Karnataka High Court
K Kamalaksha Purusha vs State Of Karnataka on 17 March, 2022
Bench: B.Veerappa, S Rachaiah
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CRL.A No.1442 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.1442 OF 2017
BETWEEN:
1. K. KAMALAKSHA PURUSHA,
S/O LATE K.A. ANNAPPA,
NOW AGED ABOUT 80 YEARS,
APPELLANT NO. 1 IS ABATED
VIDE COURT ORDER DATED 04.02.2022
2. CHANDRAKALA,
D/O KANNAPPA BELCHADA,
NOW AGED ABOUT 34 YEARS
BOTH ARE RESIDENTS OF
YEYYADI JOGI MATTA HOUSE,
OPP: I.T.I. BEJAI POST,
MANGALURU, TQ: D.K.
...APPELLANTS
(BY SRI. DR. J. S. HALASHETTI.,ADVOCATE FOR A2;
A1 ABATED VIDE ORDER DATED 04.02.2022)
AND:
Digitally signed by 1. STATE OF KARNATAKA,
USHA NAGENAHALLI
SHANMUKHAPPA R/BY MANGALURU EAST POLICE STATION,
Location: High Court
of Karnataka
NOW R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
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CRL.A No.1442 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION DATED
30.03.2016 AND ORDER OF SENTENCE DATED 31.03.2016
PASSED BY THE LEARNED IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN
S.C.NO.36/2011 - CONVICTING THE APPELLANTS/ACCUSED
Nos.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302 R/W 34 OF IPC., AND SENTENCING
APPELLANT/ACCUSED NOS.1 AND 2 TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.50,000/-
AND Rs.10,000/- FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 READ WITH 34 OF IPC., RESPECTIVELY AND
EACH OF THE ACCUSED TO UNDERGO THREE YEARS
RIGOROUS IMPRISONMENT AND FINE OF RS.10,000/- FOR THE
OFFENCE PUNISHABLE UNDER SECTION 201 R/W 34 OF IPC.,
WITH DEFAULT SENTENCES.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused Nos.1 and 2 have filed the present criminal
appeal against the impugned judgment of conviction dated
30.3.2016 and order of sentence dated 31.3.2016 passed by
the learned IV Additional District and Sessions Judge, Dakshina
Kannada, Mangalore, in S.C. 36/2011 convicting accused Nos.1
and 2 and sentencing them to undergo rigorous imprisonment
for life and to pay a fine of Rs.50,000/- and 10,000/-
respectively for the offence punishable under Section 302 r/w
34 of IPC and each of them to undergo rigorous imprisonment
CRL.A No.1442 of 2017
for 3 years and to pay a fine of Rs.10,000/- for the offence
punishable under Section 201 r/w 34 of IPC with default
sentences.
2. It is the case of the prosecution that P.W.1, the
complainant was residing along with his family members at
Yeyyadi Sharbathkatte, Mangaluru. On 16.12.2010 at about
2.30 p.m., he was informed by his wife-P.W.4 that their
daughter Priyanka aged about three years had gone to the
neighbour's house by name Chandrakala-accused No.2.
Though the said Chandakala had informed his wife that she had
dropped their daughter to the house, his daughter Priyanka did
not return back to the house. Therefore, on making enquiry
with their neighbours and searching for their daughter, they
could not find her anywhere. In this regard, the complainant -
P.W.1 lodged a missing complaint on 16.12.2010 at about
11.00 p.m. before the jurisdictional police and accordingly, a
case in Crime No.183/2010 was registered.
3. On basis of the aforesaid complaint and suspecting
accused No.1 Kamalaksha Purusha, a detail enquiry was
conducted by the police and thereafter, accused No.1
CRL.A No.1442 of 2017
accompanied by the police and panchas, took them to the place
of incident and informed that on 16.12.2010 at around 3.30
p.m. for resolving their family problems, he had performed
pooja to his family deity i.e., Kalabairava Gudi and Daivagudi,
situated near his residence and for blessings, the accused had
sacrificed a child by killing her and kept the dead body near the
water channel which is situated in areca garden belonging to
accused No.1. Thus accused No.1 Kamalaksha Purusha,
Madhava Purusha and accused No.2 - Chandrakala had
together killed Kumari Priyanka in the guise of offering prayer
to God and have committed the aforesaid offences.
Accordingly, the Sub-Inspector of Mangaluru East Police Station
converted the missing complaint into murder and a case in
Crime No.183/2010 was registered against accused Nos.1, 2
and Madhava Purusha-brother of accused No.1 for the offences
punishable under Sections 302 and 201 of IPC. Thereafter, on
investigation, since no material was found against the said
Madhava Purusha, his name was dropped from the charge
sheet and charge sheet was filed only against accused Nos.1
and 2 for the aforesaid offences before the JMFC., Mangaluru,
Dakshina Kannada.
CRL.A No.1442 of 2017
4. After taking cognizance of the offences, the learned
Magistrate committed the case to the Sessions Court. The
learned Sessions Judge after securing the presence of the
accused, framed the charges against the accused which was
read over to them in the language known to them, who pleaded
not guilty and claimed to be tried.
5. In order to prove its case, the prosecution in all
examined 18 witnesses P.Ws.1 to 18, got marked the
documents Exs.P.1 to 30 and material objects M.O.Nos.1 to 4.
After completion of the evidence of the prosecution witnesses,
voluntary statements of the accused as contemplated under the
provisions of Section 313 of Cr.P.C were recorded. The
accused denied all the incriminating circumstances appearing
against them and examined three witnesses - D.Ws.1 to 3 in
their defence, but did not produce any documents.
6. Based on the aforesaid pleadings, the learned
Sessions judge framed four points for consideration and after
considering both oral and documentary evidence on record,
answered all the points in the affirmative holding that, the
prosecution has established beyond reasonable doubt that on
CRL.A No.1442 of 2017
16.12.2010 between 3.30 and 4.30 p.m. near the house of
accused Nos.1 and 2 at Jogi Mutt, near ITI, Mangaluru within
the jurisdiction of Mangaluru East Police Station, accused Nos.1
and 2 in furtherance of common intention committed the
murder of three years old child viz., Priyanka, daughter of
C.W.1 by pouring hot water on her and by pressing her neck
and thereby committed an offence punishable under Section
302 r/w 34 of IPC., and in furtherance of their common
intention, after commission of murder, in order to disappear the
evidence, took the dead body of the child to their areca garden,
tried to set fire and concealed in the bushes within an intention
to screen themselves from legal punishment and thereby
committed an offence punishable under Section 201 r/w 34 of
IPC. Accordingly, by the impugned judgment of conviction and
order sentence convicted accused Nos.1 and 2 for the offences
punishable under Sections 302 and 201 r/w 34 of IPC., and
sentenced them to undergo rigorous imprisonment for life with
fine and default sentences. Hence, the present appeal by the
accused.
CRL.A No.1442 of 2017
7. During the pendency of the present appeal, a memo
dated 6.6.2019 has been filed by the learned Counsel for the
appellants/accused contending that on 3.6.2019, he received
an information through the High Court Legal Services
Committee, Bengaluru that accused No.1/appellant No.1 in the
present case i.e., K. Kamalaksha Purusha, Convict No.3655
died on 10.3.2019 at KIMS Hospital, Hubballi, due to illness and
hence, the appeal against accused No.1 abates. This Court
considering the said memo observed that since the trial Court
while convicting the appellants/accused has imposed fine, the
appeal cannot be dismissed as abated and the same has to be
decided on merits in view of the dictum of the Hon'ble Supreme
Court in the case of Ramesan (dead) by Legal Representatives -
vs- State of Kerala1.
8. We have heard the learned Counsel for the parties.
9. Dr. J.S. Halashetti, learned Counsel for accused
No.2 and deceased accused No.1 in respect of fine contended
with vehemence that the impugned judgment of conviction and
order of sentence passed by the trial Court convicting accused
(2020)3 SCC 45
CRL.A No.1442 of 2017
Nos.1 and 2 for the offences punishable under Sections 302
and 201 r/w 34 of IPC and sentencing to undergo rigorous
imprisonment for life is erroneous and contrary to the material
on record which cannot be sustained and is liable to be set
aside. He further contended that P.Ws.3, 5 and 9 in their
evidence have admitted that there was a civil case pending
between the prosecution witnesses and accused No.1 and as
P.W.5 is a chance witness, who has admitted that he lodged the
first information report against accused No.1 as per Ex.P.29,
his evidence cannot be relied upon for conviction of the
accused. P.Ws.1, 2, 4 and 8 are hearsay witnesses, whose
evidence cannot be believed.
10. The learned Counsel for the accused would further
contend that the entire case of the prosecution is based on
circumstantial evidence, motive, last seen theory by the
prosecution witness especially that of P.Ws.3, 5, 9 and 10 and
voluntary statement of accused No.1, chance witness - P.W.5
and none of the witnesses have whispered anything against
accused No.2, which material aspects have not been considered
by the learned Sessions Judge while convicting accused No.2
CRL.A No.1442 of 2017
and thereby sought to allow the criminal appeal filed by
accused No.2 and with regard fine imposed on accused No.1.
11. Per contra, Sri K. Nageshwarappa, learned HCGP
while justifying the impugned judgment of conviction and order
of sentence passed by the trial Court contended that Ex.P.1 -
spot mahazar where the dead body of the child was recovered
at the instance of accused No.1 has not offered any explanation
while recording his statement under Section 313 Cr.P.C. and
thereby, an adverse inference has to be drawn against accused
No.1. Further though the accused in his defence has taken a
plea of alibi, as per the provisions of Section 103 of the Indian
Evidence Act, the same is not proved. P.Ws.4 and 10, who are
last seen witnesses have specifically spoken with regard to
accused No.2 taking the child along with him and thereafter,
child had disappeared and even accused No.1 in his voluntary
statement recorded on 16.12.2010 admits the homicidal death
of the child Priyanka aged about three years. Hence, all these
facts would go to show that it is accused No.1, who committed
the offences as alleged. As such, the learned Sessions Judge
was justified in convicting accused Nos.1 and 2 and the
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CRL.A No.1442 of 2017
impugned judgment of conviction and order of sentence is just
and proper. Therefore, he sought to dismiss the appeal.
12. In view of the rival contentions urged by the
learned Counsel for the parties, the points that would arise for
our consideration in the present criminal appeal are:
"1. Whether the learned Sessions Judge is
justified in convicting accused Nos.1 for the
offences punishable under Sections 302 and
201 r/w 34 of IPC and sentencing them to
undergo rigorous imprisonment for life and to
pay a fine of Rs.50,000/- and Rs.10,000/-
respectively with default clauses in the facts
and circumstances of the present case?
2. Whether the learned Sessions Judge is
justified in convicting accused No.2 for the
offence punishable under Section 302 and
201 r/w 34 of IPC with fine of Rs.10,000/- in
the facts and circumstances of the present
case?
13. We have given our thoughtful consideration to the
arguments advanced by the learned Counsel for the parties and
perused the entire material including the original records.
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CRL.A No.1442 of 2017
14. This Court being the Appellate Court, in order to re-
appreciate the entire material on record, it is relevant to
consider the evidence of the prosecution witnesses and material
documents relied upon:
i) P.W.1 - Sri Firen Kumar Jha, father of the
deceased child Priyanka and complainant has
deposed that he knew accused Nos.1 and 2,
who were neighbours and were residing
together in a building where there were five
small temples within the compound of the
accused house. Due to the sound of pooja
bells, he came to know that the accused was
doing pooja in the said temples. Further his
wife had informed him that accused No.2 had
taken their daughter Priyanka to her house
and had put make up to her face and tied her
hair and thereafter, she was dropped back.
Their neighbours on seeing the accused taking
their daughter had informed them not to send
his daughter. With regard to the same, he
had also informed to his wife not to send his
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CRL.A No.1442 of 2017
daughter along with accused. Further on
16.12.2010, at round 4.00 p.m. when he
came home after finishing his work, he asked
about his daughter Priyanka and at that time,
his wife informed that the said
Chandrakala/accused No.2 had taken his
daughter. Then he sent his son Pankaj Kumar
to the house of the accused to bring Priyanka
and accordingly, he went to the house of
accused where accused No.1 informed that
she was not in his house. At that time,
accused No.2 was also not in her house.
Thereafter, when he and his wife had been to
the house of accused, he saw accused No.2
coming from a hill and on enquiry, accused
No.2 informed him that she had dropped
Priyanka to his house. Thereafter, he and his
wife searched Priyanka in the house of
accused and nearby surroundings, but did not
find her. As such, they lodged a missing
complaint as per Ex.P.6. Nothing has been
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CRL.A No.1442 of 2017
elicited in his cross-examination, to disbelieve
his evidence.
ii) P.W.2 - Sri Edwin Crasta, one of the witnesses
to Ex.P.1-spot mahazar and Ex.P.2-inquest
mahazar, identified material objects M.Os.1 to
4. He deposed that he knew the accused as
they were neighbours. On 17.12.2010, when
he was in the shop, he came to know that the
complainant's child was missing and
thereafter, he went to the house of the
complainant where the people had gathered
and were talking about Chandrakala/accused
No.2 having taken the child on the previous
day, but she did not send the child back.
The Kadri Police took the accused to Police
Station and he accompanied them where the
accused having confessed for having
sacrificed the child in the guise of witchcraft.
In his cross-examination, he admits that there
was a litigation pending against accused No.1
since 30 years and supports the case of the
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CRL.A No.1442 of 2017
prosecution. Nothing has been elicited in his
cross-examination to disbelieve his evidence.
iii) P.W.3 - Sri Sadananda has deposed that he
knew accused as well as the complainant and
his wife. On 16.12.2010, due to illness, he
was at his house and at about 2.30 p.m. when
came out of the house, he saw accused No.2
calling three years old child by hand signal
and took her along with her. Both accused
Nos.1 and 2 were residing together in the
same house. Thereafter at 3.30 p.m., he
heard the sound of pooja bells from the house
of the accused and as such, he believed that
the accused were doing daily pooja. On the
same day, the wife of P.W.1 came in search of
her child and searched everywhere along with
neighbours and police also came to the spot
and also searched for the child. On coming to
know that the body of the child was found in
the garden of the accused, he went to see the
dead body where there were injuries/marks of
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CRL.A No.1442 of 2017
pouring hot water and burning injuries on the
right hand of the deceased, chappal, Panty
and areca nut leaves and he has identified
those material objects. In his cross-
examination, he admitted that there was a
litigation pending against accused No.1 and
thereby supported the case of the
prosecution.
iv) P.W.4 - Smt. Anjalidevi, mother of the
deceased child Priyanka and wife of P.W.1 has
deposed that she, P.W.1 and their three
children were residing as tenants in the
premises belonging to Madhava Rao. The
house of accused is situated at the
downstream from their house. Prior to 3 to 4
days of the incident, accused No.2 was
regularly coming home and used to take the
child along with her and drop her back. When
she informed the said fact to her husband, he
scolded her and informed her not to send the
child along with accused No.2. On
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CRL.A No.1442 of 2017
16.12.2010 at 1.30 p.m., accused No.2 had
come to her house for taking the child and at
that time, she had refused to send her child
stating that the child did not have the meal.
Thereafter, at about 2.30 p.m. when she was
washing clothes, her daughter Priyanka and
her son Neeraj were playing beside her,
accused No.2 showing hand signal, took her
daughter, which fact was informed by her son.
When P.W.1 came and enquired her about the
child, at that time, she informed that the child
was taken by accused No.2 to which P.W.1
scolded her. P.W.1 sent his elder son to the
house of the accused for bringing the child,
but his son informed that the child was not in
the house of accused. She and P.W1-her
husband went in search of the child to the
accused house, where they were informed
that, the child was not in their house.
Thereafter, P.W.1 along with his shop person
lodged a missing complaint and the police
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CRL.A No.1442 of 2017
enquired the accused. The accused showed
the place where the dead body of her
daughter was kept. On seeing the dead body,
it was found that there were burnt marks on
the hand and lips. Her body was covered with
innerwear and sandals (Chandana) all over
the body. She identified the material objects.
She has supported the prosecution case.
v) P.W.5 - Sri Balakrishna Shetty, neighbour of
the complainant has deposed that on
16.12.2010 at around 3.30 p.m., he along
with C.W.8 went to see another friend Ronal
Fernandes as he was unwell. After parking
his car opposite to I.T.I. and while going to
the house of Ronal Fernandes, he had seen
the accused doing pooja and along with them,
there was a small girl and that day was
supposed to be Special Sankramana Day.
Therefore, he thought that the accused were
doing pooja. On the next day at around
11.00 a.m., his friend called him and informed
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CRL.A No.1442 of 2017
about the death of the child and the same was
also telecasted in Television. He went to the
spot and identified the dead body as that of
the same girl, whom he had seen on the
previous day along with the accused. He has
supported the case of the prosecution.
vi) P.W.6 - Sri Anil Kumar Tiwari, Manager at
Giriyas has deposed that he knew P.W.1. On
16.12.2010 at around 6.00 O'Clock, the
Assistant Manager, Vivet D'Souza called him
over phone and informed that the daughter of
P.W.1 was missing and asked him to visit the
house of P.W.1. He went to the house of
P.W.1 along with other employees and met
P.W.1 and his wife. On enquiry P.W.1
informed that at around 3.00 p.m., accused
No.2 had taken their child and thereafter,
accused No.1 informed him that he would
pray to God and the child will not be going
anywhere. On enquiry with accused No.2, he
stated that she does not know. Therefore,
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CRL.A No.1442 of 2017
they lodged a missing complaint and police
came and searched for the child. On the next
day, on enquiry of the accused by the police,
at the first instance, the accused informed
that they did not know, but subsequently,
admitted that had they killed the child. There
was no cloth on the body of the child, he has
been treated as hostile as he had partly
supported the case of the prosecution.
vii) P.W.7 - Sri Jayananda Anchan, Corporator of
the Kadri B Ward of Mangaluru Mahanagara
Palike, has deposed that he knew P.W.1 and
since four years back, P.W.1 had come to his
house around 10.00 p.m. in the night and
informed that his daughter was missing and
prayed for justice. He along with P.W.1
searched everywhere for the child and came
home at 12.00 p.m. On the next day he
searched for the child and Kadri Police visited
the spot and enquired the accused. After
taking the accused to the police station and
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CRL.A No.1442 of 2017
on enquiry, they admitted the commission of
murder of the child and took them to the spot,
which was a place where there was a water
channel and one chappal and dress of the
child were seen. The body was covered with
areca nut leaves and identified the material
objects. He supported the case of the
prosecution;
viii) P.W.8 - Smt. Jalajakshi, sister-in-law of
accused No.1 has deposed that accused No.2
is residing with accused No.1. Her house is
situated at upper level than the house of
accused and their houses are nearby. P.W.1
and his family are residing as a tenant in the
premises belonging to her. About four years
back, after 3.30 p.m. she had gone to the
tailor shop at I.T.I. and around 7.00 p.m.,
P.W.1 had come to the tailor shop and
informed about missing of the child. At that
time, P.W.1 informed that accused No.2 had
taken the child between 2.30 and 3.00 p.m.
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CRL.A No.1442 of 2017
Later she enquired with accused No.2 for
which, she told that she dropped the child
back. In her cross-examination, she admitted
that the dead body of the child was found at
around 11.30 a.m. and the mud house
belonged to a Christian family. She has
supported the prosecution case.
ix) P.W.9 - Smt. Vishalakshi, neighbour of
accused deposed that there was a dispute
between herself and accused regarding the
government land. Three years back, the
accused had kept coconut, flowers and
broomstick, kumkum on the steps of her
house and she had thrown out. She had seen
accused No.1 taking the child of P.W.1 in the
afternoon of the incident. She has supported
the prosecution.
x) P.W.10 - Smt. Shobha Fernandes, has
deposed that she knew the accused and on
16.12.2010 at about 3.30 p.m. while walking
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to reach the car parked at I.T.I. to go to
Bantwal, he had seen the accused with small
child near the temple and has supported the
prosecution case.
xi) P.W.11 Dr. Francis N.P. Monthiro, who
conducted the postmortem on the dead body
of the child has deposed about the external
injuries and on internal examination, he
opined that the cause of death was due to
asphyxia secondary to the combine effect of
smothering and throttling and burn injuries as
per Ex.P.3. In his cross-examination, he has
voluntarily spoken to that the blunt force
means, it need not be always hitting or falling,
but just compression of body party by any
external objects results in contusion.
xii) P.W.12 Sri Narayana Naik, Assistant Director,
Regional Forensic Science Laboratory,
Mangalore, has deposed that on examination
of the articles received, he found negative for
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volatile poison and he issued the certificate as
per Ex.P.4. In his cross-examination, he
admits that he has not examined the finger
prints on the dead body.
xiii) P.W.13 - Sri Balakrishna Gowda, Police
Constable, Mangalore has deposed that on
receiving the missing complaint as per Ex.P.6
by P.W.1 at about 11.00 a.m., he registered
the FIR -Ex.P.5 in Crime No.183/2010.
xiv) P.W.14 - Smt.Shashikala, Woman Police
Constable has deposed that on 17.12.2010 at
5.30 p.m. on receiving the FIR from the
Station House Officer, she registered a case in
Crime No.183/2010 for the offence punishable
under Section 302 of IPC as per Ex.P.7 and
her signature as Ex.P.7(a) and the FIR as
Ex.P.8 and her signature as Ex.P.8(a).
Thereafter, she sent the FIR to the
jurisdictional Court and handed over case to
the Higher Officer for further investigation.
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xv) P.W.15 - Sri. Rukmaya K., Head Constable,
Panambur Police Station, Mangalore, has
deposed that as per the instruction of Police
Inspector Sri Niranjan Raj Urs at around 5.15
p.m., he took the spot mahazar to the Police
Station on 17.10.2010 and handed over the
same to Woman Police at around 5.30 p.m.
xvi) P.W.16 Sri Jayananda Poojary, Assistant
Executive Engineer, P.W.D. has deposed that
as per the request of the Assistant
Commissioner of Police, on 30.12.2010, he
visited the spot and prepared the sketch as
per Ex.P.9. He identified his signature
marked as Ex.P.9(a). He admits in his cross-
examination that the sketch does not reflect
as to what is the extent of land belonging to
the accused.
xvii) P.W.17 - Niranjan Raj Urs, Deputy
Superintendent of Police, Mangalore East
Police Station has deposed that on
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CRL.A No.1442 of 2017
17.12.2010, he took the investigation from
Balakrishna Gowda P.W.13 and gone of the
house of the complainant along with woman
staff. He enquired with the complainant and
the accused on the complaint. Based on the
answers given by the accused, the accused
were taken to the Police Station where they
confessed for having committed the murder of
the child. He drew the spot mahazar Ex.P.1
at the instance of the accused; recorded the
statement of the material witnesses; took the
photographs of the spot; sent the body to the
hospital for postmortem; gave requisition to
the Tahsildar to verify whether the ownership
of the house, temple and garden are standing
in the name of the accused or not and on
29.12.2010, as per the order of the Police
Commissioner, he handed over the case file to
Assistant Commissioner of Police, Mangaluru
Sub-Division.
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xviii) P.W.18 - Sri Ravindra K. Gadadi, Additional
Superintendent of Police, Mangaluru Sub-
Division, has deposed that he inspected the
spot and recorded the further statement of
the complainant and other material witnesses.
He sent the viscera of the deceased for FSL
examination on 13.1.2011; on 16.1.2011
gave requisition to the Tahsildar for giving the
ownership of the place of incident; and filed
the charge sheet against the accused.
xix) D.W.1 - Sri Purushotham Kottary, has
deposed that he knew accused No.1 and
President of the Temple of Arasu Charandaya;
the annual celebration of Jarandaya Daiva and
the involvement of the family of the accused
as well as about pending litigation against
accused No.1. In his cross-examination, he
has admitted that there is a practice of
sacrificing animal blood to Daiva and
squeezing the neck of cock to family Daiva
(Kutumba Daiva). Though he knew accused
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No.1 personally, but did not knew the
pendency of litigation before the Court against
him. He supported the defence taken by the
accused.
xx) D.W.2 - Sri Mohan Shetty has deposed that
he knew accused No.1 and on 16.12.2010 he
had seen accused No.1 at Kadri Temple at
around 12.00 to 12.30 noon and supported
the defence taken by the accused.
xxi) D.W.3 - Sri Giridhar Shetty, brother of D.W.2
has also deposed on par with D.W.2 about
annual celebration of Jarandaya Daiva and the
involvement of the family of the accused as
well as pending litigation against accused
No.1. In his cross-examination, he has
admitted that there is a practice of sacrificing
animal blood to Daiva (Daiva means
descendent of Shiva).
15. Based on the oral and documentary evidence on
record stated supra, the Trial Court proceeded to convict the
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accused for the offences punishable under Sections 302 and
201 r/w section 34 of IPC.
16. It is the specific case of the prosecution that on
16.12.2010, at about 2.30 pm, the complainant/P.W.2 was
informed by his wife/P.W.4 that their daughter Priyanka had
gone to the neighbour's house viz., Chandrakala-accused No.2.
Though said Chandrakala informed P.W.4 that she had dropped
back their daughter to the house, said Priyanka had not
returned home. Therefore, P.W.1 and his family members
made enquiry with their neighbours and searched for their
daughter, but she was not found anywhere. In this regard the
complainant lodged a missing complaint on 16.12.2010 at
around 11.00 pm before the jurisdictional police and
accordingly, a case was registered in Crime No.183/2010.
Suspecting accused No.1-Kamalaksha Purusha, a detailed
enuqiry was conducted by the police. Later, accused No.1 took
the police along with panchas to the place of incident and
informed that on 16.12.2010 at around 3.30 pm, for resolving
their family problems, he had performed pooja to his family
deity i.e., Kalabairava and Daivagudi which is situated near to
his residence for blessings and sacrificed a child by killing her
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and have kept the dead body near the water channel situated
in the areca garden belonging to accused No.1. After thorough
enquiry, police arrested accused No.1-Kamalaksha Purusha,
accused No.2-Chandrakala and Madhava Purusha who were
involved in the murder of the child-Priyanka. The missing case
was converted into murder case. After investigation, it was
found that Madhava Purusha was falsely implicated by accused
No.1 and accordingly, the name of Madhava Purusha was
dropped from the charge sheet. Subsequently, after
investigation, charge sheet was filed only against accused
Nos.1 and 2.
17. The evidence of P.W.1-Firan Kumar Jha, father of
the victim child deposed that on 16.12.2010 he came to know
through his wife P.W.4-Anjali Devi that accused No.2-
Chandrakala took their daughter-Priyanka along with her at
about 2.30 pm and Priyanka has not returned home. Therefore
he suspected accused Nos.1 and 2, and supported the
prosecution case. P.W.4-Anjali Devi has deposed that on the
date of the incident, though accused No.2 came at about 1.30
pm to take Priyanka with her, P.W.4 told that she has not yet
finished her lunch. Therefore, accused No.2 went back and
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again came at 2.30 pm, and at that time, Priyanka was playing
with her brother Neeraj. Accused No.2 called Priyanka-victim
girl by making hand signal and took with her. P.W.4-mother of
the victim girl is the last seen witness. P.W.2-Edwin has
deposed that a litigation is pending between himself and
accused No.1 since 30 years. Therefore, he is interested
witness. P.W.3-Sadananda admitted that a civil case is
pending between himself and accused No.1.
18. P.W.4-Anjali Devi, mother of the victim girl and
P.W.10-Shobha Fernandes though deposed as chance
witnesses, their evidence clearly depicts that they have seen
the victim child along with accused Nos.1 and 2 while
performing pooja. It is also not in dispute that the dead body
of the victim child was found in the land belonging to accused
No.1 and the same is evident from Ex.P.1-mahazar. In the
voluntary statement recorded by the police, accused No.1 has
stated how he killed the victim girl for the purpose of sacrificing
on the belief that such sacrifice would solve his family
problems. Though some of the prosecution witnesses admitted
that they have civil litigation with accused No.1, the fact
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remains that the child was last seen in the company of accused
Nos.1 and 2. The prosecution has proved the homicidal death
of the child.
19. Admittedly, the police have not recorded the
voluntary statement of accused No.2. Though statement of the
accused No.1 was recorded before the Trial Court as
contemplated under Section 313 of the Code of Criminal
Procedure, he has not offered any explanation. P.W.4-mother
of the victim girl and P.W.10, both being last seen witnesses
have stated that the child was last seen with accused No.1
while performing pooja. Accused No.1 has taken the plea of
alibi and though D.Ws.1 to 3 were examined on behalf of the
defence, the said witnesses have not spoken anything
supporting the plea of alibi taken by accused No.1. Thereby,
the plea of alibi has not been proved by accused No.1 as
contemplated under Section 103 of the Indian Evidence Act, as
held by the Hon'ble Supreme Court in the case of State of
Haryana vs. Sher Singh and others reported in AIR 1981
SC 1021 paragraph 4 which reads as under:
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"4. When an accused pleads alibi, the burden
is on him to prove it under Section 103 of the
Evidence Act which provides:
"103. The burden of proof as to any
particular fact lies on that person who
wishes the court to believe in its
existence, unless it is provided by
any law that the proof of that fact
shall lie on any particular person."
20. A careful reading of the evidence of prosecution
witnesses including the Investigating Officer, clearly depicts
that absolutely there is no whisper regarding involvement of
accused No.2 in the alleged incident. The voluntary statement
of accused No.2 has not been recorded by the police.
21. The learned Sessions Judge proceeded to convict
accused Nos.1 and 2 mainly on the ground that the offence is
committed under the provisions of Sections 302 and 201 r/w
Section 34 of the Indian Penal Code. The involvement of the
accused No.1 in the homicidal death of the minor victim girl has
been proved by the prosecution proved beyond reasonable
doubt. It is also not in dispute that on the complaint made by
P.W.1, the name of the brother of accused No.1 was mentioned
in the FIR. During the course of investigation, the name of
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Madhava Purusha was dropped. The learned Sessions Judge
convicted accused No.2 mainly on the basis that she was also
residing along with accused No.1. P.W.4-Anjali Devi, mother of
the victim girl has deposed that on several occasions accused
No.2 had took the child with her and had dropped her back. On
the date of the incident, when she enquired with accused No.2,
she stated that she has dropped back the child. A careful
reading of the material evidence on record depicts that there is
no specific overt act against accused No.2.
22. The doctor-P.W.11 who conducted the post mortem
on the dead body of the victim child has stated that on external
examination it is found that the dead body is of a female child
aged 3 years, weighing 15 kgs and 99 cms in length. Wet mud
stains were present over the body at places. Rigor Mortis was
present all over the body. Post mortem lividity was present
over the back and fixed. Soddening of left hand and left foot is
present. Abdomen is distended. Multiple insects' eggs were
adhred to the scalp hair at places. Scalp hair signed at places
over the top of the head. Eyes are congested with underlying
subconjuctival hemorrhages. Entire face, lips and gums
showed intense congestion. Bluish discolouration of finger nail
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beds and toe nail beds present. It is mentioned that 15 injuries
were found on the dead body. The doctor opined that the
death was due to asphyxia secondary combined effect of
smothering and throttling.
23. The Investigating Officer-P.W.17 deposed on oath
that when he enquired accused Nos.1 and 2, their statement
was not tallying with each other and thereby, he took the
accused No.1 in jeep along with panchas where he showed the
dead body of the victim girl and the mahazar was drawn in the
presence of the panchas. It is also not in dispute that in the
voluntary statement of accused No.1 recorded on 17.12.2010,
he has specifically stated that he killed the child to sacrifice in
the name of god. Admittedly, the prosecution has not recorded
the statement of accused No.2.
24. On re-appreciation of the entire material on record,
it is clear that the accused No.1 has committed a blunder by
sacrificing the life of a child in the name of god. Superstition
plays a very important role in the Indian Society. It is not
restricted to any particular religion or a particular section of
society including the haves and the have-nots. The present
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case is one such dreadful and hair-raising example where a
three old girl has been sacrificed for the unfortunate belief of
accused No.1 who has committed the gruesome act of cruelty.
Therefore, accused No.1 has been rightly convicted for the
offences punishable under Sections 302 and 201 of the Indian
Penal Code. Though common charge was framed against
accused Nos.1 and 2, the fact remains that none of the
witnesses have spoken to about the involvement of accused
No.2 who is a lady aged 23 years as on the date of the
incident. May be she has listened to the her foster father
accused No.1 who was the priest of the temple. She might
have acted on his advise. The material on record clearly
depicts that there is no material against accused No.2 and
there is no whisper by any of the witnesses nor the police have
recorded the voluntary statement of accused No.2. In view of
the same, the impugned judgment of conviction and order of
sentence against accused No.2 cannot be sustained and is
liable to be set-aside.
25. On re-appreciation of the entire material on record,
it clearly depicts that though accused No.1 tried to defend his
case by examining D.Ws.1 to 3, they have deposed that
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accused No.1 was doing animal sacrifices. But, in the present
case, accused No.1 has sacrificed a female child aged three
years. The evidence of D.Ws.1 and 2 does not depict the
innocence of accused No.1, rather depicts that he used to do
animal sacrifices.
26. It is well known that, no god will accept any
offerings from human beings. The accused No.1 has
unnecessarily brought the name of the god for his deeds and
greed. No god will accept anything from devotees. It is only
the Swamijis-accused No.1, who committed blunders without
knowing the repurcations. In order to fulfill their greed and
ambitions, people are committing so many blunders in the
name of god. People can pray the God to bless them, but
cannot do blunders as has been done in the present case. It
has to be borne in mind that no body can escape from the
hands of god. In the present case, the God has already
punished the accused No.1 for his sins. Accused No.1 has died
on 10.03.2019, during pendency of the present Appeal.
27. Though learned counsel for the appellants filed the
Memo stating that accused No.1 has died and the Appeal
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stands abated against accused No.1, the fact remains that the
fine imposed on the accused No.1 cannot be set-aside, unless it
is decided by this Court, as held by the Hon'ble supreme Court,
in the case of Ramesan (Dead) Through Legal
Representative Girija A, v. State of Kerala reported in
(2020)3 SCC 45, paragraphs 15 and 19 wherein, it is held as
under:
"15. Rejecting the above submission, this Court laid down
that if by the judgment under appeal a sentence of fine is
imposed either singularly or in conjunction with a
sentence of imprisonment, the appeal against conviction
would be an appeal from a sentence of fine within the
meaning of Section 431. In para 10, the following was laid
down: (Harnam Singh case [Harnam Singh v. State of
H.P., (1975) 3 SCC 343 : 1974 SCC (Cri) 951] , SCC pp.
346-47)
"10. The narrow question which then requires
to be considered is whether an appeal from a
composite order of sentence combining the
substantive imprisonment with fine is for the
purposes of Section 431 not an appeal from a
sentence of fine. It is true that an appeal from
a composite order of sentence is ordinarily
directed against both the substantive
imprisonment and the fine. But, such an appeal
does not for that reason cease to be an appeal
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from a sentence of fine. It is something more
not less than an appeal from a sentence of fine
only and it is significant that the parenthetical
clause of Section 431 does not contain the
word "only". To limit the operation of the
exception contained in that clause so as to take
away from its purview appeals directed both
against imprisonment and fine is to read into
the clause the word "only" which is not there
and which, by no technique of interpretation
may be read there. The plain meaning of
Section 431 is that every criminal appeal
abates on the death of the accused "except an
appeal from a sentence of fine". The section for
its application requires that the appeal must be
directed to the sentence of fine and not that it
must be directed to that sentence only. If by
the judgment under appeal a sentence of fine
is imposed either singularly or in conjunction
with a sentence of imprisonment, the appeal
against conviction would be an appeal from a
sentence of fine within the meaning of Section
431. All that is necessary is that a sentence of
fine should have been imposed on the accused
and the appeal filed by him should involve the
consideration of the validity of that sentence."
19. We, thus, conclude that the appeal filed by accused
Ramesan in the High Court was not to abate on death of
the accused. The High Court rightly did not direct for
abatement of appeal and proceeded to consider the
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appeal on merits. The appeal before the High Court being
against sentence of fine was required to be heard against
the sentence of fine despite death of the appellant-
accused."
28. At this stage, learned counsel for the appellants
submits that accused No.2 will pay the fine amount imposed on
accused No.1. The submission is placed on record.
29. The Hon'ble Supreme Court, in the case of
Kanhaiya Lal vs. State of Rajasthan reported (2014)4 SCC
715, while considering the provisions of Sections 302 and 201
of the Indian Penal Code, held that, "the circumstance of last
seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime.
There must be something more establishing connectivity
between the accused and the crime. Mere non-explanation on
the part of the appellant, by itself cannot lead to proof of guilt
against appellant". The said case is aptly applicable to accused
No.2. Merely because P.Ws.2 and 10 deposed that they have
last seen the victim child along with accused No.2 itself cannot
lead to inference that accused No.2 committed the crime. The
prosecution has not produced any other material to connect
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accused No.2 to the crime, and accused No.2 has denied in toto
the incriminating circumstances made against her, in the
statement recorded under Section 313 of the Code of Criminal
Procedure. No other material is produced by the prosecution to
connect the accused No.2.
30. It is also not in dispute that mere suspicion against
accused No.2 who took the child to the temple cannot take the
place of proof. There is large difference between something
that 'may be' proved, and something that, 'will be proved'. In
a criminal trial, suspicion no matter how strong, cannot and
must not be permitted to take place of proof. This is for the
reason that the mental distance between 'may be' and 'must
be' is quite large, and divides vague conjectures from sure
conclusions. In a criminal case, it is the duty of the Court to
ensure that mere conjectures or suspicion do not take the place
of legal proof. The large distance between 'may be' true and
'must be' true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution. In the
present case, no such proof is produced by the prosecution
against accused No.2. But there is material against accused
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No.1. Therefore, judgment of conviction against accused No.2
is liable to be set-aside.
31. For the reasons stated above, the first point raised
for consideration in the present appeal has to be answered, in
the negative holding that the accused No.1 has not made out
any ground to interfere with the impugned judgment of
conviction and order of sentence. The second point is
answered in the affirmative holding that accused No.2 has
made out a case to interfere with the impugned judgment of
conviction and order of sentence passed by the learned
Sessions Judge, convicting the accused No.2 for the offences
punishable under Sections 302 and 201 of the Indian Penal
Code.
32. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction dated
30.03.2016 and order of sentence dated
31.03.2016 made in S.C.No.36/2011 on the file
of the IV Additional District and Sessions
Judge, Dakshina Kannada, Mangaluru,
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sentencing the appellant No.1/accused No.1 to
undergo rigorous imprisonment for life and to
pay fine of `50,000/-, in default to undergo
rigorous imprisonment for 5 years for the
offence punishable under Section 302 r/w
Section 34 of the Indian Penal Code and to
undergo rigorous imprisonment for 3 years and
to pay fine of `10,000/-, in default, to undergo
rigorous imprisonment for 1 year for the
offence punishable under Section 201 r/w
Section 34 of the Indian Penal Code is
confirmed.
(iii) The impugned judgment of conviction dated
30.03.2016 and order of sentence dated
31.03.2016 made in S.C.No.36/2011 on the file
of the IV Additional District and Sessions
Judge, Dakshina Kannada, Mangaluru,
sentencing the appellant No.2/accused No.2 to
undergo rigorous imprisonment for life and to
pay fine of `10,000/-, in default to undergo
rigorous imprisonment for 5 years for the
offence punishable under Section 302 r/w
Section 34 of the Indian Penal Code and to
undergo rigorous imprisonment for 3 years and
to pay fine of `10,000/-, in default, to undergo
rigorous imprisonment for 1 year for the
offence punishable under Section 201 r/w
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Section 34 of the Indian Penal Code is set-
aside.
(iv) The appellant No.2/accused No.2 is acquitted
for the offences punishable under Sections 302
and 201 r/w Section 34 of the Indian Penal
Code.
(v) Though learned counsel for the appellants filed
the Memo dated 06.06.2019 stating that the
appellant No.1 has died on 10.03.2019 and the
appeal may be dismissed as abated in so far as
appellant No.1, this Court, by the Order dated
04.02.2022 held that the appeal cannot be
dismissed as abated and the same has to be
decided on merits. Now, since the judgment of
conviction and order of sentence passed by the
learned Sessions Judge against accused No.1 is
confirmed, and since the accused No.1 is dead,
the legal representatives of the accused No.1
are liable to pay the fine amount. However,
learned counsel for the appellants fairly
submits that the accused No.2, now acquitted,
will pay the fine amount imposed on accused
No.1.
(vi) The concerned jail authority is directed to
release the appellant No.2/accused No.2, if she
is not required in any other case, subject to
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accused No.2 depositing the fine amount
imposed on accused No.1. The fine amount to
be deposited by the accused No.2 on behalf of
accused No.1, shall be paid to the father of the
deceased victim girl after due identification.
(vii) Registry is directed to return the Trial Court
Records.
Since the main appeal is disposed off on merits,
I.A.No.1/2022 for suspension of sentence and grant of bail does
not survive for consideration and is accordingly dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
Nsu/-kcm
