State appeal against acquittal for rape and murder of a woman found unconscious with strangulation marks who later died. The court found the last-seen theory doubtful due to omissions in the FIR and later complaints, hearsay witnesses, and unexplained contradictions, and upheld the acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO.468 OF 2017
BETWEEN:
STATE BY K R SAGARA POLICE REPRESENTED BY SPP HIGH COURT BANGALORE-01
...APPELLANT
(BY SHRI. P. THEJESH, HCGP)
AND:
NANDEESHA S/O BELLULLI SHEKHARAPPA @ NANJUNDAPPA, AGED ABOUT 27 YEARS R/O ANTHANAHALLI VILLAGE, PANDAYAPURA TALUK, MANDYA DISTRICT-571 401 …RESPONDENT
(BY SRI. DINESH KUMAR K. RAO, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 07.09.2016 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA IN S.C.NO.194/2013 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376(A) AND 302 OF IPC. THIS CRIMINAL APPEAL COMING ON FOR FURTHER ARGUMENTS HAVING BEEN HEARD THROUGH PHYSICAL HEARING/
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VIDEO CONFERENCING AND RESERVED FOR JUDGMENT ON 20.11.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, UMESH M. ADIGA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against judgment passed by
the learned IV Additional District and Sessions Judge, Mandya (hereinafter for sake of brevity referred as Sessions Court) in S.C.No.194 of 2013 dated 07.09.2016. The accused was charge-sheeted for the offences punishable under Sections 376 and 302 of IPC.
and deceased Smt.Prameela were residents of Anthanahalli village of Pandavapura Taluk, Mandya District, coming within the jurisdiction of complainant-police. The house of
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the accused was situated in front of the house of the victim Smt.Prameela. She was the wife of PW-4/Jagdeesha. Out of the said wedlock, they had two children. One is PW-5/ Darshan and second son is one Jeevan. Relationship between PW-4 and deceased Smt.Prameela were cordial. Smt.Prameela, everyday after completing the housework, used to take cattle for grazing to her lands. As usual, on 22.05.2013, around 2.30 p.m., the deceased Smt.Prameela had been to agriculture land along with PW-5/Darshan for grazing cattle. When PW-5 along with Smt.Prameela were in the agriculture land accused came near the said land and said aloud that “the cow was untied.” Hence Smt.Prameela proceeded to tie the cow. PW-5 also tried to follow her and accused came near him and tried to give `10/- to PW-5, but PW-5 did not receive it. Accused threatened him not to follow the deceased Smt.Prameela. Due to the said threat, PW-5 did not go along with his mother. His mother and accused were going towards Bhogappana Manti (place wherein bushes were grown) (herein after referred to as place of incident).
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5. PW-5 slept in the agriculture land, in the
shadow of coconut tree and got up around 5.00 to 5.30 pm
and till that time his mother did not return. He could not find his mother in nearby places, therefore he got scared and started crying. In the meanwhile, PW-7/Smt.Geeta was returning to the village along with the cattle, found PW-5 crying at the said place. She enquired with PW-5 about Smt.Prameela and he told her the above facts. Thereafter, PW-7 and PW-5 along with the cattle went to the village and she left PW-5 to his house.
evening. PW-5 narrated above facts to PW-4. Thereafter, PW-4 told these facts to his parents, who were also residing in the same village. This information was also communicated to brothers of PW-4. Deceased Smt.Prameela did not return till night, therefore PW-1 along with others, went in search of Smt. Prameela in and around their lands. During night, hearing moaning, they could trace Smt.Prameela in the land belonging to one Bhogappa, which is called as “Manti”.
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PW-1 and others went towards the said place and found that Smt.Prameela was lying unconscious. Her clothes were in disarrayed. She had strangulation ligature mark on her neck and abrasions over thigh, legs and face. PW-1 gave her some water to drink and she drank. On repeated enquiry, she just uttered name of “Nandeesha” and could not say anything more than that and she lost her conscious. Thereafter, it appears that the matter was informed to the police, so also someone called ambulance. Police came to spot and thereafter people gathered at the spot and relatives of Smt.Prameela shifted her to hospital.
suspected that accused might have committed said crime, since about six months prior to the said incident, accused forcefully entered the house of Smt.Prameela during night and tried to molest her. PW-1 lodged the complaint as per Ex.P1 on 23.05.2013. Thereafter, while undergoing treatment, Smt.Prameela died on 05.06.2013 in the hospital. The same was reported by PW-1 to the police station as per Ex.P2. On the basis of Ex.P1, K.R.Sagar
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Police registered a case in Crime No.137/2013 for the offences Punishable under Sections 307, 376 and 511 of IPC. After the death of Smt.Prameela, Section 302 of IPC was also included in the said FIR and investigated by the Complainant-Police and on conclusion of the investigation, Complainant-Police submitted charge-sheet to the jurisdictional Court of JMFC.
sheet and enclosures were supplied to the accused as provided under Section 207 of Cr.P.C.
offences Punishable under Section 376(A), read with Section 511 of IPC and Section 302 of IPC. Therefore, the learned Magistrate committed the case to the Principle District and Sessions Judge Court, Mandya for trial.
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arguments of the learned Public Prosecutor as well as the learned advocate for accused. The learned sessions Judge formulated two points for determination. On appreciating the evidence on record, the learned Sessions Judge answered both the points in the negative and by impugned judgment, acquitted the accused of the charges punishable under Section 376, read with Section 511 of IPC and Section 302 of IPC.
submits that before the Trial Court, it was not disputed by the accused that death of Smt.Prameela was homicidal death. Therefore, inquest as well as post-mortem report were got marked with the consent. Place of incident is also not seriously disputed. There are no eye witnesses to the incident. Therefore, the prosecution has to prove its case by the circumstantial evidence. The prosecution connecting
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the accused with the death of Smt.Prameela on the basis of last seen theory and motive of the accused to commit the said offence. It is not in serious dispute that a criminal case was registered against accused alleging that during the lifetime of the deceased Smt.Prameela and about six months prior to the present incident, the accused tried to molest the deceased in her house. The deceased raised hue and cry, thereafter, neighbours came and rescued her. A complaint was also filed against the accused in this regard and he was charge-sheeted for the offence punishable 376 read with Section 511 of IPC and Section 302 of IPC.
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home, her relatives and villagers came in search of the deceased and they found the deceased Smt.Prameela at the spot of incident laying unconscious. On enquiry by PW1 and others she also uttered name of “Nandeesha” after drinking little water. Thereafter, she was shifted to hospital at Mysore.
also threatened PW-5 not to follow the deceased. Thereafter, Smt.Prameela did not return. This fact is also stated by witnesses examined by the prosecution. PW-7 had stated before the Court that on that day evening, PW-5 alone was in his land and he was crying; she brought him to the village. Other witnesses have also seen the said facts and they deposed before the Court. The evidence of prosecution witnesses are reliable. Thereby, the prosecution proved beyond reasonable doubt that accused
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had committed alleged offences. With these reasons, the learned Public Prosecutor prayed to convict the accused.
respondent has vehemently contended that there are no iota of evidence to connect the accused with death of Smt.Prameela. The case of prosecution that PW-5 had seen accused and deceased together is fabricated story. Evidence of PW-5 was planted subsequently, only to falsely implicate the accused in this case. In Exs.P1 and P2, there is no whisper about this fact. The complaint was filed on the day of incident, but Ex.P2 was filed on 05.06.2013 nearly after 12 days. PW-1 did not mention the said fact in Ex.P2 and there is no explanation for not mentioning the said fact in Ex.P2. Therefore, evidence of prosecution witnesses, who have stated these facts are not reliable.
further submit that prosecution has not led evidence of the medical officer, who conducted post-mortem, to prove that death of Smt.Prameela was homicidal death. It is stated in the post-mortem report that “she died of strangulation”.
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However, it was not immediate death but she died after lapse of about 12 days from the alleged date of strangulation. This fact is not explained by the prosecution. The deceased was said to have taken continuous treatment for a period of 12 days in the hospital and no medical records are produced to show the nature of illness by which the deceased had been suffering till her death. Merely a criminal case was registered against the accused prior to present incident does not mean that he had committed murder of Smt.Prameela. Moreover, the said incident was said to be taken place about 6 months prior to death of Smt.Prameela. He was acquitted in the said case. Under these circumstances, prosecution has utterly failed to prove that accused had any motive to commit murder of Smt.Prameela.
stated that the learned sessions judge in the impugned judgment appreciated the materials on record and rightly acquitted the accused. The said finding is not arbitrary and perverse and based on sound reasons. Therefore,
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interference by this court is not required. With these reasons, he prayed to dismiss the appeal.
determination:
(i) Whether prosecution proved beyond reasonable doubt that on 22-05-2013 between 2.30 pm to 4 pm, the accused with an intention to take revenge against the deceased Smt.Prameela persuaded her and took her to the land of Bhogappa situated in Anthanahalli village and behind the bush, he attempted to outrage her modesty and commit offence of rape and thereby the accused had committed an offence punishable under section 376, read with section 511 of IPC?
(ii) Whether prosecution proves beyond reasonable doubt that on above said place, date and time, the accused attempted to commit rape on. Smt.Prameela and when he could not succeed in his attempt, with an intention to murder her or with the knowledge that by such an act death is likely to be caused, he strangulated her with sari worn by her, due to the said pressure on the neck, she lost conscious and in spite of the treatment, she died due to
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strangulation on 05.06.2013 and thereby the accused had committed an offence punishable under Section 302 of IPC?
(iii) what order?
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on that day, Smt.Prameela did not return home till late evening. Therefore, he along with his brother and others went in search of Smt.Prameela in and around their lands; at about 9.30 p.m., he heard moaning behind bush at the spot of incident and thereafter he along with others went to that place and found that Smt.Prameela was lying in the said place and she was semiconscious and her dress was in disarrayed. He gave her water to drink. On further enquiry, she uttered name of “Nandeesha, Nandeesha” and thereafter she became unconscious. At the say of others, who gathered at the spot, telephoned to police and ambulance. In the early morning, police came to the spot of incident and thereafter, they shifted Smt.Prameela in an ambulance to K.R.Hospital at Mysuru. He lodged a written complaint as per Ex.P1. He suspected the accused, who earlier also tried to molest Smt.Prameela and for which, a criminal case was registered against accused and accused was facing trial in the said case.
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came to said place and brought him home.” In his further cross examination, he has stated that the information given to him by PW-5 were intimated to police, when he went to police station to lodge the complaint.
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and thereafter both accused and deceased went in the same direction. On that basis, prosecution contending that deceased was last found in the company of accused. It is pertinent to note that PW-1 came to know this information on the evening of 23.05.2013. However, in Exs.P1 & P2 there is no whisper about this fact. There is no explanation for said omission in Exs.P1 & P2. In his cross examination, he has stated that he informed said facts to Police but PW15 says that PW-1 has not stated the said facts before him, hence not believable due to absence of said facts in Exs.P1 and P2. There is no explanation in this regard. Admittedly, relationship between accused and members of family of PW-1 are not cordial. Hence, his evidence is not believable.
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that he was giving false evidence before the Court and said suggestion was denied by PW-2. It was suggested to him that he was permanent resident of Anuwal village and not Antanahalli village and he did not come to search of Smt. Prameela on the alleged date of incident. Said suggestions were denied by PW-2. On the information of PW-5, he came to know that accused had taken deceased towards place of incident. PW-2 is not primary witness about last seeing accused in the company of deceased and he is hearsay witness in this respect. This new fact developed only after the death of Smt.Prameela. Till that period why it was not informed to police is also not explained by the prosecution. It is material fact connecting accused with guilt and such important facts were not disclosed to police on 23.05.2013 and 05.06.2013. It creates serious doubt in the case of prosecution.
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evidence is not of much importance. He has also stated about going along with PW-1 to search Smt.Prameela and finding her at the spot of incident. His evidence will not connect accused with guilt. He also did not inform this facts to police, when PW-1 had filed Ex.P1 to police or police came to spot of incident.
family function and in the evening he returned to village. On the date of incident, PW-5 told him that “he and his mother went to the field to graze the cattle. Accused came
near his land and told loudly to Smt.Prameela that the “cow tied by her was untied”. Therefore, his mother went in that direction to see the same. He also intended to follow his mother and in the meanwhile accused came to the said place and threatened him, not to follow his mother. Therefore PW-5 did not follow his mother and slept in the
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shadow of coconut tree. When he got up, it was 5.00 p.m. His mother did not return till evening. Therefore he along with PW-7 came back to the village.” In his further evidence, PW-4 has also stated that facts told to him by PW-5 was informed to his brother and others also stated about searching of his wife and finding her at spot of incident.
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relationship between both the family members were not cordial. He denied the suggestion that due to the said enmity he has falsely filed a case against the accused. He also denied the suggestion that the “deceased was having extra marital affairs with different persons of the said village”. He is hear-say witness and stated facts as informed to him by PWs-1 and 5. When primary evidence was let-in by prosecution, evidence of PW-5 is sidelined.
previous Court cases registered against the accused on the complaint of the deceased for attempting to molest her and
the said incident had occurred about six months prior to the present incident. PW-6, in his further evidence has stated that on the day of incident, he was carrying tea to serve to his labourers working in the agricultural land. On the way, he met accused near the place of incident and accused was coming from place of incident, he appeared to be very much tired. Accused requested him to give a cup of tea, since he was feeling very much tired but PW-6
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refused to give him and told him that he was going towards village and he could drink in the village.
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lands near the said place. He denied the suggestions that deceased was related to him and therefore he deposed falsely against accused. PW-6 had no agriculture lands near place of incident, then why he was taking tea towards land of PW-4 is not explained by him. It shows that he is planted witness to support case of prosecution. Hence his evidence is not believable. In the detailed crossexamination, nothing is brought out to disbelieve or discard his evidence. His evidence also supports the case of the prosecution about last seen theory of the accused near the spot of incident.
case. She has stated that on the date of incident at about 2.00 p.m., she went to graze the cattles, near river. To go to the said place, she has to go through passage situated near land of PW-4. On the way to the river-bed, she met with accused around 3.00 p.m. She also saw deceased and PW-5 in their lands. At about 5.30 pm while returning home, she saw PW-5 crying in his land. She enquired with him and PW-5 told her that in the afternoon accused and
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his mother together went towards the spot of incident and she did not return. Hence, she and PW-5 along with the cattle returned to their village.
when she was going towards her lands to graze the cattle, she met the accused. PW-7 did not inform this fact to police on the date of incident. She gave such statement only after death of deceased Smt.Prameela. She did not explain reasons for not disclosing this facts to police. Hence, it appears she is also planted witness, to prove last seen theory. Hence her evidence is not believable.
deceased. She has stated about the offence committed by
the accused six months prior to the present one, against the deceased. In her further evidence, she has stated that on the day of the incident, Smt.Prameela along with PW-5 went to graze the cattle in the afternoon, in their land. On the same day during evening, PW-5 alone came home along with the cattle. PW- 7 brought him, and while coming back, PW-5 was crying. On inquiry, she came to know that
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PW-5 alone was in their land, since in the afternoon deceased and accused went together towards spot of incident and accused prevented him to go along with his mother. He slept below the coconut tree, and when he woke up, at about 5.30 p.m. he did not find his mother and PW-7 brought him home. PW-8 has also stated about searching for Smt.Prameela, finding her unconscious at the spot of incident and shifting her to hospital, thereafter, she died.
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her. He also stated that when Smt.Prameela drank water, she uttered the name “Nandeesha”. He also deposed about visit of police to the spot; previous incident of accused attempting to molest deceased, death of Smt.Prameela while undergoing treatment. The evidence of PW-4 do not help the prosecution to prove the guilt of accused or his connection with the guilt.
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difficulties. He had no knowledge of the relationship between accused and Smt.Prameela. He has stated that during the lifetime of Smt.Prameela, villagers used to allege that she had illicit relationship with accused, and the said information was true. He enquired with Smt.Prameela and she denied said allegation. He denied suggestion that without knowing any information, he was deposing falsely before the Court. According to his evidence, he had deposed before the Court on the basis of information given to him by his sons and grandson. As a senior member of the family, he got information form other members of the family. In his cross-examination, he has stated that accused had illicit relationship with deceased and that was also talk of the village; He is also hearsay witness and his evidence is not of much help to the case of prosecution.
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untied. Thereafter, deceased as well as accused went together towards Bhogappana Matti. Accused prevented PW-5 from going along with his mother by threatening him. PW- 5 had last seen both accused and deceased going together in the afternoon. Thereafter, Smt.Prameela did not return home. PW-7 saw accused around 3.00 pm near land of Smt.Prameela. PW-6 saw him near Bhogappana Matti around 4.30 pm. Accused was coming from Bhogappana Matti side, and he was very much tired. In his cross-examination, he has stated that he saw the accused about 100 feet away from Bhogappana Matti. He has also stated that nearby Bhogappana Matti, accused had no lands. On the contrary, deceased, Smt.Prameela had lands situated about 50 feet away from Bhogappana Matti.
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mother. Therefore, due to fear, he started crying. PW- 7 took him along with the cattle to the village. PW-1, PW-3, PW-4, PW-6, PW-7 and PW-8 have stated that on that day in the evening, PW-5 alone came home from agriculture land along with the cattle with help of PW-7.
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complaint to the jurisdiction magistrate. PW-15 is then PSI of the K.R.S Police Station i.e., complainant Police Station. He has conducted the part of the investigation. He has stated about drawing of spot mahazar, arrest of accused, recording of his confession statement, drawing of the mahazar of spot of incident on the confession of the accused and recording of statement of witnesses. He has also stated that he repeatedly visited the hospital wherein deceased was undergoing treatment and it was informed to him by the concerned medical officer, that deceased was not in a position to give the statement and she was unconscious. Therefore, he could not record statement of the deceased prior to her death. He has also collected the clothes and other articles after the post-mortem as well as the inquest and seizure of MOs.4 to 11. He has also stated that after death of Smt.Prameela, PW-1 came to police station and gave further statement on 05.06.2013 as per Ex.P2 and on that basis he submitted a requisition to the concerned Court to include Section 302 of IPC in the said FIR.
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respondents is that prior to registration of the FIR, PW-15 had investigated the matter, therefore, the said investigation is not acceptable and beyond his authority. The said submission is not acceptable for two reasons. One is, according to him some unknown persons had telephoned to the police station informing about the incident. He has not at all stated that in the said information brief facts of the incident was told to him.
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of incident and that cannot be considered as part of the investigation. As per the case papers, investigation was commenced only after registration of the FIR and not prior to that. Therefore, the said submission of learned advocate for respondent is not acceptable.
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charge-sheeted for the offence punishable under Section 376 and under section 511 of IPC but there are no sufficient materials either oral or medical evidence to prove the said charge. Therefore, prosecution has not able to prove the said fact before the Trial Court and rightly the learned Trial Judge acquitted the accused for the offence punishable under Section 376 read with section 511 of I.P.C.
doubtful for following reasons:-
i. In Exs.P1 and P2, said facts were not at all stated. When PW-1 had knowledge of said important facts, he could have mentioned same in the Exs.P1 and P2. It indicates that it was an after thought.
ii. All the witnesses came to know about last seen theory of accused in the company of deceased, but none of them informed this facts to police till 05.06.2013, no explanations in this regard.
iii. If witnesses had knowledge of deceased and accused had gone together near place of bushes; instead of other places, they should have searched deceased near spot of incident. There is no explanation in this regard.
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iv. If said fact was true, then why PWs-1 and 4 did not enquire with accused to know whereabouts of deceased? Not explained.
v. As per the case of prosecution, after incident that had happened six(6) months prior to the present incident, relationship of accused and family members of deceased was strained as such to take revenge against deceased, accused killed her. If said story is believable, then how could deceased went with accused on the day of incident? It is not the evidence of PW-5 that accused forcibly took deceased towards forest, on the contrary both of them voluntarily had gone towards forest. It also indicate that the last seen theory of accused and deceased had going together on the day of incident is not believable.
Hence, prosecution failed to prove last seen theory
that accused and deceased had gone together on the date of incident.
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reasonable doubt. The ground of appeal are not tenable and there are no reasons to interfere in the said findings.
For above said discussion we answer the questions
raised by us in the negative and pass the following:
ORDER
i. The Appeal is dismissed.
ii. The impugned judgment dated
07.09.2016 passed by the learned IV
Additional District and Sessions Judge,
Mandya in S.C.No.194 of 2013 is confirmed.
Sd/JUDGE
Sd/JUDGE
AG
2 issues framed by the court
Whether the prosecution proved the accused attempted to outrage the modesty of/commit rape on the deceased under Section 376 read with Section 511 IPC.
Whether the prosecution proved the accused murdered the deceased by strangulation under Section 302 IPC, relying on last-seen theory and motive.
6 provisions across 2 enactments
State by K R Sagara Police represented by SPP High Court Bangalore
Nandeesha s/o Bellulli Shekharappa @ Nanjundappa
H.B. Prabhakara Sastry
Umesh M Adiga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
