Karnataka High Court
Moula Mohammad Hussain Maniyar vs State Of Karnataka on 22 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1487, 2020 (3) AKR 639
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
CRL.A. NO. 100100/2019 C/W
CRL.A. NO. 100115/2019
IN CRL. A. NO. 100100/2019
BETWEEN:
MOULA MOHAMMAD HUSSAIN MANIYAR,
AGE: 59 YEARS, OCC.: RAILWAY COOLIE
PORTER, R/O JANATHA PLOT, BEHIND
CHURCH, VAIBHAV NAGAR, BELAGAVI.
- APPELLANT
(BY SRI R.M. JAVED, ADVOCATE)
AND:
STATE OF KARNATAKA THROUGH
BELAGAVI RAILWAY P.S. HUBLI
RAILWAY CIRCLE, REP. BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
- RESPONDENT
(BY SRI V.M. BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FI LED UNDER
SECTION 374(2) OF CR.P.C. SEEKING TO SET
:2:
ASIDE THE SENTENCE AND ORDER OF
CONVICTION PASSED BY THE III ADDL. DIST. &
SESSIONS JUDGE & SPL. JUDGE, BELAGAVI, IN
S.C. NO. 170/2016 DATED 05.12.2018, & ETC.
IN CRL. A. NO. 100115/2019
BETWEEN:
SMT. SUJATHA W/O VIJAY MUTTUKOLI,
AGE: 29 YRS, OCC: HOUSEHOLD,
R/O. 4 T H CROSS, SHASTRI NAGAR,
BELAGAVI, TAL & DIST: BELAGAVI.
- APPELLANT
(BY SRI VISHWANATH BADIGER, ADVOCATE)
AND:
THE STATE OF KARNATAKA
PRESENTED BY I TS
STATE PUBLIC PROSECUTOR,
(HUBLI RAILWAY P.S.)
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
- RESPONDENT
(BY SRI V.M. BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FI LED UNDER
SECTION 374(2) OF CR.P.C. SEEKING TO SET
ASIDE THE SENTENCE AND ORDER OF
CONVICTION PASSED BY THE III ADDL. DIST. &
SESSIONS JUDGE & SPL. JUDGE, BELAGAVI, IN
S.C. NO. 170/2016 DATED 05.12.2018, & ETC.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING THIS DAY, B.A.PATIL,J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
Criminal Appeal No. 100100/2019 has been preferred by the appellant-accused No.4 whereas Criminal Appeal No. 100115/2019 has been preferred by the appellant-accused No. 2, in Sessions Case No. 170/2016 dated 05.12.2018, passed by the learned III Addl. District and Sessions Judge & Special Court under POCSO Act, 2012 at Belagavi, convicting the appellant- accused Nos.2 and 4 for the offence punishable u/s 201 r/w Sec. 34 of IPC and sentencing them to undergo simple imprisonment for 10 years and to pay fine of Rs.10,000/- each.
2. We have heard the learned counsels for the appellants-Sri R.M.Javed and Sri Vishwanath Badiger so also the learned Addl. S.P.P. for the respondent State Sri V.M. Banakar and perused the records.
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3. The factual matrix of the case are that, on 07.03.2016 at about 3.30 p.m. a dead body was found in platform No. 1 of Belagavi Railway Station covered with clothes, with foul smell and it was the dead body of a lady aged about 30 years. Suspecting some miscreants have murdered the lady and kept the body in the Railway Station, the Assistant Sub Inspector of the Railway Police Station filed the complaint and a case has been registered in Crime No. 10/2016. Subsequently, accused No.2 has been apprehended and recorded the voluntary statement. At that time, it was revealed that, on 05.03.2016 accused Nos.1 and 2 were in the house along with the deceased. PW4 was also in the house. When PW4 left the house at 4.30 p.m. to bring CW10, accused No.1 was watching TV. When she came back she suspected the behaviour of accused No.2 as well as accused :5: No.1. When she made enquiry with the accused No.1, they informed that deceased is in the room and changing the dress. But subsequently she noticed that the body of Anjali was lying in the room. When enquired, they disclosed that they will dispose of the dead body by properly packing and thereafter in the night hours they washed the place and at about 3.30 PM accused No.1 brought accused Nos.3 and 4 and lifted the body on their shoulders. When she asked, what they have done with the lady, they disclosed, that accused No.1 tried to have sex with the deceased, when she refused and started to make hue and cry, by hearing the same they apprehended that if she tell to others, that he will be derived of his father's job, and in that light, he smothered her by strangulating her neck. Thereafter, the investigation was completed and charge sheet has been filed. :6:
4. The learned Sessions Judge & Special Court secured the presence of the accused and charge was framed. The accused pleaded not guilty and claimed to be tried and as such the trial was fixed. The prosecution in order to bring home the guilt of the accused, got examined 15 witnesses and got marked 30 documents and 28 material objects. Thereafter the statement of the accused was recorded u/s 313 of Cr.P.C. The accused denied all the incriminating materials and they have not led any evidence nor got marked any documents. After hearing the learned counsel for the parties, the trial Court held the accused No.1 guilty for the offences punishable u/s 376, 302 and 201 of IPC so also Sec. 4 and 6 of the POCSO Act. The accused Nos.2 to 4 have been convicted for the offence punishable u/s 201 r/w Sec. 34 of IPC. :7: The appellants-accused Nos.2 and 4 are before this Court challenging their conviction.
5. It is the submission of the learned counsels for the appellants Nos. 2 and 4 respectively that, though there is no evidence available before the Court, the trial Court mechanically passed the impugned judgment. It is their further submission that, except the evidence of PW4 there is no other corroborative evidence and only on the basis of the sole evidence of PW4 the trial Court has convicted the accused. The accused No.4 has not played any role while committing the offence and he was not knowing that the said load was containing the dead body and even then he has been convicted. Alternatively it is their contention that the trial Court without looking into the provision of law has convicted the accused persons for 10 years and to pay fine of Rs.10,000/- with default sentence. :8:
6. It is their further submission that, as per Sec.201 of Cr.P.C. if the offence is punishable with imprisonment for life, under such circumstances, the punishment of imprisonment will be up to 3 years and shall also be liable to fine. Only in case of capital offence, punishment with imprisonment of 7 years and shall also fine will be imposed. If the punishment is less than 10 years, under such circumstances, the imprisonment will be 1/4 t h part of the longest imprisonment provided for the offence or with fine or with both. The trial Court without looking into these aspects has wrongly convicted the appellants-accused for 10 years. They further submitted that, already the appellants-accused are in custody for a period of more than four years and three months and if the same is given the set off, it would meet the :9: ends of justice. On these grounds they sought to allow the appeals.
7. Per contra, learned Addl. SPP for the respondent-State vehemently argued and contended that the evidence of PW4 is cogent and acceptable. She has clearly deposed with regard to the overt acts of accused Nos.1 to 4, who, with an intention to cause disappearance of the evidence of the offence, have planned and packed up the dead body with cloth and thereafter shifted it. The accused Nos.1 and 2 have also tried to screen the offence and thereafter with the help of accused Nos.3 and 4 taken the dead body and kept it in the Railway Station Platform. This clearly goes to show that they have tried to cause disappearance of the evidence. The trial Court after taking into consideration the above said aspect has rightly : 10 : convicted the accused. Hence, he prayed to dismiss the appeals.
8. We have carefully and cautiously gone through the submissions made by the learned counsels for the parties and perused the records.
9. On perusal of the evidence and other material, the trial Court considering the said evidence has convicted accused No.1 with regard to major offence. He has not preferred any appeal and the same has reached finality. In that light, we feel that it is not necessary to discuss the remaining evidence. Insofar as accused nos.2 and 4 is concerned, the evidence of PW4, the mother of accused No.1, is the only evidence which has to be considered.
10. Though the learned counsels submitted that there is no material as against the accused : 11 : persons, on perusal of the evidence of PW4-the mother of the accused No. 1 and mother-in-law of accused No. 2, it clearly goes to show that, deceased Anjali was residing with them. She has further deposed that on the date of incident, accused Nos.1, 2 and Anjali were watching TV along with PW4. At about 4.30 p.m. PW4 went to bring CW10, at that time deceased Anjali was sitting on Sofa. When she came back, accused No.2 was behaving differently and room door was closed. Subsequently, she came to know about the incident. Accused Nos.1 and 2 were there in the room to pack the body of deceased Anjali. Later accused No.2 took hot water to clean the room. Accused Nos.1 and 2 confessed before her that they have committed mistake. She has further deposed, on the same night, i.e., day of the incident, accused No.1 went out and brought accused Nos.3 and 4 and took the dead : 12 : body on their shoulders. Thereafter, accused No.1 came, when he was asked, he told that they have kept the body at one place. PW4 further deposed that accused Nos.1 and 2 have used perfume to avoid the bad smell.
11. It is not in dispute that, accused Nos.1 and 3 have not preferred any appeal against the order of conviction. The main contention raised by the appellant-accused No.4 is that, there is no evidence to convict him for the offence punishable u/S 201 of IPC and the sentence imposed is not proper insofar as accused No.4 is concerned.
12. For the purpose of brevity, we quote Sec. 201 of IPC, which reads as under:
201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission : 13 : of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--
and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.
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13. On perusal of the said Section to constitute an offence four ingredients have to be satisfied,
(i)that an offence was committed, (ii) that the accused knew or had reason to believe that such an offence had been committed; (iii) that the accused caused evidence thereof to disappear; and (iv) that the accused caused disappearance of the evidence with intention of screening the offender from legal punishment.
14. The basic requirement is disappearance of commission of the offence. In that light, on perusal of evidence of PW4, it is evident that there is sufficient evidence as against the appellant-accused No.2. But, in so far as appellant-accused No.4 is concerned, the overt act attributed against him is that, he has lifted and removed the dead body along with accused No.3. Mere knowledge of removal of dead body is not sufficient to attract Sec. 201 of IPC. : 15 : There is no evidence to show that accused No.4 caused disappearance of the offence or screened the offence. In that light, accused No.4 is not liable for conviction u/s 201 of IPC. This proposition of law has been held in the case of Raghav Prapanna Tripathi and Others V. State of Uttar Pradesh reported in AIR 1963 SC 74. At paragraph No. 63 it is held as under:
"63. In regard to the case of Ramanu j Das and Jai Dev i the f inding of the High Cour t is th at the de ad bod ies of Kaml a an d her son Madhusudhan we re not f ound in the house of Ramanuj Das and they must have theref ore been re moved; that an atte mp t was made to wash out the blood stains f rom inside the roo ms and also outs ide on the roof ; that the de ad bodies could no t have been re moved withou t the kno wledge and active co-operation of Ramanuj Das and Jai Devi and f urther that bo th Ramanuj Das and Jai Dev i absconded. On this basis the convic tion of these appellan ts was held by the High Cour t to be jus tif ied. It is true th at the murder was co mmitted in the house of Ramanuj D as and th at there is the evidence to : 16 : sho w th at the blood inside and outs ide the living roo ms was washed and an atte mp t was made to obliter ate any sign of it though it was unsuccessf ul. It also may be that both Ramanuj D as and Jai Devi had kno wledge of the re moval of the dead bodies but wh at S.201 requ ires is c ausing any evidence of the co mmiss ion of the off ence to dis appear or giv ing any inf ormation respecting the off ence wh ich a person kno ws or believes to be f alse. In th is case, there is no evidence of either. It is not sho wn th at these two appellan t's caused any evidence to dis appear. T here may be a very strong suspic ion th at if f rom the house dead bodies are re mo ved or blood was washed, persons placed in the position of the appell ants must have had a hand in it but still th at re mains a suspic ion even a strong susp icion at th at. It is true that they were absconding but merely abscond ing will not f ill the g ap or supply the evid ence wh ich is necessary to prove the ingredients of section 201 of the Indian Pen al Code. In our opin ion, the case ag ainst R amanuj Das and J ai Dev i has no t been made out. T heir appe als mus t theref ore be allo wed and they be set at liberty.
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15. Keeping in view the ratio and facts as against accused No.4, it is clear that there is no sufficient material to bring home the guilt of the accused. The trial Court without any evidence has wrongly convicted. The conviction as against accused No.4 is liable to be set aside. Accordingly, set aside.
16. On close reading of the Section it indicates that, if the accused persons have committed a capital offence and if they know or believed to have committed the offence punishable with death, under such circumstances, the term of sentence is going to be extended up to 7 years and liable to fine. If the offence is punishable with imprisonment for life, under such circumstances, the imprisonment will be for a period of three years and shall also liable to fine and in case of others, it is 1/4 t h part of the : 18 : longest term of the imprisonment provided for the offence and fine or both.
17. On going through the judgment of the trial Court, the accused No.1 is convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-. When the main accused is convicted and sentenced for imprisonment for life, under such circumstances, though there is no law for giving a sentence to undergo simple imprisonment for 10 years, the trial Court imposed 10 years imprisonment. In that light, judgment of the trial Court is not sustainable in law, insofar as sentence imposed as against accused No.2.
18. On perusal of the impugned judgment of conviction it is clear that the trial Court though there is no legal evidence as against appellant- accused No.4 has wrongly convicted and : 19 : sentenced. Though appellant-accused No.2 has been rightly convicted, the sentence imposed is one which is not prescribed under law. In that light, it requires interference at the hands of this Court. In the light of discussion held by us, we pass the following:
ORDER The appeal filed by the appellant-accused No.4 in Criminal Appeal No. 100100/2019 is allowed. The judgment of conviction and order of sentence passed by the learned III Addl.
District and Sessions Judge & Special Court under POCSO Act, 2012 at Belagavi, in Sessions Case No. 170/2016 dated 05.12.2018, convicting the appellant-accused No.4 for the offence punishable u/s 201 of IPC is concerned, is set aside.
The appeal filed by the appellant-accused No.2 in Criminal Appeal No. 100115/2019 is : 20 : allowed in part. The judgment of conviction and order of sentence passed by the learned III Addl. District and Sessions Judge & Special Court under POCSO Act, 2012 at Belagavi in Sessions Case No. 170/2016 dated 05.12.2018, convicting the appellant-accused No.2 for the offence punishable u/s 201 of IPC is concerned, is confirmed. However, the appellant is sentenced to undergo simple imprisonment for a period of three years and to pay the fine as imposed by the trial Court.
At this juncture, it is submitted by the learned counsels that the accused No.2 is serving sentence for more than four years and three months.
In that light, accused No.4-Moula Mohammad Hussain Maniyar and the accused No. 2-Smt. Sujata w/o Vijay Muttukoli, shall be : 21 : released forthwith, if they are not required in any other case.
Registry is directed to intimate the concerned jail authorities/ Principal District & Sessions Judge through e-mail, to release the appellants-accused Nos.2 and 4, forthwith if they are not required in any other case.
In view of disposal of the appeals on merits, all pending applications stand disposed off.
SD JUDGE SD JUDGE bvv