G.P. Devaraja vs State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused) was tried, convicted and sentenced for offences punishable under Sections 376(2)(f) and 302 IPC. The accused was acquitted of an offence punishable under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. The accused has filed this appeal against judgment of conviction for offences punishable under sections 376(2)(f) and 302 IPC.

Sri. P. Mahesha, learned counsel for accused is absent. Sri. G.S. Prasad, learned counsel for accused prays for time. We do not find any reasonable ground to adjourn the case.

In Criminal Appeal No. 1680/2013 dated 07.10.2013 (in the case of Surya Baksh Singh Vs. State of Uttar Pradesh), the Supreme Court has held:-

"(a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the appeal after perusing the record and judgment of the trial court. (e) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation."

In the case on hand, the accused is represented by learned counsel. However, the learned counsel for accused has refused to argue the appeal though it is being continuously listed for final hearing since one week. In the circumstances, we have heard learned Government Pleader for State. We have gone through evidence and the impugned judgment for deciding the appeal on merits.

Before adverting to the case of prosecution and charges framed against accused and appreciation of evidence, it is necessary to state inter se relationship of some of the prosecution witnesses.

The deceased/victim Nikita (a child aged about 10 years) was a resident of Hosagabbadi village, Kanakapura Taluk, Bangalore Rural District; PW. 6-Lohithashwini and PW. 7-Hemanthamani are the daughters of PW. 1-Savithramma; PW. 6-Lohithashwini is the mother of deceased/victim; the husband of PW. 6 had abandoned her; therefore, PW. 6 and her children including deceased were residing in the house of PW. 1-Savithramma at Doddagabbadi village. The accused is also a resident of Doddagabbadi village. The house of accused is situate opposite to the house of PW. 1-Savithramma. The house of PW. 1-Savithramma and the house of accused are separated by a road. The accused was frequently visiting the house of PW. 1. The accused and the family members of PW. 1 were cordial.

It is the case of prosecution, at the relevant time, the deceased was studying in 5th Standard in Higher Primary School at Hosagabbadi village. She was aged about 10 years. On 05.04.2008 (Saturday), the deceased returned from the school and took food. At that time, her maternal grand mother namely PW. 1-Savithramma and her aunt (PW. 7-Hemanthamani) were present in the house. The deceased took food and left the house stating that she would bring mango leaves for Ugadi festival which had to be celebrated on 07.04.2008 (Monday). The deceased had left the house during afternoon on 05.04.2008. The deceased did not return home. PW. 1 waited till evening thereafter PW. 1 with the help of other villagers searched for the deceased but could not trace her. On the following day, at about 11.00 or 11.30 a.m., some boys who were grazing sheep near the tank bund of Doddagabbadi village had seen the dead body of a girl (deceased) in a bush near the base of tank bund. They came and informed PW. 1. In the meanwhile, the matter had been informed to PW. 6-Lohithashwini (the mother of deceased) who at the relevant time was working as maid servant in Bangalore. PW. 1 and other villagers came to the place of incident (a bush near tank bund of Hosagabbadi village) and found the dead body of deceased with bleeding injuries on her neck and also on her private parts. Her clothes were stained with blood. PW. 1 lodged first information against unknown persons. The crime was registered against unknown persons for offences punishable under Sections 376 and 302 IPC.

The investigation officer visited the place of incident, held inquest and found that deceased, a girl aged about 10 years had been ravished and brutally done to death. Her death was due to manual strangulation and smothering. The investigation officer recorded the statements of witnesses and arrested the accused. The dead body was subjected to postmortem examination.

The medical evidence relating to postmortem examination and injuries found on the deceased is given by PW. 14-Dr. S. Venkataraghava who at the relevant time was working as an Assistant Professor in the Department of Forensic Science, Bangalore Medical College.

PW. 14 has deposed; that the deceased had suffered injuries on her neck, face and also on her private parts; the death of Nikitha was due to asphyxia as a result of smothering; the death had taken place between 24 hours to 36 hours before the time of postmortem examination.

PW. 14 on examination of injuries found on the vagina of deceased has opined that she was subjected to rape before she was smothered to death.

During cross-examination, PW. 14 has reiterated his version. The homicidal death of Nikitha has not been seriously controverted.

PW. 14 has denied the suggestion that injuries found on the private part of deceased had bites and the injuries could have been caused by coming into contact with spikes and thorns.

On careful consideration of evidence of PW. 14, contents of postmortem examination report and inquest report, we find that deceased Nikitha was subjected to rape and thereafter, she was done to death by manual strangulation and smothering.

In order to bring home guilt of accused, the prosecution has relied on following circumstances:

i) On 05.04.2008, at about 2.30-3.00 p.m., the deceased-Nikitha was last seen, alive in the company of accused..

ii) Accused was absconding immediately after the incident.

iii) The conduct of the accused after the incident.

PW-1-Savithramma, the grandmother of deceased has deposed that deceased was her maternal granddaughter. In other words, deceased-Nikitha was the daughter of PW-6-Lohithashiwini (daughter of PW-1). PW-1 has deposed that during the year 2008, two days prior to Ugadi festival deceased-Nikitha returned from the school around 12.00-1.00 p.m. She took food and left the house by stating that she would go to bring mango leaves for Ugadi festival. It is relevant to note that Ugadi festival had fallen on 07.04.2008(Monday). During evening the deceased-Nikitha did not return home. PW-1 became anxious. PW-1 enquired some of the villagers and learnt that accused was taking deceased to bring Mango leaves. PW-1 went near the house of the accused and found that accused was not in his house. She and other villagers searched for deceased around Hosagabbadi village and could not trace the deceased. On the following day i.e., 06.04.2008 (Sunday) at 11.00 a.m., a shepherd came to the house of PW-1 and informed that a girl was lying dead on the base of tank bund. The dead body was lying in a bush. PW-1 and neighbours came near the tank bund and found the dead body of deceased in a bush. Her neck had been twisted and there was bleeding from nose and mouth. There was bleeding from her vagina. PW-1 lodged first information against some unknown persons at about 1.45 p.m. on 06.04.2008. In the meanwhile, the mother of deceased (PW-6) having learnt about the incident came to her village. After seeing the dead body of Nikitha and after learning that the deceased was last seen alive in the company of accused, lodged a further statement as per Ex. P6.

On perusal of the cross-examination of PW-1, we find that much of cross-examination is directed towards family background of PW-1 and her daughters. From the cross-examination of PW-1, we find that her daughters namely PW-6-Lohithashwini and PW-7-Hemanthamani did not have happy married life. They had been neglected and abandoned by their husbands. Therefore, they were staying in the house of the PW-1-Savithramma in Hosagabbadi village. We also notice that two other children of PW-6-Lohithashwini had died due to drowning in a tank and the deceased was the surviving daughter of PW-6-Lohithashwini. During the cross-examination, PW-1 has denied the suggestions that the accused was coming to the house of PW-1 and getting eatables to the deceased-Nikitha. PW-1 has admitted that the accused has two wives. She has pleaded ignorance if the accused had gone to Bangalore to sell the mango leaves. She suspected the involvement of accused after learning from some of her villagers that deceased was going in the company of accused. She has admitted that she had received a sum of Rs. 1,00,000/- as compensation from the State Government. She has denied the suggestion that she had concocted a case against accused to get compensation from the Government.

On careful consideration of the evidence of PW-1, we find that she did not have any grudge against the accused. The suggestion put to PW-1 that she had concocted a case against the accused to get compensation from the Government is totally untenable. It was impossible for PW-1 to concoct a story that her maternal granddaughter was done to death and before the death she had been ravished. It is true that PW-1 and her daughter belong to weaker section of the society. However, that cannot be a ground to presume that they had concocted a case against the accused to get compensation from the Government.

PW-2-Nagesha is an independent witness. He is a resident of Hosagabbadi village. He was a lorry driver by occupation PW-2 has deposed that on the date of incident, at about 10.30-11.00 a.m., PW-2 was near his house. At that time, accused came there and asked PW-2 to accompany him to bring mango leaves. PW-2 pleaded his inability to accompany the accused. Therefore, accused left that place. PW-2 was carrying the waste to dump in his manure pit. It was 3.00 p.m. by then. At that time, he saw the accused holding the hand of deceased and taking her to a mango tree by the side of the village tank bund. PW-2 returned home after dumping the waste to manure pit. On that day, he had gone to a village called Harohalli. On the following day (Sunday) at about 11.00-11.30 a.m., he learnt about the incident. He saw PW-1 and other villagers running towards tank bund PW-2 went near the tank bund and saw the dead body of deceased girl. After seeing the dead body, he felt that someone had committed murder after committing rape on her. The accused was not in the village. The Investigating Officer enquired PW-2 and recorded his statement.

During the cross-examination, PW-2 has denied the suggestion that on the date when deceased was missing, the accused had collected mango leaves and left the village at 10.00 a.m. to sell the same at Bangalore and thereafter the accused had gone to Gattagunda village (native place of his second wife). PW-2 has denied the suggestion that the accused had not taken the deceased. He has denied the suggestion that on the date of the incident, the accused was staying in the place of his second wife and accused was not aware of the incident.

On careful consideration of the evidence of PW-2, we find that PW-2 had no grudge or enmity against accused to falsely implicate him. PW-2 has denied the suggestion that he had given false evidence against the accused. We notice from evidence of PW-2 that he was not related to PW-1 or deceased. PW-2 was not inimical to accused. He did not have any interest in the success of prosecution. PW-2 is an independent witness. Therefore, there are no reasons to suspect his evidence. The evidence of PW-2 would prove that before the incident the accused was taking deceased towards the place of incident. In other words, the deceased was last seen alive in the company of the accused two hours before the incident. Thereafter, the deceased-Nikitha was not seen alive. The accused was absconding from the village. He was not in the village even on the following day.

PW-3-Rajesh was a resident of Banasavadi, Bangalore. He was a friend of Lokesha, S/o PW-1-Savithramma. He was visiting Hosagabbadi Village. He knew the deceased.

PW-3 has deposed that on 05.04.2008, he had gone to the house of PW-1 at about 1.00 p.m. At that time, the accused was taking deceased-Nikitha towards the tank bund. PW-3 had spoken with deceased-Nikitha and asked her as to where she was going. Deceased had told PW-3 that she was going to bring mango leaves. PW-3 returned to Bangalore at about 4.30 of 5.00 p.m. Though he was treated as a hostile witness for partially resailing from his statement recorded under 161 Cr. P.C. statement, his evidence that he had seen the deceased in the company of accused and they were going towards the place of incident does not suffer any discrepancy.

PW-4-Ramakrishna is a native of Hosagabbadi village. He has deposed that the house of accused and house of PW-1 are situate nearer to each other. On the date of incident (three days prior to the Ugadi festival during the year 2008), he was working in his house, at about 2.00 p.m., the accused came and asked PW-4 to accompany him to bring mango leaves. PW-4 pleaded his inability. Accused left the house of PW-4. On that day at about 3.00 or 3.30 p.m., when PW-4 was proceeding towards tank bund, the accused was returning towards the village. PW-4 was turned hostile as he had resailed from his statement recorded under 161 Cr. P.C. During cross-examination by the learned Public Prosecutor, PW-4 deposed that he might have seen the accused taking the deceased towards the place of incident at 3.00 p.m. During the cross-examination from the learned counsel for the accused he deposed that he had forgotten if the accused had taken the deceased to bring mango leaves on the date of incident.

The evidence of PW-4 is not completely consistent, but his evidence that he had seen the accused near the tank bund at 3.00 p.m. on 05.04.2008, would lend corroboration to evidence of PWs-1 to 3.

PW-5 Asha G.N. was also a student. She was studying in 8th standard. As per the case of the prosecution, she had seen the deceased in the company of the accused before the incident. She has not supported the case of the prosecution. She was declared as hostile witness. During the cross-examination by the learned Public Prosecutor she has reiterated that she had not seen the deceased in the company of accused. Therefore, her evidence is of no avail to the prosecution case.

PW-6-Lohithashwini is the mother of deceased-Nikitha. PW-6 has deposed that her husband is one Shivaraju. He had abandoned her. Therefore, PW-6 and her children were staying in the house of PW-1. The same was the fate of PW-7-Hemanthamani. She was also staying in the house of PW-1. PW-6 was working as a maid servant at Bangalore. She was travelling daily from her village to Bangalore. On 05.04.2008, she left the house to go to Bangalore for her work. She left the house at 8.00 am. At that time, Nikitha was getting ready to go to school. The accused met PW-6 and enquired if they are performing Ugadi festival (which fell on 07.04.2008) in a grand manner. PW-6 told accused that there was not much to celebrate festival in a grand manner. Accused also enquired if PW-6 needed mango leaves PW-6 asked accused to give mango leaves to PW-1. On 05.04.2008, PW-6 stayed in the house of her relatives at Bangalore.

On 06.04.2008, at about 11.00 a.m. she learnt that her daughter was not seen in the house. PW-6 informed the matter to her sister PW-7-Hemanthamani and reached her village at about 2.30 p.m. and learnt that her daughter-Nikitha was lying dead near the tank bund of Hosagabbadi village. She reached the place of incident and found the police and villagers were gathered there. There were scratch injuries on the deceased. There were injuries on her neck. Her neck was twisted towards its right side. There was bleeding from the vagina of deceased. There was a half bitten mango and mango leaves near the dead body. The inner garment of deceased was stained with blood. PW-7-Hemanthamani also reached that place. On enquiry, they learnt that the accused had taken Nikitha towards the place of incident. Though the entire villagers had gathered, accused was absent.

During the cross-examination, PW-6 has denied the suggestion that in order to get compensation and also appointment on compassionate ground she has given false evidence against the accused. PW-6 is the mother of the deceased. The evidence on record does not show that there was enmity between PW-6 and accused. PW-6 had already lost her two children and her third child (deceased) was done to death after she was ravished. In the circumstances, PW-6 would have hardly thought of concocting a story against the accused.

PW-7-Hemanthamani is the elder sister of PW-6. She had reached the village on the following day (06.04.2008). After learning about the incident, she had been to the place of incident and saw the dead body of the deceased. PW-7 has deposed that entire villagers had gathered near the place of incident and the accused was not there. They had gone to the house of accused The house had been locked. None was present in the house of accused. During cross-examination, PW-7 has denied that she has given false evidence to implicate the accused at the instance of her brother-Lokesha.

It is established from the evidence of above witnesses that deceased was last seen alive in the company of accused. The accused was seen taking the deceased to the place of incident. Thereafter, the deceased-Nikitha was not seen alive. On the following day, dead body of Nikitha was noticed near the tank bund of the village. Her death was homicidal. She had been subjected to rape before she was done to death. The accused had taken the deceased on the pretext of getting mango leaves. The accused had alone returned to the village. It is in the evidence that the house of accused and the house of PW-1 are situated opposite to each other. The entire villagers had gathered to see the dead body of deceased-Nikitha because she was done to death after she was raped. She was hardly aged about 10 years. The accused, whose house is situated opposite to the house of PW-1, was not there, his house was locked. He was not available to the villagers. The villagers met him only after he was arrested by the police. The only inference that can be drawn is that accused was absconding after the incident.

The deceased was last seen alive in the company of the accused. The accused alone returned to village. The deceased-Nikitha was not seen alive. In the circumstances, the accused had a duty to explain as to what happened to the deceased who was last seen alive in the company of accused. The accused had absconded from the village. He has not offered any possible explanation. He has not stated that deceased-Nikitha had parted from his company. In our considered opinion, the circumstance that deceased was seen alive in the company of accused has been proved by credible evidence. The prosecution has also proved that subsequent conduct of accused is not consistent with the conduct of an innocent person. The prosecution has proved the following circumstances:

i) Death of victim/deceased was homicidal.

ii) She had been subjected to rape before she was done to death.

iii) Deceased was last seen alive in the company of accused.

iv) Accused had taken the deceased to the place of incident and he had alone returned to the village.

v) After the dead body of the deceased-Nikitha was noticed by the villagers, the accused was absconding from the village. The conduct of accused after the incident is inconsistent with conduct of an innocent person.

The accused has put forth a false plea of alibi that he was at Bangalore at 11.00 a.m., on 05.04.2008 and accused has falsely contended that he had brought mango leaves to Bangalore on 05.04.2008 to sell the same for Ugadi festival which had fallen on 07.04.2008. Simultaneously, the accused has contended that he had gone to the house of his second wife. The prosecution, from the above circumstances, has proved the guilt of accused beyond reasonable doubt. The above proved circumstances are consistent with the guilt of accused and they exclude the innocence of accused. The Trial Court on proper appreciation of evidence has convicted the accused for offences punishable under Sections 376(2)(f) and 302 of IPC.

Therefore, there are no reasons to interfere with the impugned judgment. The appeal is accordingly dismissed.