Point of Law: Murder and Rape – Acquittal - prosecution has to prove the guilt of the accused beyond reasonable doubt and when there are reasonable doubt, it shall enure to the benefit of the accused

JUDGMENT :

B.A. PATIL, J.

1. The present appeal has been preferred by the appellant-accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by II Addl. District and Sessions Judge, Vijayapura in S.C. No. 138/2008 dated 12.12.2011.

2. We have heard the learned counsel Sri. Sudheer Kulkarni, learned counsel appearing for the appellant and Sri. Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.

3. The genesis of the case of the prosecution in brief is that:

On 21.04.2008 at about 7.00 p.m. at Talikoti Town when the deceased was playing near Panch Shahi Darga, appellant enticed her by saying that he will give biscuit and took her to his rented house with an intention to commit rape; thereafter committed rape on the victim in the kitchen room of his house at about 7.30 p.m. thereafter he felt that she may narrate the incident to her parents and in that light he squeezed her neck and committed the murder; thereafter in order to screen the evidence he defaced the identity of the deceased by pouring kerosene over the dead-body of the deceased and set ablaze; thereafter he carried the half burnt body of the deceased in a gunny bag and thrown it in a open public place to defecate near the Panch Shahi Darga. On the basis of the missing complaint lodged on 22.04.2008, a case in Crime No. 49/2008 came to be registered. After completion of the investigation, the charge-sheet came to be filed against the appellant.

4. The learned Magistrate after receipt of charge-sheet, committed the case to the Sessions Court, Sessions Court took the cognizance, secured the presence of the appellant and after hearing both the sides, charge came to be framed, read over and explained to the appellant, who pleaded not guilty and claim to be tried and as such the trial was fixed.

5. To prove the case of the prosecution, prosecution got examined 23 witnesses as PWs. 1 to 23 and got marked 23 documents as Exs.P.1 to 23 and 09 material objects got marked as M.Os.1 to 9. After closure of prosecution side, statement of the appellant was recorded by putting incriminating material as against him. Appellant denied the same and he has not chosen to lead any defence evidence but he got marked Exs.D1 and 2 during cross-examination of witnesses.

6. The learned Sessions Court after hearing both the sides, passed the impugned judgment of conviction and order of sentence holding that the appellant is guilty of the offence leveled against him. Challenging the same, the appellant is before this Court.

7. The main grounds urged by the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the trial judge is contrary to law and material placed on record. It is his further submission that the entire case rests on circumstantial evidence and there are no eye-witnesses to the alleged incident. There is no consistency in the evidence produced and the one produced is not cogent, convincing. In spite of such evidence, the trial Court has convicted the appellant erroneously. It is his further submission that the prosecution has relied upon the last seen theory and in that light it has relied upon the evidence of PWs. 5 and 6. But, PW-5 in his evidence has clearly admitted the fact that when he was sitting on the katta, he left at about 6.00 p.m. in order to go to market and he came back only during night hours at about 1.00 a.m. It is his further submission that as per the case of the prosecution, when the deceased was playing at about 7.00 p.m. at that time the appellant-accused took the deceased by promising that he will give the biscuit. When the said witness is said to have been left the place to go to market at about 6.00 p.m. then the question of he seeing the appellant taking the deceased to his house by promising to give biscuit itself is not believable, trustworthy and reliable. It is his further submission that immediately coming to know of the missing of t