® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE30H DAY OF SEPTEMBER,2022 PRESENT THE HON'BLE MR. JUSTICE K. SOMASHEKAR AND THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA CRIMINAL APPEAL No.142 OF2018BETWEEN: SRI.VENKATESHA, S/OVENKATARAMANAPPA, AGED ABOUT32YEARS, R/AT LAKKUR VILLAGE, MALUR TALUK, KOLAR DISTRICT. ... APPELLANT (BY SRI JAVEED S., ADV.) AND: STATE BY S.P.P, BY DODDABELAVANGALA POLICE STATION, REPT.BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING BANGALORE-560 001. ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.) T HIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENTOF CONVICTION DATED0811.2017 AND
ORDEROF CONVICTION DATED CRL.A.142/2018 2 20.11.2017 PASSED BY THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.333/2011, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION376AND302OF IPC. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON2208.2022 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENTTHIS DAY, T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:
JUDGMENT
This Appeal is directed against the judgment of conviction dated 08.11.2017 rendered by the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in Sessions Case No.333/2011, convicting the appellant / accused for the offences punishable under Sections 376 and 302 of Indian Penal Code, 1860 ('IPC' for brevity) and further sentencing the accused to undergo imprisonment for seven years for the offence punishable under Section 376 and imprisonment for life for the offence punishable under Section 302 of IPC and both the sentences to run concurrently. CRL.A.142/2018 3 2. Heard the arguments of Sri.S.Javeed, learned counsel representing the appellant/accused and Sri.Vijayakumar Majage, learned Addl.SPP representing the respondent/State. Perused the impugned judgment and the evidence relied by both sides and also the grounds urged in the appeal.
3. In brevity, case of the prosecution is as under: PW-3/Veeradasappa and PW-4/Siddagangamma are the fellow residents of Kattihosahalli village of Doddabelavangala Hobli of Doddaballapur taluk. One Mamatha is their daughter (in short the deceased). In the house of PWs-3 and 4, there was no toilet facility and they used to attend the nature call by going to pond situated nearby their house including their family members. On 17.07.2011 at about 3.00 p.m. deceased, who was in the house, informed PW-4 that she is going CRL.A.142/2018 4 towards the pond for attending the nature call, but she did not return back home even after some time. For that reason, PW-4 went in search of the deceased why she did not return from the pond. When she had gone towards the pond, she saw the accused coming from the pond side and at the same time, she saw the deceased was lying in the pond and she was dead. Hence, PW-4 alerted the fellow villagers by shouting and at the same time, PW-1/K.V.Anjinamurthy, PW-2/Ramesh and PW- 3/Veeradasappa, her husband, rushed to the spot. PW- 1 caught-hold of the accused, whose clothes were stained with mud and the deceased was also found dead in the pond with her clothes stained with mud and injuries on her body. PW-1 lodged a complaint before the Police as per Ex.P1 and produced the accused before the Police. Hence, case in Crime No.122/2011 was registered by Dodda Belavangala Police. The CRL.A.142/2018 5 Investigating Officer visited the spot and draw the spot mahazar. The dead body of the deceased was shifted to Government Hospital, Doddaballapura where the inquest as well the postmortem examination was carried out. The accused was arrested and during the search, the gold ornaments of the deceased was found in possession of the accused and for this reason, he was subjected to medical examination and later he was produced before the court and sent to judicial custody.
4. PW-13/Keshava, the CPI, who conducted the investigation and CW-25/K.N.Subramanya, CPI (now dead), who completed the investigation and filed the charge sheet. On receipt of the charge sheet, the learned Principal Civil Judge and JMFC., Doddaballapura, Bangalore Rural District, has registered the case in C.C.No.778/2011 and after compliance of Section 207 of Cr.P.C., he has committed the case to the court of CRL.A.142/2018 6 Sessions under Section 209 of Cr.P.C. The learned Principal District and Sessions Judge, Bangalore Rural District, Bangalore, on receipt of the case, on committal registered a case in S.C.No.333/2011 and made over the matter to the Fast Track Court sitting at Doddaballapura for disposal. Later the case was assigned to VI Additional District and Sessions Judge, Bangalore Rural District, Bangalore, for trial.
5. Before the committal court, legal aid was extended to the accused by appointing a standing counsel and later after committal, the accused has engaged his private advocate. The learned Sessions Judge after considering the material on record and after hearing both sides, directed the accused to answer the charge for the offences punishable under Sections 376 and 302 of IPC and on the contents of the charge was explained to the accused, he has pleaded not guilty and CRL.A.142/2018 7 claims to be tried. Subsequently, in order to bring home the guilt of the accused, prosecution has relied upon the oral evidence of 16 witnesses by examining them as PW- 1 to PW-16, marked Exs.P1 to P8 and material objects as per M.Os.1 to 12 and closed its side. The learned Sessions Judge examined the accused under Section 313 of Cr.P.C. by explaining the incriminating circumstances pointing towards the accused. The accused pleaded not guilty and he did deny the said circumstances claiming that he is innocent, he is not connected to the case since he was going on the road he was taken to custody and case has been filed against him. Except that, under Section 233 of Cr.P.C. he did not choose to lead any defence evidence.
6. The learned Sessions Judge after hearing both sides and also considering the written statement filed on behalf o the accused passed the impugned judgment CRL.A.142/2018 8 holding that the accused is guilty of Section 376 and 302 of IPC and passed the impugned sentence. Aggrieved by the order of conviction and imposing of sentence, the accused has come up before this court alleging various grounds as stated in the appeal memorandum.
7. It has been argued by Sri.S.Javeed, learned counsel for the appellant/accused that the accused is not the resident of Kattihosahalli village, but he is a resident of Lakkur village of Malur taluk. He came only once or twice to Kattihosahalli village to his relatives house and he is a stranger and neither he had any work with the deceased nor he had any intention to do any alleged offence. The prosecution did not bring out any evidence to explain how the accused is acquainted with the deceased and a new theory has been introduced by the father of deceased/PW-3/Veeradasappa that he has seen the accused teasing the deceased. But inspite of it, he CRL.A.142/2018 9 did not intervene nor file any complaint to the Police. There is no eye witness to the incident, the entire case rests on the circumstances. The chain of events, if taken into consideration, nothing is available to connect the links to form part of chain of circumstances, which point out the guilt of the accused, rather the evidence of the prosecution is consistent with the innocence of the accused and it is inconsistent with the guilt of the accused. The order of conviction is erroneous based on unacceptable and inadmissible evidence. Hence, the accused needs to be acquitted from the charges.
8. Another alternate argument without conceding the case, which has been contended that absolutely there is no evidence, which attracts the evidence under Section 376 of IPC, as the material collected from the accused and also the material collected from the dead body of the deceased did not connect as regarding the CRL.A.142/2018 10 alleged rape. The medical evidence did point out that nothing is found from the accused which would able to explain the ingredients of offence under Section 376 of IPC against the accused and the alleged offence is not first degree but it may utmost fall within the purview of Section 304 of IPC.
9. Learned Additional S.P.P. Sri.Vijayakumar Majage for the respondent/State has contended that the medical evidence and also the inquest mahazar did point out the ligature mark on the neck of the deceased. The physical examination of the dead body did indicate bite marks on the cheeks and breasts of the deceased, accused was caught-hold within thirty minutes, from near the place of incident, the chappals belonging to the accused was seized from near the pond. The ornaments of the deceased was in the possession of the accused. The medical evidence did point out that the deceased CRL.A.142/2018 11 was subjected to rape, the accused was arrested and was subjected to medical examination. The FSL report confirmed the alleged rape and the ligature material has already been seized and therefore, the totality of the evidence did point out and suggest that the accused and accused alone was responsible for the death of the deceased much less the death was caused after committing rape against the deceased and she was made to drown in the pond for her no fault. Hence, the chain of circumstances has been explained through positive evidence and some irregularity in investigation or non-examination of nail marks of the accused and sample of teeth of the accused is not fatal to the case, which will not give rise to innocence of the accused. Hence, the accused deserves to be convicted. Much apart the learned Addl.SPP has contended that an offence under Sections 376 and 302 of IPC, apart from CRL.A.142/2018 12 sentence, attracts the liability of fine, but the trial court did not impose him any fine, only sentence was passed and therefore, the accused is to be imposed on adequate sentence in the form of fine.
10. Having heard the arguments of both sides, let us peruse the evidence of the prosecution, which is relied upon to bring home the guilt of the accused.
11. PW-1/K.V.Aanjinamurthy is the relative of the deceased, he is the complainant, who set the law into motion by presenting Ex.P1/complaint to the Police on 17.07.2011. On oath he has deposed that on 17.07.2011 at about 3.30 p.m. when he was going towards his land, saw the accused coming from pond side with mud-stains on his T-shirt and lungi. The accused was in a disturbed condition with clotted mud on his face. The accused interacted with him and asked CRL.A.142/2018 13 him to pay Rs.20/- to go to Malur, as he has no money in his possession. At the same time, he saw PW-4 came to the spot shouting that somebody has killed the deceased. For this reason, PW-1 caught-hold of the accused, by that time, neighbours also joined, all went near the pond and found the deceased was fallen in the pond and she was dead with injuries on her face, chest, both ears were torn and ear-studs were not found on her ears and for this reason, he has handed over the accused to the Police by filing a complaint at Ex.P1. The Police have made the search of the accused and found ear-studs and ear-drops of the deceased in possession of the accused. Without any hesitation, he has admitted that PWs-2 and 3 are his uncles and PW-4 is his aunt.
12. PW-2/Ramesh is a witness, who has also witnessed the said incident. In his witness box on oath he has deposed that on 17.07.2011 between 2.30 and CRL.A.142/2018 14 3.00 p.m. he saw some people running towards the pond in the village. He too visited the spot where he has seen the deceased fallen in the pond and she was dead. He has seen the injuries on her cheek, her ears were torn, clothes were embedded with mud. He has seen some people caught-hold of the accused, whose clothes were also embedded with mud. He had seen near the pond, the slippers of the deceased as per M.O.2, slippers of the accused as per M.O.1 and also the hat of the accused as per M.O.3. According to him, the deceased was died due to hanging with wire at M.O.12. He is also the relative of the deceased.
13. PW-3/Veeradasappa is the father of the deceased. He deposes on oath that the deceased was in the house at 2.30 p.m. on 17.07.2011. She had gone to the pond for attending the nature call, but she did not return and for this reason, he sent PW- CRL.A.142/2018 15 4/Siddagangamma in search of the deceased. She traced the dead body of the deceased lying in the pond and after seeing the same, she shouted and running towards the road, at that time, he rushed to the spot and saw the presence of PWs-1, 2 and others. PW-1 was holding the accused, clothes of the accused and the deceased were embedded with mud, both the ears of the deceased were torn and he had seen the bite injuries on the cheeks of the deceased. According to him, the accused tied M.O.12/wire on the neck of the deceased resulting in her death. He has also deposed about the clothes found on the body of the deceased at M.Os.4 to 8, such as, yellow colour dress. He has also identified the ornaments at M.Os.9 to 11, such as gold ear-rings, gold ear-drops, one rold gold chain were belonging to the deceased. CRL.A.142/2018 16 14. PW-4/Siddagangamma is the mother of the deceased. She deposed on oath that there was no toilet facility in her house and for this reason, all the family members used to attend nature call in the pond situated nearby her house. On the alleged date of incident, at 3.00 p.m. deceased informed her that she wants to go to attend nature call in the pond and for this reason, she left the house towards pond. From the pond, the deceased did not return home for a long time and for this reason, she went in search of the deceased towards the pond, where she had seen the accused coming from the side of the pond. She also saw the dead body of the deceased in the pond and for this reason, she shouted and by that time, PWs-1, 2 and 3 and others came running to the spot, PW-1 caught-hold of the accused and at that time, the clothes of the accused was embedded with mud and so also clothes of the CRL.A.142/2018 17 deceased. She has seen the bitten marks on the cheeks and chest of the deceased and she had also observed the accused had removed golden ear-rings from one ear of the deceased, deceased was wearing rold-gold chain in her neck. She identifies M.Os.4 to 8 as the clothes on the body of the deceased and M.Os.9 to 11 are the ornaments of the deceased.
15. PW-5/Lakshman, PW-6/Rajanna and PW- 7/Hanumanthaiah are the panch witnesses to the spot where the alleged incident took place. Their evidence would point out the visit of the Police near the pond, drawing up of the spot mahazar as per Ex.P3 and seizure of M.O.1/chappal of the accused, M.O.2/chappals of the deceased, M.O.3/hat of the accused and wire at M.O.12. PW-7 further states that it is he, who shown the place of incident to the Police. PW-7 though turned partially hostile, his evidence stands in support of PWs-5 CRL.A.142/2018 18 and 6 regarding Ex.P3/seizure mahazar and seizure of M.Os.1 to 3 and 12 near the spot where the dead body was traced.
16. PW-8/Lakshmaiah, PW-9/Narasimhaiah, who are the inquest panchas, both have deposed before the court that they have seen the dead body of the deceased at Government Hospital, Doddaballapura, where the inquest at Ex.P4 has been drawn by the Police and the clothes on the dead body of the deceased at M.Os.4 to 6 were collected by the Police. At the time of inquest, PW-8 had seen the injuries on the body of the deceased, such as, cheeks, chest and neck. PW-8 has turned hostile to certain extent, but the cross- examination by the prosecution brought him to the track, which stands in support of the prosecution as to drawing up of Ex.P4/inquest mahazar and seizure of M.Os.4 to 8 during the time of inquest. CRL.A.142/2018 19 17. PW-9/Narasimhaiah, though he is not elaborate, but his evidence did point out that the Police drawing inquest mahazar/Ex.P4 on the dead body of the deceased, he has not been cross-examined for the defence.
18. PW-11/Rangashamaiah @ Rangaswamy, the then P.C. of Doddabelavangala. It is he, who attended the guard duty of the dead body for conducting postmortem examination on 17.07.2011 at Doddaballapura Government Hospital. After the postmortem examination, he handed over the dead body to the relatives and also he collected M.Os.4 to 8, the clothes, which were found on the dead body and it was brought and produced before the Investigating Officer. PW-11 has not been cross-examined and his evidence stood unrebutted regarding conducting of postmortem and also collection and production of M.Os.4 to 8 which CRL.A.142/2018 20 are the clothes found on the dead body of the deceased during the autopsy.
19. PW-13/Keshava is the Investigating Officer, who on 17.07.2011, took over the investigation from CW-23/D.R.Nagaraj, PSI of Doddabelavangala Police Station and he has visited the Government hospital, Doddaballapura on the very day and secured the presence of PW-8/R.Lakshmaiah, PW-9/Narasimhaiah and CW-13/K.S.Narasimha Murthy and conducted Ex.P4/inquest mahazar on the dead body of the deceased and deputed PW-11 with a requisition to send the dead body for postmortem examination by the Medical Officer. On the same day at about 10.00 p.m. CW-23/D.R.Nagaraj, PSI has produced the accused before him and he has enquired and took his voluntary statement and during the body search, he traced gold gundu and drops and one rold-gold chain shown at CRL.A.142/2018 21 M.Os.9 to 11 from the possession of the accused and same was seized in the presence of PW-10/Shivakumar and CW-18/Muniraju under Ex.P5/mahazar. On the very day, he has subjected the accused for physical examination to the Medical Officer and thereafter he was subjected to remand. On 18.07.2011 he has visited the pond along with PW-6/Rajanna and PW-8/R.Lakshmaiah and conducted spot mahazar as per Ex.P3 where at that time he has seized M.Os.1, 3 to 12 and he has also recorded the statement of PW-2/Ramesh, CW- 5/Sahadeva and CW-6/Anjinappa, thereafter handed over the investigation to CW-25/K.M.Subramanya on account of his transfer. Since CW-25 is dead, PW-13 himself was able to speak about the limited investigation conducted by CW-25, such as, collection of postmortem report as per Ex.P7, FSL report as per Ex.P6 and filing of the final report. CRL.A.142/2018 22 20. PW-16/L.Hanumantharaju is the Police Constable. It is he who carried the complaint at Ex.P1 and FIR at Ex.P8 from Doddabelavangala Police Station to the court at Doddaballapura.
21. PW-12/Gurumurthychar, another Police constable, who carried the seized articles during the investigation to Forensic Science Laboratory.
22. PW-10/Shivakumar is the seizure pancha for Ex.P5 in respect of seizure of gold studs, ear-drops and rold-gold chain from the possession of the accused at Doddabelavangala Police Station. But his witness box is complete hostile to the prosecution and he did not support anything and therefore, PW-10 is not helpful to the prosecution.
23. PW-15/Dr.Chowdaiah is the Medical Officer of Government Hospital, Doddaballapura. His evidence on CRL.A.142/2018 23 oath did point out that on 17.07.2011, he has conducted postmortem examination on the dead body of the deceased and during the examination, he has noticed the following injuries on the body of the deceased:
1. Both ear lobes are torn and bleeding through the right ear mild seen.
2) Teeth bitten circular markings seen on (torn) left cheek, one above, the other at two different sites closely. Red in color, and bitten very strongly & the skin is absent at the bitten points. . . . The same is repeated & printed like on . . . the right cheek also at two places . . . Crescentric shaped 3 teeth above 3 teeth below
3) There is a clear cut ligature mark, obliquely in the neck measuring 13" x 1/2" above (1/2") above glottis in midline in front 2.1/2" from the chin. This ligature mark is black & very prominently seen. In the neck region at the level of thyroid cartilage. This ligature mark is CRL.A.142/2018 24 interrupted at the back of the neck. It is 1" below the ears on the sides. The skin is parchmentors and the underlying is pale, elastic, thin or pissection, oedmatous & haemorhagic at some points underlying muscle torn.
4) The teeth bitten marks again is seen on the upper portion of the left breast 1" above from the left nipple exactly same as seen over the face bitten marks. 2" lateral boarder of the left sternum.
24. According to him, all these injuries are antemortem in nature and they were very fresh and he has noticed the fracture of hyoid bone and also saw 500 ml. of dirty water in the intestine and according to him, the rupture of hymen with blood clots were prominently noticed. According to him, the cause of death was "asphyxia as a result of secondary to strangulation and drowning". He has issued Ex.P7/postmortem report and he has given opinion one is regarding cause of death and another regarding rape committed on the deceased. CRL.A.142/2018 25 He also examined M.O.12/wire, which is the ligature material and according to him, M.O.12, if it is used to tie the neck of the deceased, the ligature mark as noticed on the neck of the deceased, fracture of hyoid bone was possible and also for the reason of presence of 500 ml. of dirty water in the stomach, it is a case of drowning too. For the reason of bite marks on the cheeks and breasts, rupture of hymen with blood clots, he has came to the conclusion that these are the rape symptoms. According to him, both the ears are torn and blood was oozing and it was so fresh. The evidence of PW-15 did also point out conducting the postmortem examination between 9.30 p.m. and 11.00 p.m.
25. PW-14/Dr.Chandrashekar is the Scientific Officer of FSL, Bangalore. On oath, he has deposed that in connection with this case, he has received 12 items including M.Os.4 to 7. On scientific examination, he CRL.A.142/2018 26 found human blood on M.Os.4 and 6 and also shirt of the accused. To this extent, he has issued the FSL report as per Ex.P6.
26. Now, the above is the evidence relied upon by the prosecution. Having regard to the arguments addressed by both sides, it is very clear that the entire case of the prosecution rests upon circumstantial evidence as none of the witnesses have seen the accused and the deceased last seen together, the accused manhandling the deceased or committing rape or inflicting bodily injury and drowning her to the pond.
27. When the court is dealing with the case of this nature, the law has been settled and it is relevant to read the settled principles before proceeding further. The Hon'ble Apex Court in the case of Bodhiraj @ CRL.A.142/2018 27 Bodha and others -vs- State of Jammu and Kashmir1. The relevant paragraphs read as under:
"9. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC1063, Eradu v. State of Hyderabad, AIR (1956) SC316 Earabhadrappa 1 (2002) 8 SCC45CRL.A.142/2018 28 v. State of Karnataka, AIR (1983) SC446 State of U.P. v. Sukhbasi and Ors., AIR (1985) SC1224 Balwinder Singh v. State of Punjab, AIR (1987) SC350 Ashok Kumar Chatterjee v. State of MP AIR (1989) SC1890 The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C Chenga Reddy and Ors. v. State of A,P,, [1996]. 10 SCC193 wherein it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn would 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.....'" CRL.A.142/2018 29 12. In Padala Veera Reddy v. State of A.P. and Ors.. AIR (1990) SC79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests;
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (2) those circumstances. should be of a definite tendency unerringly pointing towards guilt of the accused. (3) 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 (4) 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.
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl.L.J.l 104, it was pointed out that great case must be taken in evaluating circumstantially evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of CRL.A.142/2018 30 all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence" (Chapter VI ) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC343 wherein it was observed thus:
"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 CRL.A.142/2018 31 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 alter decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC1622 Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) 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, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. that is to say, they CRL.A.142/2018 32 should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so compete 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.
28. As referred to above, law was so evolved, now the test of prudence required to prove a charge based on circumstantial evidence and if two views from the evidence, one which is favorable to the accused shall be put into service. The standard of proof shall be unimpeachable in character and there shall not be any weak link form part of the chain of circumstances.
29. From the evidence of the prosecution, the following links have been proposed to form part of the CRL.A.142/2018 33 chain of circumstances and now the court has to re-visit the evidence, appreciate the facts and evidence, to come to a conclusion whether the facts prove through the circumstantial evidence is pointing out the innocence of the accused or guilt of the accused. The proposed chain of links are as follows: (i) Homicidal death of the deceased; (ii) The presence of the accused near the pond at the relevant point of time and caught red-handed to the hands of PWs-1, 2, 3 and fellow villagers and during that time, he was in possession of M.Os.9 to 11/ornaments of the deceased; (iii) Bloodstains of the deceased found on the clothes of the accused; (iv) Seizure of chappals and cap of the accused near the pond; (v) Recovery of M.Os.9 to 11 from the possession of the accused when he was arrested by PW-13. CRL.A.142/2018 34 Reg. Link No.1:
30. PW-13/Keshava, the CPI, who has conducted the inquest on the dead body of the deceased as per Ex.P4 at Government hospital, Doddaballapura on 17.07.2011, on oath he has reiterated the same and on analysis of his evidence did point out that he did secure the presence of PWs-8 and 9 and in their presence has conducted the inquest mahazar and also recorded the statement of CW-14/Hanumantharaju, CW-15/Manju and CW-16/Indiramma (who have not been examined). PW-8/Lakshmaiah and PW-9/Narasimhaiah on oath depose the inquest conducted by the Police at Doddaballapura Government hospital as per Ex.P4. PW- 8/Lakshmaiah though turned hostile partially, the prosecution is able to demonstrate during the cross- examination its version that PW-8 has witnessed the Ex.P4/inquest mahazar conducted on the dead body of CRL.A.142/2018 35 the deceased and the presence of clothes on the dead body as per M.Os.4 to 6 i.e., Chudidar top, Chudidar pant, chudidar veil and inner-wears. PW-9, though has not elaborately spoken to, his evidence points out his presence during the inquest under Ex.P4 and attesting the same at Government hospital, Doddaballapura wherein PW-9 has not at all been cross-examined for the defence wherein, the cross-examination of PW-8 did not deny the tenor of his evidence and therefore, conjoint reading of the evidence of PW-13 along with PWs-8 and 9 did point out the inquest conducted on the dead body of the deceased on 17.07.2011 at Government hospital, Doddaballapura.
31. PW-15/Dr.Chowdaiah, the Medical Officer of the General Hospital, Doddaballapura, it is he, who conducted the autopsy on the dead body of the deceased and issued the post-mortem report as per CRL.A.142/2018 36 Ex.P7 and he has also examined M.O.12/wire shown to him by the Investigating Officer and gave the opinion that the death of the deceased was due to asphyxia as a result of secondary strangulation and drowning. Drowning of the dead body in the pond is confirmed as there is a dirty water of 500 ml found in the intestine of the deceased. During the post-mortem examination, PW-15 has noted several injuries found on the body of the deceased, which is mentioned in his evidence referred to supra. The cross-examination of PW-15 on behalf of the accused did able to elicit that he could not be able to confirm whether the bite marks on the cheeks and breast of the dead body could be possible either by human bite or animal bite and same has not been referred to in Ex.P7. So far as bite marks found on the dead body of the deceased could be taken up little later for discussion, which is not the cause of death, but the CRL.A.142/2018 37 cross-examination failed to explain except bringing out that there was no mud on the face or hair of the deceased, nothing is demonstrated or elicited any secondary hypothesis which the court can make a different analysis. Except bringing out that PW-15 has not mentioned in his report the time since the death of the deceased, but same could have been answered by the very evidence of PW-15 that the injuries found on the dead body are very fresh and it could be found that the Rigor Mortis was just set in, little bleeding from the right ear. Hence, this goes to indicate that when the post-mortem examination was conducted, there was a bleeding from the right ear and the injuries found on the body were very fresh and the Rigor Mortis has just been set in and the time of post-mortem was between 9.30 p.m. and 11.00 p.m. wherein the alleged incident is said to have been taken place at about 3.30 p.m. CRL.A.142/2018 38 32. As per Modi's Medical Jurisprudence and Toxicology - Twenty Second Edition, at page 228 under the head (ii) Cadaveric Rigidity or Rigor Mortis, at page 229:
"Time of onset: The varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.
33. In the instant case, the time gap between the post-mortem examination from the alleged incident is just six hours. For this reason, the time since death could be assessed in the slot of less than 12 hours.
34. In view of the above evidence, the post- mortem report at Ex.P7 did point out that at the time of CRL.A.142/2018 39 post-mortem examination, the dead body was so fresh, little bleeding was present, injuries were ante-mortem in nature and there was a bleeding in the right ear lobe and therefore, the court can make a clear presumption regarding the time since death and as such, it will not go to the root of the case.
35. At this juncture, it is relevant to note the scope of Section 165 of the Evidence Act, 1873 where, if the court is vigilant and if it is involved actively in recording of the evidence, this situation could have been avoided as the law being settled. In this regard, Hon'ble Supreme Court in Himanshu Singh Sabharwal -vs- 2 State of M.P. and Others at paras-13, 14, 16 and 17 of the judgment observed as under:-
"13. The fair trial for a criminal offence consists not only in technical observance of 2 AIR2008SC1943CRL.A.142/2018 40 the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
14. "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, CRL.A.142/2018 41 which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. CRL.A.142/2018 42 15. xxxx xxxx xxxx 16. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
17. The power of the Court under Section 165 of the Evidence Act is in a way complementary CRL.A.142/2018 43 to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC271 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is CRL.A.142/2018 44 necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.
36. Herein this case, the approach of the Special Public Prosecutor is very casual, evidence has not been let in properly and at the same time, Presiding Officer could have invoked Section 165 of the Evidence Act 1873 and put court question to ascertain the time since death of the deceased and also to confirm the same. The court could have confirmed through the Doctor witness whether the injuries found on the dead body is suffice to cause death of a person in the ordinary course of nature. In this regard, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Shivappa Budappa Kolkar @ Buddappagol -vs- CRL.A.142/2018 45 3 State of Karnataka and Others wherein it has been held that there is no medical evidence to establish that the injury inflicted by itself would be sufficient to cause death in the ordinary course of nature.
37. In this regard, it is needless to mention here, as we observe in many of the cases, our Judicial Officers are not invoking Section 165 of the Evidence Act. Mere fact that the Judicial Officers were not adopting such practice does not mean that the case will affect at its root but in the facts and circumstances of this case, if injury as referred to in the medical evidence as mentioned in Ex.P7 and also the inquest at Ex.P4, is suffice to hold that cause of death of the deceased was in the ordinary course of nature. 3 AIR2004SC5047CRL.A.142/2018 46 38. The evidence of PW-1/K.V.Anjanamurthy, PW- 2/Ramesh, PW-3/Veeradasappa, PW-6/Rajanna did point out the presence of the injuries on the neck of the deceased when they saw the dead body near the pond. There is a seizure of ligature material at M.O.12 during the time of spot mahazar. In this regard, we can see the evidence of PWs-5, 6 and 7, who are the panch witnesses to spot mahazar under Ex.P3, who did depose that at the spot, they found M.O.1/chappals of the accused, M.O.2/chappals of the deceased, M.O.3/hat of the accused and M.O.12/ligature material i.e., wire seized by the Investigating Officer. PW-13 has deposed that on 18.07.2011 along with CW-8 and CW-9 he has drawn Ex.P3/spot mahazar and seized M.Os.1, 3 to 12. PW-7 admits that he has shown the spot to the Police and in his presence, the mahazar was drawn. During said period, PWs-5 and 6 were also present. PW-6 CRL.A.142/2018 47 admits that it is the PW-7/Hanumanthaiah, who has shown the place to Police where M.Os.1, 3 to 12 were traced and PW-5 deposed that near Kattihosahalli pond, he has seen M.Os.1, 3 to 12 and it was seized under Ex.P3 between 8 a.m. and 9.00 a.m. on 18.07.2011. PW-3 also identifies M.O.1 and also M.O.12 said to have been found at the spot. Thus, M.O.12 being ligature material, which has been examined by PW-15 and his evidence did point out that such a ligature injury was possible by means of M.O.12. Thus, the totality of the evidence did point out that the death of the deceased was on account of ligature injury on the neck of the deceased, which is antemortem in nature and because of the strangulation by means of M.O.12, ligature injury was caused and due to such ligature injury, the deceased suffered asphyxia resulting in her death. CRL.A.142/2018 48 39. The defence did not point out any other hypothesis, which could be gathered from the evidence or in the facts and circumstances to accept anything that the death of the deceased was other than what is proposed by the prosecution. There is no other hypothesis that the deceased has not committed suicide nor was she met with an accident or the death of the deceased was natural and therefore, totality of the evidence did point out that the death of the deceased was a homicidal death. Reg: Link No.2:
40. The accused is said to have been apprehended from near the point of pond. This has been witnessed by the fellow villagers. During the said period, he was found in possession of M.Os.9 to 11, ornaments said to have been belonging to the deceased. In this regard, PW-1/K.V.Anjinamurthy, it is he, who set the law into CRL.A.142/2018 49 motion. His evidence points out at about 3.30 p.m. on 17.07.2011, he was going towards his land at Kattihosahalli. At that time, he came across with the accused who was coming from side of the pond and his clothes were stained with mud and wetted, so also his face. He was in a disturbed condition and the accused asked Rs.20/- from PW-1 to go to Malur as he had no money. At the same time, he saw PW-4 running shouting that somebody has killed the deceased. By observing the behaviour of the accused, he caught-hold of him and immediately, PW-2/Ramesh and PW- 3/Veeradasappa rushed to the spot. They all caught- hold of the accused where they saw the accused is in possession of M.Os.9 to 11/ornaments. Same is the version of PW-2/Ramesh and PW-3/Veeradasappa and PW-4/Siddagangamma. CRL.A.142/2018 50 41. The defence has though cross-examined these witnesses, nothing is brought out to doubt their veracity. It is pertinent to note that the accused is not a resident of Kattihosahalli village, he hails from Malur taluk. He had come to the village only twice to the house of his aunt and he is totally a stranger to the village. There was no animosity or dispute between the accused and the family members of the deceased nor there was any reason for the family members of the deceased to fix up the accused for the alleged incident. During the course of examination under Section 313 of Cr.P.C., the accused has given a clear answer that while he was going on the road near the alleged pond, he was taken to custody. The accused did not give any explanation why he was going there, as it was not a road leading to his village and it is a road leading towards agricultural land and therefore, the explanation so offered by the CRL.A.142/2018 51 accused did point out and stand in support of the evidence of PWs-1 to 4 that the accused was found near the pond at 3.30 p.m. on 17.07.2011 where he was apprehended and where the dead body of the deceased at the same time was traced inside the pond. PW- 10/Shivakumar is the seizure pancha and in whose presence PW-13 has seized M.Os.9 to 11 under Ex.P5.
42. Unfortunately, PW-10 in the witness box given a total go-by and he did not support the alleged seizure and even efforts made by the prosecution. During his cross-examination, he did deny the suggestion that the seizure of M.Os.9 to 11 under Ex.P5/spot mahazar. Another seizure pancha is CW-18/Muniraju. Unfortunately, knowing fully well that PW-10 has turned hostile, the prosecution failed to bring him before the court and therefore, the prosecution has to bank upon the evidence of PW-13 and other evidence to explain the CRL.A.142/2018 52 seizure of M.Os.9 to 11 from the custody of the accused. In this regard, the evidence of PW-13 did point out that on 17.07.2011 CW-23/D.R.Nagaraj, PSI of Doddabelavangala Police Station ahs produced the accused before him and thereafter he has arrested the accused, took his voluntary statement and found the accused in possession of M.Os.9 to 11, ornaments of the deceased and therefore, he has secured PW-10 and also CW-18/Muniraju to the Police Station and took the search of the accused and same was seized under Ex.P5/mahazar. Even if the evidence of PW-10 and CW- 18/Muniraju is not available to the prosecution, there is no reason to doubt the veracity of PW-13 as the evidence of PWs-1, 2, 3 and 4 did point out that at the time of caught-hold of the accused near the pond, they saw M.Os.9 to 11 in the custody of the accused. Hence, the seizure of said articles under Ex.P5 loses its CRL.A.142/2018 53 relevance as the accused was found in possession of M.Os.9 to 11. During the course of cross-examination of PWs-1 to 4 or PW-10 and PW-13, the defence did not disown the possession of M.Os.9 to 11 by the accused. As seen from the parents, M.Os.9 to 11 are the ornaments worn by the deceased when she left the house and these are the ornaments, which were missing when they removed the dead body from the pond and as such, we have no hesitation in appreciating the evidence of the prosecution that the accused was found in possession of M.os.9 to 11. There is no explanation offered in the cross-examination of any of the witnesses how M.Os.9 to 11 came in possession of the accused. As such, there is no hesitation for us to accept the version of the prosecution that M.Os.9 to 11 were in possession of the accused when he was caught red- handed in the hands of PWs-1, 2, 3 and fellow villagers. CRL.A.142/2018 54 Reg. Link No.3:
43. The evidence of PWs-1 to 4 so also the evidence of PWs-8 and 9, who are the inquest panchas and also the recitals in Ex.P4/inquest mahazar did point out the clothes of the deceased was stained with blood apart from mud. Ex.P4 is the inquest mahazar and as already referred to above, Ex.P4 has been explained and there is no hesitation for us to peruse the contents of Ex.P4. The recitals of Ex.P4 and also the evidence of PWs-5 and 6 did point out that there was Chudidar top as per M.O.4, chudidar pant as per M.O.5, veil as per M.O.6 and inner-wear as per M.Os.7 and 8 on the dead body of the deceased. The evidence of PWs-1 to 6, so also the evidence of PW-13 did point out that M.O.4/Chudidar top of the deceased was stained with blood and these clothes has been subjected to FSL examination. The evidence of PW-13 did point out that CRL.A.142/2018 55 after arrest of the accused and seizure of M.Os.9 to 11 under Ex.P3, he was subjected to medical examination and with a request to collect the evidence with respect to the alleged rape and after medical examination, he has received the articles from the hospital. Same was subjected to FSL by CW-25/CPI.
44. In this regard, we found the evidence of PW- 14/ Dr.Chandrashekar, the Scientific Officer of FSL, Bangalore. His evidence did point out that he has received 12 items on 26.08.2011 through Deputy Superintendent of Police, in connection with Crime No.122/2011 and he has examined these articles including the blood sample and the clothes wherein he has noticed the bloodstains on M.Os.4 and 6, the clothes of the deceased and also the shirt of the accused. In this regard, PW-14 has issued the FSL report as per Ex.P6. This points out the presence of human CRL.A.142/2018 56 bloodstains on the chudidar top of the deceased and shirt of the accused. How such bloodstains was present in the shirt of the accused has found no explanation from the defence side. In view of defence silent as to explaining the bloodstains, we can infer that bloodstains of the deceased could have been found on the clothes of the deceased as well as the accused, which can be inferred that it was stained at near the pond when the accused attacked on the deceased.
45. The Hon'ble Apex Court has also discussed the scope and ambit of Section 165 of the Evidence Act read with Section 311 of Cr.P.C. It has been held that the courts have to take a participatory role in a trial. They are not expected to be taped recorders to record whatever is being stated by the witnesses. Section 311 of the Cr.P.C. and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of CRL.A.142/2018 57 Court to elicit all necessary materials by playing an active role in the evidence collecting process. The Hon'ble Apex Court also emphasized the fair trial which is to be granted which denotes that a fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trail also means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. The Hon'ble Apex Court while dealing with Section 311 of Cr.P.C. and Section 165 of the Evidence Act has held at para-13, 16 and 17 as under:
"13. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
14. xxxx xxxx xxxx 15. xxxx xxxx xxxx CRL.A.142/2018 58 16. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
17. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e., (i) giving a discretion to the Court to examine the witness at any stage and (ii) CRL.A.142/2018 59 the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India (1991 Supp (1) SCC271 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the CRL.A.142/2018 60 defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.
46. In view of the law being laid down so clearly, it is high time for the Judicial officers to train themselves to effectively control the court proceedings particularly while conducting trial of a heinous offence that too at the stage of collection of evidence from technical witnesses. These are the aspects which need not be trained in Judicial Academies to provide every thing as spoon feeding. A Judge, who is presiding a Session Trial, is expected to be more matured, shall involve positively in conducting the trial, ignorance shall not take the case to a wrong direction. It is the duty of the court to take the trial in correct logical end to meet the ends of justice. CRL.A.142/2018 61 Reg. Link No.4:
47. PW-13/Keshava is the Investigating Officer. In his evidence, as stated supra, on 18.07.2011 he has visited the spot i.e., near the pond where he has conducted the spot inspection as per Ex.P3 and he has seen M.O.1/chappals of accused, chappals of the deceased as per M.O.2 and also the ligature material i.e., M.O.12/wire. In this regard, PW-3/Veeradasappa, the father of the deceased did identify that M.O.2 was the chappals belongs to the deceased, M.O.1 as the chappals of the accused and M.O.12 as the wire at the place of incident. Apart from that, the evidence of PW- 5/Lakshmana, PW-6/Rajanna, PW-7/Hanumanthaiah, if analysed, it is PW-7, who shown the place of incident to the Police where the Police have drawn the mahazar as per Ex.P3 and at that time, Police have seized the chappals of the deceased, chappals of the accused, cap CRL.A.142/2018 62 of the accused and the wire as per M.Os.1 to 3 and 12. The cross-examination of PWs-2 to 7 coupled with the evidence of PW-13 did explain that on 18.07.2011, the Investigating Officer did visit the pond, inspected the spot shown to him by PW-7 and in the presence of PWs- 5 and 6 collected M.Os.1 to 3 and 12 under Ex.P3/mahazar. Thus, the prosecution is able to explain the seizure of chappals at M.Os.1 and 2, cap of the accused as per M.O.3 from near the pond. Reg. Link No.5:
48. As seen from the evidence of PW- 3/Veeradasappa and PW-4/Siddagangamma, the parents of the deceased that the deceased did wear ornaments, such as, gold gundu, ear-drops and rold-gold chain, which are marked as M.Os.9 to 11 in this case and it is they, who identified that these are the articles belonging to the deceased and these are the ornaments which CRL.A.142/2018 63 were said to have been in possession of the accused, which has been deposed by PW-1/Anjanamurthy and the same has been seized by the Police. In this regard, though the prosecution has failed to elicit, it is elicited in the cross-examination by the defence. The production of the accused before PW-13/Keshava by CW- 23/D.R.Nagaraj, PSI is spoken to by PW-13 himself. But unfortunately, CW-23 is not examined in this case and therefore, the evidence of PW-13 plays an important role. As per the evidence of PW-13, when the accused was produced before him by CW-23/Nagaraj, PSI, he has arrested the accused, recorded the voluntary statement and secured PW-10/Shivakumar and CW- 18/Muniraju and drawn Ex.P5/mahazar, seized the gold ornaments and also rold-gold chain at M.Os.9 to 11, which are said to have been belonging to the deceased as identified by PWs-1, 3 and 4, the relatives of the CRL.A.142/2018 64 deceased. Unfortunately, the evidence of PW- 10/Shivakumar is not in support of the prosecution, as the said witness has given a clear go-by to the version of the prosecution and denied that he knew nothing about it. CW-18/Muniraju was not secured before the court for examination for the reason best known to the prosecution. Thus, the court has to rely upon the evidence of PW-13, so also the evidence of PWs-1, 3 and 4. Even though PW-10 turned hostile, the evidence on record did point out that the deceased was wearing M.Os.9 to 11 when she left home and these material objects were found in possession of the accused when he was caught red-handed near the pond, it was in his possession when the accused was produced before PW- 13 and it is PW-13, who conducted Ex.P5/mahazar and seized M.Os.9 to 11. CRL.A.142/2018 65 49. Adverting to the arguments of the learned counsel for the accused that seizure of M.Os.9 to 11 has not been proved, as seen from the evidence, mere PW- 10 turning hostile will not go to the root of the seizure of M.Os.9 to 11 under Ex.P5 for the reasons explained above. No one can plant M.Os.9 to 11 all of a sudden as it was worn by the deceased when she left home, but same were in possession of the accused when he was caught-hold by PW-1 near the pond, it was in possession of the accused when he was produced before PW-13.
50. When the evidence of Police Officer is clear, unambiguous, acceptable, then the court shall not hesitate in accepting the same. In this regard, it is relevant to refer the judgment of the Hon'ble Apex Court CRL.A.142/2018 66 in PRAMOD KUMAR -vs- STATE (GNCT) OF DELHI4, wherein it was held at para-7:
"The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. This Court, after referring to State of U.P. v. Anil Singh[1]., State, Govt. of NCT of Delhi v. Sunil and another[2]. and Ramjee Rai and others v. State of Bihar[3]., has laid down recently in Kashmiri Lal v. State of Haryana[4]. that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, 4 AIR2013SC3344CRL.A.142/2018 67 the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.
51. In view of the above settled law, there is no bar for acceptance of the evidence of PW-13 as an Investigating Officer. However, we have not only considered the testimony of PW-13, but we have considered the evidence cumulatively having regard to the testimony of PWs-1, 3 and 4 and therefore, we have no hesitation to accept the version of the prosecution that M.Os.9 to 11 are the ornaments of the deceased, the accused was in possession of the same when he was apprehended near the pond, same was seized under Ex.P5 when the accused was arrested by PW-13. Hence, CRL.A.142/2018 68 the recovery of M.Os.9 to 11 from the possession of the accused has been explained.
52. Now as suggested by the prosecution evidence, five of the links have been discussed wherein the prosecution is able to explain these are the links, which are standing against the accused and we have re- appreciated the entire evidence and nowhere the defence is able to explain any of the link is a weak link, which could be broken at any point of time, but as could be seen from the evidence in totality, it is clear that the five links referred to above are very strong links, which explain the circumstances of the case where these links form part of chain and the defence is not able to break any one of the links and therefore, we have no hesitation to hold that the links proved by the prosecution form part of chain which explain the circumstances under which the deceased left home, CRL.A.142/2018 69 went near the pond where the accused was present, she has suffered injury on her body, she was drowned to the pond, accused was caught red-handed along with the ornaments of the deceased and seizure of ornaments, weapon of offence and spot inspection so also the FSL examination of the bloodstains did point out the proposed chain of circumstances which point out towards the accused and these are the circumstances which form part of the chain where a prudent man can come to a conclusion that the evidence is inconsistent with the innocence of the accused, but it is consistent with the guilt of the accused.
53. Now, as seen from the prosecution evidence, now we have to draw our attention to the allegation of alleged rape against the deceased. As seen from the inquest mahazar, there are no mud-stains on the clothes of the deceased and no mud-stains on the clothes of the CRL.A.142/2018 70 accused or sample mud has been collected and they were referred to the FSL. Ex.P7 is the postmortem report where there is no reference to mud-stains on the body of the deceased. The accused was also subjected to physical examination and no mud-stains have been collected.
54. The prosecution is banking upon the bite marks on the cheeks and breasts of the deceased. But as deposed by PW-15/Dr.Chowdaiah he did not record in the postmortem report at Ex.P7 that such bite marks, whether they are of the human or animals. The defence is able to explain that since the body was drowned in the pond, there could be a chance of aquatics might have bitten the deceased when she drowned. As seen from the inquest as well as postmortem examination, the clothes of the deceased were intact. PW- 15/Dr.Chowdaiah did point out that no sample bite CRL.A.142/2018 71 marks of the accused has been taken and same has not been compared with the bite marks on the cheeks and breasts of the deceased. No bloodstains are found in the private parts of the accused when he was examined. Merely because hymen was ruptured and blood clots were found in the hymen portion of the deceased, that will not point out the rape, as alleged, as the defence is able to explain through PW-15 that he did not confirm that bite marks on the cheeks and breast of the deceased were of human bites. Hence, there is a secondary hypothesis which under the facts and circumstances of the case has to go in favour of the accused. Importantly, the FSL report did point out that there was no seminal stains detected in the clothes either of the deceased or of the accused. There are no nail marks on the body of the deceased and as such, the totality of the evidence, even if it is taken that the CRL.A.142/2018 72 accused has man-handled the deceased, he might have pulled her down in the background of removing the ornaments of the deceased and therefore, the allegation of alleged rape will not form part of evidence and utmost it may come within the purview of outraging the modesty of a woman as contemplated under Section 354 of IPC. It is relevant to extract the said provision, which reads as under:
"354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Now the evidence of the prosecution rightly fit into Section 354 of IPC and therefore, in the facts and circumstances of the case our indulgence is required to CRL.A.142/2018 73 bring down the offence of Section 376 of IPC to Section 354 of IPC.
55. Now coming to the aspect of offence under Section 302 of IPC, it is relevant to refer whether the offence has been made out or not. In order to constitute an offence under Section 302 of IPC, it is required to be establish the ingredients of Section 300 of IPC, where it reads as follows:
"300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— (Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— (Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without CRL.A.142/2018 74 any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.— Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— (First) —That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly) —That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly) —That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing CRL.A.142/2018 75 more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
Exception-1 to Exception-5 of Section 300, if read together in consonance with the prosecution evidence, it is very clear from the prosecution evidence that the accused had no money with him, he was admittedly coming from the road near the pond, at the same time, deceased came to pond for attending the nature call, he CRL.A.142/2018 76 tied her with M.O.12/wire and tried to remove her ornaments, thereby he outraged her modesty and at the time of removing the ornaments, he was very well knew that his act of strangulation by means of M.O.12/wire will cause the death of the deceased and he wants to exclude himself from allegation of removal of the ornaments from her and therefore, he has intentionally strangulated her and thereby the act committed by the accused does not comes within the ambit of the exceptions to Section 300 of IPC. Therefore, the offence under Section 302 of IPC is explained by the prosecution and hence, we are of the considered opinion that the prosecution is able to prove the offence under Section 302 of IPC and accordingly, the order of conviction against the accused for the offence under Section 302 of IPC needs to be maintained. CRL.A.142/2018 77 56. Thus, on total consideration of the prosecution evidence and also the submission made by the defence as well as the prosecution, we are of the opinion that the prosecution has explained the offence against the accused under Sections 354 and 302 of IPC. As seen from the sentence awarded, there is no discretion conferred upon the court in not imposing sentence as the word 'and' is referred while referring the fine, hence, court has committed an error in reading it as 'or'. Accordingly, the judgment of conviction and order of sentence needs to be modified. In the result, we pass the following:
ORDERThe appeal filed by the appellant/accused under Section 374(2) of the Cr.P.C., 1973, is partly allowed. CRL.A.142/2018 78 The judgment of conviction and order of sentence dated 08/20.11.2017 rendered by the Trial Court in Sessions Case No.333/2011, stands modified. The accused is convicted for the offence under Section 354 of IPC instead of Section 376 of IPC, as held by the Trial Court. The conviction of the accused under Section 302 of IPC is maintained. In so far as imposing sentence is concerned, the Trial Court has imposed only punishment for life for the offence under Section 302 of IPC. Section 354 and Section 302 of IPC contemplates fine in addition to the sentence. Therefore, the accused is sentenced to undergo Rigorous Imprisonment for two years for the offence punishable under Section 354 of IPC and to pay a fine of Rs.2,000/-. CRL.A.142/2018 79 For the offence under Section 302 of IPC, apart from undergoing imprisonment for life, as imposed by the Trial Court, the accused is sentenced to pay a fine of Rs.10,000/-. If the accused failed to pay the fine amount, he shall undergo default sentence of one year. Both the sentences shall run concurrently. Under Section 428 of Cr.P.C., the accused is entitled for set-off the period already undergone in judicial custody. The fine amount shall be paid to PW- 4/Siddagangamma, the mother of the deceased under Section 357 of Cr.P.C. of 1973. Registry of this Court is directed to forward a copy of the operative portion of this judgment to the CRL.A.142/2018 80 concerned Jail authority where the accused is housed with a direction to implement the modified sentence. Ordered accordingly. Sd/- JUDGE Sd/- JUDGE KNM/-