STATE OF KARNATAKA Vs. DAYA ALIAS DAYANANDA

JUDGEMENT

(1.) THE facts of this case are extremely gory as also distressing. The allegation is that on the afternoon of 16-11-1994 at about 3 P. M that the accused Nos. 1 to 4 who alleged to have been carrying a knife and a sickle entered the residential premises of P. W. I Malleshon the pretext to asking for a known relative that they thereafter asked for water and when mallesh's sister Savitha who was aged about 16 years went in to get the water that these persons committed some absolutely horrifying acts. The prosecution allegation is that accused Nos. 2 and 3 had raped Savitha and that because he was trying to defend herself that she was mercilessly stabbed on different parts of her body from time to time that P. W. 1 Mallesh who was the brother was rendered totally helpless because a towel was stuck into his mouth, that he was pushed out of the room for sometime and that he was also threatened. In the course of the incident, it is alleged that the different accused using the knife and the sickle inflicted injuries on savitha as a result of which she went into collapse and died on the spot after which the four accused ran away from that place. The police arrived on the scene pursuant to a telephone call and the investigation was commenced. P. W. 1 Mallesh has registered the complaint only about 10. 30 P. M. that night in which he has implicated the four accused and it was pursuant to this, that they came to be arrested. The prosecution alleges that at the instance of accused No. 1 a knife was recovered from bush near his house and at the instance of accused No. 3 a sickle was recovered from the house of accused No. 3. Nothing very much turns on these recoveries for two reasons, the first being that the witnesses have turned hostile, the more important reason being that the weapons are normally items which would be found with any agriculturist of that type but more importantly, the prosecution has not been able to establish that there were any bloodstains or human blood or blood of the deceased on these weapons.

(2.) THIS is essentially a one witness case and it is true that P. W. I Mallesh not only contends that he was an eye witness but because the accused among other things and apart from threatening him, in order to silence him and immobilise him are alleged to have squeezed his testicles and he contends that because of the injuries he was in the hospital for two days. We prefer to dispose of this part of the evidence by pointing out that the doctor P. W. 17 has in terms stated that Mallesh was brought to the hospital on that night, that he complained of an assault at about 3 P. M. and that his complaint was that he was suffering from bleeding of the urethra. He was admitted and kept under observation and the doctor stated that this complaint was found to be unjustified or rather false. No other external injuries of any type were found on his person. This raises a serious doubt as to how truthful Mallesh is when he has put forward this defence as the reason for not having gone to the rescue of his sister who was being raped and murdered and at the same time for not having either run out for assistance since his house is situated in the village and the incident took place in the afternoon and thirdly, as a further reason for his silence for not even having raised an alarm. The injury theory is therefore totally demolished and the inference that the Court would have to draw from this is undoubtedly that Mallesh has fabricated all this for some ulterior reason.

(3.) THE learned trial Judge has done a very detailed analysis of the evidence because this is a case of very distressing dimensions where a young girl is alleged to have been virtually gang raped and stabbed to death because of her resistance and in this background, the Court is required to be very cautious in the matter of examining every head of evidence and in order' to ensure that justice in the true sense is done. After a meticulous consideration of all the material on record, the learned trial Judge held that the charges are unsubstantiated and acquitted the accused. By virtue of the very despite such a brutal murder that the accused have been acquitted, the State of Karnataka filed the present appeal which was admitted by the High Court and has now come up for hearing before us.