Shankara vs State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused) was tried and convicted for offences punishable under Sections 377 and 302 IPC. Therefore, he is before this court.

We have heard Sri. M. Shashidhara, learned counsel for accused and Sri. Vijaykumar Majage, learned Government Pleader for the State.

The accused was tried for the following charges:

"Firstly, that you the accused on 07.04.09 at about 8.00 p.m., in the night hours have taken one Sumanth son of the complainant-Puttaswamy son of Kullegowda near the Government halla and had carnal intercourse with him thereby you have committed an offence punishable under Section 377 IPC and within my cognizance of this court.

Secondly, on the above said date, time and place after having carnal intercourse with the deceased-Sumanth you have murdered the said Sumanth by causing severe injury on his head by tightly taking head to the floor, thereby you have committed an offence punishable under Section 302 IPC and within my cognizance."

The deceased namely Sumanth (a boy) was aged about six years at the time of incident. P.W. 15-Puttaswamy is the father of deceased; P.W. 3-Siddappa is the senior uncle of the deceased.

The accused is alleged to have committed carnal intercourse with deceased Sumanth (a boy aged about six years) and thereafter committed his murder. Therefore, it is necessary to consider the medical evidence adduced by prosecution through P.W. 7- Dr. Wasim Himran and P.W. 8- Dr. Vivek Dorai.

The prosecution has relied on evidence of circumstance of deceased being last seen alive in the company of accused.

P.W. 8-Dr. Vivek Dorai had examined the deceased and conducted post-mortem examination on the deceased. The deceased had suffered following injuries:

"1) Lacerated wound over the left eyebrow measuring 3 cm x 1/4 cm

2) Lacerated wound over the right forehead measuring 1 cm x 1 cm

3) A Black eye in the left side

4) Abrasion over the Anus at 15 degree 1/4 x 1/4 cm

5) Abrasion over the Anus at 45 degree 1/2 x 1/4 cm

6) Ligature mark

- Oblique in nature extending from right mastoid to left mastoid process

- Length - 19 cm

- Breadth - 1 cm

- Absent in back side

7) Incised wound on right side at back of Penis 2 cm in length

8) Abrasion in the perianal area 0.5 x 2 cm"

P.W. 8 has opined that death was due to cardio pulmonary arrest as a result of severe head injury and mechanical asphyxia as a result of Handingo.

P.W. 8 on consideration of injuries found on the dead body of deceased has opined that he was subjected to carnal intercourse before his death.

The defence has made an unsuccessful attempt to establish that injuries found on the anus and private parts of the deceased could be caused by fall, which in our considered opinion has no basis. The witnesses who had seen the dead body of Sumanth have also deposed that there were injuries on his anus. Therefore, it can safely be concluded that death of deceased was homicidal.

P.W. 15-Puttaswamy is the father of deceased. P.W. 15 has deposed; on the date of incident, his son Sumanth (a boy aged about 6 years) was not seen in the house; he went in search of his son and enquired his brother P.W. 3-Siddappa and learnt that on the date of incident when P.W. 3 was near his house, Shankara (accused) took Sumanth (deceased).

P.W. 2-Kenchegowda has given evidence relating to recovery of bloodstained clothes of accused on the information volunteered by accused.

P.W. 2 has deposed; that Police inspector took P.W. 2 and one Somaraju to the police station; the accused lead the police inspector and panch witnesses to the land of one Narayana Rao near Hebbadirupattilu road; the accused got down from the jeep; the accused removed the clothes from the roof of house near the compound; the investigation officer seized the same.

During cross-examination, nothing has been elicited to discredit the evidence of this witness.

The investigation officer has also given evidence in proof of recovery of clothes of accused on the information volunteered by him. We do not find any infirmity from the evidence of investigation officer. This would also provide an incriminating circumstance against the accused.

P.W. 3-Siddappa has deposed; on the date of incident at about 7.30 p.m., Puttaswamy (P.W. 15) came and informed about missing of his son; at that time, he told that Shankara (accused) had taken his son.

P.W. 4-Siddaiah was running a petty shop in Huli Siddegowdana Doddi. It is the native place of P.W. 1, P.W. 15 and the deceased. P.W. 4 has deposed; on the date of incident at about 7.30 p.m., the accused had brought Sumanth (deceased); the accused gave a rupee to the deceased Sumanth who purchased some eatables (boti) from him; thereafter, the accused took the deceased; after ten minutes, the father of deceased (P.W. 15) came and enquired about Sumanth; P.W. 4 told P.W. 15 that accused had brought the deceased to his shop and he gave eatables (boti) for one rupee; thereafter, the accused took the deceased; P.W. 4, P.W. 1 and P.W. 15 searched for the deceased and also for the accused; both of them were not found in the village; on the following day, they noticed the dead body of Sumanth in a Halla near Huli Siddegowdana Doddi; the dead body was lying facing down; there were injuries on the anus; there were injures on the head of deceased; there was also strangulation mark.

P.W. 5-Nagaraju is the cousin brother of accused. He has not supported the case of prosecution. P.W. 5 had joined P.W. 15 and others to search the deceased.

From the evidence of above witnesses, we find that the deceased was last seen alive in the company of accused and the accused was absconding from the village. After the arrest of accused, he was examined by P.W. 7-Dr. Wasim Imran on 08.04.2009.

P.W. 7-Dr. Wasim Imran has deposed; that accused was capable of performing sexual intercourse; he seized the underwear (kacha) and collected pubic hair of the accused; they were sent to investigation officer who in turn had sent the same to Forensic Science Laboratory.

The Forensic Science Laboratory report (marked as per Ex. P11) would reveal the presence of seminal stains in the undergarment (kacha) of the accused. The accused has not explained about presence of seminal stains in his undergarment (kacha).

From the evidence of above witnesses, it is proved that accused was last seen alive in the company of accused at about 7.30 or 8.00 p.m., on 07.04.2009, thereafter, the deceased was not seen alive. On the following day viz., on 08.04.2009, the dead body of Sumanth was found in a Halla near Huli Siddegowdana Doddi.

From the medical evidence, it is proved that deceased Sumanth was subjected to carnal intercourse and thereafter, he was done to death. The accused had taken Sumanth to the shop of P.W. 4 and thereafter he was absconding from the village. He was arrested on the following day.

The prosecution has examined P.W. 5-Nagaraju to prove that on the date of incident, P.W. 5, the parents of deceased and other villagers were searching for the deceased. The accused had not joined the searching team.

P.W. 5 is a relative of the deceased. P.W. 5 has admitted that accused and his wife were staying in their house. P.W. 5 has not supported the case of prosecution as he was related to the accused. P.W. 5 was treated as a hostile witness for resiling from part of his previous statement recorded under Section 161 Cr.P.C.

During cross-examination by the learned counsel for accused, P.W. 5 has denied the suggestion that on the date of incident, at about 8.00 p.m., accused came home. There were bloodstains on his feet, accused removed the bloodstains by washing his feet.

The witnesses who have given evidence in proof of circumstance that deceased was last seen alive in the company of accused did not bear enmity or grudge against the accused. The witnesses who had seen the dead body of Sumanth in a Halla near Huli Siddegowdana Doddi have given consistent version of injuries found on the anus and other injuries which had caused homicidal death of Sumanth. The contents of Forensic Science Laboratory report would also lend corroboration to other circumstantial evidence adduced by the prosecution.

The deceased was last seen alive in the company of accused. The accused has not offered any explanation as to how and where he parted with the deceased. It also looks improbable that the deceased who was hardly aged about six years would alone venture to go to the place of incident, which is an isolated place, that too during dark hours of the day.

Sri. Shashidar, learned counsel for accused would submit that in the first information, P.W. 15 had not stated that deceased was last seen alive in the company of accused.

In our considered opinion, this submission is not tenable. The first informant had learnt from P.W''s.3 and 5 that deceased was seen in the company of accused. Above all, contents of first information cannot be contradicted with the evidence of P.W''s.3 and 5. The first informant (the father of deceased) after seeing the dead body of his son and the injuries had suspected that deceased was done to death after subjecting the deceased to carnal intercourse by some unknown persons. This would demonstrate that first informant had no reasons to suspect the accused or falsely implicate the accused in the crime. It is during subsequent investigation, implication of accused was brought on record. Therefore, no motive can be attributed to P.W. 15. P.W. 15 had no grudge or enmity against accused to falsely implicate him.

The learned counsel would submit that the prosecution has not adduced satisfactory medical evidence to prove the death of Sumantha. The learned counsel would submit that the medical officer has furnished opinion that death was due to hanging. After going through the contents of post-mortem examination report, we find that medical officer furnished the following opinion:--

"Cause of death is due to cardio-pulmonary arrest as a result of severe head injury and mechanical asphyxia as a result of handingo."

Therefore, the submission of learned counsel for accused that medical evidence is contrary to opinion as to the cause of death is not consistent with the case of prosecution cannot be accepted.

The prosecution, from the aforestated evidence has proved following circumstances:

"i) The accused took deceased Sumanth in his company to satisfy his lust by subjecting the deceased to carnal intercourse.

ii) The deceased was last seen alive in the company of accused.

iii) The accused had not joined the parents of deceased and other villagers to search for the deceased.

iv) The accused was absconding on the following day

v) After the arrest, accused was subjected to medical examination. Seminal stains were found in the undergarment (kacha) of the accused.

vi) The accused has not offered any explanation as to where and how the deceased had parted with him and it is not the case of accused that deceased had left his company and went towards the place of incident.

The evidence in proof of above circumstances has come from independent witnesses who had no grudge or grievance against the accused. These proved circumstances are consistent to the guilt of accused and they exclude the innocence of accused.

The learned Sessions Judge on proper appreciation of evidence held the accused guilty of offences punishable under Sections 377 and 302 IPC.

There are no reasons to interfere with the impugned judgment. The appeal is dismissed.