M.F. Saldanha, J.
1. The State of Karnataka has assailed the order of acquittal recorded in favour of the respondent-accused Shivaputrappa by the learned Additional Sessions Judge, Dharwar, in S.C. No. 69 of 1994 on 7-3-1995. The prosecution had alleged that at about 10.30 a.m. on 8-2-1994 when the deceased-Devakka was walking past the fields, that the accused had caught hold of her and dragged her into the midst of the standing jowar crop. He is alleged to have attempted to overpower Devakka and to rape her. The prosecution alleges that Devakka resisted the assault and that the accused in the course of trying to rape her, particularly because she was screaming, tried to silence her by tying the sari around her neck and tightening it and that in the process he killed Devakka. He was charged with having committed the offence punishable under Section 376 read with Sections 511 and 302 and 506. Part II of the IPC. The Trial Court after a detailed analysis of the evidence recorded the finding that the prosecution has failed to establish the guilt of the accused and accordingly acquitted him. The State has assailed the correctness of this order through the present appeal.
2. We have heard the learned State Public Prosecutor in support of the appeal and learned Counsel, Sri R.B. Deshpande who represents the respondent-accused. The learned State Public Prosecutor has taken us through the evidence on record and it is his principal submission that the evidence conclusively indicates that the accused was present at that spot or close to where the dead body of Devakka was found immediately after the incident and he has relied heavily on the fact that this circumstance would conclusively establish that nobody other than the accused was responsible for the death of Devakka. His further submission is that even if the prosecution has failed to establish a sexual assault on Devakka that could justify a conviction under Section 376 of the IPC that the law does provide for equally heavy punishments in cases where there is an attempt to rape. The learned State Public Prosecutor has in this regard relied on numerous minor injuries on the dead body in support of his contention that these injuries would fully establish that the accused had attempted to rape the deceased and that, he would be liable to receive the same sentence as would be awardable had the offence taken place. As regards the main charge under Section 302 of the IPC, the learned State Public Prosecutor submits that there is no evidence to indicate that Devakka was alive and in perfect health a few minutes prior to the incident and that her death was attributable to no reason other than the assault from the accused. We do not propose to recount in detail the evidence of the prosecution witness-wise, but suffice it to say that the learned State Public Prosecutor is right when he points out to us that the prosecution has established two circumstances beyond all doubt; the first of them being that Devakka was walking past the fields very shortly before the accused was seen running away from that place. Secondly, the evidence conclusively establishes that there was hardly any time-lag between the assault on Devakka and the accused running away from that spot even though there is no eye-witness to the actual incident. The evidence also indicates that Devakka was heard screaming out for help. It is in this background that we are required to totally reject the submissions canvassed on behalf of the defence that it would be quite coincidental that merely because the accused was passing by at about the same time when the assault took place somewhere inside the standing crop that he has been implicated and it is further submitted that the Court cannot rule out the possibility of the real assailant having slunk away quietly unnoticed. In our considered view, there is no scope whatsoever for this defence having regard to the overwhelming evidence on record that conclusively connects the accused with the incident. The learned Trial Judge has, on the basis of several technicalities recorded an order of acquittal holding that the prosecution has failed to establish the connection between the accused and the incident. We find after a thorough review of the record that this conclusion is unsustainable in law though, for the reasons to be indicated by us presently, we find that on the present state of the record the convictions under any of the charges earlier indicated by us would not be permissible.
3. The first and necessary ingredient which the prosecution is required to establish in a prosecution under Section 302 of the IPC is that a homicidal death has taken place, invariably the injuries are such that the doctors are able to conclusively opine that the deceased has met with a homicidal death. This is one of the few cases in which at the time of the post-mortem itself since there was some amount of decomposition, the doctor appears to have run into some difficulty with regard to ascertaining the cause of death. It is true that some minor injuries have been recorded in the post-mortem report but these are too insignificant to have endangered a life. There were ligature marks found on the neck of the deceased but again, the post-mortem examination indicates that there was no corresponding damage to the internal areas and, possibly for this reason, the doctor could not conclusively indicate that the death was due to strangulation. The net result was that the prosecuting authority had with it no evidence that the deceased had met with a homicidal death. Subsequently the Investigating Officer referred the case to another doctor who is P.W.
21. Dr. P.K. Devadas who is also Assistant Professor, Department of Forensic Medicine, KMC, Hubli, has studied the documents sent to him and he has stated that the deceased might have died due to strangulation. When the doctor used the expression 'might have', he has undoubtedly admitted in cross-examination that this was only a possibility. It is well-settled law that unless the prosecution establishes a homicidal death that a charge under Section 302 of the IPC cannot be established and consequently, the acquittal of the accused for the offence under Section 302 of the IPC as also under Section 506, Part II of the IPC will have to be confirmed.
4. As far as the offence under Section 376 read with Section 511 of the IPC is concerned, the learned State Public Prosecutor sought to vehemently contend that the circumstantial evidence particularly the injuries on the dead body are sufficient to establish this charge and he relied on certain bruise marks on the thighs of the deceased. We have taken careful note of these submissions as also of the submissions canvassed by the learned Advocate, Sri R.B. Deshpande who submitted that these injuries could at the very highest justify a conviction under Section 323 of the IPC assuming the Court holds the accused liable for these injuries. Mr. Deshpande was quick to bring it to our notice that where an offence under Section 376 read with Section 511 of the IPC is alleged that there would have to be some clear-cut evidence of an attempt to rape and in this regard, he has placed heavy reliance on the fact that the post-mortem report very conclusively establishes that there was absolutely no evidence of any injuries to the genital area and more importantly, that there was zero evidence as far as sexual intercourse is concerned.
5. We have very carefully assessed everyone of the relevant circumstances in this case because the best person who could have deposed to what happened is unfortunately no longer alive but on the other hand, the Court would be failing in its duty if it did not piece together all the material and record the right conclusions. What we need to emphasise as far as the Trial Courts are concerned is the fact that even in cases where the main offence or the main charge has failed that the Courts should not ipso facto jump to the conclusion that an acquittal is automatic. It is the duty of the Trial Court to ascertain from the evidence on record whether some lesser offence has been made out and if so, to convict the accused of that lesser offence. The evidence before us would have justified a conviction under Section 376 read with Section 511 of the IPC provided there was unmistakable evidence of an attempt to rape. There are several circumstances which would have established this, the main one being the presence of semen stains or more importantly, if the clothes of the deceased had been either removed or torn. Strangely enough in this case all the clothes were found intact. The most important area of evidence viz., the examination of the genital area very conclusively establishes that there was no sexual assault on Devakka even if it did not ultimately result in a full-fledged rape. In this background it would be impossible to hold that the accused has committed an offence punishable under Section 376 read with Section 511 of the IPC, The little evidence that survives would still be sufficient to make out an offence punishable under Section 354 of the IPC insofar as it is clear to us from the facts and circumstances of this case that the accused had not physically assaulted Devakka out of any sense of hostility and revenge or the like but that he did in fact use force against her for purposes of outraging her modesty. That this was possibly the prior/preparatory stage to something more serious cannot be ruled out but the important factor that emerges is that something happened which frustrated the accused from proceeding further, namely, that Devakka was shouting out loudly and she had resisted the attempts of the accused and it was possibly obvious to him that there was no possibility of succeeding which is why he apparently abandoned the effort. It is difficult for us to conclusively hold as to what transpired except to record that from the little evidence that is on record a clear case is made out for a conviction under Section 354 of the IPC particularly from the fact that the deceased was a woman and the fact that there were minor injuries on the lower parts of her body.
6. In view of the aforesaid findings, while we uphold the order of acquittal recorded by the Trial Court on the main charges, we convict the accused for the offence punishable under Section 354 of the IPC and we direct that he shall undergo RI for one year. The record indicates that the respondent-accused has undergone approximately 13 months in custody and having regard to the fact that he has undergone a period of detention in excess of the sentence awarded by this Court, there will be no need to further arrest him or consign him to prison.
7. The appeal succeeds to this extent and stands disposed of. The bail bond of the accused to stand cancelled.
