the accused was once sent to judicial custody in theft case. She further states that she doubted why the accused was present there at that time. She says that on seeing the incident, they were sitting there crying, on next day when the police came she informed to the police that she has doubt about the accused.
39. Both PWs.2 and 3 deposed that since they were in shock on the day of incident they did not reveal about they sighting the accused. The medical evidence discussed above shows that the victim was subjected to very brutal murder and sexual abuse. By that time, she was carrying unborn child aged about five months. PWs.1, 2 and 3 were close relatives of the victim and hail from the rural area. Considering the social status, other facts and circumstances of the case, their explanation that they did not reveal to PW.1 at the time of filing of the complaint about they sighting the accused and suspecting him cannot be doubted. The evidence of PWs.2 and 3 that the accused was known to them earlier and both of them were from the same locality cannot be discarded. Hence they finding the accused and his
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 identification was also probabilized. Therefore the trial Court was justified in accepting the evidence regarding last seen circumstance.
40. Of-course PW.5 was chance witness. He says that he was working in Mumbai and came to Gopadi village for marriage. He was native of the same village. Even assuming that he was not acquainted with the accused, he identifying the accused and corroborating the evidence of PWs.2 and 3 was cogent and consistent regarding last seen theory.
41. The above evidence on record regarding last seen theory is consistent and the recovery of incriminating articles were proved beyond reasonable doubt. Such evidence was further corroborated by the medical evidence and forensic evidence and the statement of the accused himself at Ex.P28. When the accused was found at the scene of offence, blood stains were found on his clothes. He has to explain how he got the blood stains on his clothes, how the victim suffered injuries. He was also required to explain the injuries found on his body. The accused absolutely did not furnish any explanation for the same thereby he did not discharge his burden of rebutting the presumption under Section 106 of the Evidence Act.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
42. The accused admitted that the blood stains found on his clothes were that of the deceased. The FSL report, FSL expert evidence and medical evidence show that the victim's blood group was 'B' and that was found on the clothes of the accused. Under the circumstances, the judgment in Balwan Singh's case referred to supra covers the case on hand.
Conclusions
43. Having regard to the aforesaid facts and circumstances, the trial Court was justified in convicting the accused for the offences punishable under Sections 376(h), 302 and 392 of IPC. Section 392 of IPC involves simply the case of robbery. But wherever robbery is covered with grievous hurt or attempt to murder, Section 397 of IPC is applicable. However, the trial Court framed the charges against him only for the offence under Section 392 of IPC and convicted him accordingly. The State has not preferred any appeal against that. Therefore the same needs to be maintained.
44. Similarly when a house trespass is committed with an intention to commit an offence punishable with death, Section 449 IPC applies which is punishable with imprisonment for life or rigorous imprisonment for 10 years
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 and fine. However, the State has not preferred any appeal questioning the correctness of conviction of the accused for the offences punishable under Sections 392, 448, and 451 IPC. Therefore, the conviction and sentence with regard to those offences has to be maintained.
45. In view of the above discussion, the impugned judgment and order of conviction does not warrant interference of this Court. The same is found sustainable. Reg. Sentence:
46. The accused has questioned the sentence on the grounds that it is not rarest of the rare cases and his tender age. The material on record shows that the accused was hardly 22 years and mercilessly assaulted unarmed woman who was aged 32 years i.e. 10 years elder to him. He was legally and morally duty bound to respect woman more particularly being born in India which hails women as embodiment of mother Lakshmi, Saraswati and Parvati. He has not only committed her murder, but he has in a very abhorring manner subjected her to physical and sexual assault, though she was carrying female child in her womb. The victim had suffered 41 injuries, as could be found from Ex.P10 postmortem report and the medical evidence. By no
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 stretch of imagination it can be said that the offences were not barbaric. He has committed the offence against the pregnant woman, which puts the whole humanity to shame. Probably for that reason, the trial Court felt that the accused does not deserve any leniency or there is no chance of his reformation and his continuation on this planet is hazardous to the society. In handing over death sentence to the accused the trial Court relies on the judgments of the Hon'ble Supreme Court in Bachan's Singh and Machi Singh's cases referred to supra.
47. However in Chhannulal Verma's case referred to supra rendered by the Larger Bench, the Hon'ble Supreme Court in para 8 of the judgment held that special reasons that are required to be recorded while awarding death sentence means exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal and some of the aggravating and mitigating circumstances as held in Bachan Singh's case referred to supra shall be examined. Paras 202 and 206 of the judgment in Bachan Singh's case referred to supra held that previous planning involving extreme brutality and exceptional depravity or aggravating circumstances.
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018
48. In the present case when the accused entered the house of the victim he had neither planned nor had intention of committing rape and murder still the offence involves extreme brutality, exceptional depravity. Para 206 of the judgment in Bachan Singh's case referred to supra is extracted to show the mitigating circumstances which reads as follows:
"206. Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 impaired his capacity to appreciate the criminality of his conduct."
(Emphasis supplied) Reading of the above paragraph goes to show that to claim death penalty, the State has to prove by evidence that the accused does not satisfy condition Nos.3 and 4 stated supra.
49. As already discussed, in the present case, the accused was aged 22 years at the time of offence. He had become so pervert because of his neglected childhood. The material on record shows that his parents died and he was under the care of his aunt. He was dropped out, after studying III Standard and even when he was child he was moved as labour in an unorganized sector like hotel server, fishing and mason work. By such of his exposure, he came into the company of distorting personalities and fell into criminal activities. The prosecution did not adduce any evidence to satisfy condition Nos.3 and 4 of paragraph 206 of the judgment in Bachan Singh's case referred to supra. If the life imprisonment is confirmed, there is every chance of the State exercising its power of remission. The accused had very bad tendency against woman and his lustful cravings may not subside atleast till he attains the age of 60 years.
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50. The trial Court failed to apply the aforesaid condition in evaluating the mitigating circumstances. Therefore death penalty is extreme step in this case. However having regard to the materials on record, nature of the offences, conduct and age of the accused, he has to undergo certain period of sentence without any remission. Therefore the sentence of death only has to be modified. The impugned judgment and order of conviction is retained and the order of sentence of death only is liable to be set aside. Hence the following:
ORDER The appeal is partly allowed. The impugned judgment and order of conviction passed against the appellant in S.C.No.14/2015 on the file of Additional District & Sessions Judge, Udupi (Sitting at Kundapura) is hereby confirmed.
The impugned order of sentence with regard to the offences punishable under Sections 448, 451, 392, 376(h) of IPC is hereby confirmed.
The impugned order of death sentence for the offence punishable under Section 302 of IPC is modified as follows:
The accused is sentenced to imprisonment for life without any remission till he attains the age of 60 years and
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NC: 2024:KHC:3432-DB CRL.A No. 852/2018 C/w CRL.RC No.4/2018 fine of Rs.50,000/-. In default to pay the fine amount, he shall undergo rigorous imprisonment of two years.
The order of the trial Court with regard to disposal of the properties, concurrent running of the sentences and referring the matter to District Legal Services Authority for payment of victim's compensation are maintained.
The Court places on record its appreciation for the able assistance rendered by Sri D.Nagaraja Reddy, learned Standing Counsel for High Court Legal Services Authority.
Sd/-
JUDGE Sd/-
JUDGE KSR,PKN List No.: 1 Sl No.: 6