STATE OF KARNATAKA Vs. SHIVAPUTRAPPA BASAPPA KORI

JUDGEMENT

(1.) THE State of Karnataka has assailed the order of acquittal recorded in favour of the respondent accused Shivaputrappa by the learned Addl. Sessions Judge, Dharwar, in S. C. No. 69/1994 on 7-3-1995. The prosecution had alleged that at about 10. 30 A. M. on 8-2-1994 when the deceased Devakka was walking past the fields, that the accused had caught hold of her and dragged her into the midst of the standing jawar crop. He is alleged to have attempted to over power Devakka and to rape her. The prosecution alleges that Devakka resisted the assault and that the accused in the course of trying to rape her, particularly because she was screaming, tried to silence her by tying the sari around her neck and tightening it and that in the process he killed Devakka. He was charged with having committed the offence punishable under Sec. 376 read with 511 IPC and 302 and 506 Part-II IPC. The trial Court after a detailed analysis of the evidence recorded the finding that the prosecution has failed to establish the guilt of the accused and accordingly acquitted him. The State has assailed the correctness of this order through the present appeal.

(2.) WE have heard the learned SPP in support of the appeal and learned counsel Sri R. B. Deshpande who represents the respondent accused. The learned SPP has taken us through the evidence on record and it is his principal submission that the evidence conclusively indicates that the accused was present at that spot or close to where the dead body of Devakka was found immediately after the incident and he has relied heavily on the fact that this circumstance would conclusively establish that nobody other than the accused was responsible for the death of Devakka. His further submission is that even if the prosecution has failed to establish a sexual assault on Devakka that could justify a conviction under Sec. 376 IPC that the law does provide for equally heavy punishments in cases where there is an attempt to rape. The learned SPP has in this regard relied on numerous minor injuries on the dead body in support of his contention that these injuries would fully establish that the accused had attempted to rape the deceased and that, he would be liable to receive the same sentence as would be awardable had the offence taken place. As regards the main charge under Sec. 302 IPC, the learned SPP submits that there is no evidence to indicate that Devakka was alive and in perfect health a few minutes prior to the incident and that her death was attributable to no reason other than the assault from the accused. We do not propose to recount in detail the evidence of the prosecution witnesswise, but suffice it to say that the learned SPP is right when he points out to us that the prosecution has established two circumstances beyond all doubt; the first of them being that Devakka was walking past the fields very shortly before the accused was seen running away from that place. Secondly, the evidence conclusively establishes that there was hardly any time lag between the assault on Devakka and the accused running away from that spot even though there is no eye witness to the actual incident. The evidence also indicates that Devakka was heard screaming out for help. It is in this background that we are required to totally reject the submissions canvassed on behalf of the defence that it would be quite co-incidental that merely because the accused was passing by at about the same time when the assault took place somewhere inside the standing crop that he has been implicated and it is further submitted that the Court cannot rule out the possibility of the real assailant having slunk away quietly un-noticed. In our considered view, there is no scope whatsoever for this defence having regard to the overwhelming evidence on record that conclusively connects the accused with the incident. The learned Trial judge has, on the basis of several technicalities recorded an order of acquittal holding that the prosecution has failed to establish the connection between the accused and the incident. We find after a thorough review of the record that this conclusion is unsustainable in law though, for the reasons to be indicated by us presently, we find that on the present state of the record the convictions under any of the charges earlier indicated by us would not be permissible.

(3.) THE first and necessary ingredient which the prosecution is required to establish in a prosecution under Sec. 302 IPC is that a homicidal death has taken place, invariably the injuries are such that the doctors are able to conclusively opine that the deceased has met with a homicidal death. This is one of the few cases in which at the time of the postmortem itself since there was some amount of decomposition the doctor appears to have run into some difficulty with regard to ascertaining the cause of death. It is true that some minor injuries have been recorded in the Post Mortem report but these are too insignificant to have endangered a life. There were ligature marks found on the neck of the deceased but again, the P. M. examination indicates that there was no corresponding damage to the internal areas and, possibly for this reason, the doctor could not conclusively indicate that the death was due to strangulation. The net result was that the prosecuting authority had with it no evidence that the deceased had met with a homicidal death. Subsequently the Investigating Officer referred the case to another doctor who is P. W. 21. Dr. P. K. Devadas who is also Assistant Professor, Department of Forensic Medicine, KMC, Hubli, has studied the documents sent to him and he has stated that the deceased might have died due to strangulation. When the doctor used the expression 'might have', he has undoubtedly admitted in cross-examination that this was only a possibility. It is well settled law that unless the prosecution establishes a homicidal death that a charge under Sec. 302 IPC cannot be established and consequently, the acquittal of the accused for the offence under Sec. 302 IPC as also u/s. 506 Part-II IPC will have to be confirmed.