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2015 DIGILAW 1373 (KAR)

B. v. Manjunatha VS State of Karnataka

2015-12-27

B.VEERAPPA, MOHAN M.SHANTANAGOUDAR

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction dated 24-9-2011 passed by the Fast Track Court-III, Bangalore Rural District, Bangalore, for the offences punishable under Sections 376, 302 and 201 of Indian Penal Code, 1860 in S.C. No. 326 of 2010 is called in question in this appeal. Case of the prosecution in brief is that, the deceased Varshitha was aged about 2½ years at the time of incident in question; she is the daughter of P.W. 1-Earanna. The said Earanna being the poor person did not have Television in his house; Earanna used to go to the house of accused in Banasavadi Village situated within the limits of Nelamangala Police Station to watch Television along with his daughter. At about 8.00 p.m. on 9-5-2010, Eranna (P.W. 1) came along with his daughter (the deceased) to the house of the accused as usual. When he was watching Television with one Prabhudeva (P.W. 2), the accused took out baby Varshitha saying that he would leave her in the house of P.W. 1-the complainant; instead of taking the baby Varshitha to her house, he took her to the land of his uncle Govindaiah and committed sexual assault on her in the bush at Karekallu; later he killed her by suffocating and thereafter, in order to destroy the evidence, he threw her body in a ditch (Agevagundi). 2. P.W. 1 thought that the accused after taking the child, has left her in his house; when he returned to the house, his wife Chandrakala (P.W. 5) asked P.W. 1-the complainant/the father of the child as to where is the child; only then, the complainant came to know that the accused had not taken the child to his house; consequently, the complainant and his relatives came to the house of the accused and asked regarding whereabouts of the child. The accused, however avoided to give correct answer and he falsely told to the complainant that he left the child near the house of the complainant; in the morning, the complainant complained to the elders in the village, consequent upon which the accused was called in a temple for talks, wherein the accused made extra-judicial confession before the villagers including P.Ws. 1, 2, 11 etc. that he committed rape on the child and committed her murder and threw the dead body in a ditch. Thereafter, the villagers, including P.Ws. 1, 2, 11 etc. that he committed rape on the child and committed her murder and threw the dead body in a ditch. Thereafter, the villagers, including P.Ws. 1,2,11 etc. went to the said ditch and found the dead body of the deceased. The complaint came to be lodged by P.W. 1 as per Ex. P. 1 before P.W. 14-Sub-Inspector of Police attached to Nelamangala Police Station, which came to be registered in Crime No. 388 of 2010 for the offences punishable under Sections 376, 302 and 201 of IPC. The Inspector of Police (P.W. 20) completed the investigation and laid the charge-sheet. 3. In order to prove its case, the prosecution in all has examined 21 witnesses and got marked 33 Exhibits and 11 Material Objects. On behalf of the defence, the accused himself was examined as D.W. 1. 4. The Trial Court on evaluation of material on record convicted the accused for the offences with which he was charged. 5. Sri Kaleemulla Shariff, learned Advocate appearing on behalf of the appellant taking us through the material on record submits that the accused is innocent and has not committed any offence and false complaint has been lodged against him due to political rivalry at the instance of uncle of the accused viz., Govindaiah-P.W. 8; only on the basis of extra-judicial confession allegedly made by the accused, the Trial Court ought not to have convicted the accused. He further submits that the judgment and conclusion arrived at by the Trial Court are improper and not correct. Sri Chetan Desai, learned High Court Government Pleader appearing on behalf of the respondent argued in support of the judgment of the Court below. 6. Before proceeding further it would be beneficial to note the depositions of each of the witnesses examined before the Court below. P.W. 1 is the complainant who lodged the complaint as per Ex. P. 1. He is the father of the deceased. He has seen the accused and the deceased leaving the house of the accused at about 8.00 p.m. on the fateful day. He has also deposed about the recovery of the dead body from the ditch at the instance of the accused. He has further deposed that the clothes of the accused were bloodstained and on the basis of which villagers including P.W. 1 and P.W. 11 got suspicion against the accused. He has also deposed about the recovery of the dead body from the ditch at the instance of the accused. He has further deposed that the clothes of the accused were bloodstained and on the basis of which villagers including P.W. 1 and P.W. 11 got suspicion against the accused. P.W. 2 was another person who was sitting in the house of the accused and he was also watching T.V. along with P.W. 1 and his daughter. He has also deposed that the accused took the daughter of the complainant at about 8.00 p.m. on the fateful night of the incident with a view to leave her to her house. He has also deposed about the extra-judicial confession made by the accused and about the recovery of the dead body. He has also deposed about the bloodstains on the clothes of the accused. P.Ws. 3 and 4 also have deposed about the extra-judicial confession made by the accused in front of the villagers and they have searched for the dead body; they have recovered the dead body at the instance of the accused and seen bloodstains on the clothes of the accused. P.W. 5 is the mother of the deceased. Her evidence fully supports the evidence of P.Ws. 1 and 2. She has deposed that the complainant and her daughter left the house at about 8.30 p.m. on the fateful day to the house of the accused to watch TV and thereafter the child did not return back. She has also deposed about the clothes of the accused being bloodstained and about the recovery of the dead body at the instance of the accused. P.Ws. 6 and 7 enquired about the child with the accused and they have deposed about the recovery of the dead body at the instance of the accused. P.W. 7 in addition to the same, is the witness for panchanama-Ex. P. 15 under which the anklets of the child were seized. Photographs of the dead body were also marked through P.W. 7. P.W. 8 is the uncle of the accused. He has deposed about the land in which the crime has taken place. He has deposed that there are bushes and ditch in his land and the crime has taken place near the said place. Photographs of the dead body were also marked through P.W. 7. P.W. 8 is the uncle of the accused. He has deposed about the land in which the crime has taken place. He has deposed that there are bushes and ditch in his land and the crime has taken place near the said place. He has also deposed that the clothes of the accused were bloodstained, based on which the enquiry was made with the accused and who in turn confessed about committing murder of the deceased. He has also deposed about the recovery of the dead body of the deceased at the instance of the accused. P.W. 9 is another main witness who has deposed about the last seen circumstance. He had seen the accused at about 8.30 p.m. along with baby Varshita; he asked the accused as to where he is going along with the child of complainant; the accused answered to P.W. 9 that he is going to the house of the deceased/complainant to leave the child to her house. P.W. 10 also enquired the accused along with other villagers about the child. She has also mentioned about the extra-judicial confession made and about the recovery of the dead body at the instance of the accused. P.W. 11 is the Member of the Village Panchayath during the relevant point of time. The Villagers went to her help in order to find out the dead body and she enquired with the accused; the accused made extra-judicial confession before her and thereafter in front of the villagers and hence the dead body of the child is recovered. She is also a witness to the scene of offence panchanama-Ex. P. 2 and panchanama for seizure of sample blood and bloodstained mud. P.W. 12 is another witness to extra-judicial confession made by the accused. P.W. 13 is the Headmaster of the Higher Primary School. He has given the date of birth certificate as per Ex. P. 9, dated 12-4-1989. The incident has taken place on 10-5-2010 which means the accused was 21 years at the time of the incident. P.W. 14 is the Sub-Inspector of Police who registered the complaint lodged by the complainant. He sent the FIR as per Ex. P. 20 to the Jurisdictional Magistrate. He went to the spot and arrested the accused. P.W. 15 is the lady Doctor who has conducted autopsy. The report is at Ex. P.W. 14 is the Sub-Inspector of Police who registered the complaint lodged by the complainant. He sent the FIR as per Ex. P. 20 to the Jurisdictional Magistrate. He went to the spot and arrested the accused. P.W. 15 is the lady Doctor who has conducted autopsy. The report is at Ex. P. 21. She has furnished opinions as per Exs. P. 22 and P. 23. The evidence of the Doctor is very much important in the matter on hand. P.W. 16 is another Doctor, she examined the accused and issued the report as per Ex. P. 24, she noticed certain bloodstains on the body of the accused. P.W. 17 is the In-charge Scientific Officer, FSL, Bangalore, on examination of 12 articles received in Cr. No. 388 of 2010. The report as per Ex. P. 22 is furnished by her. The report discloses that M.Os. 1, 7, 8 and 12 were stained with human blood. P.W. 18 is the Junior Engineer who drew the sketch of the scene of offence as per Ex. P. 25. P.W. 19 is the Village Accountant, he issued the Revenue extract relating to the land wherein the crime has taken place as per Ex. P. 26. P.W. 20 is the Inspector of Police, he filed the charge-sheet after completion of investigation. During the course of investigation voluntary statement of the accused as per Ex. P. 30 is recorded. P.W. 21 is the Police Constable who carried the FIR to the police station. The accused is examined as D.W. 1. He admits that he was present in the village on that day and he also searched for the child along with other villagers. 7. Case of the prosecution fully based upon the circumstantial evidence. The circumstances relied upon by the prosecution are as under: i. Extra-judicial confession made by the accused before the villagers including P.Ws. 1, 2, 3, 11 and 12. ii. Recovery of the dead body is at the instance of the accused and in the presence of P.Ws. 1, 2, 3, 11, 12 and others, they have deposed about the said circumstances. iii. The last seen circumstance - the accused was seen last along with the deceased child, deposed by P.Ws. 1, 2 and 9. iv. The death was due to asphyxia and signs consistent with vaginal penetration were present on the dead body. 1, 2, 3, 11, 12 and others, they have deposed about the said circumstances. iii. The last seen circumstance - the accused was seen last along with the deceased child, deposed by P.Ws. 1, 2 and 9. iv. The death was due to asphyxia and signs consistent with vaginal penetration were present on the dead body. P.W. 15-the Doctor conducted the post-mortem examination and gave the report as per Ex. P. 21 and opinions as per Exs. P. 22 and P. 23. Clothes of the accused were bloodstained which were of human origin. v. Certain injuries are found on the body of the accused. The evidence of the accused (D.W. 1) and the Medical Certificate-Ex. P. 24 confirms the same. 8. Before proceeding further, it is relevant to note that the deceased child was aged about 2 1/2 years old at the time of incident. The incident has taken place during the night hours at 8.15 on 9-5-2010 in the land of Govindappa-P.W. 8 who is the uncle of the accused. The father of the deceased is P.W. 1 (complainant). The complainant usually used to come to the house of the accused for watching the T.V. along with the deceased child viz., Varshitha. On the date of the incident i.e., 9-5-2010 also the complainant came along with the child (the deceased) to the house of the accused. 9. Since the clothes of the accused were bloodstained, as the accused gave evasive replies, the panchayath was held in the village temple wherein the accused made an extra-judicial confession in front of the villagers including P.Ws. 1, 2, 3, 11 and 12. 10. P.W. 11 is none other than President/Gram Panchayath, she is elected representative of the Village. She is not the relative either of the deceased or the accused. She is an independent responsible member of the village panchayath. She has deposed that the villagers approached her for her assistance to find out the missing child. Since P.W. 1 noticed certain bloodstains on the clothes of the accused, suspicion arose in her mind against the accused and during the course of enquiry the accused confessed before the villagers including P.W. 11 that he took the child at about 8.30 p.m. from the custody of the complainant with an intention that the child would be left in her house. But the accused took the child to the land of Govindappa-P.W. 8 and committed sexual assault near the bush and killed the child. After committing murder by strangulation he threw the dead body in the ditch, in order to conceal from the crime. All the villagers went to the scene of offence and recovered the dead body. At that time also the accused was present. 11. Ex. P. 15 is the panchanama drawn at the time of recovery of the dead body from the ditch at the instance of the accused. P.W. 7 is the mahazar witness in respect of the recovery of the dead body under Ex. P. 15. The anklet of the child was also recovered from the very spot. The dead body of the child was identified by the complainant-P.W. 1 and his wife-P.W. 5. From the aforementioned factors, we can safely conclude that the prosecution has proved the extra-judicial confession as well as the recovery of the dead body at the instance of the accused. 12. The last seen circumstance is deposed to, by P.Ws. 1, 2 and 9. P.W. 1 is none other than the father of the deceased. He has deposed that he used to go the house of the accused along with the deceased child and P.W. 2 regularly to watch T.V. Even on the date of the incident also he went to the house of the accused along with P.W. 2 and the deceased child aged about 2 1/2 years; while they were watching TV at about 8.15 p.m. on 9-5-2010 the accused told P.W. 1 that he would leave the child in his house inasmuch as the child was feeling sleepy; so saying took the child out of the house; instead of taking the child to her house, the accused took her to the land of P.W. 8 and committed sexual assault and committed murder of the child near the bush and threw the dead body in the ditch in order to conceal the evidence. The evidence of P.W. 1 in that regard is fully supported by evidence of P.Ws. 2 and 9. P.W. 2 was sitting along with P.W. 1 during the night of 9-5-2010 and he was also watching the TV along with P.W. 1 accused and the deceased child. The evidence of P.W. 1 in that regard is fully supported by evidence of P.Ws. 2 and 9. P.W. 2 was sitting along with P.W. 1 during the night of 9-5-2010 and he was also watching the TV along with P.W. 1 accused and the deceased child. Since the child was feeling sleepy the accused took the child with the permission of the complainant to leave her to her house. The evidence of P.Ws. 1 and 2 is not taken in the cross-examination. These witnesses have reiterated in the cross-examination that, it was the accused who took the deceased to leave her to the house at about 8.15 p.m. on 9-5-2010. The incident has taken place within a short period thereafter. 13. The evidence of P.Ws. 1 and 2 is supported by the evidence of P.W. 9 who is an independent witness. He has deposed that when he was returning from duty, within a short distance from Banasavadi he saw the accused with the deceased child at about 8.30 p.m. near Karekallu. He asked the accused specific question as to why he is taking the child of the complainant during night. The accused told P.W. 9 that he is taking the child to her house. Though P.W. 9 is cross-examined at length nothing worth is elicited by the defence during his cross-examination, in their support. He is the last witness to see the accused with the deceased at about 8.30 p.m. 14. We do not find anything on record to disbelieve the evidence of P.Ws. 1, 2 and 9 about last seen circumstance against the accused. 15. We have got the evidence of Doctors-P.W. 15 and 16 on record. P.W. 15 is none other than the Doctor who conducted post-mortem examination. The post-mortem report is at Ex. P. 21. The post-mortem report clarifies that the child has sustained as many as 11 injuries all over the body, including the injuries on the private parts of the child which are as under: "1. Contusion with bluish discoloration 1 1/2 c.m. length with 1/2 c.m. breadth, 2 in number adjacent to each other on the left cheek, 2 c.m. away from the left ear. 2. Same kind of contusion with same measurements in the right cheek 1 1/2 c.m. away from right ear. 3. Scratch mark 1/2 c.m. long below the left eye with congestion surrounding the wound. 4. 2. Same kind of contusion with same measurements in the right cheek 1 1/2 c.m. away from right ear. 3. Scratch mark 1/2 c.m. long below the left eye with congestion surrounding the wound. 4. 1 x 1 c.m. contusion reddish in colour on the chin lower part. 5. 1 x 1 c.m. abrasion towards left of the chin. 6. Abrasions 5 in number left side of the back is: (a) 5 x 1 c.m. size; (b) 2 1/2 x 1/2 cm.; (c) 3 c.m. long (d) 2 c.m. long; (e) 1/2 c.m. long 7. Scratch lines: (a) 2 c.m. long; (b) 5 c.m. long horizontally placed at left hip joint region postero-laterally. 8. 8 x 1 c.m. abrasion placing vertically at lateral aspect of back. 9. Haemotoma 1 x 1 c.m. at posterior vulval oper mg. 10. 1 x 1/2 c.m. lacerated wound in posterior vagina at anterior 1/3rd of vagina. 11. Hymen ruptured with ragged edges." 16. Thus it is clear from injuries 9, 10 and 11 that the hymen of the child aged about 2 1/2 years was ruptured and there were injuries on the vagina. Since specimen collected from the vagina was sent for FSL report for examination, P.W. 15-the Doctor did not give any opinion till she got the report from FSL; after getting the report-P.W. 15 gave her opinion as per Exs. P. 22 and P. 23, wherein she has opined that the death is due to asphyxia, however, signs of vaginal penetration were present. She has further clarified that injury Nos. 1, 2 and 3 could be caused due to attempt to control the child crying by closing the mouth and nose. Injuries Nos. 4 and 5 could be caused due to pressing of her body and turning the face on the hard surface. Injuries Nos. 6, 7 and 8 are caused due to the compressing the back on the ground with small stones, while trying to have sex on the ground. Thus opinion of the Doctor fully supports the case of the prosecution that the accused committed rape and thereafter committed murder of the deceased. Though the Doctor is cross-examined to certain extent by the defence, we do not find anything from the cross-examination to discard the evidence of the Doctor. Thus opinion of the Doctor fully supports the case of the prosecution that the accused committed rape and thereafter committed murder of the deceased. Though the Doctor is cross-examined to certain extent by the defence, we do not find anything from the cross-examination to discard the evidence of the Doctor. On the other hand, the evidence of the doctor and reports given by her clearly reveal that there was vaginal penetration and that the child has sustained number of injuries while the accused was having sex over the child. 17. Yet another circumstance against the accused is of P.W. 16. The accused is examined by Doctor-P.W. 16 whose report is at Ex. P. 24. The said Doctor has deposed as per Ex. P. 24, which discloses that the organs of accused were well developed. Bloodstains were present on the anterior surface of the penis below the skin. Circumcision was not done and there was no sign of any discharge or smegma. The said doctor has opined that the accused was capable of performing sexual intercourse and he might have done intercourse within 24 hours. All injuries sustained by the accused are simple in nature as seen from Ex. P. 24. From the evidence of P.W. 16 and Ex. P. 24 it is clear that the accused had sustained certain injuries and that his clothes were stained with blood. Even the accused, who is examined as D.W. 1 also admitted voluntarily that he had sustained injuries on his body. 18. The evidence of the aforementioned Doctor is supported by the evidence of the report given by P.W. 17 the In-charge Scientific Officer, FSL. The FSL report is at Ex. P. 22. The evidence of P.W. 17 and contents of Ex. P. 22 indicates that M.Os. 1, 7, 8, 12 contained human blood. If really the accused had not participated in the crime his clothes would not have been sustained with human blood. 19. All the circumstances, so proved would lead to only conclusion that the accused is guilty of the offence. The circumstances so proved will not give any doubt in the mind of the Court in respect of the complicity of the accused. The chain of circumstances so proved will not give any scope for the accused to escape from the clutches of law. 20. The circumstances so proved will not give any doubt in the mind of the Court in respect of the complicity of the accused. The chain of circumstances so proved will not give any scope for the accused to escape from the clutches of law. 20. We find from the judgment of the Trial Court that sufficient reasons are assigned on each and every aspect of the circumstances, the material is discussed thoroughly and all circumstances are held to be proved by the Trial Court while coming to the conclusion. On reconsideration of the entire material on record, we do not find any ground to disagree with the reasons assigned and the conclusion arrived at by the Trial Court. The conclusion reached by the Trial Court is the only view possible under the facts and circumstances of the case. Fortunately for the accused, the State has not filed appeal praying for enhancement of sentence i.e., for death punishment. Be that as it may, since the accused is correctly convicted for the offences punishable under Sections 302, 376 and 201 of IPC, no interference is called for. The appeal fails and the same stands dismissed.