Prithviraj K.Chavan, J.
1. By this appeal, the appellant challenges his conviction under Section 302 of the Indian Penal Code by which he is sentenced to undergo imprisonment for life and a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for six months for intentionally and knowingly causing the death of a lady on the intervening night of 10.7.2011 and 11.7.2011.
2. Facts, in brief, are as follows:-
The appellant is a resident of Sikkim. On the intervening night of 10.7.2011 and 11.7.2011 he was last seen smoking, drinking and kissing deceased Poornima – a mentally challenged woman at KTC bus stand, Panaji. The appellant thereafter took the said lady in the bushes behind Sulabh Toilets and had sexual intercourse with her. It is alleged by the prosecution that the appellant thereafter killed the said lady by smothering. He was found coming out of the bushes with only an underwear on his person. The dead body of the deceased was found lying in the bushes in a fully naked condition. PW 7 Vijay Kumar Chodankar, who was attached to Police Station, Panaji as Police Sub Inspector held investigation into the crime. At about 2.09 hours he received a phone call from Head Constable Nanu Thakur informing about the incident. On the said information U.D.No.40/2011 under Section 174 Cr.P.C. came to be registered and thereafter PW 7 Vijay Kumar Chodankar visited the spot. He recorded the statements of the eye witnesses, who noticed the deceased lady with the appellant at KTC bus stand before the incident in question. The scene of occurrence was preserved by the Investigating Officer, since it was dark. The appellant was found under the influence of liquor, who was caught by PW 3 Radi Kuncolikar, PW 8 Rakesh Kumar and Rajesh Kumar. The dead body was sent for autopsy. PW 7 Vijay Kumar Chodankar had also conducted an inquest panchanama at GMC, Bambolim in presence of two panch witnesses. The injuries were noticed on the back portion and neck of the deceased. The Medical Officer after conducting the postmortem opined that the cause of death was due to asphyxia as a result of smothering of soft soil, which was fatal in the ordinary course of nature. The viscera of deceased was preserved and forwarded for examination. An FIR was registered on 11.7.2011. After investigation, the Investigating Officer has filed a chargesheet in the Court of JMFC, Panaji, under Section 302 IPC.
3. After committal, the learned Sess
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ions Judge, Panaji framed a charge against the appellant under Section 302 IPC. The appellant pleaded not guilty and claimed a trial. His defence was denial of the offence alleged and false implication in this case. He states that he came to Goa on the very day and was sleeping at the bus stand after consuming liquor. He was in deep sleep and woke up only at the Police Station in the morning. No defence evidence has been adduced on his behalf.
4. The prosecution examined nine witnesses to substantiate the charge against the appellant. The learned Sessions Judge, after hearing the prosecution and the defence, held that the prosecution has proved beyond doubt that in the intervening night of 10.7.2011 and 11.7.2011 the appellant had sexual intercourse with the deceased in the bushes, who was mentally challenged. It is observed by the learned Sessions Judge that the appellant had sufficient knowledge that the smothering would result in death of the deceased and, therefore, it is a case falling within the ambit of Section 299 IPC. The learned Sessions Judge, therefore, convicted and sentenced the appellant, as above.
5. The learned counsel appearing for the appellant took us through the evidence of the prosecution witnesses. It is submitted that, by no stretch of imagination, it can be said to be a case under Section 302 IPC, as there is absolutely no evidence on record to indicate that the appellant had, at any point of time, knowledge or intention to cause death of the deceased in the light of the fact that as per the evidence of PW 2 Dr. Ankush Patil, PW 3 Radi Kuncolkikar and PW 5 Daulat Sawant, they were found intimate at public place by kissing each other and, therefore, there would be no question of the appellant having any intention to commit murder of the deceased. It is also argued by the learned counsel that the learned trial Judge on one hand observes that `the prosecution has not proved mens rea and the only motive was to have sexual intercourse with the deceased' but in the next part he erroneously observes that `having sexual intercourse under the influence of liquor with the deceased aggravates the act and, therefore, the appellant can be held guilty under Section 302 IPC'. The learned counsel, therefore, prays for acquittal of the appellant. The learned counsel argues that sans T.I. Parade, identity of the appellant cannot be said to have been established by the prosecution and, therefore, he is required to be given a benefit of doubt. In the alternative, learned counsel, in all fairness, submits that this would, at the most, be a case falling under Section 304 Part II IPC.
6. On the other hand, the learned Public Prosecutor supported the impugned judgment by stating that the prosecution has not only proved the “last seen together” theory, but the fact that the appellant had full knowledge that while forcefully committing the sexual intercourse with a mentally challenged woman there was every possibility of smothering resulting into her death. The presence of the appellant on the spot has been established by the prosecution, which rules out the possibility of involvement of any third person, which is clear from the forensic evidence on record.
7. A panel of two doctors conducted postmortem of the dead body. It was a female between the age group of 35 and 40. PW 1 Dr. Pannag and PW 2 Dr. Ankush Patil conducted autopsy. 6 They noticed following external injuries:-
“(i) Multiple reddish semilunar curved abrasions were seen over the back of right shoulder, extending into parallel scratch abrasions over total area measuring 32 x 8 cms., extending onto back of right side chest and onto back of right side lower trunk, directed from top to down.
(ii) Multiple reddish semilunar curved abrasions over back of left shoulder, extending into parallel scratch abrasions over area of 8.5 x 3.5 cm., directed from top to down.
(iii) Multiple reddish semilunar curved abrasions over back of left side chest, extending into parallel scratch abrasions over area of 10 x 8 cms., directed from top to down.
(iv) Reddish bruise, 6 x 6 cms.over inner medial aspect of left mid arm.
(v) Multiple reddish bruises over area of 4 cms x 1 cms over inner aspects of lower lip of mouth”.
According to PW 1 Dr. Pannag Kumar, injuries at Sr. Nos. (i), (ii) and (iii) were caused due to human finger nails and injures at Sr. Nos. (iv) and (v) were caused by blunt object or surface impact. All injuries were antemortem and fresh at the time of death. He had also observed that clayey soil was seen in the oral cavity, pharynx and nasal cavities of the deceased. Dissection of neck showed petechial haemorrhages over the root of tongue. Haemorrhages were seen in the epiglottis over the root of tongue. Haemorrhages were seen in the epiglottis over 0.7. x 0.5 cms. area and 0.6 cms x 0.5 cm area. He also observed that larynx and upper trachea contained clayey soils. Both the lungs were congested and oedematous with numerous Tardieu's spots (petechial haemorrhages) all over both lung surfaces.
Dr. Pannag then gave his opinion about cause of death and stated that such death was due to asphyxia as a result of smothering in soft soil, which was fatal in ordinary course of nature in the person with injuries over the body which were ante mortem and fresh at the time of death. During cross examination Dr. Pannag admitted that if a person, who is highly intoxicated falls in soft soil, it can cause accidental death provided the person is totally inebriated with high alcohol level in the blood. He voluntarily stated that in the instant case death was not accidental as there were injuries on the back of the body and presence of bruises on the lip is also indication of homicidal smothering.
Nothing could be elicited during cross, which would render his opinion doubtful. He made it clear that it was not an accidental death in the light of the injuries on the back of the body and the presence of bruises on the lip which is an indication of a homicidal smothering. However, no alcohol or poison was detected in Ex.A, B & C, which is Chemical Analyser's report about the viscera However, in view of clear evidence of PW 1 Dr. Pannag Kumar that presence of soil in the nostril specifically suggests struggle during homicide asphyxia. He denied the suggestion that presence of soil in vagina and anal area are not necessarily an indication of the female changing position in the course of having sexual intercourse but could also be in the course of struggle. As such, there is no room for doubt that the deceased died a homicidal death.
8. As regards the “last seen together” theory, the prosecution has examined PW 3 Radi Kunkolikar, PW 4 Ulhas Khandolkar and PW 8 Rakesh Kumar. PW 3 Radi Kunkolikar works as a Security Guard and was posted at KTC bus stand at the relevant time. His duty hours were from 7.00 p.m. to 7.00 a.m. His evidence indicates that on 10.7.2011 at about 7.00 p.m. when he reported for the duty at KTC bus stand and was patrolling the area, around 10.30 p.m. he noticed a lady sitting on the platform at KTC bus stand. He had seen the said lady at the bus stand on several occasions. The lady used to speak in English and was mentally challenged. At the relevant time, she had a blue coloured top and long pant on her person. Around 11.30 p.m. he found the appellant sitting near her. Both of them were consuming liquor from sachet and were smoking. He also found them singing Hindi songs and were talking very loudly. This witness warned them from behaving in such a manner as it is the public place. However, they continued doing the same acts and started kissing. When this witness again warned them, he states that both of them left the bus stand and thereafter this witness went to rest room, which is within the KTC bus stand. Around 1.50 a.m. another Security Guard PW 4 Ulhas Khandolkar came to the room and told this witness that a lady was lying naked in the bushes behind Sulabh Toilets and one boy was caught near Kamat hotel, which is adjacent to the KTC bus stand. On receiving the said information PW 3 Radi Kuncolikar along with PW 4 Ulhas Khandolkar rushed towards the spot near the stair case of Kamat hotel and noticed the appellant to whom he had, a few hours before seen consuming liquor and kissing the said lady. The appellant was only on his underwear and holding his shirt and trouser in his hand. He had an injury on his left foot. PW 3 Radi Kuncolikar caught hold of the appellant and asked PW 4 Ulhas Khandolkar to inform the police. On inquiry, the appellant disclosed his name as Rohan Gurung, resident of Sikkim. Thereafter the police took him in a jeep.
9. The evidence of PW 3 Radi Kuncolikar further reveals that he accompanied the police to the spot where the deceased was lying in the bushes in a naked condition. She was the same lady who was found with the appellant at the bus stand. Her clothes were lying by her side.
10. The defence couldn't make any dent in the testimony of this witness during cross. There is no reason for PW 3 Radi Kuncolikar to depose falsely against the appellant, as he was a natural witness, who was performing his duty as Security Guard at the relevant time. There is no doubt as regards the identification of the appellant in the light of the fact that in cross when he was asked by the defence to describe the appellant, he described that he resembled like Nepali's who is short and of a thin built. His evidence is substantially corroborated by PW 4 Ulhas Khandolkar, who also testified that when he was on duty at Gate no.1 at midnight. PW 8 Rajesh Kumar, who was the staff of Sulabh Toilets came running towards him and informed that a lady was shouting behind the Sulabh Toilets. When PW 4 Ulhas Khandolkar along with Rajesh Kumar went towards Sulabh Toilets behind hotel Kamat with a torch and asked as to who is there, the appellant came out of the bushes only with an underwear on his person. He was accosted and thereafter it was found that a lady was lying in the bushes without clothes. PW 4 Ulhas Khandolkar also withstood the cross-examination by defence, as nothing could be elicited during his cross-examination.
11. PW 8 Rakesh Kumar has also supported the evidence of earlier two witnesses in material particulars. His evidence reveals that on 10.7.2011 he had seen the appellant behind Sulabh Toilets at KTC bus stand when he was cleaning the toilets. Around 00.30 hours he heard shouts of one lady. It was raining outside. The shouts were heard by some of the passengers also who were outside the toilets. When this witness went towards the backside of the Toilets with a torch, they noticed the appellant coming out of the bushes wearing only an underwear and was carrying a bag. He was shivering, as it was raining. He was made to sit inside the bus stand by PW 8 Rakesh Kumar, PW 3 Radi Kuncolikar and PW 4 Ulhas Khandolkar. The testimony of PW 8 Rakesh Kumar remained un-rebutted during cross-examination.
12. It is a settled proposition of law that whenever a theory of “last seen” is put-forth, the time gap between the “last seen together” and the death of the person should be minimum so as to exclude the possibility of third person coming in between. Hearing of the shouts of the lady and then immediately witnessing the appellant coming out of the bushes coupled with the evidence of PW 3 Radi Kuncolikar and PW 4 Ulhas Khandolkar would clearly show that there was hardly any time gap, which would render the possibility of intervention of a third person. The deceased must have been alive when PW 8 Rakesh Kumar heard the scream and immediately thereafter when the appellant was found coming out of the bushes and the deceased lying naked would clearly indicate that it was the appellant and none other who was “last seen” in the company of the deceased when she was alive.
13. Coming to the “last seen together” theory, the law is well settled by the Hon'ble Supreme Court in case of Sharad Birdhichand Sarda Vs State of Maharashtra, (1984) 4 SCC 116. The golden principles culled out based on circumstantial evidence can be enumerated as follows:-
“1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
14. The aforesaid fact has further been fortified and substantiated through the evidence of PW 2 Dr. Ankush Patil, who examined the appellant on 11.7.2011 and noticed eight injuries on his person. The appellant himself disclosed before the Medical Officer that he received the injuries when he was in vegetation at the time of incident. Admission of the appellant as regards injuries on his person when he was coming out of vegetation itself is a circumstance which goes against him. It is pertinent to note that PW 2 Dr. Ankush Patil opined that there is evidence of sexual intercourse and multiple injuries found on the person of the appellant, which are described in the report which is proved at Ex.28. The specific observations made by PW 2 Dr. Ankush Patil, reads thus:-
“That genital development was good. There were no bruises or abrasion in genital area. There was no smegma present except mud stained material around corona glandis, there was nothing to suggest that the person was incapable of sexual intercourse. Lugols Iodine test was positive which indicates/suggests vaginal penetration”.
PW 2 Dr. Patil further observed following injuries on the person of the accused:
(i) Multiple Linear abrasions over
(a) right arm posterior aspect
(b) right wrist anterior aspect, (c) left elbow posterior aspect,
(d) left wrist anterior aspect,
(e) left lower arm medical aspect,
(f) right shoulder posterior aspect,
(g) lower back region
All the injuries were fresh and reddish in colour and were sustained within 24 hrs prior to the examination. The accused person had stated that he had sustained the said abrasions while he was in the vegetation at the time of the incident.
i) over right parietal region with hard scab formation, within 9 stitches in situ. The accused person had given the history of fall from bike on 23.6.2011.
ii) Horizontal abrasion with fresh scab formation and exudation of lymph and pus measuring 10 cms x 2.5 cms on the medial aspect of left foot. The accused person had given the history of impact of train door 2 days prior to the examination.
Based on the physical and genital examination the doctor gave the following opinion:
(i) there was evidence of sexual intercourse.
(ii) Multiple injuries were present on the body as described in the Report.
15. As such, there is clinching evidence clearly establishing the involvement of the appellant in the offence during intervening night of 10.7.2011 and 11.7.2011. The admission of the accused having sustained injuries when he was in vegetation at the time of incident itself is sufficient to show his presence with the deceased at the time of incident. It is, therefore, incumbent upon the accused to prove the fact which can be said to be especially within his knowledge in view of Section 106 of the Evidence Act as to how the deceased had died. The burden was upon him to show as to what had happened between him and the deceased in the bushes in which the appellant had failed. It is worthwhile to mention that the mud sample collected from the scene of offence during panchanama, which was forwarded to CFSL as well as the soil and mud preserved by the Expert while conducting the postmortem on the dead body of the deceased which was forwarded to CFSL and the shoulder bag found with the appellant indicate similarity between the samples. An opinion of the CFSL, which is admitted by the defence at Ex. 68 is as under:-
(1) Soil marked as Exh.K as similar to the control soil marked Exh.A.
(2) Soil collected from shoulder bag marked Ex.E-1 and the clothes marked as Exh.B-1(1), B-2(1) and B-3 (1) as it precluded for complete analysis for comparison with the control soil marked as Ex.A.
(3) Soil collected from shoulder bag marked as E-1 and the clothing's marked as Exh.B1(1), B-2(1) and B-3 (1) were consistent with each other.
16. Thus, it is clear that control sample of mud Ex.A collected from the scene of offence was found similar to that of the soil which was preserved by the Forensic Expert (Exh.K) while conducting the postmortem examination. Similarly, the soil collected from the shoulder bag found with the appellant at E-1 and soil collected from the clothes of the deceased found at the scene of offence was consistent with each other. This aspect also establishes the fact of presence of the accused on the spot. The learned Sessions Judge has, therefore, correctly appreciated all the circumstances, which unerringly point towards the complicity of the appellant in committing the offence.
17. A Cumulative effect of the aforesaid evidence would establish the fact that the appellant took disadvantage of the mentally challenged lady and had or had attempted a wild and forcible sexual intercourse in the bushes. The Clayey soil not only entered into the oral cavity, pharynx but it went deep up to nasal cavity as well as vaginal area indicates as to how brutally and in inhuman manner the appellant must have or attempted to have indulged into forcible sexual intercourse which resulted into homicidal asphyxia. As per the evidence of PW 1 Dr. Pannag, there was haemorrhage seen in epiglottis admeasuring 0.7 cm. x 0.5 cm.and 0.6 cms x 0.5 cm. area. It was also observed that larynx and upper trachea contained clayey soils. The lungs were also congested and oedematous with numerous Tardieu's spots were noticed. Thus, the deceased died due to asphyxia as a result of smothering in soft soil which was fatal. It can, thus, be safely concluded that the appellant had a full knowledge of his wild act with mentally challenged lady would result in her death which is apparent in the manner, he ravished the deceased regardless of the situation of the spot in the bushes. It would, therefore, definitely be a case of culpable homicide not amounting to murder. We are, therefore, of the firm view that from the attending circumstances and the evidence on record it would fall under Part II of Section 304 IPC. The learned Sessions Judge has committed an error of law who in the impugned judgment observed thus:
“No doubt motive is not specifically established however it is clear from record of the Medical Officer that the accused had sexual intercourse and finding the body of lady in bushes fully naked clearly indicate and suggest that the motive was only to have sexual intercourse with the lady who was mentally challenged. The accused admitted that he was under the influence of liquor and this further add to the motive. Therefore, prosecution has succeeded in proving charges levelled against the accused and hence I hold the accused guilty for the offence of murder of the said lady by name Poornima during the intervening night of 10/11 July 2011 at KTC bus stand. At this stage it is necessary to keep in mind that the aspect of smothering is considered as having sufficient knowledge to cause death in normal circumstances and hence it comes within Secgtion 299 of IPC as Culpable Homicide as the act was done with the intention of causing death. Hence, Section 300 of IPC Firstly stands attracted.”
18. The appellant has not been charged for committing rape or forcible sexual intercourse with the deceased. Therefore, there is no question of holding him guilty for the said offence. The observations of the learned Sessions Judge that only because the appellant was under the influence of liquor has further added to the motive of commission of murder of the deceased is something, which is unacceptable in the light of the fact that 19 there is no iota of evidence on record to show that the appellant intended to commit murder of the deceased. The observations made by learned Sessions Judge as above, does not indicate the correct position of law. The impugned judgment, therefore, needs interference only to the extent of the conviction recorded under Section 302 IPC.
19. It appears from the record that ever since his arrest on 11.7.2011 the appellant has been an under-trial prisoner till he was convicted by the learned Sessions Judge on 22.7.2015. Till pronouncement of the judgment by this Court, the appellant has already undergone more than six years of imprisonment. 20. As such, in the circumstances, the appeal will have to be partly allowed by altering the finding only to the extent of holding the accused guilty of the offence punishable under Section 304 Part II instead of Section 302 IPC and reducing the sentence to the extent which has already been undergone by him as stated hereinabove which commensurates with the offence committed by him. Hence, we pass the following order:-
1. Criminal Appeal is partly allowed.
2. The conviction and sentence of the appellant passed under Section 302 of the Indian Penal Code by the learned Sessions Judge on 22.7.2015 is set aside and instead, the appellant is convicted of the offence punishable under Section 304 Part II of the Indian Penal Code.
3. The appellant is sentenced to imprisonment for the period already undergone by him.
4. Fine amount is maintained.
5. The order, as regards the disposal of muddemal property, is also maintained.
6. The appellant be released forthwith, if not, required in any other offence.