DAMODAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant was convicted and sentenced by the XXII City Civil and Sessions Judge, Bangalore Rural District, Bangalore in SC No. 337/91 vide his judgment dated 18-2-1992 for life imprisonment for an offence punishable under Section 302 of the IPC and for a period of 10 years' RI for an offence punishable under Section 377, IPC and for 5 years' RI under Section 364 of the IPC and another period of 5 years for an offence under Section 201, IPC; all the sentences were made to run concurrently. On appeal, the High Court of Karnataka as per its judgment dated 13-1-1993 in Criminal Appeal No. 334/92 while confirming the sentences awarded by the Sessions Court for offences under Ss. 302, 364 and 201, IPC, set aside the conviction and sentences awarded by the trial Court for an offence punishable under S. 377, IPC.

(2.) The prosecution case, in brief, is that the appellant was a resident of House No. 136, 7th Cross, Srirampura, Bangalore, and was related to Kasturi PW-1 whose daughter Lalitha, aged about 8 years, was found missing from the afternoon of 30-4-1991. PW-1 made frantic search for her daughter and came to know from the neighbours that her daughter was last seen in the company of the appellant at about 2 p.m. Having failed in her efforts in tracing out her daughter, PW-1 lodged a missing person's complaint at the Srirampura Police Station wherein she mentioned her suspicion that the appellant could have had a hand in the disappearance of her daughter. The prosecution further alleges that on apprehending the appellant on 1-5-1991 he made a statement to the effect that he had taken the girl to his house on 30-4-1991 and after sexually assaulting her, killed her and buried her body in his house. Based on the said statement, the prosecution alleges that the accused led the investigating team with the Panchayatdars to his house which was found to be locked and the accused having had no key, the investigating officer got the door of the house opened through PW-5 Basha and on entering the house and on being provided with a spade, the appellant dug out a portion of the room from where the body of Lalitha was exhumed. The prosecution through the evidence of PW-11, the doctor who conducted the post mortem examination has established the fact that Lalitha died a homicidal death. There being no direct evidence to implicate the appellant of the crime, the prosecution has relied upon circumstantial evidence, like the appellant being last seen with the deceased, the dead body being exhumed from the house of the appellant, the house being locked though accessible through a hole in the roof which was occupied only by the appellant and the appellant having strained relationship with PW-1, the mother of the deceased.

(3.) The trial Court accepting the evidence produced by the prosecution held the appellant guilty of the offences mentioned hereinabove and sentenced him accordingly. In appeal, the High Court while concurring with the finding of the learned Sessions Judge in regard to most of the charges, came to the conclusion that the appellant is not liable to be convicted and sentenced under Section 377, IPC since proper charges were not framed in regard to this offence and also on the ground that the prosecution has failed to prove the case against the accused in regard to this charge.