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PETITIONER: DAMODAR

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       01/10/1999

BENCH: G.B.Pattanaik, N.Santosh Hegde

JUDGMENT:

     SANTOSH HEGDE, J.

     The  appellant was convicted and sentenced by the XXII City  Civil  &  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  Sections 302, 364 and 201 IPC, set aside the conviction and sentences awarded  by the trial court for an offence punishable  under Section 377 IPC.

     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

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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.

     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.

     We   have  examined  the   evidence  adduced  by   the prosecution  in  this case.  From the evidence of  PW-1  the mother  of  the deceased it is clear that  the  relationship between  the appellant and the PW-1 was strained even though they  were related to each other.  PW-1 has stated that  the accused  was making constant demand for money from her which she was refusing.  The accused was also a bad character.  He once assaulted a woman in the neighbourhood after which PW-1 did  not  allow  him to come to her house.   Therefore,  the accused  was  bearing  ill-will against  her.   She  further stated  that  on 30.4.1991 after the deceased returned  home from  the shop to which she was sent by her mother, she went out  to  play again and had not come back till about 2  p.m. being  worried PW-1 made inquiries in the neighbourhood when she  was  told by PW-6 Anbu who also happened to be  related both to the accused as well as the deceased that he had seen the appellant in the company of the deceased at about 2 p.m. She  has stated that on coming to know of the same when  she went  to  the  house of the appellant, she found  the  house locked  and  though  she made frantic efforts to  trace  her daughter,  she  was  not successful.  Hence,  she  lodged  a missing  person’s  complaint  with   the  Srirampura  Police Station on the said date in the evening.  On the next day on being  informed of the arrest of the appellant and later  on being  asked to be present in the house of the accused,  she witnessed  exhumation  of  the body of her daughter  by  the appellant.  It is to be noted that in the complaint filed by PW-1  in the Srirampura Police Station she has mentioned the fact  that on inquiry from the neighbours she had heard  tht the  deceased  was found in the company of the appellant  on the  said date and knowing the character of the deceased she did  entertain a suspicion that the appellant had a hand  in disappearance of his daughter.  In the cross- examination of this  witness  in  regard  to the  material  aspect  of  her evidence nothing has been elicited which would cast a shadow of doubt on her evidence.

     PW-6 who is related both to the appellant and PW-1 has in his evidence stated that on 30.4.1981 at about 2 p.m.  he saw  the  appellant  take Lalitha into the  passage  of  his house.   At  that time, according to him, the  deceased  was holding  a paper packet and later in the evening,  according

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to  him, PW-1 came in search of her daughter and on inquiry, he told PW-1 that he had seen the deceased in the company of the  appellant  that afternoon.  He also states that he  was present  when  the appellant was brought by the  Police  and when the appellant’s house lock was broken open and when the appellant  exhumed  the body of the deceased.  PW-7  who  is working as a cashier in a small hotel in the vicinity of the place  where  PW-1  and the appellant resided,  has  in  his evidence  stated  that  on 30.4.1991 at about  2  p.m.   the appellant  had  come to his hotel with a girl of  about  7-8 years  and  they purchased 2 chapatis for Rs.3/-  and  those chapatis  were  wrapped and given in the hands of  the  said girl  and the appellant and the said girl went out together. He  also states that on 1.5.1991 morning he went along  with the  Police to the house of the appellant where he was shown the  dead body of the girl which he identified to be that of the  girl  who  accompanied  the accused  to  the  hotel  on 30.4.1991 and to whom the packet containing the chapatis was given.   The evidence of PWs.  6 and 7 mutually corroborates each  other in regard to the presence of the deceased with a packet in her hand at or about 2 p.m.  on the fateful day in the  company  of the appellant.  PW-8 is a neighbour of  the appellant  having  her  house in front of the house  of  the appellant.  She in her evidence has stated that on 30.4.1991 she  had  seen  the  appellant going  with  PW-1’s  daughter Lalitha  to the appellant’s house.  She also stated that she had  seen  PW-1 search for her daughter on the same  evening and that she had told PW-1 that she had seen her daughter in the  company of the appellant.  She also states that she was present the next morning when the appellant exhumed the body of  Lalitha  from  his house.  The prosecution  through  the evidence  of PWs-1, 6 & 8 has also established the fact that on  the  day after Lalitha was found missing the Police  had brought the appellant to his house and the appellant himself had  dug  the place from where the body of deceased  Lalitha was  exhumed.  So far as PWs.7 to 9 are concerned, they  are independent  witnesses  and  no motive whatsoever  has  been suggested  to  establish that these witnesses  were  falsely deposing  for  any particular reason against the  appellant. So far as PWs.1 and 6 are concerned, though they are related to   each   other   including     the   appellant   in   the cross-examination  nothing material has been established  to cast a shadow of doubt on their evidence.  From the evidence of  PWs.1,  6, 7 and 8, the prosecution  has  satisfactorily established  that  the  appellant  was last  seen  with  the deceased  on  30.4.1991.   The appellant either in  his  313 Cr.P.C.   statement  or  by  any   other  evidence  has  not established  when  and  where  he and  the  deceased  parted company  after being last seen.  The appellant has  admitted the  fact that the house from where the body of Lalitha  was exhumed,  belonged  to him and he was residing in  the  said house,  though  not at the relevant time.   Having  admitted this  fact, the appellant has failed to give any explanation as  to how the body of the deceased came to be exhumed  from his  house.  In the background of the material available  on record  and  having  considered  the   same,  we  find   the prosecution  has  satisfactorily  established the  chain  of circumstantial  evidence against the appellant in regard  to his involvement in the crime.

     We  are, therefore, of the opinion that the two courts below were justified in coming to the conclusion that it was the  appellant  who had kidnapped the deceased  Lalitha  and having  committed the murder, concealed her body by  burying the  same  in  his  house.   Consequently,  we  confirm  the

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judgment  of  the trial court as modified by the High  Court and dismiss this appeal.