Karnataka High Court
Omkarmurthy @ Murthy vs State Of Karnataka on 31 March, 2022
Bench: B.Veerappa, S Rachaiah
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2022
PRESENT
THE HON'BLE Mr. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mr. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.184/2020
BETWEEN:
OMKARMURTHY @ MURTHY,
S/O NAGARAJAPPA,
AGED ABOUT 32 YEARS,
R/AT LINGADAHALLI,
MALLIPATNA HOBLI,
ARAKALGUDU TALUK,
HASSAN DISTRICT - 573 102.
...APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR
SRI NASIR ALI, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY TUMAKURU RURAL POLICE,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION DATED 08.10.2010 AND ORDER OF SENTENCE DATED
12.10.2010 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,
TUMAKURU IN S.C.NO.52/2008 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376, 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused filed the present criminal appeal
against the judgment of conviction and order of sentence dated
8/12-10-2010 made in S.C. No.52/2008 on the file of the I
Additional Sessions Judge, Tumkur, convicting and sentencing him
for the offences punishable under Sections 376, 302 and 201 of
IPC. By the impugned judgment, the trial Court sentenced the
appellant/accused to undergo imprisonment for life and to pay fine
of Rs.30,000/- for the offence punishable under Section 302 of IPC
and sentenced to undergo Simple Imprisonment for seven years
and to pay fine of Rs.20,000/- for the offence punishable under
Section 376 of IPC and to undergo Simple Imprisonment for two
years and to pay fine of Rs.10,000/- for the offence punishable
under Section 201 of IPC, with default sentences.
2. It is the case of the prosecution that the accused is the
resident of Lingadahalli, Mallipatna, Arakalagud taluk, Hassan
district and the deceased Sahana, aged about 8 years is the
resident of Oorukere village in Tumkur district and the mother of
the accused and mother of the deceased are sisters and though
they are residing in different villages in different districts, the
accused used to come to the house of the deceased. About 20
days prior to the date of the alleged incident, the accused has come
to the house of the deceased and started to reside in the house of
the deceased itself. When things stood thus, on 18.11.2007 in the
morning, the mother of the deceased had left the village to go to
attend the marriage at Gubbi and similarly, the father of the
deceased had left the village to go to temple at Mayasandra village.
At the time of parents leaving the house, the deceased, her elder
sister - Keerthana, aged about 12 years and accused were only
present in the house of the deceased at Oorukere village and
accordingly, mother of the deceased had asked the accused to take
care of her daughters till she return back to the house. After the
parents of the deceased Sahana left the house, at about 11.00 a.m.
on the same day, the accused had taken Sahana on the bicycle
saying that he would purchase chocolate for her and accordingly, he
went towards the shop by taking Sahana on the bicycle and he
purchased chocolate for Sahana in the shop of PW.24 - Rathnaiah
Shetty and thereafter he alongwith Sahana went towards garden
land of father of the deceased situated nearby the village and in the
garden land, he committed rape on Sahana forcibly. Thereafter to
screen off from the sexual assault, the accused committed the
murder of the deceased by suffocating her neck. Thereafter, in
order to destroy the evidence of murder including rape, he buried
the dead body in the said garden land of father of the deceased
itself by digging a pit and returned back to the house alone. When
he returned back to the house, Hemalatha @ Keerthi, elder sister of
Sahana asked about whereabouts of Sahana and accused told that
she is playing a game in front of house of one Manjayya.
Thereafter, the father of the deceased has returned back to the
house at 2.00 p.m. and when he asked about the whereabouts of
Sahana, the accused told him that Sahana is playing in front of
house of one Manjayya. Accordingly, father of the deceased
Sahana went there, but Sahana was not at all present in front of
house of Manjayya and he started to search about Sahana. At that
time, the accused also went by taking bicycle of neighbours of
Oorukere village to search about Sahana and ultimately, he left the
Oorukere village on the same day itself and reached the house of
his maternal grand-mother residing elsewhere. On the same day
i.e., 18.11.2007, father of the deceased filed a missing complaint
and accordingly, the case has been registered in Tumkur Rural
Police Station in Crime No.331/2007 and investigation was taken up
by the CPI, Tumkur Rural circle and ultimately on 22.11.2007,
father of the deceased filed one more missing complaint stating
that the accused also found missing from 18.11.2007. However, on
the same day i.e., on 22.11.2007, the CPI, Tumkur Rural Police had
come to the garden land of Nagaraju along with the accused and
the accused gave voluntary statement before the CPI and admitted
the guilt and also admitted that he buried the dead body in the
garden land of Nagaraju by committing rape on her. Thereafter in
presence of the Tahasildar and Panchas, the dead body was
removed from the pit. The CPI after completion of investigation,
has filed the charge sheet against the accused for the offences
punishable under Sections 376, 302 and 201 of IPC.
3. The jurisdictional Magistrate exercising the powers under
Section 207 of the Code of Criminal Procedure, committed the case
to the Court of Sessions. The learned Sessions Judge secured the
presence of the accused and framed the charge against the accused
for the offences punishable under the provisions of Sections 376,
302 and 201 of IPC and read over and explained to the accused in
the language known to him, who pleaded not guilty and claimed to
be tried.
4. After completion of evidence of the prosecution witnesses,
the statement of the accused under Section 313 of the Code of
Criminal Procedure was recorded. The accused denied all the
incriminating evidence adduced against him, but not adduced any
defence evidence.
5. Based on the aforesaid pleadings, the learned Sessions
Judge framed following two points for consideration:
i) Whether the accused has committed murder of
the deceased Sahana by committing forcible rape
on her ?
ii) If yes, whether accused is responsible for the
destroy of the evidence of the murder ?
6. The learned Sessions Judge considering both the oral and
documentary evidence on record, has answered both the points in
the affirmative holding that the accused has committed rape on the
deceased and subsequently murdered her by suffocating her neck
and thereafter in order to destroy the evidence, has buried the dead
body in the garden land of father of deceased. Accordingly, the
learned Sessions by the impugned judgment of conviction and order
of sentence, has convicted and sentenced the accused for the
offences punishable under Sections 376, 302 and 201 of IPC.
Hence, this appeal is filed by the appellant/accused.
7. We have heard the learned Counsel for the parties.
8. Sri Hashmath Pasha, learned senior counsel for the
appellant/accused mainly contended that the impugned judgment
of conviction and order of sentence passed by the trial Court,
convicting and sentencing the accused for the offences punishable
under Sections 376, 302 and 201 of IPC, is without any basis and
cannot be sustained. He would further contend that the conviction
of the accused for the offence under Section 376 of IPC for the rape
on the deceased, is without any basis and cannot be sustained in
view of the provisions of Section 53-A(2) of the Code of Criminal
Procedure. The said section clearly depicts that a person who is
accused of rape should be examined by a medical practitioner so as
to afford the evidence as to the commission of such sexual assault
by the alleged accused at the earliest point of time. In the instant
case, the prosecution has failed to got examine the accused by the
medical practitioner at the earliest point of time. In the absence
of examination by the medical practitioner, the impugned judgment
of conviction in so far as convicting the accused for the offence
punishable under Section 376 of IPC, is without any basis.
9. The learned senior counsel for the appellant/accused
would further contend that in the statement recorded under the
provisions of Section 313 of the Code of Criminal Procedure, no
question was put to the accused about the commission of rape,
thereby fair opportunity was not given to defend the case. He
would further contend that the doctor/PW.23 who conducted the
post-mortem examination on the dead body of the deceased, has
opined that the death was due to asphyxia and the possibility of
rape cannot be ruled out. Ex.P13 - FSL report clearly depicts that
presence of seminal stains were not detected in item Nos.3.1, 3.2,
3.3, 4.1, 4.2, 4.3 and 7 {one frock, one nickker, one langa, one
underwear, one T-shirt, Pant and vaginal swabs (in plastic
container)}. Absolutely, there is no material to convict the accused
for the offence under Section 376 of IPC. He would further contend
that the Post-mortem report of the victim also does not speak
about the alleged committing of sexual assault by the accused. He
would further contend that the alleged recovery of two silver ankle
chains from the inner pocket of the underwear of the accused, after
lapse of five days from the alleged date of incident appears to be
doubtful. Therefore, the conviction of the accused for the offence
under Section 376 of IPC cannot be sustained.
10. The learned senior counsel for the appellant/accused
would further contend that the impugned judgment of conviction
passed by the trial Court, in so far as convicting the accused for the
offences under Sections 302 and 201 of IPC, is without any basis
and cannot be sustained. In the absence of any material, the
finding of the trial Court that accused committed murder of the
deceased purely on the basis of recovery at the instance of the
accused, cannot be sustained. The trial Court has not at all put
all the incriminating circumstances to the accused while examining
him under the provisions of Section 313 of the Code of Criminal
procedure, thereby the sentence imposed is excessive and
disproportionate to the gravity of the charge and cannot be
sustained. Therefore, he sought to allow the criminal appeal.
11. In support of his contentions with regard to rape, learned
counsel relied upon the judgment of the Hon'ble Supreme Court in
the case of State of H.P -vs- JAI LAL AND OTHERS reported in
(1999)7 SCC 280 (paragraph-18), wherein it is held that an expert
is not a witness of fact. His evidence is really of an advisory
character. The duty of an expert witness is to furnish the Court
with the necessary scientific criteria for testing the accuracy of the
conclusions so as to enable the Court to form its independent
judgment by the application of the said criteria to the facts proved
by the evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his conclusions and the
data and material furnished which form the basis of his conclusions.
12. Per contra, Sri K. Nageshwarappa, learned Addl. SPP for
the State while justifying the impugned judgment of conviction and
order of sentence passed by the trial Court, has contended that
when the parents left the house on the unfortunate day i.e., on
18.11.2007 to attend the function, only the deceased, accused and
PW.14 were present in the house. Admittedly, the same has not
been denied by the accused either in the cross-examination of the
prosecution witnesses or in the statement recorded under the
provisions of Section 313 of the Code of Criminal Procedure.
Admittedly, PW.6 and PW.14 have last seen the deceased with the
accused on 18.11.2007. He further contended that PW.24 is the
shop owner, in whose shop, the accused has purchased chocolate
on the same day. PWs.3,7,15, 16, 17, 18, 19, 20 and 24 in the
categorical terms have stated that they have last seen the
deceased with the accused together and nothing is elicited in their
cross-examination to disbelieve their statements. He would further
contend that PWs.25 and 26 apprehended the accused. PW.30 is
the Investigating Officer, who recorded the voluntary statement of
the accused and based on the voluntary statement, MOs.6 and 7
(guddali and pikasi) were recovered under Ex.P4 - mahazar. PWs.2
and 5, who are panch witnesses for Ex.P4, have supported the
case of the prosecution. He further contended that the Tahasildar
and the Investigating Officer went to the garden land of father of
the deceased, where the accused shown the place where he killed
Sahana and buried the dead body and thereafter the dead body of
the deceased was got exhumed under Ex.P2/mahazar and
Ex.P3/inquest panchanama. The mahazar witnesses - PWs.1 and
4 supported the case of the prosecution. The entire material on
record clearly depicts that the accused involved in the commission
of rape on the deceased and has committed murder and in order to
destroy the evidence, he buried the dead body. The trial Court
considering the oral and documentary evidence on record, has
rightly convicted the appellant/accused for the offences punishable
under Sections 376, 302 and 201 of IPC. Therefore, he sought to
dismiss the criminal appeal.
13. 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 trial Court is justified in convicting
and sentencing the appellant/accused for the
offence punishable under the provisions of Section
376 of IPC, in the facts and circumstances of the
case ?
2. Whether the trial Court is justified in convicting
and sentencing the appellant/accused for the
offences punishable under the provisions of
Sections 302 and 201 of IPC ?
14. We have given our thoughtful consideration to the
arguments addressed by the learned counsel for the parties and
perused the entire material including the original records carefully.
15. 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 the material
documents relied upon:
(i) P.W.1/Nataraju is junior uncle of the deceased.
He deposed that the accused had come to house of his elder
brother/Nagaraju about 15 days prior to the incident. On 18-
11-2007, he learnt missing of Sahana. His brother and
himself have searched Sahana, but not found. Accused also
went to search Sahana, but not returned. Later on 22-11-
2007, the accused was in Police Station and from him, one
pair of Anklet was seized by Police under Mahazar Exhibit P-1.
MO-8 is the Silver Anklet. Accused confessed that he has
killed Sahana and took all of them to land and shown the
place where dead body was buried. Thereafter, dead body
was exhumed and the Police drew the spot mahazar - Ex.P-2
and the inquest panchanama - Ex.P3. The articles - MOs-1
to 5 (sample mud and clothes of the deceased) were seized
by the Police. He supported the case of the prosecution.
(ii) P.W. 2/ S.Rajanna has deposed that he is Panch for
recovery of Guddali and Pickaxe (Mos.6 and 7) under Mahazar
- Ex.P4. Accused took Police to the land of Nagaraj, where
he shown the place of burial of dead body of Sahana. Police
exhumed the dead body. Thereafter, accused produced
MOs.6 and 7 from pump house, which were seized under
Ex.P4/mahazar. He supported the case of the prosecution.
(ii) P.W. 3 - Praveen Kumar deposed that father of
the deceased Nagaraj is his uncle. On 18-11-2017 at 10-30
a.m., he saw accused taking Sahana on Cycle towards
garden. His mother asked accused to leave Sahana with her,
but accused took her to garden land. At 11 AM, he went
towards land and found that accused was carrying pickaxe.
He spoke to accused. He told that he has some work in
garden. He further deposed that the Police and Tahsildar got
exhumed the dead body. He has signed Exhibit P-2 - Spot
Mahazar. Police seized Mud (MO-1 and MO-2), MO-3 to 5
(Cloths of Sahana) and MO-6 and MO-7 (Gudali and Pickaxe).
He supported the case of the prosecution.
(iii) P.W. 4 - Rajanna.K, who is the Panch for Exhibit
P-1- Mahazar has deposed that on 22-11-2007 while he was
going in front of Tumkuru Rural Police Station, Police called
him to Police Station and in police station accused was there
and from the accused, Police seized MO-8 Pair of Silver
Anklet. Thereafter, the accused took Police to point out where
the dead body was buried. Tahsildar also had come to land of
Nagaraj. Police got exhumed the dead body and prepared
Exhibit P-3 Inquest Mahazar. He has signed Exhibit P-3
Inquest. Police took sample Mud MO-1 and MO-2 from the
spot. He supported the case of the prosecution.
(iv) P.W. 5 - Chandranna, who is Panch for Exhibit P-
4 has deposed that Accused produced MO-6 and MO-7 from
Pump House of Nagaraj and they were seized under Mahazar
Exhibit P-4. He supported the case of the prosecution.
(v) P.W. 6 - Pavithramma, who is mother of
deceased Sahana has deposed that her husband is Nagaraj
and they had two children by name Keerthana and Sahana.
Sahana was aged about 8 years. About twenty days prior to
death of Sahana, accused who is her sister's son had come to
her house and resided in their house. On 18-11-2007 at 8-30
AM she had been to attend marriage in Gubbi. Her husband
Nagaraj went to Temple at Mayasandra. Her Children -
Keerthana & Sahana and accused alone were in house and
she asked accused to take care of her children. She returned
at 4.00 PM to the house and in the house only Keerthana was
there and when she enquired about Sahana, she told that
accused took Sahana to provide Chocolate, but not returned.
They all searched for her. Accused asked for a cycle to search
Sahana. He took cycle and went out, but not returned. On 21-
11-2007 a missing Complaint was lodged in Tumkuru Rural
Police Station that both accused and Sahana are missing.
Exhibit P-5 is the said Complaint. Later, on 22-11-2007
accused was brought to Police Station. Accused confessed
killing of Sahana. Accused took the Police to the place where
dead body was buried. Police got exhumed the dead body
and it was decomposed. He identified MOs.3 to 5, the
garments of Sahana, MO-6 Gudali, MO-7 Pickaxe and MO -8
Pair of Silver Anklet. He supported the case of the
prosecution.
(vi) P.W. 7 - Shivaram deposed that he knew
Nagaraj. His house is about 100 ft. to his house. He had seen
accused in the house of Nagaraj since about a month. On 18-
11-2007 at noon accused took Sahana on Cycle to get
Chocolate, but thereafter not seen. After three days accused,
he came to Police Station. Accused shown the place of dead
body and Police got exhumed the dead body of Sahana. He
supported the case of the prosecution.
(vii) P.W. 8 - Venkatesh, who is resident of Oorukere
village, has deposed that he knew the deceased Sahana and
his parents. He knew accused since 15-20 days prior to
18-11-2007. On 18-11-2007, the family members of the
deceased were searching for Sahana and he had also
searched for deceased. After 3-4 days later, accused was
brought to Police Station. Accused told Police that he has
killed Sahana and buried the dead body. Police and Tahsildar
had come to land of Nagaraj and got exhumed the dead body.
He identified MO-3 to 5 / Cloths of deceased. He supported
the case of the prosecution.
(viii) P.W. 9 - Nagesha deposed that Nagaraj (father of
the deceased) is his uncle and Nagaraj had two children -
Keerthana and Sahana. About 20 days back, accused was in
the house of Sahana. On 18-11-2007 Sahana was missing
and all were searching for Sahana. Accused also went in
search of Sahana, but not returned. On 22-11-2007 Police
brought accused to Police Station and thereafter they brought
him to garden Land. Police and Tahsildar were present.
Accused confessed before Police. Police got exhumed the
dead body of Sahana. He identified Mos-3 to 5/garments of
Sahana. He supported the case of the prosecution.
(ix) P.W. 10 - Dakshinamurthy, who is Panch for
Exhibit P-2 has deposed that he knew Nagaraj and he is from
same Village. On 22-11-2007, he was in his land. Police and
Tahsildar came to garden of Nagaraj. Accused was also
brought by Police. Accused shown the place of murder of
Sahana and where he has buried. Dead body was exhumed.
Police took MO.1 - soil taken nearby the pit and MO.2 - soil
taken from the pit and seized under Mahazar- Exhibit P-2.
He supported the case of the prosecution.
(x) P.W. 11- Subramanya deposed that he knows
Nagaraj and his two children - Keerthana & Sahana and also
accused. On 18-11-2007, Sahana was missing. On 22-11-
2007 Police brought accused to the garden land of father of
the deceased and had shown where the dead body was
buried. Police exhumed the dead body and drawn
Panchanama. Police collected MO-1 and MO-2- Sample Mud
and MO-3 to MO-5 the Cloths of Sahana. He identified the
dead body as that of Sahana. He supported the case of the
prosecution.
(xi) P.W. 12 - Revanna Rudrappa, who is Pancha for
Exhibit P-6 - Mahazar has deposed that he knows Nagaraj
and his children Keerthana and Sahana and also accused. On
23-11-2007 he learnt about the murder and burial of dead
body of Sahana in the garden. Accused took the police to the
garden and shown the place of burial and the Police got
exhumed the dead body. Police prepared Mahazar Exhibit P-6.
He supported the case of the prosecution.
(xii) P.W. 13 - Thimmaiah, who is Panch for Ex.P6 -
Mahazar has deposed that he knows Nagaraj and his
daughters Keerthana and Sahana. Sahana died about 12
years prior to his examination. Along with Police, accused
had come and accused shown the place of burial of dead
body and it was exhumed. He is a witness to Exhibit P-6
Mahazar. He supported the case of the prosecution.
(xiii) P.W. 14 - Hemalatha @ Keerthi, who is elder
sister of Sahana deposed that herself and Sahana are sisters.
Sahana was studying in 3rd Standard. Accused is their relative
and he was in her house. On 18-11-2007 at 11 AM accused
took Sahana to get her Chocolate, but he alone came back
and Sahana did not come back. When asked, he told she is
playing near Manjaya's house and has not come back. Her
father came at 2 PM from temple and her mother came at 7
PM after attending marriage. Her parents searched for
Sahana, but not found. Accused took Bicycle saying that he
would search Sahana, but he did not come back. Later learnt
that accused killed Sahana and buried her dead body in the
garden. Police got exhumed dead body of Sahana. MO-3 to
MO-5 are Cloths of Sahana. He supported the case of the
prosecution.
(xv). P.W. 15 - Jayamma deposed that she knows
Nagaraj of her village. He had two daughters by name
Keerthana and Sahana. She also knows accused and he was
in the house of Nagaraj. She saw accused taking Pickaxe and
Guddali, which were in pump house. After ½ hour later he
brought back them and kept in pump house and went away.
At that time, she was working in her land which is adjacent to
the land of father of the deceased. MOs-6 and 7 are Pickaxe
and Guddali. Evening she came to know that accused has
buried the dead body of Sahana. He supported the case of
the prosecution.
(xvi) P.W. 16 - Parvathamma deposed that she knows
Nagaraj and his daughters Keerthana and Sahana. Her land
and land of Nagaraj are adjacent. She saw at about 10-11
AM accused taking Sahana on bicycle towards Nagaraj land,
and when she questioned as to why taking her, for which he
told that to provide tender coconut, he was taking her. At 12
noon, she saw accused alone going on bicycle. At 2 PM, she
told this fact to Sahana's father. Later she learnt that
accused has killed Sahana and buried the dead body in the
land. She supported the case of the prosecution.
(xvii) P.W. 17 - Nandan has deposed that he knew
Nagaraj and his two daughters Keerthana and Sahana. On
18-11-2007 (Sunday), he had gone to graze cows. In the
land of Nagaraj, he saw accused digging a pit by removing
mud and later accused gone towards pump house with
Pickaxe and Gudli. Accused asked time and he told it was 12
noon. He supported the case of the prsoecdution.
(xviii) P.W. 18 - Prathap deposed that he knows Nagraj
and his daughters and Sahana is no more. On 18-11-2007
Nagaraj and others were searching for Sahana, but she was
not found. At 6 PM Keerthi came and asked for Cycle to
search Sahana. Accused took Bicycle to search Sahana, but
not returned. After 4 days, Police brought the accused and
then, he learnt that accused has raped and murdered Sahana
and buried the dead body and from the place shown by
accused, dead body was exhumed. He supported the case of
the prosecution.
(xix) P.W. 19 - Mallikarjuna deposed that on 18-11-
2007 at 11 AM he was going with Buffaloes and then he saw
accused taking Sahana on Bicycle. After one hour, accused
alone was going. He talked to accused and then, accused told
him that he has left Sahana near the house of Manjaya. On
22-11-2007 Police came with accused and from the place
shown by him in the garden land, the dead body was
exhumed. He supported the case of the prosecution.
(xx) P.W. 20 - Nataraju deposed that he knew Nagaraj
and his daughters Keerthana and Sahana and also accused.
On 18-11-2007 while he was in shop, he saw accused taking
Sahana on Bicycle. At 12 or 12:30 PM accused alone
returned on Bicycle. In the evening, father of the deceased
was searching for Sahana. On 22-11-2007 police brought
accused and accused shown the place where he had killed
Sahana and buried. Dead body was exhumed and he
identified the dead body. He supported the case of the
prosecution.
(xxi) P.W. 21- Siddappa, who is the Junior Engineer
has deposed that as per the requisition of Tumkuru rural
police on 21-08-2008 he prepared Sketch of spot as per
Ex.P7 as shown by PC-416. He supported the case of the
prosecution.
(xxi) P.W. 22 - Yadunandankumar has deposed that in
the year 2002, father and mother of the accused were
working in his company. In the year 2007, Nagaraj and
Nagesh had not come in search of accused. He was treated
as hostile to the case of the prosecution.
(xxii) P.W. 23 - Dr. Y.N. Nagarajaiah has deposed that
as per the requisition of Tumkuru Executive Magistrate on
22-11-2007, he conducted post mortem examination over
dead body of Sahana on 23-11-2007. Ex.P-9 is the PM report
and Ex.P-10 is the final opinion given after receipt of FSL
report. He opined that cause of death was due to Asphyxia
and possibility of rape cannot be ruled out. He supported the
case of the prosecution.
(xxiii) PW.24 - Rathnaiah Shetty, who is the owner of
provision store has deposed that about one year and ten
months back accused had come to his shop at 11 AM with the
girl Sahana and purchased Chocolate of Rs.2/- and took child
on Cycle and went away. In the evening, he learnt that
father Nagaraj was searching for child. Later, he learnt that
accused has killed child and buried the dead body. He
supported the case of the prosecution.
(xxiv) P.W. 25 - T.Prasannappa, who is H.C.No.274 has
deposed that on 23-11-2007, he alongwith PSI, PC-416,
produced the accused before court. He supported the case of
the prosecution.
(xxv) P.W. 26 - Ramaiah, who is H.C. 136 has
deposed that on 21-11-2007, CPI has deputed him along
with PC 416 to trace girl Sahana and accused. On
information that accused is in Lingadahalli, they went there
and asked and learnt that he has gone to his grand mother's
house at Bemathi Village and accordingly, they went there
and brought accused and produced before the CPI on
22.11.2007 as per the report - Ex.P14. He supported the
case of the prosecution.
(xxvi) P.W. 27 - Shashikala , who is the Woman Police
Constable No.32 deposed that she wrote mahazar Ex.P-1 in
police station as per the say of CPI and then accused
produced pair of Anklet MO-8 and the same was seized under
Ex.P-1 Mahazar. He supported the case of the prosecution.
(xxvii) P.W. 28 - Umashankar, who is the PSI has
deposed that on 22-11-2007, accused told that he has kept
Pickaxe and Gudli (MOs.6 and 7) which were used to bury
the dead body of Sahana, in the pump house and they were
seized under mahazar Ex.P-4. He supported the case of the
prosecution.
(xxviii) P.W. 29 - H.C.Nagaraj, who is the Police
Inspector has deposed that on 10-12-2007 he took up further
investigation of the case from PW-30 and drawn Sketch
Ex.P-7 and on 31 01-2008 filed the charge sheet against
accused. Later he obtained FSL reports - Ex.P-11, P-12 and
P-13. Ex.P-10, the final opinion of doctor was produced
before court. He supported the case of the prosecution.
(xxix) P.W. 30 - H.Subbanna, who is the Investigating
Officer has deposed that on 22-11-2007 he took up
investigation from PSI PW-32 and on the same day at 2 PM,
HC-136 produced accused before him and he interrogated
him and recorded his voluntary statement as per Ex.P-15 and
seized MO-8 pair of anklet found in person of accused under
mahazar Ex.P-1 and continued investigation. In his presence,
dead body of the deceased was removed from the place
shown by the accused. He supported the case of the
prosecution.
(xxx) P.W. 31 - Y.T.Basavaraju, who is the relative of
Nagaraj has deposed that he had come to Urukere village on
22-11-2007. He was present at the time of exhumation of
dead body and drawing of Ex.P-2 mahazar and saw seizure of
MO-1 to MO-5 and he is also panch for Ex.P-3 Inquest. He
supported the case of the prosecution.
(xxxi) P.W. 32- C.H. Ramakrishnaiah, who is the PSI
has deposed that on 21-11-2007 at 12 noon, Nagaraj father
of missing girl Sahana, has presented a written complaint,
upon which he registered FIR in crime No.331/2007. On 22-
11-2007 at 12 noon, the said Nagaraj gave one more
complaint about causing death of Sahana by accused and
therefore he added offences under section 302 and 201 of IPC
and submitted FIR as per Ex.P-26. Ex.P-5 is the Second
Complaint. Further investigation was taken over by CPI. Ex.P-
27 is the first missing complaint given by Nagaraj. He
supported the case of the prosecution.
(xxxii) P.W. 33 - Mahammed Nayeem, who is PC
No.732 has deposed that on 5-12-2007 he carried the dead
body of Sahana to Govt.Hospital Tumkuru for post mortem
examination. After post-mortem examination, doctor gave
MO-3 to 5 clothes and they were produced before
Investigating Officer and they were subjected to PF Ex.P28.
Later doctor gave sample semen and produced before the
Investigating Officer and subjected to PF Ex.P-29 and also
doctor gave sample mud - MO-1 and 2 and they were
subjected to PF Ex.P-30. He supported the case of the
prosecution.
(xxxiii) P.W. 34 - G.Bhaskar, who is the PC No.416
has deposed that on 21-11-2007 CPI deputed him and HC-
136 to trace accused and accordingly on 22-11-2007, he
traced the accused at Beemathi village and apprehended him
and produced before the Investigating Officer on the same
day. On 21-01-2008, he has shown place of occurrence to
Junior Engineer to draw Sketch. He supported the case of the
prosecution.
(xxxiv) P.W. 35 - Vishnuvardhana is the
Investigating Officer. He deposed that on 20-12-2007 he
took up further investigation from CPI Nagaraj PW-29 and
filed remand application time to time and got extended
judicial custody of accused. He sent the seized articles for
FSL. He has collected CDs (Ex.P24) and 8 photos (Ex.P-16 to
24). Further investigation was given to PW-29. He
supported the case of the prosecution.
(xxxv) P.W. 36 - V.Patharaju is the Thasildar and
Taluk Executive Magistrate. He deposed that as per the order
of Sub-Divisional Magistrate under section 176 (3) he got
exhumed the dead body of Sahana and conducted inquest
and inquest report is at Ex.P-3 and gave requisition to
conduct Post-mortem examination over dead body. He
supported the case of the prosecution.
(xxxvi) P.W.37-Murali.S.N., who is the
Photographer of Police Department has deposed that on 22-
11-2007 as per the requisition of police, he has taken
photographs of dead body and video of exhumation
proceedings of dead body of Sahana. Photos are at Ex.P-16 to
Ex.P-23 and video cassette is at Ex.P24. He supported the
case of the prosecution.
Based on the aforesaid oral and documentary evidence, the learned
Sessions Judge proceeded to convict and sentence the
appellant/accused for the offences punishable under the provisions
of Sections 302, 376 and 201 of IPC.
16. The gist of the prosecution case is that mother of the
accused and mother of the deceased are sisters and the accused
used to visit the house of the deceased quite often. About 20
days prior to the date of the incident, accused came to the house of
the deceased. On an unfortunate day i.e. on 18.11.2007 in the
morning, mother of the deceased left the house to go to attend the
marriage at Gubbi and father of the deceased had left the house to
go to temple at Mayasandra village. At the time of leaving the
home, the mother of the deceased instructed the accused to look
after her daughters viz., Sahana, aged 8 years and Keerthana,
aged about 12 years. It is further alleged that thereafter at about
11.00 a.m. on the same day, the accused took Sahana on the
bicycle and purchased the chocolate for Sahana in the shop of
PW.24 and thereafter, they went to the garden land belonging to
father of Sahana and accused committed rape on Sahana forcibly
and thereafter murdered her by suffocating her neck for the reason
that she should not disclose the matter of rape to anybody. It is
further alleged that in order to destroy the evidence of murder and
rape, he buried the dead body in the said garden land by digging a
pit.
17. Admittedly deceased was a child aged about 8 years and
the incident occurred on 18.11.2007 i.e., prior to the enactment of
POCSO Act, which came into force w.e.f 19.06.2012. As per the
provisions of Section 376 of IPC as it stood as on the date of the
incident, whoever, except in the cases provided for by sub-section
(2), commits rape shall be punished with imprisonment of either
description for a term which shall not be less than seven years, but
which may be for life or for a term which may extend to ten years
and shall also be liable to fine unless the woman raped is own wife
and is not under twelve years of age, in which case, he shall be
punished with imprisonment of either description for a term which
may extend to two years or with fine or with both: Provided that
the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less
than seven years.
18. In order to prove the case of the prosecution with regard
to rape, the doctor who examined the victim - deceased has to
analyze the medical evidence and scientific evidence and come to
conclusion whether there are any signs of rape on the victim and
whether the accused was capable of doing the same. A careful
perusal of the entire evidence of the prosecution witnesses, it
clearly depicts that except the last seen theory of the deceased with
the accused together, there are no eye witnesses to the scene of
occurrence with regard to the rape by the accused on the deceased.
The provisions of Section 53-A(2) of the Code of Criminal Procedure
clearly depicts that the registered medical practitioner conducting
such examination shall, without delay, examine such person and
prepare a report of his examination giving the following particulars,
namely:--
(i) the name and address of the accused and of the
person by whom he was brought;
(ii) the age of the accused;
(iii) marks of injury, if any, on the person of the
accused;
(iv) the description of material taken from the person
of the accused for DNA profiling; and
(v) other material particulars in reasonable detail.
The provisions of Section 53-A(3) of the Code of Criminal
Procedure depicts that the report shall state precisely the reasons
for each conclusion arrived at.
19. Admittedly in the present case, the accused has not
been examined by the Doctor - Medical Practitioner as
contemplated under the provisions of Section 53-A(2) of the Code
of Criminal Procedure. It is also not in dispute that while recording
the statement of the accused under the provisions of Section 313 of
the Code of Criminal Procedure, it is the duty of the prosecution to
put all incriminating circumstances to the accused to provide an
opportunity to defend him. In the present case, questions were not
put to the accused in the proper perspective with regard to rape on
the minor girl while recording his statement under the provisions of
Section 313 of the Code of Criminal Procedure.
20. PW23 - Dr. Y.N. Nagarajaiah, Senior Specialist, District
Hospital, Tumkur, has deposed that on receipt of requisition from
the Circle Inspector and Taluka Magistrate with a request to
exhume the dead body of the deceased and to conduct post-
mortem examination and to give opinion, he along with his
colleague Dr. Nagapushpa went to the place of burial situated at
Oorukere village and found the body was buried in the southern
edge of the land. It was body of a small female child, aged about 8
years. It was in the prone position. Left limbs were below and
right limbs were higher and there was foul smelling and the body
was decomposed. They collected the soil in the bottle. The
exhumation was conducted between 6 p.m. and 7 p.m. As they
could not conduct post-mortem examination on the same day, they
shifted the body to District Hospital, Tumkur Mortuary and
conducted the post-mortem examination on the next day
(23.11.2007) between 1.15 p.m. and 3.15 pm. He further
deposed that initially, opinion as to cause of death was kept
reserved for want of chemical examiner's report from FSL. The
doctor further deposed that FSL report received on 30.7.2008. As
per the FSL report, presence of seminal stains were not detected in
item Nos.3.1, 3.2, 3.3, 4.1, 4.2, 4.3 and 7 and contents of item
No.5 were decomposed. After analyzing the aforesaid FSL reports,
they were of the considered opinion that the death is due to
asphyxia and possibility of rape cannot be ruled out.
21. Admittedly, the colleague of the PW23 i.e. Nagapurshpa
was not examined. In the Post Mortem report - Ex.P9, the opinion
as to cause of death was kept reserved for want of chemical
examiner's report from FSL. Ex.P10 is the opinion of the doctor
(PW23), wherein the doctor after analyzing the FSL reports, has
opined that the death was due to asphyxia and the possibility of
rape cannot be ruled out. Ex.P13 is the FSL report and the
Scientific Officer after examination of the articles sent for FSL
examination, has opined that presence of seminal stains not
detected in item Nos.3.1, 3.2, 3.3, 4.1, 4.2, 4.3 and item No.7
(frock, nickker, langa, underwear, T.shirt, pant and vaginal swabs)
and contents of item No.5 were decomposed. Thereby except the
opinion of the doctor, there is no other material to prove whether
it was rape by the accused. In the absence of any material
produced and in the absence of the oral and documentary evidence
including medical and scientific evidence, merely based on the
probable opinion of the doctor, the accused cannot be convicted for
the offence under Section 376 of IPC as his evidence is merely
advisory in character.
22. Our view is fortified by the dictum of Hon'ble Supreme
Court in the case of State of H.P. -vs- Jai lal and others
reported in (1999)7 SCC 280, wherein at paragraph-18, it is held as
under:
"18. An expert is not a witness of fact. His
evidence is really of an advisory character. The
duty of an expert witness is to furnish the Judge
with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable
the Judge to form his independent judgment by
the application of this criteria to the facts proved
by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested
becomes a factor and often an important factor
for consideration along with the other evidence of
the case. The credibility of such a witness
depends on the reasons stated in support of his
conclusions and the data and material furnished
which form the basis of his conclusions."
The said material aspect of the matter has not at all been
considered by the learned Sessions Judge and proceeded to convict
the accused under the provisions of Section 376 of IPC only on the
possibility opinion expressed by PW23 - Doctor. The doctor opined
that death was due to asphyxia and possibility of rape cannot be
ruled out. The FSL report clearly depicts that the presence of
seminal stains was not detected in item Nos.3.1, 3.2, 3.3, 4.1, 4.2,
4.3 and 7. In the circumstances, the learned Sessions Judge is
not justified in convicting the accused for the offence under the
provisions of Section 376 of IPC and the same is liable to be set
aside.
23. It is undisputed fact that on the date of the incident the
deceased Sahana, PW14 - Hemalatha @ Keerthi (elder sister of
Sahana) and the accused were alone in the house as stated by
PW 6 (mother of the deceased) and PW.14 (elder sister of the
deceased). It is also not in dispute that the deceased was last
seen with the accused by PW.6 and PW.14. Apart from PW6 and
PW14, PW3 - Praveenkumar has deposed that on the date of the
incident, accused and the deceased came on a bicycle and his
mother was talking with the accused and also asked the accused as
to where he is taking Sahana, for which he informed that he is
taking Sahana to garden to get tender coconut to her, thereby it is
clear that he is a eye witness for last seen together of the deceased
with the accused. Nothing has been elicited in his cross-
examination to disbelieve the same.
24. PW7 - Shivaram of the same village deposed that he
knows the father of the deceased and his house is 100 feet away
from the house of deceased and on 18.11.2007, the accused was
taking Sahana in his bicycle and he has seen the same and when he
asked, for which the accused informed that he want to get
chocolate to Sahana. Since Sahana has not come back, parents of
the deceased and others searched for her and he also searched
and after three days, he came to know that the deceased was
murdered and buried in the garden land of Nagaraju (father of
deceased). He identified MOs.2 to 5 and specifically stated in the
cross-examination that he has seen the accused and the deceased
going on bicycle and accused informed him that he want to get the
chocolate to the deceased. Nothing has been elicited in his cross-
examination to disbelieve his evidence with regard to last seen of
the deceased with the accused.
25. PW14 is the elder sister of deceased who deposed on par
with the complainant and stated that on 18.11.2007 at about 11.00
a.m., accused taken Sahana along with him on his bicycle ensuring
to get chocolate to her. At about 1.00 p.m., accused only returned
home and when she enquired where is her sister, he informed that
she is playing near Manjaiah's house. Thereafter she asked to get
Sahana. At about 02.00 p.m., when her father returned from
Mahadeshwara Temple, he also enquired the accused where is
Sahana and he also received the same answer that she went to play
near Manjaiah's house. Thereafter, all of them started searching
and the accused requested her father to get bicycle to search
Sahana. Accordingly, they got cycle from one Pratap of the same
village and the accused left the place, but he did not come back.
Thereafter, her father lodged a complaint to the jurisdictional Police
about missing. After two days, the Police brought the accused and
on enquiry, accused informed the Police that in view of the old
enmity, he killed her sister - Sahana and buried in the garden land.
Nothing has been elicited in her cross-examination to disbelieve her
statement.
26. PW15 - Jayamma has also last seen the deceased with
the accused when they were going on bicycle and she also
witnessed that on the relevant day, the accused was taking MOs.6
and 7 (guddali and pickaxe) to the garden land of Nagaraju, father
of the deceased. After half an hour, the accused came back and
kept both equipments in the pump house. She identified MO.6 and
7 and she further stated in her cross-examination that accused
alone went to the garden land of Nagaraju along with MOs.6 and 7.
She denied the suggestion that she has not seen the accused taking
MOs.6 and 7 with him on that day. She supported the case of the
prosecution.
27. PW16 - Parvathamma has deposed that she knows the
father and mother of the deceased and her land is adjacent to the
land of Nagaraju, father of the deceased. She further deposed that
about 1 ½ years back at about 10 - 11 a.m. the accused taken
Sahana on his bicycle and when she questioned the accused, he
answered that Sahana is suffering from fever, thereby he wants to
get tender coconut to her. At about 12 O' clock he came alone. At
about 2 O' clock, when father of Sahana enquired, for which she
informed that the accused has taken Sahana on his bicycle and
came back alone. Thereafter she came to know that accused killed
the deceased Sahana by suffocating her neck and buried her.
Nothing has been elicited in her cross-examination to disbelieve her
statement.
28. PW17 - Nandan and PW 18 - Prathap also deposed on
par with PW16 and supported the case of the prosecution. Nothing
has been elicited in the cross-examination of PWs.17 and 18 to
disbelieve their statements.
29. PW19 - Mallikarjuna deposed that he knows the
deceased and the accused. He further deposed that on 18.11.2007
at about 11.00 a.m. when he was taking buffaloes, at that time
accused was taking Sahana on his bicycle and thereafter accused
alone came back and when he enquired about Sahana, for which he
informed that Sahana was playing near Manjaiah's house. He
supported the case of the prosecution. Nothing has been elicited in
his cross-examination to disbelieve his statement.
30. PW20 - Nataraju also deposed about last seen theory of
the deceased with the accused on bicycle on 18.11.2007 and at
12.30 p.m., he has seen only accused returning. Thereafter he
came to know that accused killed the deceased and buried.
31. PW24 - Rathnaiahshetty, a petty shop owner also
deposed that about 1 year 1 months back at 11.00 a.m. both the
accused and Sahana came to his shop and accused purchased
chocolate for Rs.2/- and thereafter, he has taken Sahana along with
him on the bicycle and evening he came to know that Sahana was
missing and thereafter he came to know that accused killed and
buried Sahana. He identified the accused. Nothing has been
elicited in his cross-examination to disbelieve his statement.
32. A careful perusal of aforesaid oral and documentary
evidence, it clearly depicts that last seen theory of the deceased
with the accused on the unfortunate day, has been proved. It is
not in dispute that on 22.11.2007, on the complaint made by father
of the deceased that the accused was also missing from the date of
the incident, the Police apprehended the accused and produced
before PW30 - Investigation Officer, who deposed that he had
recorded voluntary statement of the accused and recovered MOs.6
and 7 at the instance of the accused under Ex.P4 Mahazar. The
witness to the Mahazar - Ex.P4 also supported the case of the
prosecution.
33. PW36 - V. Patharaju, Tahsildar, Sira Taluk deposed that
on the basis of letter from Assistant Commissioner dated
22.11.2007 to exhume the dead body of the deceased, he went to
the Police Station and at that time, accused was present and there
were three persons as Panch witnesses. Accordingly, he went to
the spot and got exhumed the dead body of the deceased Sahana.
He further deposed that PW23 - Dr. Y.N. Nagarajaiah examined the
dead body and accordingly Mahazar was drawn as per Ex.P2 and
Inquest Mahazar was also conducted in the presence of PWs.1 and
4, who fully supported the case of the persecution. Thereby the
prosecution proved that last seen theory and recovery at the
instance of accused.
34. It is also not in dispute that the accused alone had
exclusive knowledge where he killed and buried the deceased,
thereby he has taken PW30 - Investigation Officer, PW36 -
Tahsildar, PW23 - Doctor to the garden land of father of the
deceased and shown the exact place, where he buried the
deceased and there on the instructions, the body was exhumed.
Thereby the fact of murder of the deceased and burying the dead
body in the garden land of the father of the deceased is within the
knowledge of the accused. In the present case, the accused has
not offered any explanation in the statement recorded under the
provisions of Section 313 of the Code of Criminal Procedure, for the
incriminating circumstances appearing against him with regard to
committing murder of Sahana and burying the dead body in the
garden land belonging to father of the deceased. He has also not
disputed recovery of Mos.6 and 7 (Guddali and Pickaxe) at his
instance as per Ex.P4. Thus, he has not discharged the burden as
contemplated under the provisions of Section 106 of Indian
Evidence Act. Thereby adverse interference has to be drawn
against the accused.
35. Our view fortified by the dictum of Supreme Court in the
case of Prahlad -vs- State of Rajasthan reported in (2020)1
SCC (Crl.) 381, wherein the Hon'ble Supreme Court held at
paragraph-11 as under:
11. No explanation is forthcoming from the
statement of the accused under Section 313 CrPC as to
when he parted the company of the victim. Also, no
explanation is there as to what happened after getting
the chocolates for the victim. The silence on the part of
the accused, in such a matter wherein he is expected to
come out with an explanation, leads to an adverse
inference against the accused.
36. Further, Ex.P11 - report of the chemical examiner reveals
that stomach, brain, blood, part of skin flap from neck region not
detected the poison. But, it is not the case of the defence also
that the death was due to consumption of poison. Hence, much
importance need not be given to Ex.P11. But it is clear from Ex.P11
that death is due to other than consumption of poison.
37. The material on record clearly depicts that after
committing the murder of the deceased, accused buried the dead
body by digging a pit in the garden land of father of deceased.
PW6 - Pavithramma (mother of the deceased), PW.7 - Shivaramu,
PW.8 - Venkatesh, PW.9 - Nagesh, PW.10 - Dakshinamurthy,
PW.11 - Subramanya, PW.14 - Hemalatha (elder sister of the
deceased) and PW.31 - Y.T. Basavaraju have deposed that when
the Police brought the accused to the village, they were also
present and the accused has taken Tahasildar, Police Officers and
Panchas to the garden land of the Nagaraju and the accused
showed the place where he buried the dead body of the deceased.
The Tahasildar asked PW.3 and PW.10 to remove the dead body
and accordingly, they have removed the dead body and it was
decomposed. Photos and video has also been taken in the place
where the dead body was removed from the garden land of
Nagaraju. PW.37 - P.C. No.676 has taken the photographs and
video of the spot where the dead body was removed and the
evidence of PW.36 and PW.37 corroborates to the case of the
prosecution that the accused has buried the dead body for
destroying the evidence of murder.
38. The learned Sessions Judge recorded a finding that
video also exhibited in the open Court and it can be seen that the
accused himself has taken the Police Officers, Tahasildar, panchas
and doctor to the spot and he himself showed the spot where the
dead body was buried and it was removed in presence of Tahsildar,
Police Officers, Doctor and Pancha Witnesses. However, it is not
the case of the defence that the dead body removed in his presence
from the garden land of father of the deceased, is not the dead
body of Sahana. Thereby, it clearly establishes that the accused
has buried the dead body of Sahana in the garden land of
Nagaraju. The photos produced at Ex.P16 to P.23 and the video at
Ex.P24 show the presence of Police Officers, Tahsildar, Doctor and
Panch Witnesses while removing the dead body along with the
deceased. The evidence of PWs.36 and 37 including the evidence
of PW30 - Investigation Officer supports the case of the
prosecution. The Post-mortem report coupled with the evidence of
the doctor depicts that the death of the deceased was due to
asphyxia. Both the oral and documentary evidence including
medical and scientific evidence clearly depict that the accused
committed the murder of the deceased by suffocating her neck and
buried the dead body in the garden land of father of the deceased.
Thereby, the prosecution proved its case beyond reasonable doubt
about the involvement of the accused in homicidal death of the
deceased Sahana, aged about 8 years.
39. On re-appreciation of the entire oral and documentary
evidence on record, it clearly depicts that there are sufficient
material to show that the accused alone killed and buried the
deceased, thereby the provisions of Sections 302 and 201 of IPC
would attract.
40. As already stated supra, there is no accuracy in the
opinion given by the doctor with regard to committing of rape. The
evidence of the Doctor (PW.23) coupled with the Post Mortem
report only depict that the possibility of rape cannot be ruled out.
The Court cannot convict an accused based on the possibilities. The
mere suspicion would not be sufficient, unless the circumstantial
evidence tendered by the prosecution leads to the conclusion that it
"must be true" and not "may be true" and all the judicially laid
parameters, defining the quality and content of the circumstantial
evidence, bring home the guilt of the accused on a criminal charge.
We find difficult to held that the prosecution proved in the case on
hand with regard to rape on the deceased by the accused so as to
attract the provisions of Section 376 of IPC.
41. At this stage, it is also relevant to state that while
Section 53-A of the Code of Criminal Procedure is not mandatory, it
certainly requires a positive decision to be taken. There must be
reasonable grounds for believing that the examination of a person
will afford evidence as to the commission of an offence of rape or
an attempt to commit rape. If reasonable grounds exist, then a
medical examination as postulated by Section 53-A(2) of the Code
of Criminal Procedure must be conducted and that includes
examination of the accused and description of material taken from
the person of the accused. Admittedly in the present case, there
are no reasonable grounds believing that the accused has
committed the rape.
42. It is well settled that there is no embargo on the
Appellate Court reviewing the evidence upon which an order of
conviction is based. However, the golden thread which runs
through the web of administration of justice in criminal cases is
that if two views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the Court is to ensure
that miscarriage of justice is prevented. A miscarriage of justice
which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. On re-appreciation of the entire material
on record, we find that the prosecution failed to prove the
commission of the alleged rape on the deceased by the accused so
as to attract the provisions of Section 376 of IPC.
43. For the reasons stated above, we answer the points
raised in the present criminal appeal as under:
1. The 1st point raised in the present criminal appeal is
answered in the negative holding that the trial Court is not
justified in convicting and sentencing the appellant/accused
for the offence punishable under the provisions of Section 376
of IPC, in the peculiar facts and circumstances of the case.
2. The 2nd point is answered in the affirmative holding
that the trial Court is justified in convicting and sentencing
the appellant/accused for the offences punishable under the
provisions of Sections 302 and 201 of IPC.
44. In view of the above we pass the following:
ORDER
(i) The criminal appeal is allowed in part.
(ii) The impugned judgment of conviction and order
of sentence dated 8/12-10-2010 made in S.C.
No.52/2008 on the file of the 1st Addl. Sessions
Judge, Tumkur, in so far as convicting the
appellant/accused for the offence punishable
under Section 376 of IPC and sentencing him to
undergo imprisonment for seven years with fine
and default sentence, is hereby set aside. The
appellant/accused is acquitted of the offence
punishable under Section 376 of IPC.
(iii) The impugned judgment of conviction and order
of sentence in so far as convicting the
appellant/accused for the offences punishable
under Sections 302 and 201 of IPC and
sentencing him to undergo imprisonment for life
and to pay fine of Rs.30,000/- for the offence
punishable under Section 302 of IPC and to
undergo Simple Imprisonment for two years and
to pay fine of Rs.10,000/- for the offence
punishable under Section 201 of IPC with default
sentences, is hereby confirmed.
(iv) Both the sentences shall run concurrently.
Sd/-
JUDGE
Sd/-
JUDGE
Gss*
