KRISHNA ALIAS KRISHNAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal preferred by one Krishna alias Krishnan a 23 year old resident of Ramchandrapura, Bangalore raises an interesting point of law which we shall summarise. In a case where the predominant allegation is one of rape of a young girl and the entire evidence is led to establish this charge and the prosecution also alleges that since the girl was found dead that the more serious offence of murder is also attributable to him, the question arises as to whether the head of evidence which may establish the offence of rape conclusively could also be relied upon by the prosecution for purposes of establishing the more serious charge of murder. The deceased, Kumari Girija was only nine years old and was effectively a child. It is alleged that the accused who lived closeby had misbehaved with this girl about a month prior to the incident and that he was admonished by the girl's grandmo-ther Muniyamma. On 24-7-1994 Girija was watching T. V. in the company of PW-3 Sulochana at about 2 p. m. in the afternoon after which she went out to play and it is alleged that the accused enticed her into his house. Girija was not found for the rest of the day and her uncle Muniraju and others looked for her everywhere but could not trace her. Early the next morning PW-3 Sulochana noticed Girija's body in the parthenium bushes adjoining the pathway near her house. She immediately informed the girl's relations, brought the body from there and laid it down in front of their house. It was noticed that there were injuries on the lips, on the cheek but more impartantly around the neck area. There were injuries of some seriousness which had resulted in bleeding around the genitals which was why PW-8 Muniyamma went and lodged a police complaint sometime later. It is alleged that a crowd had collected and that the accused was among the persons who assembled there and the witnesses to state that he told the girl's relations that she must have died of snake bite and that she should be buried. The police arrived on the scene and the Investigating Officer states that since the accused was not available they checked his house in view of the fact that his earlier misbehaviour had been pointed out to the police. The police found a mat made out of stitched ganny bags on the floor on which there were blood and semen stains. Similar stains were also found on the frock worn by Girija. Apart from the mat, the police found two other items which were attached one, being a earstud and the second being a piece of bangle, and both these were compared with the earstud on the body of the deceased and the bangles and found to match perfectly. The accused is alleged to have been apprehended by the villagers in the evening and handed over to the police who placed him under arrest. It is also alleged that the clothes of the accused were seized under a mahazar and that the shirt and the underwear of the accused were found to contain blood and semen stains. The body was sent for post-mortem and the accused was sent to the hospital for medical examination. The various items such as the clothes of the accused and the mat were sent for chemical analysis. On completion of the investigation the accused was charge-sheeted for the offence punishable under Ss. 376, 302 and 201, I. P. C. The learned Judge held that there was no evidence in respect of the charge under S. 201, I. P. C. and acquitted the accused but he convicted him for the offence punishable under S. 376, I. P. C. and awarded him a sentence of six years rigorous imprisonment. The accused was also convicted of the offence under S. 302, I. P. C. and sentenced to undergo rigorous imprisonment for life, both the sentences were directed to run concurrently. The present appeal assails the correctness of the conviction and sentence awarded to the accused.

(2.) AT the hearing of the appeal, the appellant's learned advocate Sri Jairaj and the learned Addl. S. P. P. Sri Koti have taken us threadbare through the entire record of the case and have addressed their arguments both on points of fact and law. Mr. Jairaj has seriously assailed the conviction which is based on circumstantial evidence and his first submission was that merely because it is alleged that the accused had shown special attention to Girija about a month earlier and had misbehaved with her that the immediate suspicion was cast on him and it is his contention that the police have virtually taken a short-cut and built up the set of circumstances that are relied upon by the prosecution. His principal submission was that the conduct of the accused is more in consonance with his innocence than with his guilt and that the learned trial Judge has totally overlooked this important aspect. Dealing with the first circumstance which provides the background to the offence namely that the accused had misbehaved with Girija in so far as he was found lifting her clothes, biting her and even kissing her about which she had complained to PW-8 who in turn admonished the accused, Mr. Jairaj submitted that what is important is that the incident in question was a relatively minor one and he hastens to point out that even though nobody would approve of such conduct on the part of the accused, he was admonished and checked in time and he relies on the circumstance that he was residing in that area and that for a full month there was no repetition of the incident and he therefore contended that the accused was a chastised person who realised that he should not misbehave with the girl and that consequently, this circumstance is not an incriminating one. What we need to take note of, as pointed out by the learned additional S. P. P. is that since the accused was admonished for this misbehaviour that undoubtely he realised that he would get into serious trouble if he repeated anything of that sort which was why he behaved himself for sometime but Mr. Koti brings it to our notice that having displayed these tendencies, obviously that he was waiting for an opportunity when he could lay his hands on the girl and that merely because there was no repetition of the incident during the intervening one month would not in any way obliterate what had happened. The learned trial Judge has effectively concluded that this particular incident indicated the mental make-up and intentions of the accused and that in the light of what subsequently happened, it serves as a pointer to the investigating authorities as to who was required to ascertain as to who would be the individual most likely to sexually assault Girija. In this background, we do need to uphold the finding of the trial Court that this circumstance does incriminate the accused.

(3.) THE next circumstance that has ben relied upon is that Girija was last seen in the company of the accused on 24-7-1994 between about 1. 30 and 2 p. m. when the accusd took her inside his house. Mr. Jairaj submitted that the evidence of PW-3 Sulochana only indicates that Girija was in her company watching T. V. till about 2 p. m. and that the accused thereafter took her away. We have on record the evidence of PW-12 which conclusively indicates that around this time, Girija was playing and that it was the accused who took her away into his house. What has been submitted by Mr. Jairaj is that if this evidence is scrutinised, it will indicate that the most important aspect namely that the point of time when the accused is alleged to have taken the girl to his house and the evidence of her companions who must have been around with whom she must have been playing is not forthcoming and he submits that the evidence at the highest is weak and only suggestive of the fact that the accused may have been around at that time. His submission is that after the previous incident when the accused had misbehaved with Girija and he was admonished, that two things are certain, firstly that Girija complained about his misconduct and secondly that it was obvious that she did not like his behaviour and that she would stay far from him and was least likely to respond to any suggestions to come into his house. More importantly, Mr. Jairaj submits that after PW-8 had admonished the accused for his misbehaviour that it is quite obvious that Girija would have been cautioned against going anywhere near the accused and would have in fact been told to stay far from him and have nothing to do with him which is what any parent would have cautioned a vulnerable young girl against whom such advances had been made. His submission therefore is that the entire theory put forward by the prosecution on the basis of evidence of PWs. 3 and 12 is not only improbable but is impossible, short of a situation whereby the accused would have had to basically overpower Girija and carry her into his house which is not what is alleged by the prosecution. His submission that the version of PW-12 who contends that Girija went with him voluntarily is something that can never be accepted.