Karnataka High Court
Hanamanth S/O Magundappa Hulasageri vs The State Of Karnataka on 17 April, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A.NO.100559 OF 2023
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 17TH DAY OF APRIL, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO.100559 OF 2023
BETWEEN:
HANAMANTH S/O. MAGUNDAPPA HULASAGERI,
AGE: 30 YEARS, OCC. LABOUR,
R/O. NANDIKESHWAR, TQ. BADAMI,
DIST. BAGALKOTE-587201.
- APPELLANT
(BY SRI. P.N. HOSAMANE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY BADAMI POLICE STATION.
REPRESENTED BY S.P.P HIGH COURT,
DHARWAD-581100.
- RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDITIONAL S.P.P.)
VINAYAKA
BV THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE
Digitally signed
by VINAYAKA B V JUDGMENT OF CONVICTION DATED 21.07.2023 AND SENTENCE
Date: 2026.04.17 DATED 24.07.2023 PASSED BY THE COURT OF PRINCIPAL DISTRICT
16:06:16 +0530
AND SESSIONS JUDGE, BAGALAKOTE IN S.C. NO. 122/2019 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 451, 376(2)(I), 307, 325
AND 380 OF I.P.C. & ETC.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED
ON 09.04.2026, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, JUSTICE H.P.SANDESH, DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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CRL.A.NO.100559 OF 2023
CAV JUDGMENT
(PER: THE HON’BLE MR. JUSTICE H.P.SANDESH)
This appeal is filed challenging the judgment of conviction
for the offences punishable under Section 451, 376 (2)(I), 307,
325 and 380 I.P.C. and the sentence imposed for the above
offences and prayed this Court to set aside the judgment of
conviction and sentence.
2. The factual matrix of the case of the prosecution is that on
17.05.2019 at about 3.30 p.m. in the house belonging to the
complainant situated at Nandikeshwar village, the accused
having observed that there is no-one in the house except the
victim who is suffering from mental ill health by birth,
trespassed the house and subjected the victim for sexual act and
also with an intention to take away her life, an attempt is made
to commit her murder by smashing her head with force on the
ground and voluntarily caused hurt; so also committed theft of a
mobile which was kept in the house; when family members
came back to the house after attending Dyavamma Fair at 3.00
p.m. they have noticed the victim was lying unconscious in the
kitchen area; the articles found in the house were also scattered,
the mobile which was kept near the mirror was also missing.
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Hence they lodged the complaint in terms of Ex.P.1. Based on
the complaint case was registered in Crime No. 77/2019, the
Investigating Officer investigated the matter, recorded the
statement of witnesses and also with the help of the expert
finger print at the spot were also recovered; and thereafter also
obtained the opinion. After completion of the investigation,
charge sheet was filed against the accused. During the course
of investigation the accused was arrested on 19.05.2019; and he
was also subjected to medical examination. The accused was
produced before the trial Court wherein he did not plead guilty
and claims the trial. Hence the prosecution relies upon evidence
of PWs1 to 20, got marked documents Exs.P.1 to P.82 and also
relies upon MOs 1 to 14.
3. The trial Judge having considered both oral and
documentary evidence particularly the last seen theory; the
evidence of PW4; recovery of chance prints at the place of
incident; finger prints opinion, medical evidence, odontology
report and comparison of the bite marks on the victim with the
dentist of the accused person; relying upon evidence of the
Doctors who have been examined before the trial Court;
recovery at the instance of the accused, i.e. Mobile; considering
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the injury noted on the accused, so also considering the place of
incident, comes to the conclusion that prosecution has proved
the guilt against the accused for the offences punishable u/S
451, 325, 307 and 380 of IPC as well as the offence of rape
thereby convicted and sentenced. Being aggrieved by the
conviction and sentence, the present appeal is filed.
4. The counsel appearing for the appellant in his arguments
vehemently contend that the trial Judge passed judgment of
conviction only on the assumptions and also on the imaginary
ground without considering the oral and documentary evidence
in a proper perspective. It is contended that there is no specific
evidence of the victim in the case and also there is no evidence
that accused had visited the place of victim before the incident.
PWs.5 and 6, who are the independent witnesses have not
supported the case of the prosecution regarding the last seen
theory. The counsel also submit that PW4 in her evidence stated
that PWs.5 and 6 have informed that they saw the accused
coming outside the victim’s house at 4’O clock in the evening.
However, evidence of PW4 is not supported by the evidence of
PWs.5 and 6 and hence the trial Judge ought not to have relied
on the evidence of PW4.
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5. The counsel also submits that the trial Judge relied upon
circumstantial evidence. However, the victim was not deposed
before the Court. Further, there is no specific medical and
clinical evidence before the Court that victim was not in a
position to give statement. Based on the evidence of finger print
expert and also evidence of the Doctors who have examined the
victim as well as the accused particularly Dentician report, the
trial Court was not right in convicting the accused. It is
contended that PW1 had enemity with the father of the appellant
since there was a case against the brother of PW1 and the trial
Court ought not to have considered the same. It is nothing but
a case of false implication. The counsel also would submit that
in the cross examination of PW1 it is elicited that place of
incident was clean, i.e. place was cleaned after the incident.
When such being the case, the finger print contained in the steel
box is nothing but created and the same was not recovered in
the presence of PW2, it is implanted by the Police. The entire
evidence of PW2 is not believable. The recovery panchanama
and place of incident is also not proved.
6. Further, the learned trial Judge relied upon evidence of
PW14, finger print expert, who, in the cross examination
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CRL.A.NO.100559 OF 2023
categorically admitted that chance print was collected in the
place where there were three plates and plastic boxes that were
scattered at the place of incident but the same is not mentioned
in the report. Under the circumstances, the trial Court also
ought not to have relied upon the evidence of PW14. The
counsel would further submit that even recovery of the mobile is
also doubtful. He reiterates that the prosecution mainly relied
upon evidence of PW4, last seen witness and finger print
evidence-PW14 and evidence of PW9, i.e., the Doctor who
examined the victim, so also evidence of PW11 and 12, Dentists.
The trial Judge further relied upon evidence of PW8. Though the
accused had sustained injuries in the knees, it will not come to
the aid of the prosecution. Admission on the part of PW8 is very
clear that he has lifted the steel boxes and hence question of
finger print available in the said boxes does not arise.
7. The counsel would vehemently contend that evidence of
PW12 cannot be believable. He contends that when the case is
rest upon circumstantial evidence of doubtful circumstances,
there cannot be any conviction. The counsel would submit that
mobile does not belong to the complainant, and no evidence is
placed before the Court, but the prosecution only says that
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accused had produced the same and hence the very recovery
itself is doubtful. The counsel in support of his arguments relies
upon the judgment of the Apex Court in Criminal Appeal No.
1682/2014 and brought to the notice of this Court paragraph
No. 46 wherein discussion was held that, “it was clearly not
given voluntarily, but perhaps unwittingly and in what seems to
be a deceitful manner. To avoid any suspicion regarding the
genuineness of the fingerprint so taken or resort to any
subterfuge, the appropriate course of action for the Investigating
Officer was to approach the Magistrate for necessary orders in
accordance with Sec. 5 of the Identification of Prisoners Act,
1920″. Further, an observation is made that “the possibility of
the police fabricating evidence and to avoid an allegation of such
a nature, it would be eminently desirable that fingerprints were
taken under the orders of a Magistrate”.
8. The counsel also brings to the notice of this Court the
discussion made in paragraphs No. 46 and 47 wherein the Apex
Court in Mohd. Aman v. State of Rajasthan and State by
Rural Police v. B.C. Manjunatha held that “it is not incumbent
upon a police officer to take the assistance of a Magistrate to
obtain the fingerprints of an accused and that the provisions of
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CRL.A.NO.100559 OF 2023
the Identification of Prisoners Act are not mandatory in this
regard. However, the issue is not one of the provisions being
mandatory or not the issue whether the manner of taking
fingerprints is suspicious or not”.
9. The counsel in support of his arguments brought to the
notice of this Court the judgment of the Apex Court rendered in
the case of Nagaraja vs. State of Karnataka on 06.12.2019
which is reported in AIR 2020 SC 288 to contend that in
paragraph No. 14 discussion was made with regard to matching
the finger prints of the appellant with the chance finger prints
which were found on certain utensils. The discussion was made
regarding the evidence of PW14 and held that “it is true that u/S
4 police is competent to take finger prints of the accused but to
dispel any suspicion as to its bona fides or to eliminate the
possibility of fabrication of evidence it was eminently desirable
that they were taken before or under the order of Magistrate”.
10. The counsel also brought to the notice of this Court the
Commentary in respect of “an inconvenient tooth; forensic
odontology is an inadmissible junk science when it is used to
“match” teeth to bitemarks in skin” to contend that “while the
advent of DNA analysis has paved way the way for wrongfully
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CRL.A.NO.100559 OF 2023
convicted individuals to contest their convictions, flaws in
traditionally accepted forensic sciences are still being uncovered.
Bitemark evidence has been consistently admitted in courts
across the country and has formed the basis of numerous
criminal convictions. However, research over the past decade
demonstrates the serious fallibility of this questionable forensic
science when it is used to conclusively “match” a person’s teeth
to a bitemark in human skin”. The counsel referring the same,
brought to the notice of this Court the discussion, in fact, “there
is inherent assumption that the human dentition or the imprint it
creates is unique and therefore not a commonly agreed upon
foundation for any declaration that a “conclusive match” could
exist”.
11. The counsel also brought to notice of this Court with regard
to the forensic odontologist encounter additional problems when
trying to match a dentition to a bite mark. As a surface for
analysis, skin is malleable; bite marks can move, especially when
made during a struggle, and fade quickly. In order for such proof
to form the true scientific basis for odontological matches, the
four upper and lower front teeth of each human being – and the
mark these teeth would make in skin – would have to be proven
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CRL.A.NO.100559 OF 2023
unique; and more confirmation a forensic scientist receives
before and after his analysis that the suspect should be a match,
the more confident his testimony is likely to be at trial.
12. The counsel also brought to notice of this Court, forensic
bitemark identification which is held as weak foundation,
exaggerated claims, it was held that bite mark identification was
seen as a field in which forensic science professionals have yet to
establish either the validity of their approach or the accuracy of
their conclusions, and the Courts have been utterly ineffective in
addressing these problems. Although the majority of forensic
odontologists are satisfied that the bite marks can demonstrate
sufficient detail for positive identification, no scientific studies
support this assessment. Unfortunately, bite marks on the skin
will change over time and can be distorted by the elasticity of the
skin, the unevenness of the bite surface, and swelling and
healing.
13. Per contra, the counsel appearing for the State, i.e.,
Additional State Public Prosecutor in his argument, would
vehemently contend that the report is given in terms of Exhibit
P53 by the fingerprint expert, who has been examined as PW14
before the Court and nothing is elicited to disbelieve the report
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CRL.A.NO.100559 OF 2023
which was given by him. The counsel also submits that the
mahazar was done in terms of Exhibit P2 by the Investigating
Officer and the evidence of PW14 is also very clear that first
fingerprint was found on the very day at the spot and
subsequently on the next day the accused was secured and his
fingerprint was also recovered, however no effective cross
examination of PW14 is made except the denial and hence the
evidence of PW14 is believable.
14. The counsel also would vehemently contend with regard to
the character of the skin is also scientifically done. When such
being the case, the citations and also the other material with
regard to the fingerprint is concerned, that is relied upon, will not
come to the aid of the appellant and the principles laid down in
the case on hand are not applicable to the facts of the case. The
prosecution not only depends upon the dentist’s report as well as
fingerprint expert’ evidence, and taken note of the last seen
witness, PW4 and though PW5 and PW6 have turned hostile, but
the evidence of PW4 is very clear that the accused was seen
while going towards the house of the victim and nothing is
effectively cross examined while cross examining the PW4.
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CRL.A.NO.100559 OF 2023
15. The counsel also submits that the victim’s statement was
recorded before the learned magistrate with the help of the
specialist Doctor. Though statement u/S 164 CrPC was not clear,
but with regard to incident is concerned, victim deposed before
the Court on different occasions, with the assistance of the
Doctors and hence Court can rely upon the same which is
marked as Exhibit P79. He further submits that in the complaint
itself it is specifically alleged that the accused took out the
mobile which was in the house of the victim; recovery was also
made at the instance of the accused; witness PW2 supported
regarding recovery and Exhibit P9 is also proved.
16. The counsel also submits, apart from the victim’s
statement as well as recovery at the instance of the accused, the
evidence of PW1, PW3, PW4 though they are the relative
witnesses, but their evidence is consistent and nothing is elicited
and though an attempt is made that PW1 is having enmity
against the accused, the said suggestions are denied. There is no
any evidence with regard to the PW1 having enmity against the
accused. The counsel would submit that the treated Doctors were
examined, i.e., PW8 and PW9, both have examined the victim as
well as the accused, who has sustained the injuries but the
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CRL.A.NO.100559 OF 2023
accused has not given any explanation with regard to the injuries
are concerned. Though an explanation is given in the statement
under Section 313 CrPC, but the same is not in the respect of the
incriminating evidence.
17. The counsel also would submit that the Doctor PW18
certifies with regard to the injuries. The counsel also would
submit that though suggestion was made to PW1 that there was
an enmity but the same has been specifically denied. The
counsel also would submit that having recorded the statement of
the victim under Section 164 CrPC as per Exhibit P79, the same
was proved by examining the Magistrate who recorded the
statement of victim, i.e. PW19. Apart from that, PW17 and
PW18, both Doctors are examined to support the case of the
prosecution and the injuries on the victim and the expert’s
opinion is also material and there are no doubtful circumstances
against the accused and the trial judge rightly taken note of the
same.
18. In reply to this argument, counsel appearing for the
appellant brought to the notice of this Court that in order to
invoke Section 307 IPC, an allegation is made that the head of
the victim was smashed on the ground, but there were no
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injuries. Even with regard to the strangulation also, there is no
evidence before the Court and the trial judge convicted the
accused for the offences punishable under Section 307 and 325
IPC. Overall appreciation of the evidence by the trial Judge is
erroneous and hence it requires interference of this Court.
19. Having heard the counsel appearing for the appellant and
also the counsel appearing for the State; considering both oral
and documentary evidence of PW1 to PW20, the documents of
Exhibit P1 to Exhibit P86 so also the material objects which were
marked, the point that would arise for the consideration of this
Court is:
Whether the trial Court committed an error in convicting
the accused for all the offences of 451, 307, 325 and 376,
380 IPC and whether it requires interference of this Court.
20. Having considered the grounds urged in the appeal and
also the oral submissions, this Court has to analyze both oral and
documentary evidence while considering the case on hand, this
Court would like to consider the charges for the offences u/S 307
and 325 IPC.
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21. Having perused the evidence available on record,
particularly Ex.P1 complaint, it is very clear that no-one
witnessed the incident. But only in the complaint it is stated that
after having noticed the injuries and bite marks in the body of
the victim and also she was unconscious, it was found that she
was subjected to sexual act and hence complaint was lodged.
But on perusal of the complaint it is very clear that she was
dragged near the kitchen and subjected to sexual act. Complaint
was given on the next day, i.e. on 18.05.2019 at 15.30 hours
and there was a delay, the complaint was given in the Bagalkot
District Hospital since the victim was shifted to the District
Hospital on the next day. It is also clear that incident might have
been taken between the timings of 3 to 4’O clock as she was
alone and no one there in the house. It is important to note that
in the complaint itself, it is specifically stated that mobile was
missing, which is having the SIM number 9353489193 and the
same is switched off.
22. Based upon the complaint Ex.P1, case was registered. This
Court has to take note of the evidence of PW2 with regard to the
circumstantial evidence is concerned since the case is based
upon the circumstantial evidence. This Court also keeping in
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mind the principles laid down in the judgments of the Apex Court
in Sharad Birdhichand Sarda Vs. State of Maharashtra
(1984) 4 SCC 116 and also the case of Subramanya Vs.
State of Karnataka reported in (2023) 11 SCC 255 to
examine whether each circumstances is established or not.
23. First with regard to connecting the accused, it is specifically
mentioned in the complaint that mobile was missing and the
same was switched off. Hence this Court has to rely upon the
evidence of PW2, who is a recovery witness. The evidence of
PW2 is clear that he was a Village Accountant. The Tahsildar
asked him to go to the office of C.P.I. Badami, accordingly he
went to the Police Station at 05.00 p.m., another employee, CW3
was also present at that time. All of them visited the place at
around 06.30 p.m. and the accused showed the place where the
victim was subjected to Sexual Act; the Police have drawn the
mahazar in between 06.30 to 07.30; material objects were
seized, which were found at the spot. He has signed Exhibit P2;
he identifies MO2 to MO4 and photographs at Exhibit P3 to P6, so
also, mahazar was drawn with regard to the seizure of the
clothes of the deceased in terms of Exhibit P7. He identifies his
signature and also photo and MO5, 6 and 7. It is also his
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CRL.A.NO.100559 OF 2023
evidence that on 20.05.2019 he was once again called and also
called CW3 and accused was also there in the police station. The
accused led him and also the C.P.I. to his village Nandikeshwara
and it was around 07.30 a.m. wherein he had produced his shirt,
banian; he took them inside the bedroom and produced the
Samsung mobile phone. On enquiry, the accused revealed that
he brought the mobile from the house wherein victim was
subjected to sexual act. Mahazar was drawn in terms of Ex.P9,
he identifies his signature and he also identifies the MOs 8 to 11
and the same are packed. He identifies the MO1, Samsung
mobile and also says that photos were taken at that time and he
also identifies the MO10 to 15. This witness is material with
regard to the recovery of mobile is concerned. But in the cross-
examination he says that Police staff written the mahazar but he
does not remember the name; he has not given any instructions
to repair the mobile. But while leaving the office he has informed
Senior Officer and with regard to the recovery of the mobile is
concerned, his evidence is very clear that clothes and mobile
were also seized at the instance of the accused. Nothing is
elicited from the mouth of PW2 to disbelieve the evidence with
regard to the recovery of mobile at the instance of the accused.
The evidence of PW2 is consistent with regard to the recovery
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CRL.A.NO.100559 OF 2023
that the accused produced the same taking them to the place,
taking them inside the bedroom. Nothing is elicited regarding
recovery of mobile is concerned and also his cloth. Hence the
first circumstance of recovery of mobile at the instance of the
accused is proved.
24. Now the other circumstance with regard to the accused
was seen by PW4, who is the last seen witness. PW4, no doubt,
is the daughter of PW1 and also PW3, her evidence is very clear
that victim is mentally retarded. She states that victim is her
relative; on the day of incident, all of them went to the temple at
03.00 p.m.; they came back at about 04.00 p.m.; she found the
injuries and also the unconsciousness of the victim. But her
evidence is very clear that the victim was subjected to sexual
violence and stools were also found with the victim, she was
unconscious, till morning she did not regain the consciousness
and she was taken to the hospital. She went and gave the
money to the father also. At that time she has revealed with her
father that accused was proceeding towards their house in the
previous day. So also, CW7 and CW8 informed that at around
04.00 p.m. accused left the house of the victim and the same
was informed to her by CW7 and CW8. This witness was
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subjected to cross-examination with regard to the last seen by
this witness is concerned, the answer is elicited that she was
regularly visiting the hospital. The suggestion was made that she
did not make the statement before the Police that she saw the
accused and informed the same to her father. But said
suggestion was denied and Police went and met her father and
not met her. She admits that they discussed in the family that
who have visited the house on the date of the incident, at that
time she did not inform that she saw the accused and there was
no any difficulty to inform the same to the father. So also she
has not given receipt for having purchased the mobile. In the
cross-examination, except eliciting the answer that she was not
having any difficulty to inform the same to the father but having
witnessed the accused while proceeding towards the house of the
victim. Nothing is suggested that she did not witness the
accused. There is no effective cross-examination. But the fact is
that mobile was missing and the same was recovered at the
instance of the accused and missing complaint mentioned in the
complaint at the first instance.
25. This Court has already taken note of evidence of PW2 with
regard to recovery. Even though PW2 says that she has not
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produced any receipt for having purchased the mobile, but it is
not the case of the defence that the mobile belongs to the
accused and nowhere such suggestion was made. When such
being the case, the Court can rely upon the evidence of last seen
witness, PW4. No doubt, PW6 and PW7 have turned hostile but
the evidence of PW4 is consistent and the court has to see the
quality of the evidence and not the quantity.
26. The other witness is PW8, Doctor who examined the victim
and found five injuries; X-ray report discloses her that her age
was approximately 18 to 21 years and hymen was ruptured;
there were multiple bite marks over the body and vulva; hymen
was ruptured which is suggestive of sexual intercourse; he had
given the report in terms of Exhibit P20. No doubt, in terms of
FSL report, seminal stains were not detected on the samples
which she had collected at the time of examination, this suggests
that there is no evidence of recent sexual intercourse. The FSL
report is marked as Exhibit P21. Recent sexual intercourse
means the intercourse should have occurred within 24 hours.
Since her sister had washed the undergarments and clothes of
the victim and also given bath to the victim, this is the reason for
absence of seminal stains on the samples. The above said
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injuries suggest forceful sexual intercourse with the victim. This
witness was subjected to the cross-examination and in the cross-
examination, it is elicited that she has not mentioned the size of
the bite marks. But suggestion was made that if the victim
undergone sexual assault for the first time, necessarily there
must be bleeding injury, and the same was denied. No doubt, it
is admitted that hymen could be ruptured for other reasons also,
it is elicited that if the sexual intercourse is committed, there is a
possibility of sustaining injuries like tenderness, reddish on the
private part. But witness says that she did not found such
injuries on the private parts. If forcible sexual intercourse is
committed, there is possibility of causing external injuries of nail
scratches on the back side of the body.
27. Having considered the evidence of PW.8 and nature of
injuries, bite marks over the upper lip, brownish in colour and
bite mark over left breast brownish in colour, bite mark over
vulva, brownish in colour, abrasion on right elbow measures
2x2cm, brownish in colour and abrasion on the centre of neck
measuring 3x1cm were found. Hence it is clear that there was
an abrasion on the centre of the neck as well as injury to the
right elbow. When such injuries are found and hymen was
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ruptured, Doctor’s evidence is very clear that having found the
bite marks over the body, vulva and also hymen was ruptured it
suggests sexual intercourse. No doubt, FSL report not supports
the case of the prosecution but the evidence of the Doctor is
very clear that the sister of victim had washed the
undergarments and clothes of the victim and given bath to the
victim.
28. It is also important to note that evidence of PW4 is very
clear that stools were also found at the spot and hence she
subjected the victim for bath so also the washing the
undergarments. There is no any cross examination of PW8 with
regard to the said fact and when such material available before
the Court that even though there was no any tenderness or
readiness, but material is very clear that she has sustained bite
marks all over the body and hymen was also ruptured. Victim
was aged about 24 to 25 years. When such evidence available
before the Court, medical evidence also supports the case of the
prosecution, we do not find any error on the part of the trial
Court in considering the evidence of PW8.
29. The other circumstance is that accused was also subjected
to medical examination. PW9 conducted the medical examination
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of the accused. On examination, abrasion over both the knees
measuring 1.5 centimeters which is dark in colour was found.
There is nothing to suggest that accused is incapable of
performing sexual intercourse. Report is given in terms of Ex.
P24 as per the requisition of Exhibit P23. No doubt, in the cross
examination it is elicited that he has not mentioned the age of
injuries found on the knees and also he cannot say as to how
many days back the incident was taken place but the material
available before the Court is very clear that he also sustained
injuries and there is no explanation on the part of the accused in
his statement recorded u/S 313 CrPC. The only explanation given
in the statement u/S 313 CrPC by the accused is that there was
an ill will between the family of the complainant and also his
family and he is falsely implicated, but nothing is placed on
record to substantiate the same. Though cross examination was
made making suggestion to PW1 that there was an ill will but the
same was denied and mere taking the defence is not enough to
come to such a conclusion.
30. Now the other circumstance before the court is with regard
to the evidence of prosecution relying upon PW11 and PW12,
who are the Dentist. Their evidence is clear that that on
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19.05.2019, as per the requisition of C.P.I, he visited and
collected the photographs of the bite marks found on the body of
the victim and also collected the photographs of bite mark found
on the victim’s lips, neck, right and left breasts and on the pubic
area. At the time of collecting the same, CW21 Dr. Ashith B.
Acharya was also present. On 28.05.2019, the accused was also
produced by the CPI and he collected the oral radiograph, the
upper and lower jaw impression and complete clinical history of
the accused. Thereafter, collected all the details of the accused
and sent to CW21 Dr. Ashith B. Acharya, SDM, Dharwad. He also
identifies the document at Exhibit P29 and Exhibit P30 so also
the report which is marked as Exhibit P31. He deposed that
Dr.Ashith B. Acharya analyzed the bite marks and compared the
same with victim and the accused. He furnished the report in
terms of Exhibit P31. He had opined that accused person’s teeth
shows high degree of specificity in bite marks by virtue of many
concurrent points including several corresponding individualistic
and there is absence of any unexplainable discrepancies between
bite marks and biting surfaces of the accused person’s teeth.
Therefore, it is most likely that the dentition of the accused
person caused the bite marks visible on the photographs of the
female subject. He has given the report in terms of Exhibit P32.
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This witness was subjected to cross-examination. The 10 (ten)
photographs of bite mark on the victim are now before the court.
They are marked as Exhibit P32 to 42 and DVD is also marked as
Exhibit P43. Two sets of model of the dental cast of the accused
are marked as MO 12 and 13. The CD containing nine
photographs of the mouth and teeth of the accused is marked as
MO13. This witness was subjected to cross-examination. In the
cross-examination it is elicited that with the oral permission of
the Principal of the college, he examined the accused. The
photographs of the bite marks have been taken at appropriate
distance with the standard photocopy. He cannot say the model
of the teeth alignment will be same for two individuals. The
suggestion that he has not at all examined the victim and also
the accused is denied.
31. The other witness is PW12. In his evidence, he says that he
was also very much present along with PW11 on the day, they
have taken the photographs of the bite marks found on the
victim’s upper lip, right breast, and on her neck as well as on her
private part. The Police had also sent 49 photographs in the DVD
depicting the bite marks of the victim, 10 of these photographs
were provided in print format. In addition to this evidence, he
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also received the evidence of the dentition of the accused
person, the full mouth view X-ray image called as OPG of the
accused was also sent. The sealing containing the 9 photographs
depicting the accused person’s mouth and teeth were also sent
for his examination. He has examined the bite marks on the
victim on four different locations. Some portions of the bite
marks were relatively faint, but other portions were sufficiently
clear to reveal the pattern, i.e. the bite marks correspondent
with human upper and lower jaw teeth. Upon examination of the
models and photographs of the teeth of the accused person and
also peculiarities seen in the bite marks were also visible. He
made the comparison of two bite marks on the left and right
breast of the victim as well as the accused person’s teeth which
showed concordance in the arrangement of the biting surfaces of
the upper and lower teeth, specifically 4 upper incisor teeth and
3 lower incisor teeth, and the character’s features of the upper
jaw, left second incisor, which is placed rightly towards the lip
side and the upper right second incisor which is placed rightly
towards the tongue side. Overall material available on record
gave the opinion that bite marks on the victim and the accused
persons’ dentition showed characteristic concordance in relation
to tooth rotation and tooth placement, alignment of the
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CRL.A.NO.100559 OF 2023
abovementioned teeth. He has given the report in terms of
Exhibit P31. In the cross examination he admits that over the
period of time as a consequence of healing in a living person
from bite marks wound may also heal and also admits that he
has not conducted in person physical examination of the
accused. He also admits that size of the individual tooth may be
the same in two persons.
32. Having considered the evidence of PW1 and PW2, 11 and
12 and also the analytical study which is placed before this Court
by the counsel appearing for the appellant so also also the
principles laid down in the judgment referred supra by the
counsel appearing for the appellant, it is to obiter any such
suspicion that the Court has held it is to be imminently desirable
that fingerprints are taken before or under the order of a
Magistrate. The entire exercise of fingerprint identification is
shrouded in mystery and they cannot give any credence to it.
Having found the material available on record with regard to
those two cases discussed in Paras 46 and 47 of the judgment of
Prakash versus State of Karnataka and in the case of
Nagaraj versus State of Karnataka, no doubt it is very clear
that bite mark evidence has been consistently admitted in Courts
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across the Country and has formed the basis of numerous
criminal convictions and also discussed with regard to the
matching of the same with comparison, i.e. teeth to a bite mark
in human skin, and having considered the analytical study of the
papers as well as the principles laid in the judgment and in the
case on hand, the Court is not only relying upon the bite marks,
but also the cross-examination of PW11 and PW12, in order to
come to a conclusion that those bite marks are not that of the
accused, nothing is elicited and both the accused and also the
victim’s fingerprints were also taken, and particularly having
considered the photographs and bite marks which were found on
the body of the victim as well as the opinion of these two
witnesses is very clear that of the accused only, and the Court
can expect similarity and the signs of upper teeth and lower
teeth. The Court also cannot expect the mathematical niceties
while considering the evidence of PW11 and PW12, who are the
experts.
33. It is also important to note that the evidence of PW14,
fingerprint expert is also very clear that on the date of visiting
the incident place along with police, simultaneously panchanama
as well as fingerprints were taken. The evidence of PW14 is very
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clear that first he found the fingerprint on the steel box, i.e.
chance print, the same is also marked as ‘Q1’, it was brought to
the Bagalkot unit and report was prepared as per Exhibit P53,
and witness signature was taken of CW16 and the same is also
identified as Exhibit P53A. There was a reference of visiting the
spot. It is also important to note that in paragraph No. 4 of the
evidence, he categorically says that in order to compare the
same with the fingerprint of the accused, a requisition was given
by the Investigating Officer in terms of Exhibit P54 and the
fingerprint of the accused was also taken. When the same was
compared, it was tallied with each other and given the report,
and he identifies the signature as Ex. P55A of the CW16. So also
the Ex.P56A along with documents of Ex. P57 to Ex.P60. No
doubt, this witness was subjected to cross-examination. In the
cross-examination, the very presence of CW-16 was not enclosed
in the document and so also there was no reference as to taking
them to the spot and they visited the spot at 06.45. But nothing
is elicited with regard to the fingerprint is concerned and the
same is not seriously disputed by the defence that no such
fingerprint was collected earlier and even not disputed the
fingerprint that was taken, belongs to the accused except
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denying that no such comparison was made and the report was
given.
34. Having considered the evidence of all these witnesses and
also the evidence of the Investigating Officer, who had
conducted the investigation subsequent to the receipt of the
complaint, the trial Judge while considering the evidence
available on record, particularly, taken note of chain of
circumstances are complete considering both oral and
documentary evidence, and while coming to such a conclusion,
taken note of seizure of the mobile at the instance of the
accused, which was missing and the same is mentioned in the
complaint itself at the first instance and also the injuries noted
on the accused as well as recovery at the instance of the accused
under Ex.P3 panchanama and PW2 supported case of the
prosecution for recovery of the mobile phone; and no
explanation was given by the accused having supported the
injuries, that too on his knee and also the evidence available on
record comparison of the bite marks on the victim with the
dentition of the accused person and the biting surfaces of the
dental models of the accused person were pressed on to a
commercially available ink pad/ stamp pad, as well as inked
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using a marker pen and the same is also taken note of in
paragraph No.67 of the judgment, so also the Odontology Report
plays a vital role in assisting the criminal justice delivery system.
So also the medical evidence of five bite marks on the body of
the victim and the matching of fingerprints of the accused with
chance prints found at the place of occurrence and also the
expert evidence of PW14. In terms of Exhibit P53 and Exhibit P54
and chance prints Q1 tallies with the right ring finger of the
accused and Exhibit P59 is the opinion of the forensic expert and
Exhibit P50 is the marking of comparison between the chance
prints and the fingerprints of the accused.
35. The material available on record which points out the
accused only done the same. Even considering the evidence of
last seen theory witness of PW4, all these circumstances
establishes and points out the very role of the accused in
subjecting her for sexual act trespassing the house of the victim
and also committing the theft of the mobile. All material
evidences the involvement of the accused, points out the
ingredients of the offence Section 451, 380 as well as 376.
36. The analytical study which is placed before the court by the
appellant counsel and also the principles laid down in the
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judgment cannot come to the aid of the appellant and in the case
on hand only the expert opinion is available and all other
material available before the court and point towards the role of
the accused. However, the trial judge fails to take note of the
ingredients of the offences in 307 and 325 IPC. If really the
accused was having any intention to commit the murder, he
would have committed the murder, no one interfered at the time
of the incident and the family members came only at around
04.00 p.m. There must be an intention to take away the life in
order to invoke Section 307 IPC. Mere an injury on the neck will
not suggest that an attempt is made to strangulate her. In order
to invoke the ingredients of offence under Section 307 IPC and
also Section 325 IPC, nothing is found.
38. No doubt, counsel appearing for the State would submit
that nature of injury is immaterial and no dispute to that effect.
But there must be evidence before the Court that an attempt
was made to take away the life. If he really intended to take
away the life, he would have taken the life of the victim, but not
done the same, and Court has to take note of circumstances and
material available on record while invoking the offence of Section
307 IPC. The trial judge failed to discuss anything about
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invoking of Section 307 and 325 IPC, but comes to the
conclusion that accused has also committed an offence of 307
and 325 IPC. Hence it requires interference of this Court since
there is no any present evidence to invoke those two offences
and hence answered the points accordingly. In view of the
discussions made above, I pass the following Order.
ORDER
Appeal is allowed in part.
The accused/appellant is acquitted for the offence of
Section 307 and 325 IPC and consequently sentences also set
aside. If any fine amount is deposited for the offences u/S 307
and 325 of IPC, is ordered to be refunded on proper
identification.
The conviction and sentence of the accused for the
offences of Section 451, 376 and 380 of IPC is confirmed.
SD/-
(H.P.SANDESH)
JUDGE
SD/-
(B. MURALIDHARA PAI)
JUDGE
BVV
CT-PA
