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.

2. 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 Srirampure 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 of 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 investing 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 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 holse in the roof which was occupied only by the appellant and the appellant having strained relationship with PW-1, the mother of the deceased.

3. 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 findings 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.

4. 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 w