CRL.A.No.100167/2014
R
1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2018 PRESENT THE HON’BLE MRS. JUSTICE S.SUJATHA AND THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL No.100167/2014 BETWEEN: MEERSAB S/O DAWALSAB JAKATI AGE: 57 YEARS, OCC: KSRTC CLERK R/O. H. NO. LIG 21B URDU COLONY, AKHOL ROAD, NEAR COURT, NIPPANI DIST: BELAGAVI ... APPELLANT (BY SRI. NITIN R. BOLABANDI, ADVOCATE)
AND: 1.
MOHAMMADSHIRAJ, S/O BABU KILLEDAR AGE: 31 YEARS, OCC: MILITARY SERVICE R/O. GODHGERI, TQ: HUKKERI DIST: BELAGAVI.
2.
SMT.BIBIJAN W/O. BABU KILLEDAR AGE: 51 YEARS, OCC: HOUSEWIFE R/O. GODHGERI, TQ: HUKKERI DIST: BELAGAVI.
3.
APPASAB S/O. BABU KILLEDAR AGE: 38 YEARS, OCC: NIL R/O. GODHGERI, TQ: HUKKERI DIST: BELAGAVI.
CRL.A.No.100167/2014 2 4.
SMT.RESHMA W/O. APPASAB KILLEDAR AGE: 27 YEARS, OCC: HOUSEWIFE R/O. GODHGERI, TQ: HUKKERI DIST: BELAGAVI.
5.
THE STATE OF KARNATAKA, REP: BY ITS HIGH COURT PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH. (THROUGH HUKKERI POLICE STATION) ... RESPONDENTS
(BY SRI. VITHAL S. TELI, ADVOCATE FOR R1-R4; SRI. V. M. BANAKAR, ADDL. SPP FOR R5) --THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C.
SEEKING
TO
SET
ASIDE
THE
IMPUGNED
JUDGMENT AND ORDER OF ACQUITTAL DATED 01.02.2014 PASSED
BY
THE
VII-ADDL.
DIST.
&
SESSIONS
JUDGE,
BELAGAVI, SITTING AT CHIKODI, IN S.C.NO.297/2011 INSOFAR AS ACQUITTING THE ACCUSED/RESPONDENTS NO.1 TO 4 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498-A, 302 & 201 R/W 34 OF IPC AND TO ALLOW THE PRESENT APPEAL BY CONVICTING THE ACCUSED/RESPONDENTS NO.1 TO 4 FOR THE SUPRA STATED OFFENCES. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON
24.01.2018,
COMING
ON
FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
CRL.A.No.100167/2014 3
JUDGMENT This is an appeal against the judgment and order of acquittal passed by the VII Addl. District and Sessions Judge, Belagavi in S.C.No.297/2011. By the impugned judgment, the learned Sessions Judge has acquitted the respondents herein (hereinafter referred to as ‘accused Nos. 1 to 4’) of the charges punishable under Sections 498A, 302 and 201 R/w. Section 34 of the IPC. 2.
Accused Nos.1 and 4 were sent up for trial
on the allegations that: (i)
Accused No.1 being the husband of the
deceased Yasmin, accused No.2 her mother-in-law, accused No.3 her brother-in-law and accused No.4 the wife of accused No.3, subjected the deceased to cruelty and ill-treatment in her matrimonial home.
On
06.04.2011, accused No.1 took the deceased on a motorcycle bearing registration No.KA-49/E-317 and
CRL.A.No.100167/2014 4
committed her murder in a sugarcane field situated in the land of one Gireppa Gurusidda Todal (PW13), within the limits of Hukkeri police station and in order to cause disappearance of the evidence of murder and to screen himself from legal punishment, crushed the face of the deceased with a stone boulder and placed the dead body by the road side near the motorcycle making it to appear like an accident, and thereby committed the offences punishable under Sections 498A, 301 and 201 R/w. Section 34 of the IPC. (ii)
FIR was registered against the accused on
the basis of the complaint lodged by the father of the deceased (PW8). Investigation was taken up and charge sheet was filed against all the accused.
Since the
accused pleaded innocence, trial was held. In order to bring home the guilt of the accused, prosecution examined in all 31 witnesses as PW1 to PW31, produced in evidence 56 documents i.e., Exs.P1 to P56 and material objects at M.Os.1 to 19.
CRL.A.No.100167/2014 5
(iii)
On considering these materials, the learned
Sessions Judge came to the conclusion that the deceased died due to the injuries caused in a motor vehicle accident and the prosecution failed to prove that she was subjected to cruelty in the matrimonial home and consequently acquitted the accused of all the charges framed against them. 3.
The State has not preferred any appeal
challenging
the
acquittal
of
the
accused.
The
complainant, namely the father of the deceased, has preferred this appeal under Section 372 of the Cr.P.C. 4.
We have heard Sri. Nitin R. Bolabandi,
learned counsel appearing for the appellant; Sri. Vitthal S. Teli; learned counsel for respondents 1 to 4 and Sri. V. M. Banakar, learned Addl. State Public Prosecutor representing the respondent No.5. 5.
Learned
counsel
appearing
appellant/complainant would contend that;
for
the
CRL.A.No.100167/2014 6
(i)
The acquittal of the accused is wholly
unjustified and illegal. The trial Court has misread the evidence of prosecution witnesses. The circumstances proved in evidence clearly establish that the deceased was done to death by strangulation and to cause disappearance of the evidence of murder, her face was crushed with a stone boulder and the dead body was placed by the road side near the motorcycle making it to appear like accidental death. The trial Court failed to consider the medical evidence and the surrounding circumstances, which clearly establish that the death was homicidal. The trial Court also failed to take into consideration the plea set up by the accused, which presupposes the presence of the accused No.1 at the spot of occurrence. Therefore, the trial Court ought to have placed the burden on accused No.1 to explain the circumstances which led to her death. (ii)
Placing reliance on the judgment of the
Hon’ble Supreme Court in the case of State of Rajasthan
CRL.A.No.100167/2014 7
Vs. Kashi Ram reported in (2006) 12 SCC 254 and in the case of Rajkumar Vs. State of M.P. reported in (2014) 5 SCC 353, learned counsel would contend that the circumstances under which the deceased met with her death being especially within the knowledge of accused No.1, the burden of proving the said fact was upon accused No.1, but the trial Court misdirected itself in failing to apply this salutary principle in appreciating the evidence which has resulted in gross miscarriage of justice. (iii)
Further, the trial Court failed to note that
accused No.1 did not offer any acceptable explanation as to the cause of death of the deceased. Instead, he was found absconding ever since the date of the commission of the offence, which factor is also ignored by the trial Court, resulting in failure of justice. (iv)
On the question of cruelty and harassment
meted out to the deceased in the matrimonial home, the learned counsel has placed reliance on the decisions of
CRL.A.No.100167/2014 8
Hon’ble Supreme Court in the case of Pathan Hussain Basha
Vs.
State
of
Andhra Pradesh
reported
in
LAWS(SC) 2012 8 27 and in the case of Ranjit Singh Vs. State of Punjab reported in AIR 2013 SC 2991 and would submit that the trial Court has failed to appreciate the case in its proper perspective and hence the impugned judgment warrants interference by this Court. 6.
The learned Addl. SPP appearing for the
State while conceding that the State has not preferred any appeal against the impugned judgment, would nevertheless submit that; (i)
The approach of the trial Court in dealing
with the matter is patently erroneous and perverse. The evidence adduced by the prosecution establishes each and every constituent of the offences charged against the accused. The medical evidence completely rules out the theory of accidental death. The conduct of accused No.1, recovery of his blood stained jacket coupled with
CRL.A.No.100167/2014 9
his knowledge of the spot of occurrence and the recovery of the stone used for commission of the offence directly incriminate accused No.1 in the offence of murder as well as the offence of causing disappearance of evidence of murder.
Therefore,
the acquittal of
accused No.1 is legally unsustainable and thus prays for conviction of accused No.1 for the above offences under Section 302 and 201 of IPC. (ii)
Insofar as the offences under Section 498A
IPC is concerned, the learned Addl. SPP, however, concedes that the evidence produced by the prosecution in proof of this charge is not sufficient to record conviction against accused Nos. 2 to 4 and the said finding therefore does not warrant any interference by this Court. 7.
Meeting the above argument, the learned
counsel for accused No.1, however, has argued in support of the impugned judgment. He contends that;
CRL.A.No.100167/2014 10
(i)
The prosecution is required to prove its case
in the manner stated by it in the charge sheet and failure to prove the case in that manner would only give rise to doubt, the benefit whereof should be given to the accused. rested
its
In the instant case, the prosecution has case
on
the
direct
testimony
of
the
eyewitnesses, but all the eyewitnesses examined by the prosecution have been treated as hostile. Therefore, the prosecution cannot turn round and seek to sustain the charges on circumstantial evidence as sought to be contended by the learned Addl. SPP. (ii)
Placing reliance on the decision reported in
(2006) 12 SCC 306 in the case of Vikramjit Singh Vs. State of Panjab, the learned counsel contends that Section 106 of the Evidence Act does not relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt.
The accused has
taken a specific plea that the deceased died on account of injuries due to fall from the motorcycle. The medical
CRL.A.No.100167/2014 11
evidence produced by the prosecution goes in support of the said plea.
The trial court has appreciated the
medical evidence and the surrounding circumstances and has accepted the plea of accidental death; the said finding therefore, cannot be lightly interfered by this Court at the instance of the complainant merely because a second view is possible in that regard. (iii)
In support of above contention, the learned
counsel has heavily placed reliance on the decision in the case of Nepal Singh Vs. State of Haryana reported in (2009) 12 SCC 351 and would contend that, unless the complainant is able to establish that the findings recorded by the trial Court are perverse and contrary to the evidence on record, there is no reason to interfere with the impugned judgment.
Hence he seeks for
dismissal of the appeal. 8.
We have bestowed our careful thought to the
rival contentions urged at the bar and have carefully
CRL.A.No.100167/2014 12
examined the records. 9.
Before adverting to the contentions urged by
the parties, it may be necessary to note that, this appeal has been preferred against the judgment of acquittal. Hence the Court is required to adopt a cautious approach in dealing with the matter since the accused are provided with double presumption in their favour. (i)
Firstly, the presumption of innocence is
available to the accused under the general principles of criminal jurisprudence and, (ii)
Secondly, the accused having secured an
order of acquittal, the presumption of innocence has been fortified in their favour. 10.
Nonetheless, as held by the Hon’ble Supreme
Court in the case of Harijana Thirupala Vs. Public Prosecutor reported in (2002) 6 SCC 470; “12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the
CRL.A.No.100167/2014 13 evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.” (underlining supplied)
Likewise, in Ramanand Yadav V.Prabhu Nath Jha, the Hon’ble Supreme Court while delineating the power of the High Court in deciding the appeal against an order of acquittal, in para 21 has held as under: “21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based.
Generally, the order of
acquittal shall not be interfered with because the presumption of innocence of the accused is
CRL.A.No.100167/2014 14 further strengthened by acquittal. thread
which
runs
through
The golden
the
web
of
administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the conviction of an innocent.
In a case
where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.”
11.
(underlining supplied)
Considering the above judgments as well as
numerous other decisions on the question, the Hon’ble Supreme in the case of Nepal Singh (supra), has laid down the following general principles regarding the
CRL.A.No.100167/2014 15
powers of the Appellate Court while dealing with the appeal against an order of acquittal as under: 1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence
before
it
may
reach
its
own
conclusion, both on questions of fact and of law. 3) Various expressions, such as, ‘substantial and compelling
reasons’,
grounds’,
‘very
‘good
strong
and
sufficient
circumstances’,
‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4) An appellate court, however, must bear in mind that in case of acquittal, there is double
CRL.A.No.100167/2014 16 presumption in favour of the accused. Firstly, the presumption of innocence is available to him
under
the
fundamental
principle
of
criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further
reinforced,
reaffirmed
and
strengthened by the trial court. 5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
12.
In the light of the above principles, we have
re-appreciated
the
evidence
on
record
and
have
considered the various decisions relied on by the parties. i.
To begin with, there is no dispute as to the
fact that the deceased and accused No.1 were married on 12.03.2010.
The accused No.1 was working in
Military and was stationed in Assam at the relevant
CRL.A.No.100167/2014 17
time. According to the prosecution, he used to visit his native place once in two months.
During this period,
the deceased was residing in the matrimonial house at Godhgeri along with accused Nos. 2 to 4. ii.
The
first
charge
is
that,
the
accused
subjected the deceased to cruelty and ill-treatment in the matrimonial house within the meaning of Section 498A of the IPC.
In order to prove this charge, the
prosecution has relied mainly on the evidence of the father and the mother of the deceased, who are examined as PW8 and PW11 respectively and the evidence of PW1, one of their distant relative. iii.
PW8
and
PW11
have
stated
in
their
evidence, that after the marriage, the deceased was residing in her in-laws house and she used to frequently talk to them over phone and was complaining that the accused were ill-treating her and abusing her in the matrimonial home and were demanding her to bring cash and gold.
Further, both these witnesses have
CRL.A.No.100167/2014 18
stated that on one occasion, accused No.1 even abused and assaulted the deceased and at that time, PW8 and PW11 along with PW1 had been to the house of the accused and advised accused No.1 to mend his ways. iv.
Undisputedly, PW8 and PW11 are the close
relatives of the deceased. Naturally they are interested witnesses. Of course, the evidence of the close relatives of the deceased cannot be brushed aside as they are the most competent witnesses to speak about the instances of cruelty and harassment meted out to the deceased in the matrimonial home; yet in the instant case, on considering the quality of the evidence given by PW8 and PW11 before the Court, we are not inclined to accept their evidence in support of the charges of cruelty alleged against the accused. evidence
of
these
witnesses
A perusal of the
indicates
that
the
allegations of cruelty and dowry demand have come to the fore only after the death of the deceased.
Even
though these witnesses have stated that on one
CRL.A.No.100167/2014 19
occasion all of them had been to the house of the accused and advised accused No.1 to mend his ways, these witnesses have admitted in the cross-examination that they are not aware of the specific time and date when such an incident took place.
Even in the
complaint lodged by PW8, there is no reference to this incident. Except making bald and general allegations in the complaint, we do not find any specific evidence, which could satisfy the proof required to establish the offence under Section 498A of the IPC. 13.
Though
the
learned
counsel
for
the
appellant/complainant has argued at length and has placed
reliance
on
the
above
authorities
in
an
endeavour to persuade the Court that the deceased met with unnatural death within seven years from the date of her marriage and she having been subjected to cruelty and harassment, for not satisfying the dowry demand, the presumption provided under Section 113B
CRL.A.No.100167/2014 20
of the Evidence Act should be drawn against the accused, but in the absence of any evidence to show that the deceased was either subjected to cruelty in the matrimonial house or that immediately preceding her death, there was any demand for dowry by the accused in connection with the marriage of the deceased, in our view, the presumption under Section 113B of the Evidence Act cannot be
drawn to the facts of the
present case. 14.
In this context, it is also relevant to note
that, during the pendency of the trial, the public prosecutor appears to have made an application under Section 216 of Cr.P.C. seeking to include the charges under Sections 3 and 4 of the Dowry Prohibition Act (hereinafter referred to as the ‘the DP Act’, for brevity). It is borne on record that the said application was rejected by the trial Court.
The prosecution has not
challenged the said order. As such, the request of the
CRL.A.No.100167/2014 21
prosecution to incorporate the charge under Sections 3 and 4 of the DP Act has not been acceded by the trial Court.
Therefore, the complainant is not entitled to
urge the said plea before this Court. 15.
However, being the appellate Court sitting in
appeal against the order of acquittal, since this Court is well within its powers to review the evidence and to reach independent conclusion, we have reconsidered the material on record to find out whether the prosecution has brought on record any material so as to answer the said charge.
But we are unable to find any
evidence in support of the allegations of dowry demand. On the other hand, it is seen from the records that the allegations of dowry demand has been made for the first time only during the evidence before the trial Court. The complainant did not allege anywhere in the complaint that a sum of Rs.50,000/- was demanded by the accused as dowry. Even during their evidence, PW8
CRL.A.No.100167/2014 22
and PW11 did not state that the accused demanded Rs.50,000/- by way of dowry. On the other hand, their evidence indicates that on 06.04.2011, accused No.1 placed a demand for Rs.50,000/- for purchase of property. This demand even if accepted as true, cannot be construed as ‘Dowry’ within the meaning of Section 2 of the DP Act. Section 2 of the DP Act defines ‘Dowry’. It reads as under: “Section 2. Definition of “Dowry” - In this Act ‘Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly – (a)
by one party to a marriage to the other party to the marriage; or
(b)
by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of
CRL.A.No.100167/2014 23 persons to whom the Muslim Personal Law (Shariat) applies.”
16. the
The evidence of PW8 and PW11 as well as
evidence
of
PW1
does
not
conform
to
the
requirements of Section 2 of the DP Act. As a result, it has to be held that the prosecution has failed to prove the guilt of the accused for the offences punishable under Section 498A of IPC and Section 3 and 4 of the DP Act. To this extent, the findings recorded by the trial Court requires to be confirmed. 17.
This takes us to the other two charges
leveled against the accused under Sections 302 and 201 of IPC. these
The trial Court has acquitted the accused of offences
mainly
for
the
reason
that
the
prosecution has failed to prove that the death was homicidal. The trial Court has held that the deceased sustained injuries due to fall from the motorcycle driven by accused No.1, which resulted in her death.
In
arriving at this conclusion, the trial Court has relied on
CRL.A.No.100167/2014 24
the evidence of PW3 – Panch witness to the spot mahazer and the contents of the spot mahazer (Ex.P3). It has also relied on the evidence of PW27, the doctor who treated accused No.1 and has come to the conclusion that accused No.1 also sustained injuries in the same accident. Further, referring to the opinion of PW30, the medical officer, who conducted the postmortem examination, the trial Court has noted that, PW30 has not mentioned in the post-mortem report that the death was caused due to throttling and hence the Trial Court has held that the death was accidental and consequently acquitted the charges.
accused of the
above
This finding is seriously challenged in this
appeal both by the learned Addl. SPP as well as by the learned
counsel
Therefore,
the
appearing moot
for
question
the that
complainant. arises
for
consideration is, whether the death of the deceased was homicidal or accidental?
CRL.A.No.100167/2014 25
18.
The
medical
opinion
produced
by
the
prosecution clearly reveals that the deceased died due to ‘cardiorespiratory arrest due to respiratory tract obstruction, due to external forceful compression on the neck’.
PW30,
who
conducted
the
post-mortem
examination on the deceased, has stated that on examination of the dead body, she noted the following external injuries: i.
Fracture of the forehead, frontal bone of 8cm x 4cm, triangular shape with its tail on right side measuring 3x2 cm and base of 6cm each with a depth of 0.5 mm 3 sides measuring 6 cm each and depth of 0.5 mm.
ii.
Brain matter exposed on left side, with the membranes and dark red blood present.
iii.
Fracture of the ethmoidal bone, cribriform bone and frontal bone present.
iv. A large haemotoma of 5x6 cm present below the frontal bone in the intracerebral region with bleeding extending into the nose and mouth.
Anterior cerebral veins and other
CRL.A.No.100167/2014 26 minor
vessels
torn
and
dark
blood
(haemotoma) seen intracerebrally.
Further, PW30 has stated that on dissection, she found the following internal injuries, namely; i.
Congestion present.
ii.
Internally
both
the
cricoid
cartilage
and
thyroid cartilage are fractured iii.
Hyoid bone fracture present at the junction of the greater horn on right side and displaced inwards.
iv.
Both trachea and larynx compressed inwards from external side, both anteroposteriorly and also sidewards.
PW30 issued the post-mortem report Ex.P46, wherein at the first instance she gave her opinion as to the cause of death as under: “After the PM examination, the opinion regarding the cause of death is cardiorespiratory arrest, due to respiratory tract obstruction, due to asphyxia and intracerebral bleeding due to head injury.”
CRL.A.No.100167/2014 27
However, she reserved her final opinion awaiting the report of the Regional Forensic Science Laboratory and on receiving R.F.S.L. report, she gave her final opinion to the effect that: “The death was due to cardiorespiratory arrest due to respiratory tract obstruction due to external forceful compression on the neck.”
This witness has also deposed about the opinion given by her as per Ex.P47, on examining the stone produced by the Investigating Officer. In this opinion, she has stated as under: “The following injuries present on the forehead i.e., i.
Fracture of the forehead, of frontal bone of 8cm x 4cm, triangular shape, measuring 3x2 cm and base with its 3 sides measuring 6cm each with depth of 0.5 mm, with brain matter exposed. Dark coloured blood present at the fractured site.
ii.
Fracture cribriform present.
of
the
bone
ethmoidal and
frontal
plate, bone
CRL.A.No.100167/2014 28 iii.
A large haematoma of 5 x 6 cm present
below
intracerebrally
the
frontal
entruding
into
bone, the
mouth. The above stated injuries can be caused by a stone of a 14 kg with a circumference of 2ft and 4’. A blood stained mark dark red colour present along with some hairs on one side of the staone and hairs of black colour present on it.
The stone has uneven surface.
Spherical in shape with mud present all over the surface.”
During her evidence, she identified the stone examined by her as M.O.2. 19.
The contention of the learned counsel for the
complainant and the learned Addl. SPP is that, opinion given by PW30 and the evidence stated by her before the Court is sufficient to hold that the death was homicidal. The learned counsel have emphasized that the deceased died solely on account of compression of the neck and head injury. The said injury was not possible to have been caused in an accident. The learned counsel would
CRL.A.No.100167/2014 29
contend that the evidence of PW30 with regard to the cause of death has not been discredited in the crossexamination and therefore, the finding recorded by the trial Court that the deceased died due to fall from the motorcycle is being inconsistent with the medical evidence and the findings recorded by PW30 in the postmortem report, the said finding cannot be sustained. 20.
This submission is disputed by the learned
counsel for the defence, contending that in the crossexamination, PW30 has admitted that the injuries sustained by the deceased are possible to be caused in a motor vehicle accident and therefore, the finding recorded by the trial Court cannot be interfered with. The learned counsel has further emphasized that PW30 has
given
the
final
opinion
only
to
oblige
the
prosecution and therefore, the said opinion cannot be given any credence.
CRL.A.No.100167/2014 30
21.
We have meticulously analysed the evidence
of PW30 as the said evidence is determinative of the real cause of death of the deceased.
On considering her
evidence and the findings noted by her in the postmortem report Ex.P46, we are unable to accept the contention of the learned defence counsel that the deceased sustained the above injuries in the motor vehicle accident. No doubt it is true that in the course of
cross-examination,
PW30
has
admitted
the
suggestions put to her by the defence counsel, but on wholesome reading of the cross-examination of PW30, we do not find any specific answer having been elicited through the mouth of PW30 leading to the inference that the deceased died on account of the injuries sustained in the motor vehicle accident as contended by the accused. 22.
It is trite law that suggestion cannot take the
place of proof. A suggestive defence unless probabalized
CRL.A.No.100167/2014 31
by any material in support thereof, cannot dislodge the testimony of a witness either with regard to the statements made before the Court or with regard to the facts noted in the documents prepared by the witness. In the instant case, PW30, the medical officer, has specifically
noted
in
the
post-mortem
report,
the
external as well as the internal injuries found on the dead body.
These findings are not disputed in the
course of the cross-examination.
Not even a single
suggestion is made to PW30 with reference to the specific injuries noted by her in the post-mortem report. Therefore, the argument of the learned counsel that the opinion given by PW30 has been discredited of falsified cannot be accepted.
On the other hand, the findings
noted by PW30 coupled with the other circumstances, which
we
will
be
presently
discussing,
would
undoubtedly lead to the conclusion that none of the injuries sustained by her could have been caused in a motor vehicle accident as suggested by the accused.
CRL.A.No.100167/2014 32
23.
There can be no dispute that post-mortem
report by itself is not a substantive piece of evidence. But as laid down by the Hon’ble Supreme Court, in Vijay Pal Vs. State (GNCT) of Delhi reported in AIR 2015 SC 1495; “…….the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion
CRL.A.No.100167/2014 33 is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive.”
24.
In the instant case, PW30 - the Medical
Officer, who conducted the post-mortem examination, has given a clear and definite opinion with regard to the cause of death.
Even though the said evidence is
sought to be dislodged by the accused by suggesting to the witnesses the probability of the injuries being caused in an accident, but as already discussed above, the suggestions posed to the witnesses are hypothetical suggestions without reference to the specific injuries noted in the post-mortem report. Therefore, in our view, the opinion given by PW30 to the effect that the
CRL.A.No.100167/2014 34
deceased died due to the cardiorespiratory arrest due to respiratory tract obstruction due to external forceful compression on the neck, deserves to be accepted. 25.
Undeniably,
PW30
is
an
expert
and
therefore, her opinion is advisory in character. It is well settled that the evidence of an expert gains relevance only when it is supported by reasons and justifications in support of the opinion given by the expert.
The
credibility of an expert depends on the reasons stated in support of his conclusions and the data and materials, which form the basis of the conclusions. The duty of an expert, therefore, is to furnish the judge with necessary scientific
data
for
testing
the
accuracy
of
the
conclusions, so as to enable the judge to form an independent opinion with regard to the matter seized by it.
It is now well settled that the scientific opinion
evidence, if intelligible, convincing and tested in the cross-examination, becomes a factor and often an
CRL.A.No.100167/2014 35
important factor for consideration along with the other evidence of the case (State of Himachal Pradesh Vs. Jai Lal and Others reported in (1999) 7 SCC 280). 26.
In the case on hand, we find from the
evidence of PW30 that she has assigned proper reasons and justifications in support of the opinion given by her in the post-mortem report.
She has stood the test of
cross-examination and has reiterated in her evidence that all the injuries sustained by the deceased were ante-mortem and homicidal in nature. Merely because it was suggested to PW30 that the said injuries are also possible to be caused in an accident, the factual findings noted by her in the post-mortem report are not shown to be false or unbelievable. Therefore, we do not have any hesitation to accept the said report so as to hold that all the injuries sustained by the deceased were homicidal in nature.
We have extracted the injuries
noted by PW30. Having regard to the evidence of PW30,
CRL.A.No.100167/2014 36
none of these injuries in our opinion could have been caused in a vehicular accident. 27.
In this context, it is apt to note that
according to PW30, the main cause leading to the death of
the
deceased
is
fracture
of
hyoid
bone
and
compression of trachea and larynx as well as fracture of forehead.
Such an injury could not have been
sustained in any manner other than by human agency has been explained in Modi’s Medical Jurisprudence and Toxicology, 24th Edition, at page 454, it is observed as under: “It should be noted here that the hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the larynx and the trachea may, in rare cases, be fractured by a fall.
Post-mortem fracture of the hyoid bone is
characterized by the absence of haemorrhage in the tissues around the fracture.”
In the instant case, PW30 has specifically noted the haemorrhage at the site as well as fracture of hyoid
CRL.A.No.100167/2014 37
bone and has specifically deposed that the said injuries led to the death of the deceased. We do not find any reason to disbelieve or discard the
said opinion
evidence. 28.
In order to corroborate the medical evidence,
the prosecution has brought on record the evidence relating to various other facts and circumstances which in our opinion lead to the only conclusion than the deceased was done to death by compression of her neck and by crushing her forehead with a stone boulder.
In
this regard, it is relevant to note that the specific case of the prosecution is that, the deceased was done to death by accused No.1 and in order to make it appear like an accident, the accused No.1 shifted the body from the spot of murder and kept it by the side of the road. This part of the case of prosecution, in our view, has been proved by the prosecution with clear and cogent evidence.
CRL.A.No.100167/2014 38
29.
It is not in dispute that dead body of the
deceased was found lying by the side of the road near the land of one Gireppa Gurusidda Todal (PW13) on the way to Sultanpur. The evidence of PW8, the father of the deceased, goes to show that he received the information about the occurrence at about 10 O’clock in the night on 06.04.2011 and immediately he rushed to Government Hospital at Hukkeri Hospital as informed to him by accused No.3. But having failed to find the deceased there, he rushed to the spot of occurrence at around 2.00 am and found the dead body of the deceased lying by the road side. This evidence of PW8 has not at all been challenged in the cross-examination. These facts clearly indicate that the dead body was found lying by the road side at about 2.00 am. PW8 has specifically stated that none of the accused were present near the dead body.
He has graphically narrated the
condition of the body and has specifically stated that, on seeing the dead body on the first impression itself, he
CRL.A.No.100167/2014 39
was of the view that it was not a case of accident. He has specifically deposed in his evidence that he noticed a huge crush injury on the forehead and black marks on the neck.
This evidence is in conformity with the
findings noted by PW30 in the post-mortem report. 30.
Further, the inquest mahazer, though it was
conducted in the mortuary on 07.04.2011, indicates similar injuries on the dead body. The Tahasildar who conducted the said inquest has also deposed that on enquiry with the witnesses and on noting the injuries inflicted on the deceased, he was of the opinion that the apparent cause of the death was strangulation of the neck and crush injury on her face. The above evidence clearly indicates that, even at the earliest instance, the prosecution witnesses suspected that the deceased was done to death by strangulation and by crushing her head with some hard object. If this evidence is analysed with the photographs taken at the spot where the dead
CRL.A.No.100167/2014 40
body was lying, in our opinion, it completely rules out the possibility of accidental death. 31.
The prosecution has examined PW20 - the
photographer, who took the photographs of the dead body.
These photographs Ex.P3(a) and P3(b) are duly
proved by examining PW20. According to this witness, he took these photographs on the date of incident at the spot where the dead body was lying. A bare perusal of these photographs depict that the dead body was lying in a supine position on the mud portion of the road margin. Even though accused No.1 has taken up a plea that the deceased sustained injuries in a motor vehicle accident, it is seen that the motorcycle was lying at a distance of about 3-4 feet from the dead body. There was absolutely no damage or even a scratch to the motorcycle except that the head light was seen to have been broken.
This fact is admitted even by the
witnesses during their evidence before the Court.
No
CRL.A.No.100167/2014 41
tyre marks are visible either on the road or on the mud portion indicating any vehicular accident. 32.
Except taking a bald defence that the
deceased sustained injuries in the accident, no material has been brought on record to show the manner in which the alleged accident took place. Admittedly, the accused No.1, who claims to have sustained the injuries in the very same accident, has not lodged any complaint before the jurisdictional police alleging that the vehicle driven by him was met with an accident. Even though it is repeatedly suggested to the prosecution witnesses that the deceased died due to accidental injuries, no documents by way of MLC register or the motor vehicle inspection report are produced to probabalize the said defence.
Even during his examination under Section
313 statement, except stating that the deceased and himself sustained injuries in the accident, accused No.1 has not stated as to the manner in which the alleged
CRL.A.No.100167/2014 42
accident took place.
There is no evidence to show
whether there was any mechanical failure or a head-on collision with other vehicle or standing objects.
The
facts depicted in the photographs do not indicate that the motorcycle or the deceased hit against any stone or standing tree, so as to sustain the injury on the forehead. If the vehicle had skid and the deceased was thrown out of the vehicle, in all probability, she would have been found with her head hit against any stone or any other objects.
The photographs at Exs.P3(a) and
P3(b) prove it otherwise. The very position of the body rules out the theory of accident. The body is seen lying in supine position.
There was no stone or any object
near the dead body by which she could sustain the injury found on her forehead. There were no traces of any splashing of blood at the spot. No dragging marks are visible at the site. The clothes of the deceased were not torn which are most likely in case of vehicle accident especially when a huge injury was found on
CRL.A.No.100167/2014 43
the forehead.
All these circumstances rule out the
possibility of the deceased sustaining the injuries in the accident as contended by the defence. 33.
However, placing reliance in the case of
Vikramjit Singh Alias Vicky Vs. State of Punjab reported in (2006) 12 SCC 306, the learned counsel for the accused has endeavored to persuade the Court to hold that there are two versions of the prosecution case. He contends that the trial Court has recorded a finding of fact that the deceased died due to injuries caused in a motor vehicle accident and therefore, the said finding cannot be lightly interfered by this Court merely because a second view is possible. The learned counsel has referred to para 13 of the impugned judgment and would contend that two versions having come on record with regard to the cause of death of the deceased, the benefit thereof should be given to the accused.
CRL.A.No.100167/2014 44
34.
The above argument, in our opinion, is
thoroughly misconceived.
Firstly, there are no two
versions in the prosecution case as contended by the learned counsel for the accused No.1.
The plea of
accidental injury is propped up by accused No.1 himself and not by the prosecution.
Therefore, it is for the
accused No.1 to prove the said defence with probable evidence.
The plea of accident having been set up by
the accused No.1, he is not relieved of his burden to prove the said plea. No doubt, it is true accused No.1 is not required to prove the defence with the standard of absolute proof, nonetheless he is required to produce acceptable and reliable evidence at least to probabalize the said defence.
As rightly argued by the learned
counsel for the accused, the accused has right of silence. But in the instant case, accused No.1 himself having broken the silence by taking up the plea of accidental death, he is bound to prove the said plea
CRL.A.No.100167/2014 45
with probable and satisfactory evidence, if not with absolute proof. 35.
The
evidence
on
record
indicates
that,
during the cross-examination of prosecution witnesses, repeated suggestions were put to the prosecution witnesses suggesting that the accused died due to accident. These suggestions are consistently denied by the prosecution witnesses.
In the examination under
Section 313 Cr.P.C., the accused No.1 has specifically pleaded that, while he and his deceased wife were coming on their motorcycle, they met with an accident and both of them sustained injuries and his wife died. This reply implies that accused No.1 was very much present during the incident. Therefore, he is required to explain the circumstance in which the deceased met with her death.
The cause of her death being in the
exclusive knowledge of accused No.1, by force of Section 106 of the Evidence Act, the onus shifts on accused
CRL.A.No.100167/2014 46
No.1 to explain the circumstance, which led her to the death. 36.
On the question of the use of the reply given
by the accused during his examination under Section 313 Cr.P.C. is concerned, the Hon’ble Supreme Court, in Mannu Sao Vs. State of Bihar reported in (2010) 12 SCC 310, in paragraph 14 has held as under: “The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given
by
the
accused
may
be
taken
into
consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the
CRL.A.No.100167/2014 47 prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Code as it cannot be regarded as a substantive piece of evidence.”
37.
(Underlining supplied)
In the instant case, the accused No.1 in his
reply to the incriminating circumstances put to him under Section 313 Cr.P.C. in clear and unambiguous terms has stated that, the deceased died on account of the injuries sustained in the accident.
This reply
presupposes that he was the only person present along with the deceased when she sustained the injuries. Section 106 of the Evidence Act in unambiguous terms lays down that; “when
any
fact
is
especially
within
the
knowledge of any person, the burden of proving that fact is upon him.”
CRL.A.No.100167/2014 48
In State of Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254, the Hon’ble Supreme Court has held that; “….if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an
additional link
in the
chain of
circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain….”.
CRL.A.No.100167/2014 49
38.
As we have already discussed, the evidence
adduced by the prosecution and the circumstances proved therefrom clearly establish that accused No.1 was the only person who was last seen with the deceased.
The very fact that the accused No.1 has
taken up a plea that he and the deceased were together when the deceased died, the burden undoubtedly shifts on the accused to explain the circumstances which led to her death and the manner in which she sustained the said injuries.
But as already discussed above, except
taking up a bald plea, the accused No.1 has not probabalized this plea with any reliable and acceptable evidence.
On the other hand, the circumstances
discussed above clearly indicate that he has knowingly taken a false plea which in the facts and circumstances is consistent with the hypothesis compatible with his guilt.
CRL.A.No.100167/2014 50
39.
The above view gets reinforced from the
other circumstances proved by the prosecution.
The
evidence discussed above clearly establish that, on the date of the incident, accused No.1 had taken the deceased with him in the evening at about 5.00 pm after a verbal altercation with the father of the deceased, namely, PW8. In this regard, the evidence of PW8 that the accused placed a demand for Rs.50,000/- and when he expressed his inability to satisfy the said demand, in a huff, he took the deceased with him on the motorcycle has remained un-controverted in the cross-examination. Further, the evidence of PW12, the co-brother of the accused, indicates that after leaving the house of PW8, accused No.1 took the deceased to the house of PW12 and they were in his house for about 20-25 minutes and thereafter, both of them left the house of PW12 at about 7.30 pm. If this evidence is considered in the light of the reply given by accused No.1 in his 313 statement, the only conclusion that could be derived is that, at the
CRL.A.No.100167/2014 51
time of death of the deceased, except accused No.1, no other persons were found in the company of the deceased. 40.
PW13, PW14, PW21 and PW28, who have
been examined by the prosecution as eyewitnesses to the incident have stated before the Court that none of them have witnessed the incident and they were unaware of the cause of the death of the deceased. As a result, the only person who was found with the deceased when she met with her death was accused No.1. Therefore, accused No.1 owed an explanation as to the cause of her death. Accused No.1 has not denied his presence at the spot, but has set up a plea that she succumbed to the injuries in the accident. But we have elaborately considered the medical evidence as well as the facts depicted at the spot as borne out in the spot mahazer
(Ex.P2)
as
well
as
the
surrounding
circumstances spoken to by PW8 and PW11. In the light
CRL.A.No.100167/2014 52
of this evidence, we have no hesitation whatsoever to hold that the defence set up by the accused No.1 is only an afterthought and false to the core. 41.
The evidence of PW12 goes to show that he
was very much aware of the incident. PW12 has clearly admitted in his evidence that on getting the information about the incident, he rushed to the spot near Sultanpur road.
This information could have been
given to PW12 only by accused No.1; otherwise he could not have known the spot. The above evidence further indicates that accused No.1 was having a mobile phone with him and soon after the occurrence, he informed the matter to his brother namely, accused Nos.3 and other family members. According to P.W.8, at about 8.00 pm, he called the deceased to her mobile phone and having failed to elicit any response, he called accused No.3 and at that time, accused No.3 told him that his mobile is kept for charging in the neighbors house.
PW8 has
CRL.A.No.100167/2014 53
further stated that, once again when he called accused No.3 at 10 O’clock, accused No.3 informed him that the deceased and accused No.1 have met with an accident and were admitted in Hukkeri Hospital. This evidence also has not been challenged in the cross-examination making it evident that accused No.3 was aware of the incident.
The information given by accused No.3 is
proved to be false as it is a matter of record that neither accused No.1 nor the deceased were admitted to Hukkeri Hospital.
The false information given by
accused No.3 to the parents of the deceased is another factor which points out that, soon after the incident, accused No.1 informed the death of the deceased to accused Nos. 2 to 4 and in spite of knowing that she was dead, they gave wrong information to PW8 and PW11. If in fact accused No.1 had informed the other accused that he had met with an accident and the deceased
had
sustained
grievous
injuries,
in
all
probability, any of the accused Nos.2 to 4 would have
CRL.A.No.100167/2014 54
rushed to the spot and would have made arrangement to shift them to the hospital or to alert the police or could have lodged a report regarding the said incident. But the circumstances brought out in the evidence of PW8, PW11 and PW12 clearly indicate, none of these accused were present at the spot.
They neither
informed the police nor took any measures to take the deceased to the hospital or to attend accused No.1, who is stated to have sustained injuries in the same accident. These circumstances point out that right from the inception, accused Nos.2 to 4
tried to shield
accused No.1. 42.
The conduct of the accused No.1 absconding
from the place of the offence is another circumstance which exposes the falsity of the plea set up by him. There is absolutely no evidence whatsoever on record to show that accused No.1 was treated for the accidental injuries or that he had gone to the police station.
CRL.A.No.100167/2014 55
Though the learned counsel for the accused has made much of the answer elicited from PW8 in the course of his cross-examination, wherein he has stated that when he reached the spot, he came to know that accused No.1 had gone to the police station, but PSI (PW29), who registered
the
FIR
has
unequivocally
stated
that
accused No.1 did not come the police station either on the date of the incident or any time thereafter, until his arrest.
Abscondence of the accused therefore, is
another link in the chain of circumstances establishing the guilt of accused No.1 in the murder of the deceased. 43.
The
other
circumstances
as
already
discussed above indicate that, to cover up the murder, accused No.1 attempted to project it as an accident by placing the motorcycle near the dead body.
There is
absolutely no material on record to show that the vehicle in which accused No.1 had taken the deceased had sustained any damage. The manner in which the
CRL.A.No.100167/2014 56
head light was broken indicate that, in order to create a semblance of an accident, accused No.1 broke the head light of the motorcycle and threw the fiber pieces near about to make it appear like an accident.
The facts
depicted in the spot panchanama (Ex.P2), which is already discussed above, belies the story of vehicle accident.
The prosecution has marked the voluntary
statement of accused No.1, wherein accused No.1 himself is seen to have shown the stone with which he damaged the head light of the motorcycle, which again establishes the manipulations and mechanizations done by accused No.1 to screen him from legal punishment. 44.
Added to the above, the prosecution has
convincingly established that, after the arrest, voluntary statement of accused No.1 was recorded as per Ex.P.53 and pursuant to the said voluntary statement, he took the Investigating Officer – PW31 and the panchas to the sugar cane field where he committed the murder. The
CRL.A.No.100167/2014 57
admissible portion of the statement leading to discovery of the place of murder has been proved by examining the Investigating Officer. Accused No.1 has not denied his signature on Ex.P-53 or the contents thereof, which are deposed by PW31. Under the mahazer prepared at the spot as per Ex.P2, the stone used for crushing the head of the deceased is seized at the instance of accused No.1.
We have already discussed the evidence
relating to the examination of the said stone (M.O.2) by the Medical Officer (PW30) as well as by the Scientific Officer, whose certificate is marked in evidence as Ex.P49 and P50. It is established beyond any manner of doubt that the said stone (M.O.2) contained blood stains which are proved to be of human origin matching with the blood group of deceased as contained in her clothes. The knowledge of accused No.1 regarding the spot of murder and the seizure of the stone used by him to crush the face of the deceased directly connects accused No.1 to the offence of murder charged against
CRL.A.No.100167/2014 58
him.
It is proved by the evidence of PW30 that the
injury
found
on
the
forehead
of
the
deceased
corresponds to the stone M.O.2, which was recovered at the instance of the accused No.1. 45.
All these circumstances form a complete
chain of circumstances, which unerringly point to the guilt of accused No.1. Even the injuries sustained by accused No.1 lead to the only inference that those injuries were sustained by him during the occurrence. After his arrest, accused No.1 was examined by the doctor (PW27), who has stated that on examination of accused No.1, he noted two parallel scratch injuries on the anterior aspect of the forearms.
He has clearly
stated that the said injuries were 3-5 days old at the time of examination, which fit into the time when the deceased was murdered.
The very location of these
injuries indicate that, while committing the murder of the deceased, either on account of the resistance offered
CRL.A.No.100167/2014 59
by her, accused No.1 sustained the said scratch marks or that the said scratch marks were caused by grazing against the sugar cane leaves as it is proved in evidence that the murder was committed in the sugar cane field and thereafter, the body was shifted to the side of the road to make it appear like an accident. 46.
All
these
circumstances,
in
our
view,
clinchingly establish that accused No.1 and accused No.1 alone committed the murder of the deceased and to cover up the offence, he placed the dead body by the road side, beside the motorcycle and damaged its headlight and fled away from the scene and remained absconding till he was arrested on 10.04.2011. 47.
Insofar as the motive for commission of the
offence is concerned, though the prosecution has initially projected that the deceased was ill-treated in the matrimonial home by accused Nos.2 and 4 and as they were not at ease with her, all of them conspired to
CRL.A.No.100167/2014 60
do away with the life of the deceased, but the evidence on record clearly indicate that on the date of incident, accused No.1 had been to the house of PW1 and placed a demand for Rs.50,000/- and when the said demand was not met by PW8, in a huff, he forcibly took the deceased with him and on the way committed her murder.
This evidence in our opinion is sufficient to
prove the motive. That apart, PW8 has unequivocally stated before the Court that accused No.1 was having illicit relationship with the wife of accused No.3 and the deceased having come to know about it, he started abusing her.
The statement made by PW8 in this
regard finds corroboration in the complaint lodged by him
at
the
earliest
instance,
wherein
the
same
accusation has been made by him against the accused. This appears to be yet another reason for accused No.1 to murder the deceased, All these circumstances in our opinion are sufficient to prove the motive for the commission of offence. Even otherwise, having regard
CRL.A.No.100167/2014 61
to the clinching circumstances established in evidence, in our view, even without the proof of motive, the guilt of accused No.1 is proved by the prosecution beyond all reasonable doubt. Thus on considering the entire material on record and the facts and circumstances proved in evidence, we have no hesitation whatsoever to hold accused No.1 guilty of the offence of murder punishable under Section 302 of the IPC as well as for the offence under Section 201 of the IPC. 48.
To sum up, we hold that the prosecution has
convincingly established the following circumstances to bring home the guilt of the accused for the offences punishable under Sections 302 and 201 of IPC, namely: i.
On the date of the incident accused No.1 forcibly took the deceased from the house of PW8.
ii.
Before leaving the house of PW8, accused No.1 placed a demand of Rs.50,000/- and when the said demand was not met, in a huff, he took the deceased on his motorcycle.
CRL.A.No.100167/2014 62
iii.
Instead of directly going to his house, accused No.1 took the deceased to the house of his brother-in-law(PW12) and managed to see that the mobile phone of the deceased was left in the house of PW12. Intentionally he took a detour.
iv.
False information was given by accused No.3 to PW8 and PW11 misleading them to go to Hukkeri Government Hospital, even though accused No.3 was well aware that neither accused No.1 nor the deceased had met with an accident and they were not taken to the Government
Hospital.
The
act
of
the
accused in misleading PW8 and PW11 was intentional so as to buy time for accused No.1 to cause disappearance of the evidence of murder and to manipulate the scene of offence. v.
Failure of the accused to lodge complaint with the police or to attend the deceased.
vi.
Evidence relating to the deceased last seen with accused No.1.
CRL.A.No.100167/2014 63
vii.
Failure of accused No.1 to discharge the burden under Section 106 of the Evidence Act.
viii.
The nature and the location of the injuries sustained
by
accused
No.1
during
the
occurrence ruling out the possibility of accidental injuries. ix.
Medical evidence leading to the irresistible conclusion
of
homicidal
death
due
to
compression of the neck. x.
Failure of accused No.1 to explain the real cause of death.
xi.
Recovery of the stone boulder used for crushing the face of the deceased, at the instance of accused No.1.
xii.
Medical opinion and the scientific evidence regarding the blood stains on the stone boulder matching with the blood group of the deceased.
xiii.
Knowledge of accused No.1 about the spot of occurrence.
CRL.A.No.100167/2014 64
xiv.
Recovery of the stone used for damaging the motorcycle.
xv.
False plea set up by accused No.1.
xvi.
Absence of any evidence to show mechanical failure
of
evidence
the
motorcycle
probabalizing
or
any
the
such
theory
of
accident. xvii. Abscondence of accused No.1. xviii. Motive. 49.
On perusal of the impugned judgment, we
find that the trial Court has failed to consider the evidence relating to this charge in proper perspective. The trial Court has misread the evidence in entirety. It has ignored the medical evidence and has failed to decide the real cause of death. The finding recorded by the trial Court that the deceased died on account of the injuries sustained in the accident is contrary to the medical
evidence
as
well
as
the
surrounding
circumstances proved by the prosecution.
The said
CRL.A.No.100167/2014 65
finding is perverse and has occasioned failure of justice. The trial Court has misdirected itself in acquitting accused No.1 of the offences under Sections 302 and 201 of the IPC.
The approach of the trial Court in this
regard is erroneous. Therefore, the findings recorded by the trial Court and the reasoning assigned by it for acquittal
of
the
accused
No.1
for
the
offences
punishable under Sections 302 and 201 of the IPC cannot be sustained. 50. of
the
For the reasons discussed above and in view overwhelming
evidence
produced
by
the
prosecution in proof of the guilt of accused No.1 for the offences punishable under Sections 302 and 201 of the IPC, accused No.1 is held guilty of the said offences. Accordingly, the acquittal of accused No.1 for the said offences is reversed and accused No.1 is convicted for the offences punishable under Sections 302 and 201 of the IPC.
CRL.A.No.100167/2014 66
51.
As the prosecution has failed to prove
common intention on the part of accused Nos.2 to 4 in the commission of the murder of the deceased and in causing disappearance of the evidence, accused Nos. 2 to 4 are entitled to be acquitted of the offences charged against them under Sections 302 and 201 R/w. Section 34 of the IPC.
To this extent, the findings recorded by
the trial Court against accused Nos. 2 to 4 requires to be confirmed. 52.
Insofar as the offences charged against the
accused under Section 498A of the IPC is concerned, the prosecution has failed to substantiate the said charge with cogent and convincing evidence.
As a
result, the finding recorded by the trial Court on this charge requires to be confirmed. Consequently, all the accused persons are liable to be acquitted of the charges under Section 498A of the IPC.
CRL.A.No.100167/2014 67
53.
Accordingly,
we
proceed
to
pass
the
following: ORDER The appeal is allowed in part. The impugned judgment dated 01.02.2014 passed by the VII Addl. District and Sessions Judge, Belagavi in S.C.No.297/2011 is set aside insofar as accused No.1 is concerned and confirmed insofar as accused Nos. 2 to 4 are concerned. Accused No.1 – Sri. Mohammadshiraj, S/o. Babu Killedar, is held guilty of the offences punishable under Sections 302 and 201 of the IPC and is acquitted of the charge under Section 498A of the IPC. The bail bond of accused No.1 is cancelled. Accused Nos. 2 to 4 are acquitted of the charges under Sections 498A, 302 and 201 R/w. Section 34 of the IPC.
Sd/JUDGE
Sd/JUDGE gab
CRL.A.No.100167/2014 68
SSJ & JMCJ: 19.02.2018
CRL.A.NO.100167/2014 ORDER ON SENTENCE
We have heard the learned counsel appearing for accused No.1 as well as the learned Addl. SPP on sentence.
Learned counsel for accused No.1 has also
filed written submissions. It is placed on record. 2.
The learned counsel appearing for accused
No.1 has made a fervent plea for lenient view on the ground that accused No.1 has been serving in defence since 2002 without any remarks and he has to look after his age old parents; whereas the learned SPP prays for award of maximum sentence prescribed under Section 302 of IPC. He submits that the accused has committed a highly despicable crime.
The manner in
which he maneuvered to cover up the ghastly murder making it to appear as an accident, smacks of his evil intention, wicked execution and utter moral depravity.
CRL.A.No.100167/2014 69
Referring to the avocation of accused No.1, he submits that
accused
No.1,
who
was supposed
to be
a
courageous and disciplined soldier who was required to protect the life of citizens, has resorted to a most cowardly act of annihilating his own wife in the stealth of night and therefore, he does not deserve any sympathy in the hands of this Court.
At this, the
learned counsel for accused No.1 however submits that accused No.1 having been found guilty of the charge for the first time, the Court must hear accused No.1 so as to afford an opportunity to put forth the facts and circumstances which may help the Court in awarding appropriate sentence. 3.
Having considered the nature of the crime,
the manner in which accused No.1 committed the offence,
motive,
his
personal
background
and
antecedents, the personality of the victim of the crime as well as the circumstances of the ‘offender’ and the
CRL.A.No.100167/2014 70
‘crime’, in our considered opinion, the facts of this case do not fall into the category of rarest of rare case so as to impose the extreme penalty of death sentence as sought for by the learned Addl. SPP. The facts of this case also do not warrant punishment for a specific term of incarceration as alternative to death penalty as in the case of Swamy Shraddananda @ Murali Manohar Mishra Vs.State of Karnataka reported in AIR 2008 SC 3040 and in the case of Union of India Vs. V. Sriharan Alias Murugan and Others reported in (2016) 7 SCC 1. On the other hand, on consideration of the entire facts and circumstances of the case, we are of the view that imprisonment for life with substantial fine would be the adequate and appropriate sentence that requires to be awarded to accused No.1 for the offence proved against him under Section 302 and 201 of the IPC. 4.
However, in view of the contention urged by
the learned counsel for accused No.1, the incidental
CRL.A.No.100167/2014 71
question that needs to be answered is whether the Appellate Court on reversal of the order of acquittal into conviction, must hear the accused on the nature and quantum of sentence? This question need not detain us any longer. 5.
Section 386(a) of Cr.P.C. in unambiguous
terms empowers the Court, in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him “according to law”. 6.
From the above provision, it is clear that in
an appeal from an order of acquittal, Appellate Court is well within its powers, to reverse the order of acquittal and to order for retrial or to record a finding of guilt and pass sentence “according to law”.
The code does not
prescribe any fetters on the powers of the Court in the matter of awarding sentence except that the proposed
CRL.A.No.100167/2014 72
sentence must be “according to law”.
The only
limitation in this regard finds place in the proviso to Section 386 of Cr.P.C., which reads as under: “ 386. xxxxxx Provided that the sentence shall not be enhanced opportunity
unless of
the
accused
showing
cause
has
had
against
an such
enhancement; Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”
7.
Thus the only restriction that emerge from
the above provisions is that, the appellate Court cannot enhance the sentence without affording an opportunity of hearing to the accused and secondly the appellate Court cannot inflict greater punishment than prescribed for the said offence. Except these two restrictions, no other
restrictions
are
prescribed
under
the
Code
requiring the Appellate Court to hear the accused before
CRL.A.No.100167/2014 73
passing the sentence on reversal of the order of conviction. 8.
In this regard, Section 387 of Cr.P.C. also
may be looked into. It reads thus: “387.Judgments
of
subordinate
Appellate
Court – The rules contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction
shall
apply,
so
far
as
may
be
practicable, to the judgment in appeal of a Court of Session
or
Chief
Judicial
Magistrate;
Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered.”
9. Section
In this background, if Section 325 and 248
conducting
of a
Cr.P.C.
Sessions
are Trial
perused, and
the
the
Judge
Magistrate
conducting a Warrant case are mandated to hear the accused on the question of sentence and only thereafter, to impose the sentence in accordance with law. These sections are not made applicable to the hearing of
CRL.A.No.100167/2014 74
appeals under Chapter XXIX of the Code dealing with the appeals. 10.
Therefore, the contention of the learned
counsel for accused No.1 that the Appellate Court while converting the judgment of acquittal into conviction should necessarily hear the accused on sentence does not find support from the relevant provisions of the Code referred above. 11.
In this context, it may be apt to refer to the
observation made by the Hon’ble Supreme Court of India in the case of Shankar Kerba Jadhav and Others Vs. State of Maharashtra reported in AIR 1971 SC 840, wherein the words “sentence according to law” has been interpreted as under: “An appeal is a creature of a Statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time, a Court of appeal is a “Court of error” and its normal function is to correct the decision appealed from and its jurisdiction should
CRL.A.No.100167/2014 75 be co-extensive with that of the trial Court.
The
words ‘sentence according to law’ mean any sentence that could be given for the offence, but in imposing sentence, the appeal court should not impose sentence more severer than the accused should have got if he were convicted by the Magistrate.
In other words, the appeal Court
should not exceed the maximum limit of sentence which
the
trial
Magistrate
is
empowered
to
impose.”
In para 12 of the said judgment, the Hon’ble Supreme Court has held that: “12. Where however the appeal is from an order of acquittal the mater is at large. There is no sentence which is binding on a person who was once an accused.
He comes before the Court with the
presumption of innocence.
If the court finds that
the acquittal was not justified and that he was guilty of the offence with which he was charged, it is for the appeal court to order punishment to fit the crime. If the appeal is from an order of acquittal with no prior order of sentence, the punishment must be commensurate with the gravity of the offence. But if the order of acquittal is preceded by an order of conviction the court hearing the appeal from acquittal should not impose a sentence
CRL.A.No.100167/2014 76 greater than what the Court of first instance could have imposed inasmuch as if the trial Court had given him the maximum sentence which it was competent to give and no appeal was preferred by the accused, the State could not have approached the High Court under any provision of the Code for enhancement of the sentence. The interposition of the order of an intermediate Court of appeal and acquittal of the accused by it should not put the accused in a predicament worse than that before the trial Court.”
Further, examining the various other authorities on the subject, the Hon’ble Supreme Court has laid down that: “Running through the web of the above decisions, the principle almost universally accepted is that, in exercise of its appellate powers the High Court should not award a sentence which is beyond the jurisdiction of the trial Court and in our opinion this is the principle which should be adopted.”
Finally,
on
the
question
of
affording
an
opportunity to the accused by the Appellate Court in
CRL.A.No.100167/2014 77
case of reversal of the acquittal into conviction, in para 17 and 18 of the above judgment, has held as under: “On the other hand, the scheme of the code seems to be to confer final authority on the High Court… in disposing of an appeal from an order of acquittal the High Court is competent to pass a sentence which the trial Court was empowered to pass… where the accused is given notice of appeal and actually takes part in the hearing before the High Court it would be superfluous to give him notice to show cause why a sentence within the competence of the trial Magistrate should not be passed”. (underlining supplied)
12.
In the instant case, as we propose to award
the minimum sentence prescribed for the offence under Section 302 of the IPC which is well within the competence of the Sessions Judge and accused No.1 having taken part in the appeal all throughout and is well aware that the Appellate Court hearing the appeal is within its competence to award a sentence of life imprisonment, in our view, no opportunity of hearing need be afforded to accused No.1 in the fact situation of
CRL.A.No.100167/2014 78
the present case.
We make it clear that the position
would have been different if the accused was to be sentenced to death penalty, in which event necessarily the accused should be provided with a fresh opportunity to bring to the notice of the Court, such circumstances as may help the Court in awarding an appropriate sentence. 13.
Thus, on considering all the above facts and
circumstances and having regard to the gravity of the offence and the manner in which accused No.1 has committed the above offences against his own wife and the manner in which he caused disappearance of the evidence, we find it just and proper to sentence accused No.1 - Sri. Mohammadshiraj, to undergo imprisonment for life and to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) for the offence punishable under Section 302 of the IPC. In default of payment of
CRL.A.No.100167/2014 79
fine amount, he shall undergo simple imprisonment for a further period of three years. 14.
For the offence punishable under Section
201 of the IPC, accused No.1 - Sri. Mohammadshiraj is sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only). In default of payment of fine amount, he shall undergo simple imprisonment for a further period of six months. 15.
On deposit or realization of fine, the said
amount of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only) shall be made over to PW8 and PW11 as compensation. 16.
The substantive sentences of imprisonment
shall run concurrently and he shall be entitled to the benefit of set off for the period of detention undergone as under trial prisoner in terms of Section 428 of Cr.P.C.
CRL.A.No.100167/2014 80
17.
The bail bond of accused No.1 is cancelled.
He shall surrender to serve the sentence, failing which the trial Court shall secure accused No.1 under warrant and shall commit him to prison to serve the sentence as ordered herein. Copy of this order be certified to the trial Court forthwith. Sd/JUDGE
Sd/JUDGE gab
