IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF AUGUST, 2019 PRESENT THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA AND THE HON’BLE MR.JUSTICE ASHOK G NIJAGANNAVAR CRIMINAL APPEAL No.1330 OF 2016 C/W CRIMINAL APPEAL No.210 OF 2016 IN CRIMINAL APPEAL No.1330 OF 2016 BETWEEN:
KALLESHA, S/O LAKKAPPA, NOW AGED 31 YEARS, R/@ ADILAKSHMINAGARA, COOLIE IN SHIVA BRICK FACTORY, NATIVE OF KANAKATTE, ARASIKERE TALUK, PIN-574318. ... APPELLANT (BY SRI: VENKATESH P.DALAWAI, ADVOCATE) AND THE STATE OF KARNATAKA BY TIPTUR RURAL POLICE STATION, REP. BY SPP, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BENGALURU-560001. ... RESPONDENT (BY SRI: VIJAYKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.04.2014 PASSED BY THE III ADDL. S.J. AND SPL. COURT FOR TRIAL OF CASES U/S SC/ST (POA) ACT, TUMAKURU IN SPL.C.NO.175/2012 - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 376,302 AND 201 R/W 34 OF IPC AND U/S 3(2)(v) OF SC/ST (POA) ACT R/W/S/ 34 OF IPC. THE APPELLANT/ACCUSED NO. 2 ARE SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- IN DEFFAULT OF PAYMENT OF FINE SHALL UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC. FURTHER, THE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO IMPRISONMENT FOR 10 YEARS FOR THE OFFENCE P/U/S 376 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- IN DEFFAULT OF PAYMENT OF FINE SHALL UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE P/U/S 3(2)(v) OF SC/ST (POA) ACT R/W/S/ 34 OF IPC. ALL THE ABOVE SENTENCES SHALL RUN CONCURRENTLY.
IN CRIMINAL APPEAL No.210 OF 2016 BETWEEN:
MAHESHA, S/O THOGAPPA NOW AGED ABOUT 34 YEARS R/AT ADILAKSAHMINAGAR, COOLIE IN SHIVA BRICK FACTORY NATIVE OF KANAKATTE, ARASIKERE TALUK-574318 ... APPELLANT (BY SRI: VENKATESH P DALAWAI, ADVOCATE) AND THE STATE OF KARNATAKA BY TIPTUR RURAL POLICE STATION, REP BY S.P.P.
HIGH COURT OF KARNATAKA HIGH COURT BUILDING, BANGALORE-01 ... RESPONDENT (BY SRI: VIJAYKUMAR MAJGE, ADDL. SPP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE JUDGMENT DATED 10.04.2014 PASSED BY THE III ADDL. S.J. AND SPL. COURT FOR TRIAL OF CASES UNDER SC/ST (POA) ACT, TUMKUR IN SPL.C.NO.175/2012 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 376 AND 302 R/W 34 OF IPC AND SEC. 3(2(v) OF SC/ST (POA) ACT. THE APELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC.
FURTHER, THE APPELLANT/ACCUSES NO.1 IS SENTENCED TO UNDERGO IMPRISONMENT FOR 10 YEARS FOR THE OFFENCE P/U/S 376 OF IPC. FURTHER, THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE P/U/S 3(2)(v) OF SC/ST (POA) ACT. ALL THE ABOVE SENTENCES SHALL RUN CONCURRENTLY.
***** THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
J U D G M E N T Appellants are accused Nos.1 and 2 in Special Case No.175/2012. By judgment dated 10.04.2014, accused No.1 and 2 are convicted for the offences punishable under sections 376, 302, 201 read with 34 of Indian Penal Code (“IPC” for short) and section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (“SC/ST (POA) Act” for short) read with 34 of IPC and are sentenced to undergo imprisonment for life and a fine of Rs.5,000/- each for the offence under section 302 read with 34 of IPC; imprisonment for ten years for the offence punishable under section 376 of IPC; and imprisonment for life and fine of Rs.5,000/- for the offence under section 3(2)(v) of SC/ST (POA) Act read with 34 of IPC. All the sentences are directed to run concurrently.
2. We have heard learned counsel for appellants and learned Addl. SPP for respondent – State and have scrutinized the impugned judgment and the material on record.
3. Appellants were sent up for trial on the specific accusations that, on 11.03.2012, at about 7.30 p.m., appellants/accused Nos.1 and 2 were found embracing and dragging deceased Hemabai and that on the same day, at about 10.30 p.m., both the accused persons committed forcible rape on her and during the occurrence, caught hold of her hairs and dashed her head against the wall and thereby committed the offences punishable under sections 376 and 302 read with 34 of IPC. Since the dead body of the deceased was found in the nearby field in half naked condition, a charge under section 201 read with 34 of IPC was also framed against the accused. As the deceased belonged to Scheduled Caste, accused were further charged under sections 3 (2) (v) of SC/ST (POA) Act read with 34 of IPC. Accused denied the charges and faced trial.
4. In order to prove its case, prosecution examined as many as 12 witnesses as PWs.1 to 12 and produced in evidence 20 documents marked as Exhibits P1 to P20 and the material objects at M.Os.1 to 6. Accused denied the incriminating evidence produced by the prosecution and took up the defence of total denial. After hearing the accused and the learned Public Prosecutor, by the impugned judgment, the Trial Court found both the accused guilty of the above offences and sentenced them as above.
5. Feeling aggrieved by the impugned judgment of conviction and order of sentence, appellants are before this court.
6. Learned counsel for the appellants Sri. Venkatesh P. Dalwai would submit that the Trial Court has failed to appreciate the evidence in proper perspective. The case of the prosecution is rested exclusively on circumstantial evidence. None of the circumstances relied on by the prosecution are proved with the standard of absolute proof that is required in a criminal trial. On the other hand, the prosecution itself has introduced inconsistent version regarding very genesis of the occurrence. Except the interested testimony of the husband of the deceased, no reliable evidence is available in proof of any of the circumstances projected by the prosecution. Under the said circumstances, the conviction recorded by the Trial Court is liable to be set-aside.
7. Learned Addl. SPP appearing on behalf of respondent- State, however, argued in support of the impugned conviction contending that the circumstances relied on by the prosecution are cogently and convincingly proved by examining the material witnesses. The prosecution has proved the circumstance of deceased and accused last seen together. By examining three material witnesses namely PW.2, PW.3 and PW.6, extrajudicial confession made by accused is also proved in accordance with the acceptable standard of proof and the Trial Court has considered all these facts and circumstances in proper perspective and hence, there is no ground to interfere in the impugned judgment and thus, prayed for dismissal of the appeals.
We have bestowed our thought to the contentions urged by the parties and have carefully scrutinized the material on record.
8. The case of the prosecution is based exclusively on circumstantial evidence. The first circumstance relied on by the prosecution is that the deceased and accused were seen quarrelling near the factory shed at about 7.30 p.m. In proof of this circumstance, prosecution has examined PW.2, PW.4 and PW.6. Amongst them, PW.6 is the husband of the deceased Hemabai. PW.2 and PW.4 are the co-workers who were engaged to work in the brick kiln owned by PW.3. According to these witnesses, on 11.03.2012, at about 7.30 p.m., they saw both the accused persons pulling and dragging the deceased and they pacified the quarrel. Even the husband of the deceased has deposed in line with PW.2 and PW.4 stating that he saw both the accused persons quarrelling with the deceased and he intervened and pacified the quarrel. The testimony of PW.2, PW.4 and PW.6 in this regard is not falsified in the course of their cross-examination. As a result, we do not find any reason to disbelieve the evidence of these witnesses which establish the fact that immediately preceding the incident, the deceased and the accused were last seen together.
9. The next circumstance relied on by the prosecution is the extrajudicial confession said to have been made by the accused before PW.2, PW.4 and PW.6. In this regard, the evidence of PW.6 – husband of the deceased is that, after pacifying the quarrel, at about 7.30 p.m., he left the house and at about 11.00 p.m. in the night, when he returned to his shed, he did not find his wife in the shed and hence, he enquired with PW.2 and PW.4 and by then, the accused came there and told before him and PWs-2 and 4 that they have raped the deceased and finished her off. PW.2 and PW.4 have also deposed in line with PW.6 stating that in their presence, accused Nos.1 and 2 made a confession. This evidence of PW.2, PW.4 and PW.6 has been believed by the Trial Court and based on this evidence, the Trial Court has come to the conclusion that the prosecution has proved the extrajudicial confession attributed to the accused which inculpates them in all the above offences and accordingly proceeded to convict the accused.
10. Learned counsel for the appellants has strongly assailed the findings recoded by the Trial Court. Referring to the earliest information lodged by PW.3 with regard to the occurrence, learned counsel for appellants pointed out that at the earliest instance, the dead body of the deceased was found in the nearby field belonging to one Damodar, in half naked condition. PW.3 an independent witness, who was the owner of the brick kiln, has stated in the written complaint lodged by him as per Ex.P9 that when he found the dead body, the husband of the deceased was lying intoxicated near the dead body. It is the contention of learned counsel for the appellants that, if evidence of PW-3 is believed, it goes to show that there was no occasion for accused Nos.1 and 2 to make the alleged extrajudicial confession before PW.6, thereby leading to doubt the entire substratum of case of the prosecution.
11. We have considered these submissions and have gone through the complaint lodged by PW.3 at Ex.P9 as well as the evidence given by PW.3 before the Court. In his evidence, PW.3 has reiterated by the version narrated in the complaint and has asserted that when he found the dead body he saw PW.6 lying near the dead body fully drunk. Here itself it is relevant to note that PW.3 is examined as a prosecution witness. His testimony runs counter to the case of the prosecution, as a result, prosecution itself has introduced an inconsistent version regarding the genesis of the occurrence. In the complaint and in his evidence before the Court, PW.3 has consistently deposed that he was the first person to see the dead body and when he found the dead body, the mouth of the deceased was smelling alcohol and her husband PW.6 was lying by her side and he was also found fully intoxicated. This evidence of PW.3 is not disputed by the prosecution. Even otherwise PW.3 having been examined as a prosecution witness, prosecution is bound by the said evidence. If this evidence is believed, it falsifies the evidence of PW.6 that, in the midnight at about 11.00 p.m., accused Nos.1 and 2 made extrajudicial confession before him and PW.2 and PW.4. The conduct of PW.6 belies the evidence given him before the Court regarding the alleged extra judicial confession. This evidence does not disclose the exact place where the alleged confession was made. Evidence of PW.4 in this regard is too sketchy. He does not speak about the presence of PW.2. PW.2 has not disposed anything about this circumstance. If infact accused Nos.1 and 2 had made such a statement before him, in all probability, PW.6 being the husband of the deceased would have reacted immediately and would have immediately either lodged the report before the police or would have informed the owner of the brick kiln namely PW.3 when he arrived to the spot in the early morning on the next day. But the evidence of PW.6 and other witness proceeds as if they were searching for the deceased and after they met the accused, they went to their respective sheds. All these circumstances do not inspire confidence in the testimony of PW.2, PW.4 & PW.6 to hold that accused had made a confession before them as projected by the prosecution.
12. In this context, it is also relevant to note that, after registration of the case, spot mahazar and inquest were conducted at the spot where the dead body was found. In the inquest mahazar Ex.P3, the physical condition of the dead body as well as the injuries found thereon are noted. The dead body was found with one coffee colour blouse and a petticoat. There is nothing in the said inquest mahazar to indicate that the deceased has sustained any injuries on her private parts. Even in the postmortem report, the external injuries noted therein are as under:-
1. Abrasion over forehead at the centre 2 x 1 cms.
2. Abrasion over right knee joint 3 x 1 cm.
3. Abrasion over left knee joint 3 x 2 cms.
4. Multiple scratch mark over the front of the chest about 7-8 in number.
5. Bleeding from right ear seen.
► On opening the scalp skin blood clots of 4 in number seen over the parietal region right side near the midline about the skull bone.
► Blood clot of about 3 x 3 cm was seen over the right temporal region.
► Fracture of right temporal bone(depressed fracture) noted.
► On opening the skull fracture of right temporal bone with about 200 ml of blood collected near the side of the temporal region(right) inside the skull seen.
► Contusion over the right brain at temporal region with blood clot.
13. These injuries do not support the theory put forward by the prosecution that the deceased was raped and murdered during the single transaction. The prosecution has utterly failed to prove the charge under Section 376 of IPC. There is no worthwhile evidence to show that the deceased was subjected to rape by either of the accused. On the other hand the nature of the injuries noted in the inquest mahazar as well as in the PM report EX.P4 to show that the deceased had not sustained any injuries on her private part and no traces of sexual intercourse were found. In the PM report it is clearly noted that vagina was intact, no injuries seen over vulva. Further it was noted that watery sticky discharge noted in the vagina. The swabs was collected for examination of the sperm. The FSL report Ex.P20 in this regard certifies that presence of seminal stains were not detected in any one of the items sent for chemical examination including the petticoat or the blouse of the deceased or the clothes of the accused. It was further noticed that presence of spermatozoa was also not detected in any of the items seized from the spot of occurrence. The medical evidence and the FSL report relied on by the prosecution completely rule out the theory of rape on the deceased. This evidence is contrary to the confession alleged to have been made by the accused that they have “raped” and murdered the deceased. In the absence of any material in proof of rape even the contents of the alleged confession attributed to the accused is proved to be false.
14. The trial Court has proceeded to convict the accused for the offence under Section 376 of IPC solely on the basis of the extrajudicial confession of the accused, but the circumstances discussed above in our opinion not only demolish the theory of extra judicial confession, but also exposes the falsity of the charges foisted against the accused. Prosecution has failed to produce any reliable piece of evidence in proof of rape or murder. There is no corroboration to the alleged extrajudicial confession, imputed to the accused. There is no evidence as to which of the accused committed the alleged act of intercourse and which of the accused committed the murder of the deceased. Prosecution has proceeded on the basis that both the accused committed rape on the deceased and both accused dashed the head of the deceased against the wall and committed her murder. But the circumstance of the alleged extrajudicial confession having not been proved and the prosecution having failed to prove any circumstance of the accused committing the murder of the deceased, entire case of the prosecution is rendered vulnerable.
15. There is nothing in the spot mahazar to indicate traces of physical violence to come to the conclusion that the deceased was done to death by hitting her head against the wall. There is no evidence to show that the said act was committed by any one of the accused. In the absence of any evidence to show that the occurrence had taken place in the shed, even the circumstance of the deceased last seen with the accused does not enure to the benefit of the prosecution to connect the accused to the murder of deceased. In view of the time lag between the point of time when the deceased and the accused were last seen together and the time when the dead body was traced by PW3, even the last seen circumstance relied on by the prosecution cannot be pressed into service to connect the accused to the incident in question. The circumstances proved in evidence at the most would give rise to a strong suspicion against the accused but not proof beyond reasonable doubt rendering them culpable for the offence of rape, murder and destruction of evidence. In the absence of any evidence to show that the accused either committed acts of rape or in the course of commission of the said offence caused the death of the accused, in our view solely on the basis of suspicion, the trial Court could not have held the accused guilty of the above offences. To this extent the findings recorded by the trial Court being perverse and contrary to the evidence on record are liable to be set aside.
16. The learned counsel for the appellants has pointed out another circumstance which further reinforces the conclusion arrived at by us as above. As already stated above, during inquest, the deceased was found wearing a skirt and a blouse. If in fact the murder was committed in the course of the sexual intercourse, it is unlikely that she would not have been found with the clothes. Be that as it may, in the course of investigation the prosecution has recovered another set of blouse and skirt which are said to have been hidden beneath the cot in the shed. Even these articles were forwarded for chemical examination and a consolidated report is secured as per EX.P.20. No doubt, the medical opinion is against the case of the prosecution, nevertheless the evidence collected by the prosecution indicate that an attempt has been made to trump up false evidence against the appellants with a view to implicate them in the alleged offences.
17. Having regard to the overall facts and circumstances of the case and the conduct of the husband of the accused the entire case of the prosecution is susceptible to doubt. There is no explanation by PW.6 as to why he left the house after the quarrel that had taken place at 7.30 p.m. and where he had been until he returned to the shed. He has been projected as a witness to speak to the fact as if he returned to the shed at 11 p.m. only to hear the so called confession of the accused.
If in fact such confession was made to PW.6 his conduct in not disclosing the said confession to the owner of the brick kiln or to any other co-workers would only suggest that all these evidence has been created and got up only to support the false charges against the appellants.
18. On considering the entire evidence, we are of the firm view that the prosecution utterly failed to prove its case. None of the circumstances relied on by the prosecution that are substantiated with cogent evidence. Needless to say that when the case of the prosecution is based on circumstantial evidence, each circumstance should be conclusively proved and the circumstance proved in evidence must cumulatively lead to the inevitable conclusion of the guilt of the accused. Such evidence is totally lacking in the instant case. The prosecution has utterly failed to prove the charge of rape against the appellants. There is no evidence to show that the appellants/accused Nos.1 and 2 committed the murder of the deceased by hitting her head against the wall. The medical evidence relied on by the prosecution does not establish that the deceased died on account of the injuries inflicted by any one of the accused. There is no evidence to connect the accused to the injuries sustained by the deceased. The last seen circumstances relied on by the prosecution only leads to suspicion and nothing more. Trial Court has failed to appreciate all the facts and circumstances in proper prospect. On re-appreciation we do not find any acceptable evidence in proof of the guilt of the accused for the offences charged against them. As a result, the impugned judgment of conviction recorded by the Trial Court being perverse, illegal, considering all facts and circumstances, in our view the trial Court has committed a serious error in convicting the accused for the above offences.
19. For the above reasons, the impugned judgment of conviction and the order of sentence cannot be sustained. Insofar as the charges under the provisions of SC/ST (POA) Act are concerned, the said charges were incorporated solely on the ground that the deceased belonged to scheduled caste. Since the prosecution has failed to prove the substantive offence charged against the appellants, charge under Section 3(2)(V) of the SC/ST (POA) Act read with Section 34 of IPC also cannot be sustained. Accordingly, we proceed to pass the following order.
ORDER The Criminal Appeal Nos.1330/2016 and 210/2016 are allowed.
The impugned judgment of conviction and the order of sentence dated 10.04.2014 passed by the learned III Additional Sessions Judge, Tumkur, in Special Case No.175/2012 are hereby set aside. Consequently, accused No.1 Sri Mahesha and accused No.2 Sri Kallesha are acquitted of charges under Sections 376, 302, 201 read with Section 34 of IPC and under Section 3(2)(v) of SC/ST (POA) Act read with Section 34 of IPC.
The appellants/accused Nos.1 and 2 are ordered to be set at large forthwith if not required in any other case/cases.
The office is directed to send the operative portion of this order to the concerned Superintendent of the Central Prison where the appellants are in custody to take necessary action to release the accused forthwith.
Registry is directed to send back the records along with the copy of this judgment.
Sd/- JUDGE Sd/- JUDGE Bss./ykl