KRISHNAMURTHY @ KRISHNA @ ANNI v. STATE OF KARNATAKA

as ‘X’) was 17 plus years and mentally challenged. During the intervening night of 23/24.08.2016, the accused found the victim girl sitting in Government Higher Primary School premises and he committed forced penetrative sexual assault on her. In the early hours of 24.08.2016, he again tried to commit forced sexual assault on her, since she raised alarm, he strangulated her with the handles of his bag and committed her murder.

#5. To prove the case of the prosecution, PWs.1 to 26 were examined, Exs.P1 to P41 and MOs.1 to 43 were marked. - 4 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR After recording the statement of the accused under Section 313 of Cr.P.C, accused did not lead any defence evidence.

#6. The trial Court on framing the charges, tried the accused and accepting the evidence of prosecution has convicted and sentenced him as aforesaid. The said judgment is challenged in the above appeal.

#7. Heard both side Submissions of Sri I.S.Pramod Chandra, learned Counsel for accused:

#8. There are no eyewitnesses to the incident. The case was based solely on circumstantial evidence. None of the witnesses examined by prosecution speak that they had seen the accused and the victim together at the time and place of the offence. As per PWs.19 and 23, the accused was apprehended on 25.08.2016 itself. Even though his medical examination was conducted, still he was not suspected and let free. Only on PW.24, taking up further investigation, claims to have arrested accused on 02.09.2016 and connected him to the crime on the basis of alleged voluntary statement given by the accused. The evidence led to connect the accused to the crime was the bag which was allegedly used to strangulate the victim, - 5 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR but that was not sent for expert examination to find out whether the handle of such bag would cause the ligature injuries found on the victim. The other evidence relied to connect the accused to the crime was FSL evidence which allegedly states that the belongings of the accused and deceased were stained with ‘O’ blood group. But the report of the examination of the accused and seizure of his clothes do not show that they were stained with blood when they were seized. There was no concrete evidence to connect the accused to the crime. Even though a mahazar was drawn to claim that the accused was involved in another similar offence, investigating officer has not collected any material to establish the same. Since the scene of offence was already known to others, the accused allegedly leading the police and panchas and showing the scene of offence is no discovery at all. The trial Court without proper evaluation of the evidence has reached the erroneous conclusions. Even otherwise, evidence regarding hands of the said bag causing strangulation was not conclusive. Hence, the impugned judgment and order is liable to be set aside. - 6 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR Submissions of Smt. Sowmya R, learned HCGP for the State:

#9. The fact that the arrest of accused from the locality of the crime was not disputed. The evidence of PWs.8 and 9 shows that the accused was roaming in Kavaadigarahatti village and doing rag picking work there, he does not explain his presence there. Even though there is no eyewitness to the incident, the fact of seizure of his clothes and the belongings of the deceased was proved by acceptable evidence. Further the fact that the victim was subjected to sexual assault and died due to homicidal injury was also proved by the medical evidence. FSL evidence shows that the clothes of the accused and deceased were stained with ‘O’ blood group. The accused has failed to explain the same. Therefore, the trial Court was justified in convicting and sentencing the accused based on such evidence.

#10. Considering the submissions of both side and on examination of materials on record, the question that arises for determination is “whether the impugned judgment and order of conviction and sentence is sustainable?” - 7 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR Analysis:

#11. The fact that PW.4 is the mother of the victim and victim was aged 17 plus years and she was mentally challenged girl was not disputed. It is also not disputed that the victim was found dead within the premises of Government Higher Primary School of Kavaadigarahatti village. The evidence of PW.18/doctor who conducted the postmortem examination of the victim, postmortem report/Ex.P30 and his opinion/Ex.P34 were not disputed by cross examining the said witness.

#12. The evidence of PW.18 and Ex.P30 show that the following injuries were found on the dead body of the victim. External Injuries: i. Pressure abrasion over an area measuring 7cm X 5 cm on front and lower part of thyroid cartilage is seen. It is non-continuous and located about 4.5 cm above sternal notch. ii. A crescentric abrasion, measuring 0.5 cm located 1.5 cm above the injury no.1. iii. Contusion measuring 0.5 cm X 0.5 cm located

0.5 cm above injury no.2. iv. Contusion measuring 0.5 cm X 0.5 cm located 1 cm below injury no.3. - 8 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR v. Linear abrasions, four in number, measuring an area of 5 cm X 2.5 cm in the midline, horizontally placed at the level of thyroid cartilage. vi. A crescentric abrasion, measuring 1cm X 0.1 cm on the left side of the neck, located about 3 cm from the left ear lobule and 4.5 cm from the midline. vii. Linear abrasion measuring 2.5 cm located on left outer aspect of neck measuring 4.5 cm below left ear lobule and 8cm form the midline of neck. viii. Abraded contusion measuring 2cm X 1cm, located 3.5 cm below left ear lobule 5cm away from midline of nape of neck. ix. A crescentric abrasion, measuring 2cm located below the outer end of lower lip on right side. x. Contusion measuring, 0.5 cm X 0.5 cm below the lower lip in the midline. xi. A crescentric abrasions, over an area measuring 3cm X 2.5cm located outer to the angle of mouth on left side. xii. Contusion, measuring 1.5 cm X 1 cm on the upper lip in the midline. xiii. Laceration measuring 1cm X 0.8cm X 0.3 cm, on the inner surface of upper lip in the middle. xiv. Contusion noticed over gums near upper central incisors. xv. Contusion, measuring 5.5 cm X 0.3 cm, seen over the right side of chest. xvi. Abrasion measuring 2.5 cm X 0.5 cm on back of right elbow. - 9 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR xvii. Abrasion measuring 0.5 cm X 0.5 cm on front and 1cm above left knee. xviii. Abrasion measuring 0.8 cm X 0.5 cm on front of the right knee just above patella. All the injuries are fresh in nature.

#13. The evidence of PW.18 and Ex.P30 further show that there were injuries on the private part of the victim. The evidence of PW.18 and Ex.P34 show that the death was due to mechanical asphyxia as a result of strangulation and there was evidence suggesting penetrative vaginal intercourse. The accused does not dispute the fact of victim being subjected to sexual assault and dying homicidal death. But his contest is only about his connection to the crime. Therefore, the prosecution was required to prove that the accused was the culprit.

#14. As rightly pointed out by appellant’s Counsel there were no eyewitnesses to the incident. The prosecution relied on the following circumstances: (i) That the accused was though from Chikkamagaluru district, was a migrant person and at the relevant point of time, he was roaming in Kavaadigarahatti village and doing rag picking work; - 10 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR (ii) That there was discovery of the scene of offence at the instance of the accused; (iii) There was discovery of handles of bag which were used to strangulate the neck of victim; (iv) Recovery of bloodstained clothes of the accused and the deceased coupled with FSL evidence; and (v) The evidence of official witnesses. Reg: Last seen:

#15. To prove that the accused was roaming Kavaadigarahatti village and he was rag picker, the prosecution relied on the evidence of PWs.8, 9, 19 and 23. The factors that count for the last seen circumstance is not simply the presence of a person in one place, but the accused and the victim should be seen together that too such sighting of victim and accused together must be proximate to the time and place of the offence. None of the above witnesses speak to that. PW.8 says that after 8 days of the incident, police summoned him to the police station and showed the accused to him and even before that he had seen the accused in his area picking the rags. But in his cross-examination he says that he does not know what - 11 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR all information the police have recorded in his statement. He also admits that many people come and go to pick up the papers and collect the scraps. Similarly PW.9 also says that he had seen the accused roaming in his village near Grama Panchayath, temple etc., picking up the scraps. Interestingly he says that the police had summoned him to the police station and showed the accused to him and he told that he knew the accused, his name and place. Further he told the police that the accused keeps roaming in his area and whenever the police requires, he will produce the accused before the police. Thereafter, the police let the accused free.

#16. PW.19 at the relevant time was working as Head Constable of Kote Police Station, in this case he was deputed to trace the accused and he found the accused in Chitradurga Railway station in a suspicious manner. On 25.08.2016 at 11:15 a.m., he apprehended the accused and produced him before PSI/PW.23. The evidence of PWs.19 and 23 shows that PW.23 referred the accused for medical examination but he does not arrest the accused. Even according to the prosecution the accused was arrested on 02.09.2016 by PW.24/CPI who took up the further investigation. That goes to show that initially the accused was not suspected to be the culprit. Even - 12 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR assuming that the accused was residing in Kavaadigarahatti village, that does not conform to the rigor of proof of last seen circumstance as laid down by the Hon'ble Supreme Court in the case of Padman Bibhar vs. State of Orisa1, wherein the Court further relied on Rambraksh @ Jalim vs. State of Chhathisgarh2. Reg. recovery:

#17. According to the prosecution, on PW.24 arresting the accused, he interrogated the accused. Accused confessed to the crime and the fact that he has concealed the bag used in the commission of offence. PW.24 says that then the accused lead him and panchas to bush near the scene of offence and produced MO.17/Bag used for strangulation and other article MOs.16 to 25/Scrap material and bag used to collect the said scrap material.

#18. To prove this circumstance, the prosecution relied evidence PW.6/panch witness PW.24/investigating officer. PW.6 in his chief examination says that when he went to the police station on the requisition of the police, accused confessed to show the place where the offence was committed and the place where the bag used for 1 2025 SCC Online SC 1190 2 (2016) 12 SCC 251 - 13 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR strangulation was disposed and then he lead them to the scene of offence, showed the same and thereafter from nearby bush he produced MOs.16 to 25 and he subscribed his signature on Ex.P18. Whereas contents of Ex.P18 show that accused did not make any disclosure statement before panchas. It was investigating officer who disclosed to them that the accused has made such a confessional statement and when they went to the police, they enquired the name and address of the accused and he revealed that.

#19. According to the prosecution itself, the victim was found dead by PW.3, a resident of same village during his morning walk and by that time some people gathered and they identified the victim as the daughter of PW.4 and PW.4 came to the scene of offence and PW.1 filed the complaint. Thus, scene of offence was already within the knowledge of the public. Therefore, accused showing scene of offence under mahazar/Ex.P18 does not amount to discovery as contemplated under Section 27 of Indian Evidence Act,1872.

#20. Then the next question is “whether discovery of bag/MO.17 and other articles was acceptable?”. - 14 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR

#21. As already noticed, PW.23/immediate predecessor of PW.24 in investigation, on suspecting the accused, had already apprehended him. He even subjected the accused for medical examination. He did not record voluntary statement of the accused.

#22. Evidence of PWs.9 and 19 shows that PW.19 suspecting the accused, apprehended him and produced him before PW.23. PW.23 referred the accused for medical examination, but he did not record any voluntary statement as against that as per evidence of PWs.9 and 19. After such examination, PW.23 left the accused free. Therefore, accused making such statement after more than one week becomes doubtful.

#23. The conduct of any guilty person in such circumstance is that the moment the police started tracking him, generally he tries to escape. But the evidence of PW.24 shows that he secured the accused by issuing notice. PW.6 in his cross examination states that police read over to him what was written in mahazar. It is not his statement that mahazar was written to pancha’s dictation. - 15 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR

#24. The other circumstance which makes the recovery doubtful is that “whether clothes of the accused seized at his instance were stained with blood?” Even according to the prosecution, on PW.23 referring the accused for medical examination, PW.18/Medical Officer examined the accused. The evidence of PW.18 and his report Ex.P41 do not indicate that the seized clothes of the accused were stained with blood. Row- O of Ex.P41 shows that lungi, shirt and underwear of the accused were collected, but there is no mention of they having blood stains. Further Ex.P41 indicates that the accused told the Medical Officer that he had washed those clothes and dried them. If that is the case, how those bloodstains were found on the articles, is also not explained. Under such circumstances, even if FSL report mentions about the blood stains, whether those were the clothes worn by the accused at the time of offence, becomes doubtful.

#25. It is also to be noted that the Investigating Officer takes the accused to some place unrelated to this crime and draws mahazar saying that accused committed similar offence at Kyatasandra and he led and showed the said scene of - 16 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR offence. But no evidence was collected to show that the accused was involved in similar other cases.

#26. So far as ligature material/handle of the bag, the evidence that such handles could cause death is inconclusive. The Trial Court without proper evaluation of the evidence on record, only based on FSL report and alleged recovery has erroneously concluded that the charges are proved beyond reasonable doubt. Therefore the impugned judgment and order of conviction and sentence is liable to be set aside. Hence the following: ORDER The appeal is allowed. The impugned judgment and order of conviction and sentence in Spl.C.(POCSO) No.44/2016 passed by the trial Court against the accused is hereby set aside. Appellant/accused is acquitted of the charges for the offences punishable under Sections 302, 376A, 376(2)(l)(n) of IPC and Section 6 of the POCSO Act. He shall be set at liberty forthwith, if his detention is not required in any other case. - 17 - NC: 2025:KHC:36487-DB CRL.A No.2108/2018 HC-KAR The order of the trial Court with regard to disposal of the properties is maintained. The matter is referred to District Legal Services Authority, Chitradurga for assessment and payment of compensation to PW.4 under victim compensation scheme. Appreciation the able assistance rendered by Sri I.S.Pramod Chandra, learned Panel Advocate for High Court Legal Services Committee is placed on record. Communicate copy of this order to the concerned prison and trial Court forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE PKN,KSR List No.: 1 Sl No.: 17