State of Karnataka vs Santhosh

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 24.09.2012 passed by the IV Additional Sessions Judge, Mysuru in SC No. 122/2011 is called in question in this appeal by the State.

The accused/respondent was tried and acquitted of the offences punishable under Sections 376 and 302 of IPC.

Case of the prosecution in brief is that; the accused committed rape on deceased Smt.Sheela at 4.00 p.m., on 09.07.2010 at her house situated at LIG Group-4, House No. 144 at Hootagagalli, Mysuru and thereafter strangulated her with a saree, consequent upon which Smt.Sheela breath her last.

In order to prove its case, prosecution in all examined 16 witnesses and got marked 19 exhibits and 19 Material Objects. On behalf of the defendant 1 witness was examined and got marked 1 exhibit.

As mentioned supra, the Trial Court has acquitted the accused.

PW1 is the husband of the deceased. He has lodged a complaint as per Ex.P1 before the Sub-Inspector of Police, Vijayanagar Police station (PW16) at about 6.30 p.m., on 09.07.2010 which came to be registered in Crime No. 155/2010 of the same police station. PW2 is the owner of the house wherein the deceased and PW1 were residing along with two children. She has deposed that she had seen the accused coming to the house of the deceased at 3.00 p.m., on 09.07.2010 and she saw the accused going out from the stair case hurriedly within half an hour thereafter. She alerted the public, consequent upon which PWs.3,4 and others gathered and caught hold of the accused in the said building. He was apprehended by the public at large including PW2 and he was handed over to the custody of the police after arrival of PW1. PWs. 3 and 4 caught hold of the accused along with the others. Both of them saw the dead body lying in the hall of the house of the deceased. PW5 is the witness of the mahazer Ex.P5. Himself and PW8 were the witnesses for the said mahazer. PW6 is the witness in the inquest mahazer Ex.P3. PW7 is the doctor who conducted autopsy over the dead body. The autopsy report is at Ex.P13. PW8 is brother of the deceased. He came to the spot after hearing the news. According to the case of the prosecution PW8 had introduced the accused to the deceased as his friend. PW9 is the photographer. He has taken the photographs of the dead body on 09.07.2010. PW10 is the police constable who handed over the FIR to the jurisdictional Magistrate at 5.00 p.m., on 09.07.2010. PW11 is the son of the deceased aged about 5 years. The Trial Court having found that the said witness could not understand the questions and having found that the said witness is not capable to depose before the Court, did not examined him before the Court. PW12 is the Police Constable who took the complaint on the instructions of PW 16 and handed over the same to CW31 to PW15 to register the FIR. PW 13 is the Junior Engineer who prepared the sketch as per Ex.P9. PW14 is the Assistant Engineer of Electricity Board He has issued the report as per Ex.P10, with regard to the supply of electricity. PW15 is the Sub-Inspector of Police. He registered the Crime No. 155/2010 and sent the First Information Report to the jurisdictional Magistrate PW 16 is the Inspector of police. He completed the investigation and laid the charge-sheet.

DW1 is the doctor who examined and treated the accused. The doctor has deposed that the accused had sustained fracture of 5th metacarpal bone of both the hands. He has recorded the history that the accused sustained injuries because of the public beating. The case-sheet maintained by the hospital is at Ex.D1 It is further deposed by the said doctor that the accused was subjected to operation.

The case of the prosecution mainly depends upon the evidence of PWs.2, 3 and 4 and the extrajudicial confession allegedly made by the accused before the doctor PW7. As mentioned supra, it is the specific case of the prosecution that the accused committed rape on the victim Smt. Sheela and thereafter murdered her by strangulating her neck with the help of her saree.

PW2 is the land lady of the house wherein the deceased and PW1 were living with the two children. She has deposed that she saw accused - Santosh going to the house of Srinivas (PW1) at 3.00 p.m.; during the said period she heard the cries emanating from the house of PW 1 as "Amma Amma" in order to verify as to what is happening in the house of PW1, she climbed the stairs and at that point of time the child of the deceased was hurriedly crying. Since the accused was not known to her, she cried loudly and sought the help of public. Accordingly, the public at large gathered and caught hold of the accused and tied his hands and legs to a tree. Thereafter, she came to know about death of the deceased inside the house.

PWs.3 and 4 have also deposed on par with the evidence of PW2. They have also deposed that on being alerted by PW2, they along with the other persons caught hold of the accused while accused was coming down from the first floor of the building and tied him to a tree till PW1 came to the spot.

The deposition of PW2 before the Trial Court that she heard the cries sound as "Amma Amma" from the house of the deceased is an improvement made by the said witness before the Court. Since the same is a material omission and the same needs to be eschewed from consideration.

Even if the entire evidence of PWs.2, 3 and 4 is believed, it can be said that the accused had gone to the house of the deceased at about 3.00 p.m., and while returning back at 3.30 p.m., he was caught hold and tied by the public at large and they assaulted him mercilessly. Based on such evidence, the prosecution submits that the circumstance that the accused was last seen in the house of the deceased is proved. However we add here itself that the last seen circumstance itself is not sufficient to bring home guilt against the accused. According to us, the last seen circumstance is properly explained by the accused himself in the extrajudicial confession, which is whole-heartedly relied upon by the prosecution. Moreover it is by now well settled that only on the basis of the last seen circumstance, the accused cannot be held to be guilty of the major offence, particularly when the case of the prosecution fully rests on the circumstantial evidence. It is needless to observe that the prosecution has to prove the circumstances relied upon by it so as to complete the chain of proved circumstances. Such proved circumstances shall lead lo the only conclusion that the accused is guilty of the offence. Therefore even assuming that the last seen circumstance is established by the prosecution to a major extent, such evidence has to be weighed with other evidence on record. The prosecution also relied upon the extra judicial confession allegedly made by the accused. On the other hand, the accused does not rely upon the extrajudicial confession but the prosecution heavily relies upon the extrajudicial confession allegedly made before the doctor - PW7.

The evidence of PW7 and the documents Ex.P11 issued by PW7 discloses the extrajudicial confession made by the accused. PW7 has deposed that immediately after the incident, the police had brought the accused before him for treatment. After examination he has issued the certificate as per Ex.P11. On being asked about the history of the injuries sustained by the accused, he is said to have told before the PW7 that the persons who had gathered near the house of the deceased assaulted him mercilessly; the accused was smelling alcohol; according to the say of the accused before the Doctor - PW7, he had gone to the house of the deceased at about 9.00 p.m., on 08.07.2010 and slept there; he had sexual intercourse with the deceased; at about 7.30 a.m., on the next day i.e., 09.07.2010 accused left the house to go to city market. Once again the accused came back to the house at 11.00 a.m., on 09.07.2010 and at that point of time the quarrel took place between the accused and the said deceased. The deceased told the accused that henceforth he should not visit her house and told him to go out of her house. So saying she hanged herself with her saree; though the accused tried to save the life of the deceased, he could not succeed and ultimately he tried to untie the saree with the help of knife but he could not succeed at that point of time also. Lastly, he burnt the saree to a certain extent and brought the dead body to the ground; the child of the deceased started crying and the people gathered and assaulted him, consequent upon which he sustained injuries. Even if the evidence of the Doctor with regard to the extra judicial confession is fully believed, it is clear that the accused has not committed any offence under Sections 376 or 302 of IPC., It is stated by the accused in his extrajudicial confession that he used to visit the house of the deceased since one year and they were having illicit affair since one year. Thus from the extrajudicial confession it becomes amply clear that the accused had not committed the offence under Section 376 of IPC. On the other hand, it is a case of consent between the accused and the deceased and they used to have intercourse with consent since one year. Even on the previous day also they allegedly had intercourse in the house of the deceased.

It is needless to observe that PWs.2, 3 and 4 are not eye-witnesses to the incident. They came and saw the dead body only after the incident was over. Since they had suspected the role of the accused in murdering the deceased, they caught hold of the accused and assaulted him. In view of the same, the extra judicial confession made by the accused relied upon by the prosecution goes against the case of the prosecution.

It is specifically deposed by PW7 that the vaginal swabs and smear were sent to forensic laboratory for examination. The laboratory report Ex.P15 discloses that there was three spermatozoa in the vaginal spam of the deceased, based on the same the doctor had issued report as per Ex.P16. But unfortunately in the matter on hand the investigation was not carried out further. The Investigating Officer in all fairness ought to have sent such three spermatozoa to DNA test in order to investigate as to whether the spermatozoa is of the accused or of the other person. It is not in dispute that PW1 was in his house upto 8.00 p.m. on 08.07.2010. Therefore, the Amicus Curiae may be justified in arguing that the said spermatozoa might be of PW1 also. In the absence of any concrete material to know as to whom such spermatozoa belonged, the Trial Court is justified in concluding that the prosecution has not proved its case with regard to the intercourse by the accused. More over the material on record does not disclose that there was a forcible intercourse by the accused at any point of time, inasmuch as the doctor PW7 has admitted in his cross-examination that the dead body did not have any injury over external or internal parts of the body. Except the ligature mark on the dead body of the deceased and no other injury was found. If really, the intercourse has happened against her consent, she could have sustained at least some minor injuries. She has not sustained any injury or at least nail marks etc.,. Even the accused did not sustain any such marks. Of course, though J he has sustained other injuries and bones were fractured, they were as a result of assault made by the public and not due to the resistance made by the deceased.

Having regard to the facts and circumstances of the case, in our considered opinion, the Trial Court is justified in concluding that the accused has not committed any offence as alleged by the prosecution.

Even on re-appreciating the materials on record, we do not find any ground to interfere with the judgment and order passed by the Trial Court. In view of the same, no interference is called for by this Court. The appeal fails and the same is hereby dismissed.

We place on record the valuable assistance rendered by Sri. Sampangi Ramaiah, learned Amicus Curiae. The Registry is directed to pay Rs. 10,000/- to the learned Amicus Curiae as honorarium.