Karnataka High Court
Nagappa Masti Naik vs Venkatesh Krishna Harikantra on 23 July, 2021
Author: R.Devdas And J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
Crl.A.No.100311/2017 c/w
Crl.A.No.100008/2018
IN CRL.A.NO.100311/2017
BETWEEN:
NAGAPPA MASTI NAIK,
AGE: 52 YEARS,
R/O HIREDOMMI, MAVALLI, MURUDESHWARA,
TQ.BHATKAL, DIST: UTTARA KANNADA
..APPELLANT/COMPLAINANT
(BY SRI.J.S.SHETTY, ADV.)
AND:
1. VENKATESH KRISHNA HARIKANTRA,
AGE: 30 YEARS, OCC: FISHERMAN,
R/O HIREDOMMI, MAVALLI, MURUDESHWARA,
TQ.BHATKAL, DIST: UTTARA KANNADA.
RESPONDENT NO.1/ACCUSED
2. THE STATE OF KARNATAKA,
BY ITS BHATKAL POLICE STATION AUTHORITIES,
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT NO.2
(BY SRI.RAVIKIRAN MURDESHWAR AND
SRI.VENKATESH M.KHARVI, ADVS. FOR R1,
SRI.V.M.BANAKAR, ADDL.SPP FOR R2)
2
THIS APPEAL IS FILED UNDER SECTION 372 OF CR.P.C.
PRAYING THAT THE ORDER OF ACQUITTAL DATED 28.06.2017
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
UTTARA KANNADA, KARWAR, IN S.C.NO.32/2011 ACQUTTING THE
FIRST RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 376 AND 302 OF IPC MAY KINDLY BE SET ASIDE BY
ALLOWING THE APPEAL AND CONVICTING THE ACCUSED FOR THE
SAID OFFENCE AND IMPOSING PUNISHMENT AGAINST HIM.
IN CRL.A.NO.100008/2018
BETWEEN:
STATE OF KARNATAKA,
REP.BY THE POLICE INSPECTOR,
BHATKAL POLICE STATION, U.K., KARWAR,
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
..APPELLANT
(BY SRI.V.M.BANAKAR, ADDL.SPP.)
AND:
VENKATESH KRISHNA HARIKANTRA,
AGE: 30 YEARS, OCC: FISHING,
R/O HIREDOMMI, MURDESHWAR.
...RESPONDENT/ACCUSED
(BY SRI.RAVIKIRAN MURDESHWAR &
SRI.VENKATESH M.KHARVI, ADVS.)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.06.2017 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UTTARA
KANNADA, KARWAR IN S.C.NO.32/2011; TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.06.2017 PASSED
BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UTTARA
KANNADA, KARWAR IN S.C.NO.32/2011 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376 AND 302 OF IPC.
3
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
13.07.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J.:
These two criminal appeals arise out of the
judgment and order of acquittal passed by the Principal
District and Sessions Judge, Uttara Kannada, Karwar in
S.C.No.32/2011. The appeals are filed by the State of
Karnataka and the complainant (P.W.9) father of the
deceased.
2. The case of the prosecution is that, on
23.10.2010 at about 8.30 a.m., the daughter of the
complainant by name Yamuna had been to the house of
Mohammad Sadiq Donna for doing household work. The
deceased Yamuna was working as a housemaid in 2-3
houses at Murdeshwar. However, since she did not return
to the house till 3.30 in the afternoon, her mother went
to the house of Mohammad Sadiq and she was informed
that Yamuna did not come for work. The worried parents
searched for Yamuna at various places. Since the parents
weresearching Yamuna frantically, they thought that they
should continue to search and, if they do not find
Yamuna, they should lodge a complaint the next morning.
However, the next day morning, i.e., on 24.10.2010 at
about 10.00 a.m. two persons came and informed them
that the dead body of Yamuna was found in a shed in the
backyard of the house of Mohammad Sadiq. Immediately,
the parents and relatives of Yamuna rushed to the house
of Mohammad Sadiq and they found Yamuna's body was
found behind two drums. The parents found from the
scene of occurrence that it was obvious that someone
had committed rape and killed Yamuna. The complainant
suspected Mohammad Sadiq, his sons Khasif, Mohammed
Nasir and six other persons (totally 9 persons named in
the FIR) to have committed the crime. The police drew
the spot mahazar and inquest panchanama on
24.10.2010 and sent the body for postmortem.
3. However, on 25.10.2010, the complainant
gave a further statement before the police that, when he
informed his wife about the complaint he had lodged
before the police, she told that one Venkatesh Harikantra
was behind their daughter Yamuna. Yamuna had earlier
informed her mother that whom she used to go to the
houses of various persons including the house of
Venkatesh Harikantra for vending milk, he used to
misbehave with Yamuna and therefore, she stopped
going to his house. The deceased Yamuna had informed
her mother that Venkatesh Harikantra used to look at her
indecently. When the body of Yamuna was discovered in
the house of Mohammad Sadiq, there was a huge
gathering and since there was a threat of communal
harmony, the elders of the community advised them to
lodge a complaint against Mohammad Sadiq and other
residents of the house and accordingly, Mohammad Sadiq
and other inmates of the house were named in the earlier
complaint. However, after receiving information from
several sources, they suspected that it is Venkatesh
Harikantra who has committed the crime against Yamuna
and not the persons named in the original complaint.
4. It is the case of the prosecution that police
apprehended the accused Venkatesh Harikantra on
29.10.2010. The accused gave a voluntary statement and
admitted of committing rape and murdering Yamuna. He
stated that if the police came along with him, he will be
able to show the wooden log with which he assaulted
Yamuna and killed her. He also admitted that he used a
cloth found in the shed to strangulate Yamuna.
5. Accordingly, the Investigating Officer
proceeded to collect the blood samples of the accused
person and sent the same for DNA profiling along with
the vaginal swab collected from the deceased. The final
report was filed against the accused for the offence
punishable under Sections 376 and 302 of IPC. As many
as 51 witnesses were examined and 72 documents were
marked on behalf of the prosecution along with 32
material objects including the wooden log said to have
been used by the accused to assault the deceased on her
head and face. The cloth piece used for strangulating the
deceased was also produced as material object. It is the
case of the prosecution that two hair strands were found
in the hands of the deceased and the same was also sent
for DNA profiling. The hair of the accused collected from
his head, chest and pubic hair were also sent for DNA
profiling. Ex.P65 is the DNA report where it was
concluded that the biological fluid (semen) present on the
vaginal swab and pubic hairs of the deceased did not
match with the blood sample of the accused. The hair
strand said to have been found in the hands of the
deceased also did not match with that of the accused.
6. The trial court having noticed that there was
no eye-witness and the case of the prosecution was
based on circumstantial evidence, proceeded to examine
the evidence on record. The trial court found that there
were no fingerprints and footprints of the accused at the
spot; there were no bloodstains of the accused at the
spot; DNA report concluded that there was no evidence of
the involvement of the accused since vaginal swab taken
from the deceased did not match with the blood samples
of the accused; the hairs said to have been found in the
hands of the deceased did not match with that of the
accused; the Scientific Officer had clearly stated that
semen found on the dead body did not belong to the
accused. The trial court noticed that, accused had
expressed before the Magistrate when he was first
produced before him that the police had tortured the
accused and they extracted voluntary statement from
him forcibly. The trial court further noticed that though
nine persons were named in the FIR, they were not
arrested and neither samples of their hair, blood and
semen were collected for the purpose of DNA profiling.
The Investigating Officer had admitted in the cross-
examination that, during the investigation he found that
Yamuna had an affair with one Sudhakar S.Moger. He
admitted that, when he examined the postmortem report,
he came to know that the hymen of deceased was torn
and she was involved in sexual activity and the evidence
of past sexual activity was present. He admits that the
presence of Mohammed Khasif and Vakas Ahammed at
the relevant point of time in the house of the Mohammad
Sadiq could not be ruled out, although it was contended
on behalf of the Mohammad Sadiq that the entire family
had gone to attend a wedding ceremony in a relatives
house and no-one was present in the house at the
relevant point of time. Consequently, the trial court came
to a conclusion that there was neither direct evidence nor
clinching evidence to show that the accused had
committed the offence charged against him. Accordingly,
the trial court proceeded to acquit the respondent-
accused.
7. In the light of the above discussion on facts
and the evidence on record, the learned Additional SPP,
appearing for the appellant-State submits that there are
two important aspects which remain consideration.
Firstly, in the DNA report, the Scientific Officer has
concluded that skin scraping of the accused and the DNA
profile of the said skin scraping is from the deceased.
Secondly, M.O.22 which is a register maintained by the
group of fishermen along with whom the accused was
admittedly working in the partnership, clearly shows that
on the date of the event i.e., on 23.10.2010, the accused
remained absent till afternoon and he has attended work
in the second session, which clearly shows that the
accused, as narrated in the voluntary statement saw the
deceased Yamuna going into the house of Mohammad
Sadiq at 8.30 a.m., while the accused was proceeding in
his motorcycle for work. The accused did not attend to his
work since he was perpetrating the crime at the relevant
point of time. This, according to the learned Additional
SPP clinches the issue and completes the chain of
circumstances, which pointed out to the guilt of the
accused person.
8. Since the learned Additional SPP has argued
on the two aspects, we have looked into the deposition of
the relevant witnesses. There is no doubt that as per
Ex.P64, Identification Form, the blood sample of the
accused was collected and the blood sample was sent for
DNA profiling. P.W.32 Dr.Shivanand Hegde, who is the
Medical Officer from the Taluk Hospital, Bhatkal collected
the blood sample, pubic hair, finger nails, urine, blood
spot on filter paper and the skin scraping from the
accused. In the cross-examination, P.W.32 has admitted
that he does not remember from which part of the body
of the accused skin scrapings were taken. He admits that
there are no particulars regarding this aspect in the DNA
report. He also admitted that superficial layer of the skin
of any other body, if it is found on the skin of another
person and if that person washes with water, the
superficial layer of the skin will get washed away. He also
admitted that, if a person scrubs his skin, even certain
deep skin layer also may got washed away.
9. In the light of the evidence on record, it is
clear that the skin scraping of the accused was collected
on 30.10.2010, the incident is said to have occurred on
23.10.2010. Therefore, even if the skin scraping of the
accused was collected from his penis, it is impossible that
the superficial layer of the skin from the private parts of
the deceased was still found on the accused. More
importantly, when the scientific report clearly concludes
that the semen collected from the vagina of the deceased
as vaginal swab did not match with the blood sample of
the accused, it would be dangerous to conclude that the
skin scraping of the deceased could be found on the skin
of the accused, that too after a lapse of seven days from
the date of the incident.
10. Regarding the second aspect viz., that the
register M.O.22 would establish the fact that accused was
absent at his work place, till afternoon of 23.10.2010,
factually, this averment appears to be incorrect. We have
secured M.O.22 and have perused the same. We found
that the accused has been penalized by deducting `50/-
from his daily income for remaining absent on
24.10.2010 and not on 23.10.2010, as contended at the
hands of the prosecution. In this regard, P.W.25-Sukra,
who is one of the partners of Sri.Durgambika Prasad Mata
Bala Group, which is the partnership formed along with
the accused consisting of several persons, has stated in
his evidence that on 23.10.2010, the accused was
present at the work spot. The Accused had come for work
on his motorcycle. On 24.10.2010 also the accused was
present at the work spot at 8.00 a.m. and he worked till
12.00 in the afternoon. However, post lunch he did not
come for work and therefore, he was penalized by
deducting `50/- from his daily income.
11. It is by now well established that in a case
based on circumstantial evidence, even if there is one
missing link in the chain of circumstances, and there is
doubt created in the mind of the court, the benefit should
go to the accused. In a case based on circumstantial
evidence, unless and until all the circumstances form a
complete chain and the court is convinced that the
accused alone and not other person could have
committed the crime, the courts should not convict the
accused. We have gone through the impugned judgment
of the trial court and we are convinced that the decision
of the trial court in acquitting the respondent-accused is
in terms of these established principles of criminal
jurisprudence.
12. However, we are perturbed by the manner in
which the Investigating Officer has given up the
investigation against the persons named in the FIR. What
prevented the Investigating Officer from collecting blood
samples and other samples that were required for
investigation, from the accused persons named in the
FIR, as was done in the case of the accused herein, is a
question that remains unanswered and disturbing. During
the course of our examination of the evidence on record
and the submission of the learned counsel for the
respondent-accused, we find that there are substantial
material on record which point out a finger of suspicion
against some of the persons named in the FIR. The
Investigating Officer would have done well if the samples
of all the persons named in the FIR was collected and
sent for scientific analyzing and DNA profiling, as was
done in the case of respondent-accused.
13. The Hon'ble Apex Court in the case of
Dharam Pal Vs State of Haryana (2016) 4 SCC 160
has reiterated that Constitutional Courts can direct
further investigation or investigation by some other
investigating agency for the purpose of fair investigation
and a fair trial. It was held that the power vested in the
Constitutional Courts is for exercising constitutional
power which is meant to ensure that fair and just
investigation. It is the bounden duty of a court of law to
uphold the truth and truth means absence of deceit,
absence of fraud and in a criminal investigation a real and
fair investigation means, not an investigation that reveals
itself as a sham one. It has to be kept uppermost in mind
that impartial and truthful investigation is imperative. If
there is indentation or concavity in the investigation, can
the 'faith' in investigation be regarded as the gospel
truth? Will it have the sanctity or the purity of a genuine
investigation? If a grave suspicion arises with regard to
the investigation, should a Constitutional Court close its
eyes and accept the proposition that as the trial has
commenced, the matter is beyond it? These questions
have been answered by the Hon'ble Apex Court stating
that constitutional powers vested in Constitutional Courts
are not fettered.
14. In the criminal justice system, the law is set in
motion by registration of a FIR and the investigating
agency is required to investigate into the matter and file
the final report based on the information collected during
the course of the investigation. It is no-doubt true that
during the course of investigation, the investigating
agency may find information pointing out the guilt of a
person not named in the FIR, under such circumstances,
the investigating agency may proceed to file final report
(popularly known as charge sheet) against the person
who may not be named in the FIR. But in the facts and
circumstances of the present case, we find it
unacceptable that Investigating Officer could proceed
only against the respondent-accused even in spite of DNA
report and scientific analysis turning negative as against
the respondent-accused. Ultimately, the criminal justice
system is propelled to arrive at the truth.
15. Learned counsel in the connected appeal filed
on behalf of the complainant, father of the deceased,
makes a fervent appeal that the victim had been
supplementing the family income by doing daily chores in
various houses to augment the necessities of the family.
She was about 21 years old when the unfortunate
incident occurred and her life was taken away. It is
therefore, submitted that under the compensation
scheme for women victims providing for payment of
compensation, this court should consider issuing
directions to the State Legal Services Authorities to
consider payment of compensation to the parents of the
deceased. Learned counsel submits that under the
scheme either the victim or her dependents are eligible
for grant of compensation. It is pointed out that word
'dependent' has been defined in the Compensation
Scheme for Women Victims/Survivors of Sexual
Assault/other Crimes, 2018 of the National Legal Services
Authority, to include father and mother.
16. We have considered the submission of the
learned counsel and we find that under Section 357A of
the Cr.P.C., a separate provision is made for victim
compensation. It is mandatory for the State Government
in co-ordination with the Central Government to prepare
a scheme for providing funds for the purpose of
compensation to the victims or her dependents who have
suffered loss or injury as a result of the crime and who
require rehabilitation. Consequently, the State
Government has issued a notification dated 22.02.2013
and provided for "Karnataka Victim Compensation
Scheme, 2011". As per the notification, victim includes
her dependents also. The procedure for grant of
compensation under the Scheme, 2011 is that the court
may recommend or an application could be filed by the
victim or her dependents to the District Legal Services
Authority.
17. For the reasons stated above, we proceed to
pass the following:
ORDER
i) The decision of the trial court in acquitting the
respondent-accused is upheld. Consequently,
both the appeals stand dismissed.
ii) The matter shall stand remitted to the trial
court for the purpose of considering the case
against the persons named in the FIR.
iii) On remand, the trial court shall direct
collection of samples such as, blood, urine,
finger nails of all the persons named in the FIR
except accused No.8-Salma w/o Mahammad
Sadik and accused No.9-Parvin w/o Ansar. The
samples collected shall be sent for DNA
profiling, to find out whether they match with
the incriminating biological evidence collected
from scene of occurrence, which is already
available with the Centre for DNA
Fingerprinting and Diagnostics, Hyderabad.
iv) The trial court shall proceed thereafter in
accordance with law.
v) The present Inspector of Police of Murdeshwar
Police Station shall be the Investigating Officer
to conduct further investigation into the
matter.
vi) The District Legal Services Authority, Uttara
Kannada, Karwar shall consider the case of the
complainant for payment of compensation
under the Karnataka Victim Compensation
Scheme, 2011.
vii) It is ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
MBS/-
