Karnataka High Court
Krishna Alias Krishnan vs State Of Karnataka on 12 January, 2000
Equivalent citations: 2001CRILJ2696, ILR2000KAR4845, 2001(1)KARLJ24, 2001 CRI. L. J. 2696, 2001 AIR - KANT. H. C. R. 1406, 2001 (1) KANTLJ 24, (2000) ILR (KANT) 4845
Author: B.S. Sreenivasa Rao
Bench: B.S. Sreenivasa Rao
JUDGMENT
1. This appeal preferred by one Krishna alias Krishnan, a 23 year old resident of Ramachandrapura, Bangalore raises an interesting point of law which we shall summarise. In a case where the predominant allegation is one of rape of a young girl and the entire evidence is led to establish this charge and the prosecution also alleges that since the girl was found dead that the more serious offence of murder is also attributable to him, the question arises as to whether the heads of evidence which may establish the offence of rape conclusively could also be relied upon by the prosecution for purposes of establishing the more serious charge of murder. The deceased, Kumari Girija was only nine years old and was effectively a child. It is alleged that the accused who lived close by had misbehaved with this girl about a month prior to the incident and that he was admonished by the girl's grandmother Muniyamma. On 24-7-1994 Girija was watching T.V. in the company of P.W. 3-Sulochana at about 2 P.M. in the afternoon after which she went out to play and it is alleged that the accused enticed her into his house. Girija was not found for the rest of the day and her uncle Muniraju and others looked for her everywhere but could not trace her. Early the next morning P.W. 3-Sulochana noticed Girija's body in the parthenium bushes adjoining the pathway near her house. She immediately informed the girl's relations, brought the body from there and laid it down in front of their house. It was noticed that there were injuries on the lips, on the cheek but more importantly around the neck area. There were injuries of some seriousness which had resulted in bleeding around the 'genitals which was why P.W. 8-Muniyamma went and lodged a police complaint some time later. It is alleged that a crowd had collected and that the accused was among the persons who assembled there and the witnesses state that he told the girl's relations that she must have died of snake bite and that she should be buried. The police arrived on the scene and the investigating officer states that since the accused was not available they checked his house in view of the fact that his earlier misbehaviour had been pointed out to the police. The police found a mat made out of stitched gunny bags on the floor on which there were blood and semen stains. Similar stains were also found on the frock worn by Girija. Apart from the mat, the police found two other items which were attached one, being a earstud and the second being a piece of bangle, and both these were compared with the earstud on the body of the deceased and the bangles and found to match perfectly. The accused is alleged to have been apprehended by the villagers in the evening and handed over to the police who placed him under arrest. It is also alleged that the clothes of the accused were seized under a mahazar and that the shirt and the underwear of the accused were found to contain blood and semen stains. The body was sent for post-mortem and the accused was sent to the hospital for medical examination. The various items such as the clothes of the accused and the mat were sent for chemical analysis. On completion of the investigation the accused was charge-sheeted for the offence punishable under Sections 376, 302 and 201 of the IPC. The learned Judge held that there was no evidence in respect of the charge under Section 201 of the IPC and acquitted the accused but be convicted him for the offence punishable under Section 376 of the IPC and awarded him a sentence of six years rigorous imprisonment. The accused was also convicted of the offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life, both the sentences were directed to run concurrently. The present appeal assails the correctness of the conviction and sentence awarded to the accused.
2. At the hearing of the appeal, the appellant's learned Advocate Sri Jairaj and the learned Additional State Public Prosecutor Sri Koti have taken us threadbare through the entire record of the case and have addressed their arguments both on points of fact and law. Mr. Jairaj has seriously assailed the conviction which is based on circumstantial evidence and his first submission was that merely because it is alleged that the accused had shown special attention to Girija about a month earlier and had misbehaved with her that the immediate suspicion was cast on him and it is his contention that the police have virtually taken a shortcut and built up the set of circumstances that are relied upon by the prosecution. His principal submission was that the conduct of the accused is more in consonance with his innocence than with his guilt and that the learned Trial Judge has totally overlooked this important aspect. Dealing with the first circumstance which provides the background to the offence namely that the accused had misbehaved with Girija insofar as he was found lifting her clothes, biting her and even kissing her about which she had complained to P.W. 8 who in turn admonished the accused, Mr. Jairaj submitted that what is important is that the incident in question was a relatively minor one and he hastens to point out that even though nobody would approve of such conduct on the part of the accused, he was admonished and checked in time and he relies on the circumstance that he was residing in that area and that for a full month there was no repetition of the incident and he therefore contended that the accused was a chastised person who realised that he should not misbehave with the girl and that consequently, this circumstance is not an incriminating one. What we need to take note of, as pointed out by the learned Additional State Public Prosecutor is that since the accused was admonished for his misbehaviour that undoubtedly he realised that he would get into serious trouble if he repeated anything of that sort which was why he behaved himself for some time but Mr. Koti brings it to our notice that having displayed these tendencies, obviously that he was waiting for an opportunity when he could lay his hands on the girl and that merely because there was no repetition of the incident during the intervening one month would not in any way obliterate what had happened. The learned Trial Judge has effectively concluded that this particular incident indicated the mental make-up and intentions of the accused and that in the light of what subsequently happened, it serves as a pointer to the investigating authorities as to who was required to ascertain as to who would be the individual most likely to sexually assault Girija. In this background, we do need to uphold the finding of the Trial Court that this circumstance does incriminate the accused.
3. The next circumstance that has been relied upon is that Girija was last seen in the company of the accused on 24-7-1994 between about 1.30 and 2 P.M. when the accused took her inside his house. Mr. Jairaj submitted that the evidence of P.W. 3-Sulochana only indicates that Girija was in her company watching T.V. till about 2 P.M. and that the accused thereafter took her away. We have on record the evidence of P.W. 12 which conclusively indicates that around this time, Girija was playing and that it was the accused who took her away into his house. What has been submitted by Mr. Jairaj is that if this evidence is scrutinised, it will indicate that the most important aspect namely that the point of time when the accused is alleged to have taken the girl to his house and the evidence of her companions who must have been around with whom she must have been playing is not forthcoming and he submits that the evidence at the highest is weak and only suggestive of the fact that the accused may have been around at that time. His submission is that after the previous incident when the accused had misbehaved with Girija and he was admonished, that two things are certain, firstly that Girija complained about his misconduct and secondly that it was obvious that she did not like his behaviour and that she would stay far from him and was least likely to respond to any suggestions to come into his house. More importantly, Mr. Jairaj submits that after P.W. 8 had admonished the accused for his misbehaviour that it is quite obvious that Girija would have been cautioned against going anywhere near the accused and would have in fact been told to stay far from him and have nothing to do with him which is what any parent would have cautioned a vulnerable young girl against whom such advances had been made. His submission therefore is that the entire theory put forward by the prosecution on the basis of evidence of P.Ws. 3 and 12 is not only improbable but is impossible, short of a situation whereby the accused would have had to basically overpower Girija and carry her into his house which is not what is alleged by the prosecution. His submission that the version of P.W. 12 who contends that Girija went with him voluntarily is something that can never be accepted.
4. We have carefully examined this head of evidence and we have also taken note of the submission canvassed by the learned Additional State Public Prosecutor who stated that obviously after having got into trouble for his misbehaviour on the earlier occasion the accused would have changed his tactics and not annoyed the child by attacking her physically but that he would have adopted the more dangerous approach of enticing and inducing her which totally fits in with what P.W. 12 refers to in his evidence. He submits that it is not difficult to trick a young girl and entice her into the house after which, once she is physically overpowered she would have virtually no chance. As the record stands, we see no ground on which the evidence of P.Ws. 3 and 12 can be either faulted or discarded and if the crime is re-created it is obvious that the incident has taken place inside the house of the accused. We have taken note of the evidence of P.W. 21 who is his father who states that the only two occupants of the house were the accused and himself and that he used to leave the house early in the morning and come back only at night and that the accused was alone in the premises at that time. 2 o' clock in the afternoon is also virtually a lull time when the menfolk in the village would be away at work and there would be hardly anybody around and it is therefore clear that the accused chose this particular point of time to induce the child into his house. The fact that the accused was last seen with Girija is established from the evidence of these two witnesses and having regard to the fact that this is a small village and that the child was not seen alive thereafter, this circumstance heavily incriminates the accused.
5. We have already recorded our findings with regard to the previous circumstance which is interlinked with this one. Whereas it was sought to be vehemently contended before us that even if the accused had misbehaved with Girija one month earlier after he was admonished that there is no indication of his having repeated any such acts and that therefore, it is a circumstance in his favour which would point to the inference that it is unlikely that he would have been the person who took Girija away with the object of sexually assaulting her. We need to take judicial notice of one small aspect that has been overlooked by the Trial Court namely the fact that when the investigating officer searched the residence of the accused and seized various items, that strangely enough, one of the items seized is some pornographic sex books which is a pointer to the mental make-up and the activities of the accused. It is also clear to us that as invariably happens in this class of cases, particularly where the evidence indicates a perverted bent of mind, that the culprits invariably lie low and await a suitable opportunity when they can target the victim. The fact that no advances were made for about one month does not therefore indicate anything and only supports the theory that for fear of repercussions, the accused was binding his time and waiting for an opportunity when he could get at Girija without being apprehended. It is in this background that we find the choice of time and place selected by the accused to be in consonance with the conduct of a person who is stalking the victim and waiting for the most opportune moment.
6. Next we come to the stage when pursuant to P.W. 3-Sulochana finding the body of the deceased in the parthenium bushes she informed the relations of the deceased and whose evidence is to the effect that when the body was brought near their house the accused was present there and suggested to them that Girija must have died of snake bite and that therefore, the body should be buried. It was vehemently contended on behalf of the accused that this conduct of the accused must be tested in the light of the prosecution allegation that he had raped and murdered Girija on the previous day and what was pointed out to us was that if the accused was involved in such a heinous and horrifying act that the guilt alone would have prompted him to either discretely stay away from that place or to virtually abscond particularly when the body had been recovered and it was therefore submitted that the presence of the accused and the statement made by him are highly indicative of the fact that he could never have been involved in the commission of the crime and that he had only volunteered a suggestion in good faith. In this regard, judicial experience indicates that there are many reactions that come about after an offence is committed, fear undoubtedly being one of them in which case an accused tries to hide or run away. There is also another class of cases where the accused display total brazenness in projecting an image of total innocence and even overdoing it in order to create an impression on everybody including the police that it is some other person who has committed the offence. We would prefer to define this as a decoy tactic which is reasonably common among accused persons. The learned Additional State Public Prosecutor advances an interesting argument on this point when he submitted that this is a small village and the accused had misbehaved with Girija a few weeks earlier and would therefore be the prime suspect when it was found that she had been subsequently attacked and if the accused had disappeared from that place this would have been the strongest public admission of his involvement and in order to overcome that situation he decided to stay there and project the image that he had nothing to do with the incident and his presence would possibly act in his favour and divert the suspicion to other quarters. It is for the aforesaid reasons that we hold that the suggestion from the accused who volunteered that the cause of death was due to snake bite and that the body should be buried was obviously prompted by two reasons, the first being that if this view was accepted, there would be no physical or medical examination of the body which would have disclosed the sexual assault and the cause of death and more importantly, that with the burial of the body the whole incident would also have been buried along with it. It is in this background that the Court needs to confirm the finding of the Trial Court that this circumstance which has been established is one more link in the chain of circumstances that incriminate the accused.
7. We then come to the next circumstance which relates to the injuries on Girija. When the body of the girl was found, there was noticeable injury marks on her lips, on her face and around her neck and more importantly, it was found that she was very severely injured around the genital area the whole of which had been virtually torn open. Not only does the medical evidence indicate that there were severe tears and rupture in the vaginal area but the assault on her was so horrifying that even the anus had been torn open. The unmistakable evidence that as emerged from the doctor is that she was the victim of a brutal and merciless sexual assault. It is clear that being a slightly built child of nine as is more than evident from the photographs that when she was subject to a sexual assault, since it was obviously impossible to penetrate the vaginal area, that even the anus was attacked. While it is difficult to even recount the severity and the utter beastiality of the attack, it is equally evident that it was so savage that the girl died in the course of the same incident. The medical evidence however indicates that there was unmistakable evidence of strangulation which explains the injuries on the neck and internal injuries which was noted at the time of post-mortem. It is more than evident that when the child was sexually attacked, a very high degree of force was used as is evident from the injuries that we have described earlier but that at the same time physical force was used to subdue her and keep her quiet and this explains why the pressure was applied on the throat which resulted in the death of the child. Also, the nature of the act itself is evident from the fact that even if there was a possibility of the child surviving the sexual attack which is doubtful, because the pain and shock alone would have been sufficient to kill her, that that attacker would not have left her alive for fear of the repercussions. We have referred to these aspects of the medical evidence in detail because a submission was advanced on behalf of the accused that even assuming the evidence is good enough for a conviction under Section 376 of the IPC that this evidence cannot sustain a charge under Section 302 of the IPC and furthermore that if the two acts were committed at different places that there is an equal possibility that they could have been committed by different persons. We have carefully applied our minds to these submissions and we find that the irresistable conclusion is that the rape and murder have both taken place in the course of the same incident and obviously at the hands of the same individual. The two acts are so totally and inextricably linked that no distinctions can be made nor are they possible. These injuries on the deceased Girija have been held to incriminate the accused because the seizure of his clothes particularly the chemical analysis of his shirt and underwear indicated the presence of not only semen stains but also bloodstains. The fact that an examination of Girija's body indicated that she had sustained several bleeding injuries had been noted by the Trial Court as a circumstance that incriminates the accused because of the presence of bloodstains on his clothes.
8. At this stage, we shall also deal with the next circumstance that has been held against the accused namely the fact that the chemical analysis of the frock of the deceased Girija which had bloodstains on it and the shirt and underwear of the accused have disclosed that the blood was human blood of the 'O' group. The prosecution has established that the blood group of the deceased Girija was of the 'O' group and this is the same 'O' group blood that has been found on the shirt and underwear of the accused. The learned defence Counsel submitted that this circumstance is inconclusive because the prosecution has not ascertained the blood group of the accused and if the accused belongs to the same blood group then there is no ground to incriminate him merely because Girija also belonged to the 'O' blood group. The case is not as simple as is sought to be made out because once the prosecution establishes the presence of blood on the clothes of the accused which tallies with the blood group of the deceased the law enjoins upon the accused to explain how blood of that group was found on his garments and in the absence of any such explanation which is not forthcoming in this case, the irresistable conclusion is that the presence of blood belonging to the same group as that of the deceased heavily incriminates the accused. It was submitted that there is some ambiguity with regard to when the clothes of the accused were seized but we have assumed from the ma-hazar and the evidence of the panchas who have supported the prosecu-
tion that his clothes were seized by the police from his person on the evening of 25-7-1994 immediately after his arrest. There is no doubt about the seizure of the clothes of the accused at that point of time. Learned defence Advocate advances an allegation against the prosecution stating that in order to incriminate the accused all that the police had to do was to rub some of the blood from the dead body of Girija on the clothes in question. No such line has been put forward in the cross-examination of the investigating officer but more importantly, what we have noted is that the body in question was taken away to the hospital for post-mortem on the morning of 25-7-1994 long before the accused was even arrested and therefore, the body was not available to the police at any point of time after the arrest of the accused and the allegation itself is rendered totally baseless.
9. We next come to the most important aspect of the evidence which concerns the recoveries of a piece of bangle, earstud and a mat from the house of the accused. The broken bangle and the earstud as per the recovery mahazar were found on the mat in the house of the accused and the evidence conclusively indicates that one of the bangles which deceased Girija was wearing had broken and was missing and secondly that one of the earstuds which she was wearing was also missing from the body. The earstud that was found on the mat in the house of the accused was carefully matched with the other one that was still on the ear and the two tallied perfectly. Also, the bangle piece that was found tallied perfectly with the one that left on the wrist. While the learned Additional State Public Prosecutor relied very strongly on these circumstances coupled with the fact that the chemical analysis of the mat conclusively established that it was stained in two places with semen stains and bloodstains of the 'O' group and he submitted that in the absence of any valid explanation from the accused as to how this incriminating evidence could be found in his house which is the place to which he was seen taking the deceased girl that these recoveries are conclusive proof of his guilt. On behalf of the defence it was contended that there is nothing very special about the type and pattern of bangle and earstud that they are common items freely available in the market used by any number of children and that in the absence of special and distinguishing or identifying marks that they cannot be connected with the deceased or with the offence. What the Court needs to take cognizance of is that these were precisely the items that were missing from the body of the deceased and where they perfectly tally with the remaining one that is still on the body that it would be a total absurdity to contend that the recoveries are unconnected with the remaining or existing items. In our considered view, the finding of these two items inextricably links the accused with the offence because again, no explanation of any type has been put forward as to how else these items could have landed in the house of the accused and that too on the mat. The finding of the blood and semen stains is only one more conclusive link in the chain of circumstances which indicates that it was obviously at this place that the assault took place. It was a violent and brutal sexual assault that resulted in severe injuries to the deceased girl and that explains the presence of both semen and bloodstains on the mat. The fact that the bangle was broken and that one of the earstuds got detached only supports the prosecution case that this happened in the course of a violent attack on Girija and that the attack took place in the house of the accused. We have already recorded the fact that there were no female residents in that house and that the only other person living there namely the father of the accused P.W. 21 had deposed to the Tact that he had left the house earlier in the morning and did not return till late in the evening and the evidence of P.W. 12 and P.W. 3 clearly indicates that the accused was the only person who was very much there in the afternoon when the incident took place.
10. The last circumstance which the learned Trial Judge has relied upon is the fact that P.W. 14 has in turn stated that the accused had met him and other persons on the 25th after the incident that he was behaving peculiarly insofar as he was telling them that they should see him for the last time because he was going to commit suicide by jumping into the tank. This conduct on the part of the accused has been held by the Trial Court to indicate evidence of guilt insofar as the learned Judge has concluded that the accused by that point of time was obviously overcome by a feeling of desperation or a possibility that it was only a question of time before he was apprehended and that was why he contemplated the desperate step of threatening to commit suicide. Apart from this finding which we find no ground to interfere with, we view this conduct from a slightly different angle namely that in many criminal cases of violence after the commission of the offence the accused is overcome by a sense of remorse and either goes to the police or makes a confession or does something desperate. Learned defence Counsel submitted that this is a circumstance in favour of the accused who had obviously displayed affection for the deceased Girija and when he came to know that she was dead that he totally lost all interest in life and therefore threatened to commit suicide. We feel this is too innocent an explanation or a point of view because the remaining circumstances in this case conclusively establish the guilt of the accused and we are therefore required to view it in this background as to what possibly could be his reaction and it does not surprise us if out of a sense of fear compounded with guilt and remorse, he did perhaps feel that it was the end of the road for him and that therefore, this was the only option. The real test comes from something else namely the fact that if the accused had nothing to do with the incident and had nothing to do with the girl as is the defence theory then there is no explanation for this conduct. That alone is sufficient to indicate his complicity.
11. As far as the law is concerned, Mr. Jairaj submitted that it is necessary for the prosecution to establish a chain of circumstances that point to the guilt of the accused and he was quick to add that the requirements of law are very strict insofar as the circumstances must each of them be conclusively proved and must then point to only one conclusion which is in conformity with the guilt of the accused. While the learned Additional State Public Prosecutor submitted that every circumstance has been established to the hilt and that the chain is complete and points to no inference other than the guilt of the accused, the defence contended that each of the circumstances are weak that they can hardly be held to form a strong link and that even if there is a group of weak circumstances by putting them together, the prosecution cannot overcome the strict requirement of law. We need to record here that it is unnecessary for us to reproduce the case-law because the position is well-crystallized. We do concede that in the first instance every circumstance has to be individually examined and has to be conclusively established. There must also be a sufficient number of circumstances because merely one strong circumstance or two of them cannot form what in legal parlance is defined as a chain or a web of circumstances which is the legal requirement. Also, when these circumstances are considered in totality by the Court there should be no hypothesis possible other than their pointing to one and only one conclusion namely the guilt of the accused. If there is any other possibility, the accused would still be entitled to the benefit of doubt. The learned defence Counsel relied on a decision of the Supreme Court in Jaharlal Das v State of Orissa , wherein the Supreme Court set aside the conviction based on circumstantial evidence in a somewhat similar case principally because one important head namely the medical evidence did not support the prosecution theory and the accused was accordingly given the benefit. There is no such infirmity in the present case because everything from the background to the recoveries to the supportive evidence unmistakably points only to the guilt of the accused. We may mention in passing that the learned defence Advocate submitted that if at all the accused was the person involved in an attack of such violent magnitude on Girija that inevitably there would have been some injuries on his person and the total absence of any injuries is the strongest circumstance in favour of his innocence. He referred in particular to the fact that it is evident from the medical evidence that an abnormally high degree of force was used against Girija when he was raping her and he stated that the absence of any injuries on the genitals of the accused would indicate that he was not the person involved in the offence. We cannot accept this argument because first of all the accused was a young full blooded man aged 23 and Girija was a weak little child of 9. There was not even the remotest possibility of her being able to fight or react, which explains the absence of injuries and furthermore, the areas of the body that the accused went for are such that they would not leave any injury marks on the genitals of the accused and the absence of injuries therefore is of no consequence.
12. Having conclusively held that the circumstances establish the two charges, we need to deal with the last submission which we have indirectly referred to namely that the learned defence Counsel submitted that even if the evidence establishes that the accused had sexually attacked Girija that he could only be convicted under Section 376 of the IPC as there is absolutely nothing to connect him with the cause of death and the murder of the deceased girl. The learned Additional State Public Prosecutor submitted that this is a case in which the facts indicate that the two offences were committed at one and the same time and place and that the conviction on the first charge would automatically lead to a conviction on the greater of the two offences. We need to record that in law that it is first necessary for a Court to ascertain on facts whether the two offences were committed at different points of time and at different places or in the course of one and the same incident. This is a case in which the latter position obtains because it is more than conclusively established from the record before us that the deceased Girija was killed in the course of one and the same attack which was a comprehensive one. In this background, we hold that the evidence which establishes the charge of rape also establishes the offence of murder insofar as it is the common evidence which has proved the incident which resulted in the rape and death of the girl. Also, this happens to be a case in which no separate evidence is necessary nor is it possible. Having regard to this position, the conviction recorded by the Trial Court under both heads is confirmed and we see no ground on which we should interfere with the quantum of sentence.
13. Before parting with this judgment, we need to observe that this is one of the most heinous and horrifying incidents that could come up before the Criminal Court and, one of the most atrocious and barbaric acts that could have ever taken place that too, involving a young innocent girl. The levels of brutality that have manifested themselves in this case and the total complexion of the offences would fully justify an enhancement of the sentence under both charges but we refrain from doing so because there is no appeal for enhancement filed by the State.
14. Having regard to the aforesaid position, the appeal fails and stands dismissed.