1 CRL.A NO.100191/2022 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE21T DAY OF DECEMBER, 2023 PRESENT THE HON'BLE MR JUSTICE H.P.SANDESH AND THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO.100191 OF2022BETWEEN: BASAPPA DURGAPPA MADAR, AGED ABOUT28YEARS, R/P: BOCHALBAL, TQ: RAMADURGA, DIST: BELAGAVI – 591117, NOW IN CENTRAL JAIL. …APPELLANT (BY SRI. BASAVARAJ S. SATANNAVAR, ADVOCATE) AND: STATE OF KARNATAKA, BY CPI KATKOL POLICE STATION, BELAGAVI-591114, REPRESENTED BY SPP, HIGH COURT OF KARNATA. …RESPONDENT (BY SRI. M.B. GUNDAWADE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENTAND
ORDERPASSED IN S.C.NO.71/2014 DATED0103.2017 PASSED BY THE LEARNED VIII ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI. IN SO FAR AS ITS RELATES TO CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE U/S376D), 302, 201, 364, 120B R/W34IPC AS THE SAME BEING ERRONEOUS AND NOT SUSTAINABLE IN LAW AND2CRL.A NO.100191/2022 ACQUIT THE ACCUSED NO.1/APPELLANT HEREIN FOR THE OFFENCES LEVELLED AGAINST IN THE ABOVE CASE. THIS CRIMINAL APPEAL BEING HEARD AND RESERVED ON2811.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENTTHIS DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENTThe appellant/accused No.1 in Sessions Case No.71/2014 on the file of VIII Addl. District and Sessions Judge, Belagavi, being aggrieved by the judgment and order passed in Sessions Case dated 01.03.2017 finding him guilty for the offences punishable under Sections 376-D, 302, 201, 364, 120B read with Section 34 of IPC has filed this appeal.
2. For the purpose of convenience, parties to this appeal are referred to as per their ranking before the trial Court.
3. The brief relevant facts as set out in the FIR in the case of appellant-accused No.1 are as under: That one Ajjappa, S/o. Balavanthappa Tyapi resident of address stated in the complaint, filed a complaint on 19.08.2013 at 1.00 p.m. by appearing before the Katkol Police Station alleging that, to his parents, himself, Geetha, Nagaraj and Annapurna are the children. His sister Geetha is married 3 CRL.A NO.100191/2022 with Chandrappa Yellappa Warimani of Bochabal village. His another sister Annapurna is married to Sarvapura village. They are residing at their matrimonial home. About three years back prior to filing of the complaint he married one Bhimavva aged 25 years of Katadal village being daughter of Tamanna Shivappa Muragod. He has no issues.
4. It is stated by the complainant that, about 10 months back prior to filing of the compliant, himself and his wife went to Mangaluru for the purpose of coolie work, there they worked for four months and they came back to their village Bochabal. After 8 days, again complainant alone went to Mangaluru for the purpose of his employment and he left his wife Bhimavva and his brother Nagaraj in the house. After 15 days of he coming to Mangaluru, his wife called him on telephone and informed that the villagers viz., Basappa Durgappa Madar, Durgappa Kareppa Madar and Yamanappa Hanmant Madar are eve teasing her. Whenever she was moving outside her house, they used to call her to come with them. It was also stated by her that, when she was going to attend her nature calls on the way, these three persons used to eve tease her. The complainant informed his wife to wait 4 CRL.A NO.100191/2022 for 15 days and after getting his salary he will come back to the village. He consoled her. This fact was also informed by her to her mother. After 15 days of his employment at Mangaluru, complainant returned to his village.
5. It is stated by complainant that, after he arriving to his village, he did not send his wife outside for the purpose of coolie work. Whenever she wanted to go out, himself or his sister or brother used to accompany her. It is alleged that, whenever his wife Bhimavva used to go outside her house to attend nature’s call, these aforesaid persons used to eve tease her and with an evil eye they used to look at her and whistle at her. Complainant came to know about these activities of the accused persons as stated above.
6. It is specifically alleged by the complainant that, on 18.08.2013 at 9.30 p.m after completion of dinner, himself and his wife slept in their house. After 15 minutes, his wife wanted to go out for the purpose of attending the nature’s call. Accordingly, she went outside. Even after half an hour, she did not return to the house. Therefore, the complainant went in search of his wife, went to his sister’s i.e,. Chandrappa’s house and enquired about his wife whether she 5 CRL.A NO.100191/2022 has come there or not. They informed that, she has not come. Thereafter, he also called his father-in-law and asked about arrival of his wife to their house. He too informed that she has not come. Therefore, he, his brother-in-law Chandrappa and the residents of his village by name Basappa Bhimappa Ajji, Siddaiah Guruswamy Fakirappa, Sabanna Chigare etc., searched for his wife throughout the village. Even they went to their land and searched for his wife but, they could not get her.
7. Prior to one day of the said incident, there was a house warming ceremony in the house of Shivaputrappa Hanamanthappa Hadapad. To that opening ceremony the complainant has not sent his wife with his sister. His sister had been to that house-warming ceremony. Till morning 6.00 a.m., they searched at various places and also villages viz, Bhandar Halli and Mallapura.
8. It is further stated by the complainant that when they returned after search of his wife, one Muktamsab Hasansab Jakati came to the complainant when they were near the temple who has cultivated the land of one Fakirappa Chigare and told that when he went to his land for the 6 CRL.A NO.100191/2022 purpose of irrigating the crop, towards northern side of the land, there he saw one dead body and identified the said dead body as that of the wife of the complainant. Immediately, the complainant, his brother-in-law Chandrappa, Tammanna, Yellappa Warimani, Siddaiah, Fakeerappa Chigare rushed to the said spot. They all identified the dead body as that of the wife of the complainant. They also noticed the injuries on the said dead body to the ear and blood was oozing and there were blood stains on her face. Even they noticed the spreading of said blood on her head. They also noticed black colour mark on her neck. She must have been throttled and killed. They also noticed black marks on her dead body. Even on her back also, even the leaves of the sugar cane crop also scratched her body. The cloths worn by her were above her stomach. Thus, it was noticed by them that at a distance of fifty feet away from the water tank her dead body was found. So also they noticed falling of wedlock (Mangalasutra) worn by the deceased at a distance of 50 feet from the said water tank. It is alleged by the complainant that, these aforesaid three persons, when his wife had gone to attend her nature’s call, she must have been dragged by them and kidnapped 7 CRL.A NO.100191/2022 forcibly, had sexually assaulted with her. Thereafter, killed her. Thereafter, she was thrown in the land of Fakeerappa Chigare.
9. They noticed the said fact at 7.00 a.m. in the morning. Thereafter, they went near the Maruthi Temple in the village. At that time, they noticed the aforesaid three persons i.e., Basappa Durgappa Madar, Durgappa Kareppa Madar and Yamanappa Hanamantha Madar near the temple. They called all the three persons but, they did not come and ran away from the said place. Thus, it was confirmed that, these persons have committed the offence of murder of his wife by committing rape on her and the said incident might have taken place during intervening night of 18.08.2013 and 19.08.2013 in between 10.00 p.m. and 5.00 a.m.
10. With these allegations, a complaint came to be filed before the Katkol Police Station. One Ramanagouda Mallappa Sankanal, the then PSI of Katkol Police Station, based upon the complaint at Ex.P1 registered crime in Crime No.213/2013 of Katkol police and set the criminal law in motion.
11. The Investigating Officer during the course of investigation, arrested all the three accused persons and recorded their voluntary statement. Accused No.2 was a 8 CRL.A NO.100191/2022 juvenile. After completion of investigation and after completion of all the formalities of investigation, filed the charge sheet against the accused persons i.e. accused Nos.1 and 3 before the jurisdictional Magistrate. Against accused No.2, charge sheet was filed before the Juvenile Justice Board.
12. To prove the case of the prosecution, in all, the prosecution has examined 41 witnesses from PWs. 1 to 41 and got marked Exs.P1 to P84(a) with respective signatures. Also got marked MO Nos. 1 to 36 and closed prosecution evidence. No defence evidence was led.
13. The learned trial Court on hearing the arguments and on evaluation and assessment of evidence both oral and documentary, found the accused guilty of commission of offence under Sections 376A, 376D, 302, 201, 364, 120B read with Section 34 of Indian Penal Code, convicted and sentenced the accused persons as under: “The accused Nos. 1 and 3 are sentenced to under go life imprisonment and to pay fine of Rs.5,000/- each for the offence punishable U.Sec.302 R/w 34 of IPC and in default of payment of fine amount, the accused Nos.1 and 3 shall further under go simple imprisonment for three months. 9 CRL.A NO.100191/2022 Further the accused Nos.1 and 3 are sentenced to under to Rigorous imprisonment for 20 years and to pay fine of Rs. 5000/- each for the offence punishable U/Sec. 376(D) R/w 34 of IPC. In default of payment of fine amount, the accused Nos. 1 and 3 shall further under go Simple Imprisonment for 03 months. Further the accused Nos. 1 and 3 sentenced to under go Rigorous Imprisonment for 03 years and pay fine of Rs. 5,000/- each for the offence punishable U/Sec. 364 R/w 34 of IPC. In default of payment of fine amount, the accused Nos.1 and 3 shall further under go Simple Imprisonment for 03 months. Further the accused Nos. 1 and 3 are sentenced to under go Rigorous Imprisonment for 05 years and pay fine of Rs. 2,000/- each for the offence punishable U/Sec. 120 B R/w 34 of IPC. In default of payment of fine, the accused Nos. 1 and 3 shall under go Simple Imprisonment for 01 month. Further, the accused Nos. 1 and 3 are sentenced to under go Rigorous Imprisonment for 01 year and pay fine of Rs. 1,000/- each for the offence punishable U/Sec. 201 R/w 34 of IPC. In default of payment of fine, the accused Nos.1 and 3 shall under go Simple Imprisonment for 01 month. The entire fine amount shall be paid to the PW-1/complainant as compensation U/Sec. 357 of Cr.P.C. All sentences shall run concurrently”.
14. Accused No.3 has not preferred any appeal against this judgment whereas, accused No.1 has preferred this appeal challenging the said judgment of conviction and order on sentence passed against him. 10 CRL.A NO.100191/2022 15. The learned counsel for the appellant-accused No.1 with all vehemence and force submits, the learned trial Court has committed illegality in convicting and sentencing against accused No.1. This case is purely based upon the circumstantial evidence. The circumstances brought on record never connect accused Nos. 1 to 3 in commission of crime. The assertions made in the complaint have been totally ignored by the trial Court in arriving at the correct decision. He further submits that there were no circumstances giving rise in the commission of crime. None of the witnesses have deposed before the trial Court that it was accused nos.1 to 3 who have committed the offence. As this case is based upon the circumstantial evidence, he submits that whatever the findings recorded by the trial Court are based upon surmises and conjectures. Totally the findings of the trial Court are arbitrary, illegal and not sustainable in the eyes of law.
16. He submits that, the evidence of PWs.1 to 41 is not trustworthy. It is further submitted that, the MO Nos.1 to 36 so marked in this case and also the documents so relied upon by the prosecution never connect these accused persons. There is a reasonable doubt with regard to the commission of 11 CRL.A NO.100191/2022 the crime by the accused persons. According to him, the trial Court has totally erred in coming to the proper conclusion. It is his submission that, the trial Court has committed a grave error in convicting and sentencing the accused persons. Therefore, entire case of the prosecution rests upon assumptions and presumptions. Therefore, this judgment of conviction and order on sentence is liable to be set aside. His submission is that, PW.1’s evidence does not inspire confidence, so also evidence of other witnesses. It is submitted by the counsel for the accused Basavaraj S. Satannavar to set aside the impugned judgment of conviction and order on sentence.
17. As against this submission, learned Addl. SPP Sri M.B.Gundawade equally with force submits that, the evidence of the witnesses so examined in this case clearly connects that it was accused, and accused alone committed the offence of rape, murder etc. on the deceased by kidnapping her. He submits that, as this case is based upon the circumstantial evidence, the eve teasing of these accused persons on the said deceased Bhimavva is not denied by the defence. The accused were known to the complainant. It is submitted that 12 CRL.A NO.100191/2022 even there was advise by the elderly members of the village that these accused persons shall not eve tease the deceased. Because of that advise by the elderly members, these accused persons had a grudge against the deceased. They hatched a plan and they were waiting for the opportunity. When the said opportunity was very much available to them on the said date of incident, they availed the same and committed the offences. The chain of circumstances brought on record clearly establish about the commission of the crime by the accused persons. The learned Addl. SPP submits that, the learned trial Court has assessed the evidence threadbare and rightly come to the conclusion that, these accused persons are responsible for the commission of offences. The main role is played by the present appellant. Therefore, he submits to dismiss the appeal and confirm the impugned judgment of conviction and order on sentence.
18. We have given our anxious consideration to the arguments of both the side. Meticulously perused the record.
19. In view of submissions of both side and on meticulous assessment of evidence, the points that would arise for our consideration are as under:
13. CRL.A NO.100191/2022 1. Whether the findings of the trial Court that these accused persons are responsible in the commission of crime and role of accused No.1 in the commission of crime is perverse, capricious and not sustainable in the eyes of law.?.
2. If so, whether the judgment of conviction and order of sentence passed by the trial Court require interference by this Court.
20. It is a case of murder. In a case of present nature, it is the duty of the prosecution to prove the homicidal death of the deceased in the manner alleged by the prosecution. So unless the homicidal death is proved, we cannot connect accused persons as the persons who have committed the offence.
21. To prove the homicidal death of the deceased Ex.P1 the complainant is relied upon by the prosecution. In categorical terms, this complainant speaks about going away of his wife Bhimavva at about 10.00 p.m. on 18.8.2013 from his house for the purpose of attending nature’s call, and even after half an hour she did not return therefore, he searched for her in the village as well as in the surrounding villages. 14 CRL.A NO.100191/2022 Even he enquired with the various relatives, friends etc., At about 7.00 a.m. on 19.8.2013, when, they were standing near the temple, it was brought to notice by one Muktumsab Jakathi that, he found dead body of the complainant’s wife in the landed property of which he is cultivating. All the villagers who were with the complainant rushed to the said spot and noticed the dead body and identified that it was dead body of complainant’s wife. Thereafter he lodged a complaint before Katkol Police Station. Police came to the spot and conducted panchanama as per Ex.P5 so also conducted the spot panchanama as per Ex.P6. The injuries noticed by the Tahsildar who conducted inquest that she has sustained so many injuries on her person and because of throttling after commission of rape on her she must have been killed. Further, the photographs produced by prosecution Ex.P2 to P4 show about the falling of dead body of a female person in a sugar cane field and on seeing the said photographs, the blood was sprinkled on person of the deceased. Further, after conducting inquest panchanama the said dead body was sent for post mortem. The doctor who conducted the post mortem has noticed so many injuries on her person and it is the opinion of 15 CRL.A NO.100191/2022 the doctor that, deceased must have died due to ‘cardio respiratory arrest (Ashpyxia) secondary to throttling and fatal head injury’. The trial Court in the course of judgment, has opined that the prosecution was able to prove the homicidal death of deceased. In coming to the said conclusion, the prosecution has relied upon various oral and documentary evidence. Thus, based upon the documents produced by the prosecution and also the evidence of complainant and other witnesses, the trial Court has come to the conclusion that it is a homicidal death which is not denied by the defence. Thus, on over all reading of the evidence placed on record by the prosecution, it is able to prove that deceased Bhimavva has suffered homicidal death.
22. Therefore, the trial Court is right in coming to the conclusion that deceased Bhimavva had suffered homicidal death in the intervening night 18.8.2013 and 19.8.2013. Even the doctor has opined that the death must have occurred within 24 or 48 hours. This fact is also not disputed.
23. Therefore, as stated supra, the prosecution is able to prove the homicidal death of the deceased Bhimavva. May 16 CRL.A NO.100191/2022 be because the deceased had suffered homicidal death, it does not mean that it was accused 1, and the other accused have committed rape and murder. As rightly submitted by both the side, this sessions case is clearly based upon the circumstantial evidence. When the case is based upon circumstantial evidence, as laid down by the Hon’ble Supreme in various judgments, the heavy burden is on the prosecution to prove the chain link that, it was accused persons who had committed the offences. The circumstances of commission of offence by the accused, the Court has to assess the evidence and then come to the conclusion that, these circumstances brought on record prove the involvement of the accused persons in the commission of the crime.
24. Now let us examine oral and documentary evidence to ascertain whether the circumstances brought on record through the witnesses and the documentary evidence really connects the involvement of accused in the commission of crime.
25. PW.1 being the complainant - husband of the deceased has stated in line with averments made in the complaint. So far as relationship between himself and 17 CRL.A NO.100191/2022 deceased is concerned there is no denial by the defence. It is his evidence that on 18.8.2013, as he and his wife were sleeping in their house after the completion of dinner at 9.30 p.m., within 15 minutes after they went to bed, deceased Bhimavva wanted to attend her nature’s call; therefore, she went outside. It is his evidence that, even after half an hour she did not return. Therefore, he searched for her. He went to his relations house, his brother-in-law’s house, his friends house etc., throughout night and he also searched for her not only in the village but also in the surrounding villages. He also called the father of his wife and enquired about coming of his wife to his house. But, all of them told that she has not come. It is his further evidence that, when he was searching till 7.00 a.m next morning, right from night hours, when he was near the Hanuman temple, there he noticed the arrival of CWs 20 to 23 who are arrayed as witnesses in this case. They also went for in search of his wife. When they were so talking with each other, they noticed the presence of accused Basappa, Durgappa and Yamanappa near the temple. When they called these persons, but on seeing these persons with scareness they ran away from the said place. In the meantime, CW.24 18 CRL.A NO.100191/2022 Muktamsab Hasansab Jakati came and informed that in the land of Fakeerappa Chigare he noticed a dead body of one woman and it was Bhimavva. All the persons rushed to the spot and noticed the dead body of deceased Bhimavva with so many injuries on her person. Thereafter, he lodged a complaint as per Ex.P1.
26. He also states before the Court that, when he was away from his village and was working as a coolie at Mangaluru, his wife Bhimavva informed him through telephone that, it was accused nos. 1 to 3 who used to eave tease her and asked her to come with them. It was his further evidence that, he informed his wife that after getting salary he will come within fifteen days and accordingly he came. Even the fact of eve teasing and sexually harassing the deceased Bhimavva was informed to the elderly members. Elderly members of the village advised these accused persons not to eve tease her. Because of that, these accused persons had an eye on the deceased and they had committed sexual harassment on the deceased and on the ill fated day, i.e. on 18.8.2013 when deceased Bhimavva went outside for the purpose of attending her nature’s call in the night hours, they 19 CRL.A NO.100191/2022 have committed rape and murder. Throughout the evidence this PW.1 has made all these allegations. The other witnesses have spoken to that effect, as per the case of the prosecution. Thus, it was got confirmed by the complainant that, after commission of the rape, these accused persons must have murdered his wife.
27. This PW.1 has been thoroughly cross examined by the defence. It is brought on record that, in the said Bochbal village, the population is about 400 citizens and by the side of his house there are about 10 to 20 houses. He admits that, by the side of his house, the house of one Chikkappa Tyapi and Shivaputrappa Tyapi are situated. Even he came to know eave teasing by the accused persons to his wife, but he did not lodge any complaint to the police. It is specifically stated that, on 18.8.2013 after completion of dinner, they were sleeping. In the cross examination he denied that, in the house at that time, there were four persons. i.e. his sister and his brother also.
28. Though intensive cross-examination has been directed to this PW1 but throughout the cross-examination he has maintained the allegations of eve teasing and they had an 20 CRL.A NO.100191/2022 eye on his wife. He has deposed that, his brother-in-law Bhimsen Wari has written the complaint as per Ex.P1. He admits that, the dead body of the deceased wife was found in the sugar cane crop. He found germs in the ear and nose of the dead body of his deceased wife. It is quite expected that when her dead body was fallen in a land where the sugar cane crop was grown, it is quite natural to find some germs. That does mean that somebody must have killed and thrown the dead body. He says that it was accused persons who must have murdered his wife.
29. PW.2 is Bhimasaheb Venkanagouda Patil is a inquest Pancha. According to him he is the resident of Bochbal village and police called him on 19.8.2013 at 3.00 p.m. and in his presence police have conducted the inquest panchanama on the dead body of deceased. So also PW.3 Yellavva Maruti Bannur has deposed in similar words as inquest pancha. As the death of deceased Bhimavva and conducting of inquest panchanama on the dead body of deceased is not denied by the defence in a proper manner and these PWs. 2 and 3 have deposed to in line with contents of inquest panchanama, it goes without saying that the prosecution is able to prove the 21 CRL.A NO.100191/2022 inquest pachanama as per Ex.P5 in the manner alleged by the prosecution. Under this inquest panchanama police have also seized MO Nos. 4 to 15. About seizure of these articles the snapping of the photographs of the dead body and that scene of occurrence has been spoken to by these witnesses.
30. PW.4 Tippanna Maheshappa Uppar is seizure pancha to Ex.P12. In his presence, MOs have been seized which are marked in this case from MOs. 1 to 20. The factum of seizure of these articles is also not denied properly by the defence. Though these witnesses have been cross-examined at length but, they withstood the test of cross-examination.
31. PW.5 Ninggowda Gowdappa gowda Patil is pancha to the taking of a blood of accused persons in the presence of the Magistrate for the purpose of conducting DNA test. He identifies Ex.P13 and 14 that, he put his signature on the same being the DNA form and blood was taken from the accused persons for the purpose of sending the same to conduct the DNA. Though this PW.5 has been thoroughly cross-examination but, nothing worth is elicited from his mouth. 22 CRL.A NO.100191/2022 32. PW.6 Prakash Virupaxappa Asundi is scene of occurrence of Pancha so also seizure pancha and at the instance of accused nos. 1 and 3 certain articles were seized to show that the cloths being worn by these accused 1 and 3 have been seized in the presence of PW.6 by the Police based upon the voluntary statement given by these accused persons.
33. A thorough examination has been conducted with regard to the events that have taken place right from the conducting of panchanama till the seizure of MOs from the possession of these accused persons. Even MOs i.e. readymade shirt worn by the accused persons and other articles have been seized at the instance of these accused and marked as per Ex.P1 to24. Ex.P19 to 24 are the photographs. Though intensive cross-examination has been directed to this witness but, he has withstood the test of cross-examination.
34. PW.7 Nagaraj alias Nagappa Balavantappa Tyapi is the brother of the complainant and on that day, this Nagaraj went to Siddarameshwar temple for the purpose of sleeping in the night. Complainant first informed his brother his wife has 23 CRL.A NO.100191/2022 not returned. This Nagaraj has deposed before the Court about information received from the complainant about missing of deceased Bhimavva wife of the complainant. He also deposed about his sister went to one Hadapad’s house, and on the way he noticed that these accused persons 1 to 3 together were in the house of accused no.1. They were watching the television at that time. He slept in the Siddarameshwara temple at about 10.15 p.m. Thereafter, his brother came and informed him about not returning of his wife. He also deposed about witnessing of dead body of his brother’s wife Bhimavva. Through out the cross-examination so directed, he has maintained whatever he has stated in the examination in chief is correct. He denied all suggestions. He is the first person to receive the information about missing of the deceased Bhimavva. To that extent we have to believe the evidence of this PW.7.
35. PW.8 Annapurna Gadigeppa Hoogi is none else than the sister of the complainant. She too has deposed before the Court about missing of Bhimavva his brother’s wife and noticing the dead body of Bhimavva in the land of Fakeerappa. She too has been cross-examined at length, but nothing 24 CRL.A NO.100191/2022 worth is elicited from her mouth. Throughout she maintained about missing of deceased and about the eve teasing by accused persons to the said deceased Bhimavva.
36. PW.9 father of deceased Bhimavva by name Tammanna Shivappa Muragod deposed that, it was Bhimavva who informed him about eve teasing by these accused persons by making signs both by their hands and mouth. He deposed that there was sexual harassment by the accused persons on his daughter.
37. PW9deposed that, on the day of unfortunate incident, the complainant his son-in-law called him about missing of his wife. Immediately, he rushed to Bochabal village and noticed the death of his daughter. It was informed that his daughter Bhimavva went to attend the nature’s call but did not return. Her dead body was found in the agriculture land of Fakeerappa Chigare. PW.9 has been thoroughly cross- examined by the counsel for the accused. There is no specific denial with regard to the eve teasing by the accused persons throughout the cross-examination. He has denied all the suggestions. He has identified the gold ornaments being worn by deceased so also cloth as per MO Nos. 1 to 3 and chappals 25 CRL.A NO.100191/2022 MO No’s 4 and 5 which were seized under the panchanama so also Exs.P3 and P4 photographs. Nothing worth is elicited from the mouth of this witness so as to disbelieve his evidence spoken in the examination-in-chief. No doubt, he has been partly treated as hostile by the prosecution but, he is consistent about receipt of information regarding missing of Bhimavva and he coming to Bochabal village and identifying the dead body of his daughter and MO Nos. 1 to 5. To that extent his evidence is to be accepted.
38. PW.10- Chandrappa Yallappa Varimani and PW.11 Satraj Patil are the relatives of the complainant. They state before the Court that, after the marriage of complainant and Bhimavva, after one year, they went to Mangaluru for the purpose of Coolie work. Thereafter, both returned and deceased stayed back in Bochabal village in the house of the complainant. He has stated that, these accused persons when they find deceased alone, they used to eve tease her. Even they used to ask the deceased to come with them. This fact was informed to them by the deceased and in turn they informed the said act of accused persons to the elderly members of their village arrayed as CWs 21 to 23. These 26 CRL.A NO.100191/2022 elderly members called these accused persons including this PW.10, advised the accused persons not to eve tease the deceased. It is their further evidence that on 18.08.2013 at about 10.00 p.m. when they were in his house, complainant came to them and informed that his wife had gone to attend nature’s call but, did not return. Therefore, PW.10 and others went in search of the deceased. They further specifically state in their evidence that, in spite of search by them, they could not trace the deceased. They further state that, on the following day, when complainant returned to Bochabal village and himself and others were standing near Hanuman Temple. At that time the accused were found near the said temple. When the complainant called these accused persons, all the three accused ran away from the said place. Even CW.20 to 23 who went in search of deceased, returned at that time. At the same time, CW.24 came to them and informed that in the land of Sri Fakeerappa Chigare a dead body of a lady is found. They rushed to the said spot and identified the dead body as that of Bhimavva wife of PW.1 complainant.
39. Though this PW.10 and PW.11 were directed with searching cross-examination by the defence, but nothing 27 CRL.A NO.100191/2022 worth is elicited except the denial. It is on record that, they were the elderly members who advised these accused persons not to eve tease the deceased. But, despite that these accused persons have committed offence as per their evidence.
40. One more important witness is examined by the prosecution is PW.12 Muktumsab Hassansab Jakati. It was he who informed these elderly members and PW.1 who were standing near the Hanuman Temple about finding of a dead body of a lady in the land of CW.23 of which he was cultivating. On getting the information on 19.08.2013 at about 6.00 a.m. he rushed towards Hanuman Temple and informed the said fact to PW.1 and others who were with PW.1. Thereafter, all of them went to the said land of Fakeerappa Chigare and noticed the dead body of the deceased. He too has been cross-examined at length by the defence but, nothing worth is elicited except denial. So it was PW.12 who informed about finding a dead body of deceased in the agriculture land of Fakeerppa Chigare.
41. PW.13 Maruti Fakirappa Kidadal deposed that, on the day of incident i.e. on 18.08.2013, he returned from 28 CRL.A NO.100191/2022 Munavalli to Bochabal village in between 10.00 to 10.30 p.m. he was accompanied by CW.26. When they came to Bochabal village and stopped their motor bike near the Panduranga temple for the purpose of nature’s call, CW.26 went to answer the nature call and he was sitting on the motor bike. Head light of motor bike was on. At that time, these accused Nos 1 to 3 came near the compound wall of Panduranga temple and went towards their house.
42. He identified these accused Nos. 1 and 3 before the Court that they were persons who moved in between 10.00 to 10.30 p.m. on that date. On the following day, at about 8.00 a.m. he heard that, a dead body of deceased was fallen in the land of Fakeerappa Chigare. He also went and noticed the dead body and also the injuries on the person of the deceased. That means, this PW. 13 is a witness who saw the accused going towards their house in between 10.00 p.m. and 10.30 p.m. on 18.08.2013. Except the denial in the cross- examination, nothing worth is elicited so as to disbelieve his version given in the examination-in-chief. No doubt, it is brought on record that, in the said Bochabal village so many residents are there etc. But he is consistent about seeing 29 CRL.A NO.100191/2022 these accused Nos.1 to 3 on 18.08.2013 in between 10.00 and 10.30 p.m. This fact is not denied by the defence in a proper manner.
43. PW.14 is Isarahemmad Abdulkhadar Aminayak is also an important witness examined by the prosecution . As per his evidence, on 19.08.2013 at about 10.30 a.m., accused Nos.1 to 3 came to his Saw Mill where they were working previously for the last two weeks prior to the incident. They demanded Rs.5,000/- from him. He enquired that why that much of amount is required to them. For this, these accused Nos. 1 and 3 told him that, they have committed a rape on a lady and killed her on the previous night. They did not disclose the name of a lady. Again he enquired accused Nos. 1 and 3. They categorically stated that, they have committed rape on that lady and killed her. Accused Nos. 1 and 3 asked him to save them. But he informed that it was not possible for him and asked them to surrender to the Police Station. He told that, he is not having that much of amount as demanded by them and gave Rs.500/- and asked them to go. Thereafter, he came to know about the causing murder of a deceased by these accused persons. 30 CRL.A NO.100191/2022 44. Thus, as per the case of the prosecution, these accused Nos.1 and 3 have confessed about their guilt before this PW.14. It was an extra-judicial confession as per the case of the prosecution. It is true that this extra-judicial confession is a very weak piece of evidence. But, however, he is consistent throughout his evidence that, it was accused Nos. 1 and 3 who were working in his Saw Mill and he knows them. According to him, they were of good character. But, he came to know about their bad character only when he was informed that they had raped a lady and murdered her. He used to make the payment to his workers on every Thursday. Except denial nothing worth is elicited from his mouth.
45. PW.15 Gadigeppa Adiveppa Kadakol is also a resident of Bochabal village. His house is situated near the Panduranga temple. On 19.08.2013 he had scheduled the house warming ceremony of his new house. On 18.8.2013, he went to his old house to bring the materials. He states that, at about 10.00 p.m. on that day, when he came near Panduranga Temple, he heard the noise of a lady in the land of CW.23. He brought the torch light and went to the open space near the said temple. At that time, he noticed accused 31 CRL.A NO.100191/2022 Nos. 1 to 3 moving towards the land of CW.23. When he enquired these accused Nos. 1 to 3 that what was that noise. At that time, accused Nos. 1 to 3 told him that, it was they who made sound like a lady. Thereafter, he went to his house and slept. On the following day, he came to know about falling of a dead body in the land of Fakeerappa. He got it confirmed that, it was accused who have committed rape and murder. He too has been cross-examined by the counsel for the defence.
46. It is suggested to PW15that, when he was getting construction of the new house, always he used to come to his old house in the night hours. He admits that from 10.00 a.m. in the morning till 6.00 p.m. the masons used to build his house. He denies that he has not heard the noise of the lady at 10.00 p.m. on 18.08.2013.
47. PW.16 Shivaputrappa Hanamant Hadapad is also a witness who also has scheduled the house warming ceremony on 19.08.2013. According to his evidence, because of that, he took CWs.14 and 15 for the purpose of preparing the food to his house. On the same day itself, there was house warming ceremony of CW.27. When he was in the house during night 32 CRL.A NO.100191/2022 hours on 18.08.2013, it was informed to him that, deceased was missing and had not returned to the house of PW.1. Inspite of search, they could not trace her, but, on the following day, they came to know that there was a dead body in the land of Fakeerappa. Except denial nothing worth is elicited from the mouth of this witness.
48. PW.17 Ajjappa Chikkapa Tyapi is also a resident of Bochabal village. He states that in the said Bochabal village, his house is situated near Math by the left side of the house of PW.1. Near his house, accused No.3’s house is situated abutting the road. He deposed that, everyday, in the house of accused No.3, all these accused used to sit and watch the television. He also states that accused Nos. 1 to 3 used to eve tease the deceased. According to his evidence, on 18.08.2013, all these accused persons were sitting in the house of accused No.3 Yamanappa and witnessing the television. At that time, he was sitting on the `Katta' of his house. It is his further evidence that, he heard the talks in between the accused persons, that “today the deceased Bhimi would come out and they decided not to leave that lady and definitely they would sexually assault her as she will come 33 CRL.A NO.100191/2022 alone for the purpose of answering nature’s call.” They also were discussing that by informing to the elders of the village, she has insulted them. In the mean time deceased came out of the house of PW.1 and went towards the hind side of the house of Yamanappa accused no.3. On seeing the lady, all the accused persons went away saying that, the said lady has come. They followed her from behind and closed her mouth and took away from the land of Fakeerappa. This witness got it confirmed that, though there is advise by the elder members of the village, he thought why to inform the same fact to others in the village and slept in his house.
49. The evidence of this witness is quite unnatural. He is an elderly member and resident of Bochabal village knew about the discussion in between accused persons and he has heard the same. He also has noticed taking away of the deceased by them. He ought to have informed the other residents of the village to save the life of the deceased. His evidence is quite unnatural. Nobody can expect such evidence from this witness. Perhaps, not to involve himself in the case, he must have spoken to that effect. 34 CRL.A NO.100191/2022 50. The evidence of this witness is quite improbable. He has been thoroughly cross-examined by the defence. But, nothing worth is elicited. That means he has seen the accused persons taking away the deceased. Except denial nothing worth is elicited.
51. PW.18 Bhimappa Appanna Walimani is the scribe of the complaint. As per his say, he has written the complaint and said complaint was lodged before the Katkol Police. He identified his hand writing on the same. Except denial nothing is elicited from the mouth of this PW.18.
52. PW.19 Durgappa Nagavva Madar is the father of accused No.1. PW.20 Durgavva w/o.Durgappa Madar is mother of accused No.1. Both have been turned hostile. Nothing worth is elicited from the mouth of these witnesses by the prosecution. It is quite natural to expect such evidence from the parents of accused No.1.
53. PW.21 Suresh Yellappa Hosmalagi is the photographer in the village. As per the instructions of the Police, he has snapped the photographs as per Exs.P3, 4, P7 to 10. He has not been properly cross-examined by the defence. Except the denial nothing is elicited. 35 CRL.A NO.100191/2022 54. PW.22, 24, 25 have been turned hostile. Therefore, their evidence would not help the case of the prosecution in any manner.
55. PW.26 Pakirappa Mayappa Karigar was the Head Constable who registered the crime in Crime No.213/13 and set the criminal law in motion. At the time of investigation, the IO has produced 26 items and handed over the possession to him. He has sent the same to the Forensic Science Laboratory, Madiwala, Bengaluru for the purpose of scientific examination. He identifies them MO Nos. 1 to 3, 8 to 15, 16 to 19, 21 to 25, 26, 27 and 29.
56. He states that, the said articles contain DNA cell. Except denial nothing worth is elicited from the mouth of this witness. PW.27 Basayya Mallayya Viraktamath, ASI carried all these 26 items to the Laboratory for the purpose of scientific examination. He identified the said articles and submitted a report. He too has been cross-examined but, except denial nothing is elicited.
57. PW.28 Raju Basappa Gokak is the Constable. As per his evidence after conducting inquest panchanama, the articles which were collected were carried by him to the 36 CRL.A NO.100191/2022 Doctor. Except denial nothing is elicited. He identifies Ex.56 panchanama and in his presence the said articles were seized.
58. PW.29 Yallappa Gadigeppa Koti was the constable. He deposed that, on 19.8.2013 as per instructions of his superior officer, he went along with Investigating Officer. There certain articles were seized in the presence Panchas. He identifies photographs as well as Pachanama prepared in his presence as per Ex.P6 and he has scribed the said panchanama. Nothing worth is elicited so as to disbelieve the contents of Ex.P6 prepared by him.
59. PW.30 Hanamappa Bhimappa Maladinni is also a constable. At the time of PM report, certain articles were seized by the Investigating Officer. He collected them which were marked as MO Nos. 1 to 3, 16 to 20 under panchanama Ex.P12. He states that, Government doctor was called to the Court to extract the blood samples of accused nos. 1 and 3 for the purpose of DNA test. Except denial nothing is elicited from the mouth of this witness.
60. PW.31 Manjunath Shanakareppa Avaradi was another constable and as per his evidence accused nos. 1 and 3 gave voluntary statement attributing the commission of 37 CRL.A NO.100191/2022 crime against the deceased. He further states about accused leading the IO for the purpose of seizure of the articles from their possession. It was accused 1 who produced MO No.21 to 24 in the presence of panchas and accused no.3 also produced and the panchanama was prepared to that effect. Except denial nothing worth is elicited from the mouth of this witness. He also identifies the clothes worn by accused no.3 which were seized vide panchanama Ex.P39. He further stated that accused no.2 is a Child-in-conflict with law (CCWL). Though severe cross-examination is directed to him but, nothing worth is elicited.
61. PW.32 Sadashiva Shivaputrappa Solabannavar was PSI at the relevant point of time. He has conducted the inquest Panchanama on the dead body of deceased and also noticed the injuries on her person. He also noticed wearing of MO Nos. 1 to 3 by the deceased. On observing the dead body and private parts of the deceased, he got it confirmed that she was raped and killed. He has put his signature to the inquest panchanama at Ex.P5. He is consistent about his presence at the time of conducting panchanama. 38 CRL.A NO.100191/2022 62. PW.33 Dr.Iranna Shivanappa Kalli conducted the post mortem on the dead body on 20.8.2013. He noticed the following injuries on the person of the deceased which were ante mortem.
1. “Fore head: Multiple contusion with abrasions on the both eyebrows more so on the left eye ball buried in the fractured segments of orbital cavity.
2. All the teeth's are intact.
3. Left cheek contusion of blueish black colour of size 11X8 cm, oedematous swelling present extending from left angle of mouth left ear with deeper contused fassia and muscle on deep dissection showed presence of internal haemorrhage in to the underline muscles and fracture of ramous of mandible of Left side Zygometic process of left side and dislocation of temporomandible Joint of left side.
4. Helix of left ear. Torn and car cartilage fracture present.
5. Right cheek: Multiple contusions present over the right cheek of about size 2 cm X3.m near right angle of mouth.
6. Contusion present over the right mastoid process and inframastoid region of about size 3 cm X2cm.
7. Neck: there are multiple contusions present 5 cm below the chin and 5 cm adobe the sternum, contusion area extending from infront of neck and on either side of middle of neck, horizontal in direction prominent marks are noticed on the middle of neck from hyoid bone to thyroid Cartilage of about size 4 cm X3cm (V shaped placed at the centre of the neck.) 39 CRL.A NO.100191/2022 on dissection of the neck: showed presence of fracture of hyoid bone in both grater and lesser cornu - underling muscles are oedematous and petechial haemorrhages present.
8. Right side of neck: contusion of about 2 cm X1cm size below and lateral side of neck, multiple contusions in the area of right side of neck of about 3 cm X45 cm contusions appears to be separated with surrounding area bluish colour and oedematous and most probably (nail marks).
9. Right Side of chest: multiple irregular contusions on the clavicular supra clavicular and upper part of deltoid appears to be (nail marks). 10.Abdomen: multiple abrasions seen extending between xypisternum and umbilicus linear in direction more so on the right side of upper abdomen measuring about 7 cm X025 cm also 5 cm X025 cm abrasion over upper quadrant of right breast.
11. Right upper limb: Multiple linear abrasions with multiple contusions over right lower arm and fore arm of posterior aspect of right upper limb right lateral aspect of elbow and above the wrist.
12. Left upper limb: Multiple abrasions with contusion on the left elbow joint and left forearm.
13. Right lower limb: Multiple linear abrasions on the right upper and middle part of right thigh right anterolateral aspect of whole right lower limb.
14. Left lower limb: multiple linear abrasions with contusions on the anterolateral aspect of left lower limb upto left ankle joint.
15. Pelvic examination: Pubic hairs brushed cut and collected and sent for analyses 40 CRL.A NO.100191/2022 a. Labia Majora: multiple abrasions present on both sides b. Labia Minora: multiple abrasions present on both sides of upper parts. C. Vagina- pale with discharge and smelling d. Urethra: Abrasions present in the lower aspect of the sides.
16. Internal Examination of pelvis a. Uterus and adnexa: No abnormality detected non pregnant uterus b. Vaginal swabs i. Anterior Fornix ii. Posterior fornix iii External os of cervix sent for analysis c. Vaginal slides i. Vaginal secretions of anterior wall ii. Cervix iii cervicovaginal junction sent for analysis and Cranium and spinal canal 1. Skul and vertebrae: frontal bone fracture on left side of fracture of left zygomatic process, temproal bone, dislocation temporomandibular joint 2. membranus torn at fractured sites.
63. The Doctor-PW.33 was severally cross-examined by the defence. It is his evidence that because of throttling, the injuries so noticed are possible. He also speaks about the number of injuries sustained by the deceased in the said incident. As per his evidence, death of the deceased has taken place about 24-48 hours prior to p.m. examination. He identifies MO nos. 1 to 3. He states about noticing the black marks on the neck of the deceased as seen in Ex.P3. 41 CRL.A NO.100191/2022 64. Though this witness has been cross-examined by the defence at length, he is consistent about the injuries sustained by the deceased which were ante mortem. There was possibility of committing rape as well as murder of the deceased. There was throttling of the deceased by more than one person as per his evidence. There is no further denial of this fact by the defence.
65. PW.34 Sanjeev Shivanand Baligar was PSI at that relevant point of time at Katkol Police Station. He arrested accused no.1 and has produced him before the Court.
66. PW.35 Ramesh Channappa was the Asst. Executive Engineer who prepared the scene of offence sketch as per the request of IO. Except denial nothing is elicited. He identifies Ex.67 and 68 sketches prepared by him.
67. PW.36 Javanattagouda Yamanappagouda Patil was the Tahsildar at the relevant time. He states that at the request of the Katkol Police, he conducted the inquest panchanama on the dead body of the deceased. He has noticed so many injuries on the person of the deceased. There were injuries near the private part of the deceased, and also 42 CRL.A NO.100191/2022 noticed that there was a sexual intercourse with her by some persons. Even it is stated by him that, more than one person might have committed rape on her and must have killed. He conducted the inquest panchanama till 4.00 p.m. on that day. Though he has been cross-examined by the defence, but, he is consistent about conducting the inquest panchanama on the dead body of the deceased.
68. PW.37 Ramanagouda Mallappa Sankanal is the IO and PSI at the relevant time. He has deposed about the conducting of investigation by him.
69. PW.39 M.Pandurangayya, DYSP, is the IO. He has also conducted part of the investigation and has stated regarding preparation of various panchanamas. Nothing worth is elicited in the cross-examination. PW.40 Somaling Devappa Kiredalli was a Circle Police Inspector at that relevant time and he collected the articles and sent to the FSL and received them along with the report. PW.41 Vinayak Bhaskar Badiger was the CPI at the relevant time. He filed the charge sheet against the accused persons. He collected the MOs.
70. On over all reading the oral evidence discussed above, it do demonstrate that, this case is purely based upon 43 CRL.A NO.100191/2022 the circumstantial evidence. When the case is based upon the circumstantial evidence, it is for the prosecution to prove its case beyond all reasonable doubt with chain link.
71. When accused nos. 1 and 3 were questioned at the time of recording of their statement under Sec.313 of Cr.PC, these accused nos. 1 and 3 did not even attempt to explain or clarify the incriminating circumstance in connecting them to the crime. Their case is of total denial. When a criminal case is based on circumstantial evidence, the Hon’ble Apex Court has laid down the law as under in the following judgment. JOSEPH S/O KOOVELI POULO V. STATE OF KERALA (2000) 5 SCC197 it is held as under: Criminal Appeal No:
656. of 1998, decided on April 27, 2000 A. Criminal Trial - Circumstantial evidence -When can conviction be based on-Principles reiterated It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has 44 CRL.A NO.100191/2022 to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. (Para
10) B. Penal Code, 1860- Ss. 302 & 392 – Murder- Circumstantial evidence - Deceased, an employee of a school, taken away from the school by accused- appellant under a false pretext, she was last seen alive only in the company of appellant and the jewels worn by her at the time of her leaving the school with appellant, were seized on the basis of information given by appellant in the course of investigation- Inmates of the school speaking in unison to the relevant details, which when cumulatively taken up for consideration reasonably as well as with great certainty establishing the various incriminating factors against appellant involving him with the crime- Appellant, instead of explaining those incriminating circumstances, totally denying everything when those circumstances were brought to his notice by court- Such denial providing the missing link to connect the appellant with the crime- Held on facts, the incriminating circumstances unmistakably and inevitably leading to the guilt of the appellant- Hence conviction and sentence under Ss. 302 and 392 upheld (Paras 10, 12 and
14) 45 CRL.A NO.100191/2022 72. Incriminating links/facts have to be explained by accused persons only and nobody else because, they being personally and exclusively have the knowledge, the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person with the crime committed. Equally the burden is on the prosecution, also.
73. So far as documentary evidence is concerned, number of documents have been marked in this case from Ex.P1 to P84. So also MOs. Some of them were chemically examined in the Laboratory. So far contents of Ex.P1 is concerned, it is a complaint filed by complainant Ajjappa Balavanthappa Tyapi stating that, his wife was found missing when she went to answer nature’s call but, did not return. On the following day he noticed the dead body of his wife. He suspects the foul play of these accused persons as they were eve teasing his wife in his absence.
74. Ex.P5 is the inquest panchanama, Ex.P6 is the spot panchanama which are not in dispute. Ex.P3 to P9 are the photographs of the scene of offence. 46 CRL.A NO.100191/2022 75. Ex.P13 is the document styled as identification form to send to DNA Centre for the purpose conducting DNA test after collecting blood sample of Basappa Madar. Likewise Ex.P14 similar form in respect of accused Yamanappa Madar.
76. Under these documents, the blood sample was collected on 27.8.2013 with consent of accused nos. 1 and 3. To that effect, the police prepared the panchanama as per Ex.P15. The contents of these documents have been corroborated by IO and other witnesses about taking sample blood from accused nos. 1 and 3 on 27.08.13 in the presence of the Magistrate.
77. On arrest of accused Yamanappa, as per his voluntary statement, he lead the IO and panchas and produced the said clothes such as chocholate colour white line full shirt, blue jeans pant which was containing blood stains and black colour banian with the rose colour strips. They are marked in evidence. There is no explanation given by accused Yamanappa that why there was blood stain on the jeans pant.
78. Likewise, accused Basappa Durgappa has also produced clothes. As per his voluntary statement clothes were 47 CRL.A NO.100191/2022 seized under Ex.P16. So also another panchanama was prepared as per Ex.P16 by the police with regard to seizure of shirt being worn by accused Basappa. It was a full shirt containing blood stains. His black colour pant and banian and red colour half pant were seized. He too has not given explanation as to why there was blood stain on his shirt. As per the case of the prosecution, accused Basappa was wearing the said shirt marked as MO at the time of commission of the crime.
79. Under Ex.P18 the police have seized certain articles at the time of medical examination of the accused retained by the Doctor. At the time of seizer of clothes photographs were taken as per Ex P19to 24.
80. These photographs are marked without any objection by the defence. On seeing these photographs, they do demonstrate that, it was accused nos. 1 and 3 and juvenile offender have produced clothes which were concealed by them in their house. They also have shown the place where the deceased was kidnapped and also showed the scene of offence. While marking these documents, no little finger was raised by the defence. 48 CRL.A NO.100191/2022 81. Exs.P46 to 48 are the documents issued by the Government Hospital, Katkol about physical and medical examination of accused Basappa, Durgappa and Yamanappa. These documents show that these three accused persons are capable of performing sexual activities. These documents are not disputed by the defence.
82. So far as the sending of MOs collected by the IO during the course of investigation to the FSL for the purpose of chemical examination is not disputed by the defence. Ex.P62 is the post mortem report wherein the nature of injuries have been stated by the Doctor and there is narration of the injuries in the foregoing paras. It was opined by the Doctor that the deceased died due to cardio respiratory arrest (Asphyxia) secondary to throttling and fatal injury. The cause of death is not disputed by the defence. The only defence of the accused no.1 is only of total denial.
83. Likewise, we find the DNA report collected by the IO as per Ex.P72. This DNA report shows that, the method of examination of blood samples so submitted to the forensic laboratory and blood stains epithetical cells were detected in item ns. 3, 4, 5, 6(a)and(b) and 12, 13, 16, 17, 19, A and B, 49 CRL.A NO.100191/2022 21, 25, 30and 31 and they are of human origin and female sex. So, on perusal of these MOs so submitted, shows that, these MOs contain the blood stains of a human origin. The presence of blood stains and epithetical cells not detected on item nos.14,15,24,26,29 and 32. Presence of seminal stains not detected on item nos. 3, 4 to 7, 9, 11, 12 to 18, 28, 30 to 32.
84. It is opined by the chemical examiner that DNA profile of Smt.Bhimavva Ajjappa Tyapi mentioned in the DNA report sent in Item No.7(I) i.e., post mortem blood sample is matching with DNA profile of blood stains cells detected on blouse i.e, item No.3, item No.4 saree(pattala), item no.5 petticoat (langa), Smear sent in Item No.6(a) and Swab sent in 6(b) etc. It is also opined that in view of the report that Smt.Bhimmavva Ajjappa Tyapi in item no.7(I) included from contributor of blood stains/ephithetical cells detected on blouse sent in Item No.3 and also other clothes worn by the deceased. A comparative table has been prepared by the chemical examiner at Annexure-1. As per the interpretative report, in view of observations of the blood sample collected 50 CRL.A NO.100191/2022 at the time of post mortem, it is opined by the chemical examiner as under: Annexure – III In view of the above observation, Smt. Bhimavva Ajjappa Tyagi, post mortem blood sent in item No.7(I) was the contributor of the blood stains/epithelial cells detected on blouse sent in item no.3, saree sent in item No.4, petticoat sent in item No.5, smear sent in item No.6(a), swab sent in item no.6(b), shirt sent in item No.12, shirt sent in item No.16, stone sent in item No.19(A), stone sent in item No.20, mud sent in item no.21, mud sent in item No.25, shirt sent in item No.30 and pant sent in item No.31.
85. That means the blood samples found on the clothes stated supra worn by accused nos. 1 to 3 show about the presence of blood as a contributor of the blood stains on the their respective clothes as stated by the chemical examiner at item no.6(b), 12, 16, 19, 20 i.e. the clothes of the accused persons and the clothes of the deceased at item nos. 3,4 & 5. While marking these documents, no objections were raised by the defence. It is important document produced by the prosecution at Annexure-3 along with the DNA report.
86. As per the conclusion arrived at by the Forensic Laboratory, DNA Centre, Madiwala, Bengaluru, from the chemical test, microscopic and DNA profile examination, the blood stains were noticed at the specific items sent for chemical examination. 51 CRL.A NO.100191/2022 The said DNA report reads as under:
1. The presence of blood strains and epithelial cells were detected on item nos. 3,4,5,6(a&b),12,13,16,17,19(a&b),20,21, 25,30 and 31 and are of human in origin and female sex and hence comparison with DNA profile of male individuals sample blood sent in items nos. 1,2 and 27 does not arise.
2. The presence of blood strains and epithelial cells were not detected on item nos. 14, 15,18,22,24,26,29, and 32.
3. The presence of seminal stains were not detected on item nos. 3,4,5,6,7,9,11,12,13,14,15,16,17,18,28,3 0,31,and 32.
4. The post mortem blood sent in item No.7(1) is of human origin and or female sex.
5. The DNA profile of Smt. Bhimavva Ajjappa Tyagi, post mortem blood sent in item no.7(1) is matching with the DNA profile of blood stains/ epithelial cells detected on blouse sent in item no.3, saree sent in item no.4, petticoat sent in item no.12, shirt sent in item no.16, stone sent in item no.6(b), shirt sent in item no.12, mud sent in item no.21, mud sent in item no.235, shirt sent in item no.30 and pant sent in item No.31. Therefore, Smt. Bhimavva Ajjappa Tyagi, post mortem blood sent in item no.7(1) was included from being the contributor of blood stains/epithelial cells detected on blouse sent in item no.3, saree sent in item no.4, petticoat sent in item No.5, smear sent in item no.6(a), swab sent in item no.6(b), shirt sent in item no.12, shirt sent in item no.16, stone sent in item 52 CRL.A NO.100191/2022 No.19(A), stone sent in item No.20 mud sent in item no.21, mud sent in item no.25, shirt sent in item no.30 and pant sent in item no.31.
87. Thus, this report as stated supra is an important document connecting the link of accused no.1 that he participated in the commission of the crime.
88. To substantiate the aforesaid report of the Scientific Examiner, DNA Centre, Bengaluru, prosecution relied upon the evidence of PW.38 Sri Purushotham L. In his evidence, he has deposed that as per the request of the IO, he subjected the items sent to him for the purpose of conducting the DNA test. He prepared the DNA profile. As per the DNA profile, the items so sent were tallying with DNA of the deceased. Accordingly, a result of his DNA test is stated in his report. He has mentioned with regard to the DNA test in respect of item nos. 1 to 32. He has examined all the items and he noticed about the presence of blood in the items sent both belongs to the deceased Bhimavva Ajjappa Tyapi as well as the accused.
89. The prosecution also relies upon the evidence of PW.33 Dr.Iranna Shivappa Kalli. He conducted the post mortem. We have narrated the injuries so noticed by the 53 CRL.A NO.100191/2022 doctor at the time of conducting post mortem in our foregoing paragraphs. In the inquest report also, it is stated by the author of inquest panchanama that, the said victim might have been subjected to rape and murder. The contents of this document are not denied by the defence. So far as capability of appellant-accused persons of performing sexual intercourse is not denied by the appellant- accused. The report sent by Dr.Iranna Kalli shows at Item No.3 as under:
"As per examination detail with PM report submitted, we are of the opinion that deceased might have been undergone to sexual harassment (attempted)". This letter is addressed on 28.07.2015 to the Circle Police Inspector marked as Ex.P64. While marking this document, no objections were raised by the defence. Even the DNA report also shows about the method of conducting DNA examination.
90. It is a consistent case of the prosecution that, the accused persons stated supra were teasing deceased Bhimavva and they wanted to do something to her. Even it 54 CRL.A NO.100191/2022 has come in the evidence that, on the unfortunate day, they were discussing with each other that, today `Bhimi' will come out and we will do something to her.
91. Learned trial Court considering the evidence placed on record has come to the conclusion that, these three accused persons named in the charge sheet have committed the gang rape on the person of deceased Bhimavva. To that effect, there is a medical evidence placed on record by the prosecution.
92. So far as provisions of Sec.376(d) of IPC are concerned, they speak with regard to the `gang rape'. So far as rape is concerned this word `rape' is derived from the latin term `rapere' which means to cease or abduct. `Rape' or `Gang rape' is a very heinous crime that is punishable in the eyes of law. The effects of rape can include both physical as well as psychological trauma. Women often suffer health issues and reproductive problems after the rape and the mental instability continues for a very long time. Rape is a social problem and the victims suffer from physical, mental and emotional consequences as well as several other traumas 55 CRL.A NO.100191/2022 in their life. In this case, the deceased Bhimavva suffered rape as per the case of the prosecution.
93. Section 376(d) of the Indian Penal Code deals with `gang rape'. It states that `when a women is raped by one or more persons with constituting a group or acting in furtherance of common intention each of those persons shall be deemed to have been committed the rape and shall be sentenced with rigorous imprisonment for term which must not be less than 20 years but, which may extent to life which shall mean imprisonment for remainder period as per natural life of person and with fine. Such a fine must be just and reasonable in order to meet the medical expenses and rehabilitation further provided that, any fine imposed under this Section shall be paid to the victim. Therefore, this provision for gang rape recognize that, it is not necessary for each member of the group to commit the crime of rape to have a high degree of culpability. The law punishes any activity which is done in furtherance of the common intention of the group as if it was the offence of rape itself. This means that even those persons who stand guard at those cannot get 56 CRL.A NO.100191/2022 away with a lesser punishment by claiming that they did not commit actually sexual assault.
94. In this case, when accused are charged under Section 376(d) of IPC, then, it is for them to bring on record that they are innocent. In a judgment in Mohanlal and another vs. State of Punjab reported in (2013) 12 SCC519 it is held that, 'a group of teachers including the Director of Education of Punjab State had forcibly raped a student. The trial Court sentenced imprisonment of 10 years on the accused and a fine was also imposed, default of such fine will make them go under further rigorous imprisonment for a duration of one year and six months respectively.' The Supreme Court had responded to the accused's appeal by stating that this was a case of gang rape by the teachers on their student girl and trial Court held 10 years imprisonment can easily be converted to punishment of life on all accused individuals. Even in this case also, the evidence placed on record by the prosecution do establish about the commission of offence against the deceased. 57 CRL.A NO.100191/2022 95. It is argued by the counsel for the appellant-accused that, there is absence of injuries on the private part of deceased. The Hon'ble Supreme Court in Ranjeeth Hazarika vs. State of Assam reported in (1998) 8 SCC635has held that, to constitute the offence of rape, penetration however slight is sufficient. The mere fact that no injury was found on the private parts of the prosecutrix or hymn was found to be intact does not bely the statement of the prosecutrix. In this case, the doctor who has conducted post mortem has noticed the injuries on the person of the deceased. Even it has come in the evidence of the DNA examiner Sri L.Purushotham that human semen was found on the T-shirt of the accused. The DNA profile report also shows the presence of blood. Evidently the deceased was a married woman. Though it is argued by the counsel for the appellant that the evidence is missing in this case, but, it is held by the Hon'ble Apex Court in Mukesh vs. State of Chhattisgarh (2014) 10 SCC327that "absence of conclusive opinion of a medical examiner regarding rape in case of a married woman cannot be a ground for acquittal of the accused."
58 CRL.A NO.100191/2022 Thus, looked from any angle in this case, the deceased was gang raped as per the case of the prosecution and she was dead. The evidence of the prosecution is reliable and convincing.
96. The learned Addl. State Public Prosecutor referred to wounds and other injuries found and recorded in the PM report which indicate about the injuries on the person of the deceased so also on her neck. Even multiple abrasions were found on the body of deceased as per PM report. He therefore contends that, the victim was subjected to rape and murder. The very nature of the dead body so found do establish about the commission of crime by the accused.
97. He submits that, the injuries so mentioned in the PM report and on account of severity of the assault, the death of the deceased is caused by throttling as observed in the PM report. He submits that, the medical test of the accused no.1 do indicate that, he was capable of doing sexual intercourse. Further, he submits that, chain of events establish that, the accused along with other accused persons have committed offences. 59 CRL.A NO.100191/2022 98. Therefore, in view of all these factual features, coupled with the oral and documentary evidence lead by the prosecution, the offence under Section 376(d) of the Indian Penal Code is duly proved in accordance with law by the prosecution. Therefore we have no hesitation to hold that, the trial Court is right in coming to the conclusion that the appellant is guilty of committing of offence 376(d) of Indian Penal Code.
99. On evaluation of evidence adduced by the prosecution, the following circumstances may be summarized so as to connect the accused in the commission of the crime: • The accused is resident of Bochabal village and his house is situated by the side of the complainant. • Deceased Bhimavva married the complainant and they had no issues. For the purose of livelihood PW.1 and his wife Bhimavva went to Mangaluru for some moths and returned. • Complainant again went to Mangaluru for the purpose of eking out his livelihood. During that time, deceased informed this PW.1 about eve teasing by these accused persons and they are calling her to come with them. • At that time, the complainant informed his wife to wait for some days and will return after salary within fifteen days. 60 CRL.A NO.100191/2022 • In the meantime, elderly members of the village called these accused persons and advised them not to eve tease the deceased. • According to prosecution this is the motive for these accused persons to commit a crime against the deceased and they were hatching a plan together to do something to the deceased. • After return of the complainant, on 18.8.2013, as usual complainant and his wife after completion of the diner slept in the house. At about 10.00 p.m. on that day, deceased went away from the house for the purpose of answering her nature's call. • On the said day itself these accused persons were sitting in the house of Durgappa together and they were watching the television. • To execute the said plan of doing something to the deceased, they were talking with each other that today the deceased Bhimavva would come out for answering nature's call and at that time they would do something. • When deceased Bhimavva came out of house at 10.00 p.m. to answer nature's call on seeing the same, these accused no.1 along with accused nos. 2 and 3, went behind her and initially assaulted her with stone and carried her to the land of Fakeerappa. • There they committed rape on her one by one and throttled her neck. • As deceased did not return to the house PW.1 himself searched along with other villagers but, did not find his wife. Following day, it was noticed about the falling of dead body of his wife in the land of Fakeerappa. 61 CRL.A NO.100191/2022 • When they were so standing near Hanuman Temple, accused nos. 1 and 3 came there and on seeing them, though called, they ran away. Thereafter, a complaint was lodged, Police arrested the accused persons. • Based upon voluntary statement of accused, the articles stated supra have been seized by the Police. • The Post Mortem report shows about the injuries sustained by the deceased. • DNA report matches with the blood stains on the clothes of accused as noticed by the DNA expert. This goes to establish the presence of accused persons at the scene of occurrence at the time of commission of crime.
100. As discussed above, we find that the testimony of PW.1-complainant, PWs. 1 to 6, 10 to 13 strengthens by articles seized during the course of investigation. If the testimony of PW.13 is perused, on 18.8.2013, in between 10.00 and 10.30 p.m. he came to Bochabal village on a motor bike and they stopped their vehicle near Panduranga temple for the purpose of attending nature's call. PW.26 went for attending the nature’s call. PW13was sitting on the motor cycle, head light of motorcycle was on. At that time, he noticed the moving of accused nos. 1 to 3 by the side compound wall of Panduranga Temple and went away towards their house. This was on the date of the incident. He identifies 62 CRL.A NO.100191/2022 these accused nos.1 to 3. On the following day, he came to know that there was a dead body of a lady in the land of Fakeerappa and she was killed after commission of rape on her.
101. Though this PW.13 being the person who has seen these accused persons has been directed with severe cross- examination but, he has withstood the test of cross- examination.
102. PW.14 is an important witness by name Nissar Ahmed a resident of Munavalli wherein these accused nos. 1 to 3 used to work in his Sawmill. According to his evidence, on 19.8.2013 at about 10.30 a.m., when he was in his saw mill these accused nos. 1 and 3 came to him and demanded Rs.5,000/- stating that they want money as they have committed rape and murder of a lady on the previous night. They requested him to save them. To that, he advised them to surrender before the police and he gave Rs.500/-. Except denial in the cross-examination nothing is elicited from the mouth of this witness. There is no denial by the defence that, both accused nos. 1 and 3 were not working with PW14and not visited him on the following day of the said incident. This 63 CRL.A NO.100191/2022 itself presupposes that, these accused nos. 1 and 3 met him and requested to save them.
103. No doubt, as stated supra, it is an extra-judicial confession, a weak piece of evidence but, his evidence is trust-worthy.
104. PW.15 has spoken before the Court about hearing of the lady sound on 18.8.2013 at 10.00 pm, when he came near the Panduranga temple. He enquired them about the noise of a lady. To that, the accused nos.1 and 3 told that they made such noise.
105. Evidence of doctor and the forensic and DNA report proves the commission of rape and murder of deceased. These reports are not denied by the defence in an effective manner.
106. We can pursue the huge amount of shock and loss of wife by this complainant. A just married lady has suffered gruesome death because of rape and murder. There is nothing before us to convince us inasmuch as, our conscience does not permit us to believe that this PW.1 would want the actual culprit to go scot-free and seek conviction of the accused. It is 64 CRL.A NO.100191/2022 very much clear from the evidence brought on record that, there was no tutoring of any witnesses by the prosecution.
107. From the evidence before us, we find that the sequence of the events have unfolded, the evidence of the aforesaid witnesses, advising the accused persons not to eve tease the deceased cannot be ignored. It pre-supposes that, there was hatching of a plan by these accused persons to do some thing to the deceased.
108. In the face of this piece of evidence, the accused could have brought forth the evidence to establish that, they are not the really culprits. But, except denial throughout the cross-examination, no concrete defence has been established by the accused.
109. The connectivity in the chain of events is proved from the evidence of the aforesaid witnesses. The strength in the chain is further enhanced by the testimony of witnesses about the hatching of a plan by the accused persons etc.
110. We find material before us regarding seizure of the clothes worn by the accused persons produced by the accused. The evidence shows that, these accused persons 65 CRL.A NO.100191/2022 have led the Police to their respective houses where they took out the clothes worn by them at the time of commission of crime which were concealed. Thus, we find corroborative evidence brought on record in the form of seizure panchas and IO.
111. The accused as could be seen from the evidence placed on record by the prosecution, in order to ensure that, the victim should not be alive to narrate her ordeal to her relatives, her husband and villagers found it advantageous to silence her for ever by throttling her and killing her after committing rape on her. This seen of occurrence do establish and corroborates the evidence brought on record by the prosecution.
112. When there is a clear evidence of committing rape and murder of the deceased, we can very much consider that this appellant/accused is involved in the crime.
113. There is no dispute as regards the contents of post mortem report of the deceased. Deceased has suffered the injuries which were ante mortem. 66 CRL.A NO.100191/2022 114. In the above backdrop it can be concluded that three persons together gathered, hatched a plan to commit rape and murder, attacked her, assaulted her by stone and she fell unconscious. Thereafter took her to the sugar cane field, raped and murdered her. The circumstantial evidence brought on record by the prosecution proves that, it was accused who committed the offence.
115. With regard to circumstantial evidence, we find that the judgment of Hon'ble Apex Court in Hanuman Govind Naragundakar vs. State of Madhya Pradesh reported in 1952 (2) SCC71equivalent AIR1952SC343delivered by the Hon'ble Apex Court of three- Judges Bench.
116. Considering the effect of Section 3(6) of the Cr.PC, it was observed by Hon'ble Apex Court that, while dealing with circumstantial evidence, the rules specifically applicable to such evidence must be kept in focus. A case in which only circumstantial evidence is available, always gives rise to the danger that "conjectures or suspicion may take the place the legal proof". In cases based on only circumstantial evidence, the entire circumstance from which the conclusions of the 67 CRL.A NO.100191/2022 guilt is to be drawn should, in the first place, it clearly establish the facts so stated should be consistent only with the hypothesis of the guilt of the accused.
117. In JOSEPH S/O KOOVELI POULO V. STATE OF KERALA (2000) 5 SCC197it is held as under, Criminal Appeal No:
656. of 1998, decided on April 27, 2000 A. Criminal Trial - Circumstantial evidence -When can conviction be based on- Principles reiterated It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. (Para
10) 118. The prosecution case is based on circumstantial evidence. Undisputedly, the charges levelled against the accused are proved on the basis of the circumstantial evidence. The prosecution has proved with all probabilities, that these accused have committed the offence. We are 68 CRL.A NO.100191/2022 conscious of the law of evidence that necessarily there is long gap between "may be proved and must be proved."
In this case, prosecution has proved the guilt of accused No.1 with cogent evidence.
119. Hon'ble Apex Court in Krishnan vs. State represented by the Inspector of Police 2008(15) SCC430have considered the issue of conclusion on circumstantial evidence. After appreciating the evidence, it was observed in para.15 to 18 as under; 15. Before adverting to the above stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established: (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else: and 69 CRL.A NO.100191/2022 (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra.) 16. As far back as in 1952 in Hanumant Govind Nargundkar v. State of M.P. it was observed thus: (AIR pp. 345-46, para
10) "10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was or the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are (SCC p. 185, para 153): (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be established; 70 CRL.A NO.100191/2022 (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty: (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
18. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., wherein it has been observed thus: (SCC pp. 206-07, para 21)
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
120. The learned counsel for the accused-appellant though strenuously submits that, the evidence of the witnesses so examined do not inspire any confidence in the mind of the Court, but, the circumstances stated supra do establish that, they are the natural witnesses. 71 CRL.A NO.100191/2022 121. Thus, there is no material on record and inasmuch as, the accused has not formed a story of he having inimical terms or strained relations with the complainant and other witnesses or there was any specific reason for the complainant to falsely implicate the accused and orchestrate his conviction.
122. The core issue is that the complainant has lost his wife in the said crime and whether he would be interested in accusing the appellant accused and seek his conviction without there being any previous enmity. We do not find any such grounds and circumstances which would indicate the falsehood on the part of the complainant and other witnesses.
123. So also the contention of the appellant of being falsely implicated will have to be tested in juxta position with the evidence that has been recorded and brought before the trial Court till investigation. A sudden shock of brutal death of his wife is bound to shake PW.1 complainant. The Police had gathered information as part of the investigation, made them believe that the suspect would be the accused. In interrogation, the accused assisted the police for recovery of the cloth, chappal which was worn by the deceased was found 72 CRL.A NO.100191/2022 near the house of Yamanappa which was recovered by the Police. So also many articles, MOs have been recovered. We do not find that the evidence of these witnesses is fatal to the case of the prosecution in proving involvement of the accused in the commission of the crime.
124. When the offence is duly proved in accordance with law by the prosecution with circumstances, the learned trial Court did not make any reference to any particular omission or lacunae in the investigation. No such argument is advanced by the appellant accused also, that there is any discrepancy in the investigation. The function of the criminal court should not be wasted in picking out lapses in investigation and by expressing any unsavoury criticism against the investigating agency. If accused are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim.
125. Therefore, the efforts should be made by the court to see that, the criminal justice is salvaged despite of some defects in investigation. The Court should bear in mind that, the time constraints of Police Officers in the present system, the ill-equipped machinery, they have to cope with the 73 CRL.A NO.100191/2022 authority, Police force have to confront difficulties in conducting the investigation. In the present case, we have not come across any such serious flaw in the investigation which has affected the case.
126. Applying the principles of the test for assessing evidence whether the guilt has been established by virtue of circumstantial evidence, we are of the considered view that the testimony of the witnesses, the movement of the victim towards land of Fakeerappa, her death in sugar cane land, culminating with the discovery and recovery of the clothes being worn by the accused persons proves their involvement. We find that denial of the cases in prosecution by accused no.1 has completely neutralized by the recovery of the clothes of the accused persons at their instance. These factual evidence through the witnesses do not rise to any other inference than the conclusion that, these accused persons after commission of the crime, have concealed their dress and clothes in their respective houses. The evidence of the seizure panchanama as discussed above do establish that, there was seizure of the same. However, it cannot be overruled that, these accused persons lead the Police to their respective 74 CRL.A NO.100191/2022 houses and produced the clothes. It is not the case of the accused persons that those clothes are not belonging to them and the said clothes were planted by the police and kept in their respective houses. So also it is not their case that police have created a make-believe picture for unearthing their clothes.
127. In view of the above discussion, the points raised supra are answered in the negative and the appeal filed by the appellant is liable to be dismissed by confirming the judgment of conviction and order of sentence passed by the trial Court for the offences punishable under Sections 376(A)(D), 302,201,364,120B R/W34of Indian Penal Code.
128. Thus, the judgment of conviction and order of sentence passed by the trial Court stands confirmed. Resultantly, the following:
ORDERi) Appeal filed by the accused-appellant is dismissed. ii) The judgment of conviction and order of sentence passed by the trial Court for the offences punishable under Sections 302, 376D, 364, 120B, 75 CRL.A NO.100191/2022 201 read with Section 34 IPC, is hereby confirmed. iii) Send back the trial Court records along with a copy of this judgment. Sd/- JUDGE Sd/- JUDGE Sk/-