Karnataka High Court
Abdul Rahim @ Maqbul vs The State By Kumsi Police on 13 April, 2018
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.254 OF 2013
BETWEEN:
ABDUL RAHIM @ MAQBUL
S/O ABDUL HAFEEZ,
AGED ABOUT 45 YEARS,
VEGETABLE MERCHANT,
R/O NEAR MANJUNATHA TALKIES,
N.T.ROAD,
SHIVAMOGGA. ...APPELLANT
(BY SRI VISHWANATHA POOJARY K., ADVOCATE)
AND:
THE STATE BY
KUMSI POLICE, KUMSI. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
28/29.09.2012 PASSED BY THE SESSIONS JUDGE, I
FTC, SHIVAMOGGA IN S.C.NO.51/12 - CONVICTING THE
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APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC. AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRL.A HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.03.2018, COMING ON THIS DAY,
B.A.PATIL J., PRONOUNCED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the accused being aggrieved by the judgment and order of conviction & sentence dated 28/29.9.2012 passed by the Sessions Judge, First Fast Track Court, Shimoga in SC.No.51/2012.
2. Case of the prosecution in brief is that on 15.12.2011 at about 11. a.m., accused was proceeding on his TVS XL Moped, bearing Regn.No.KA-14-X0961, along with his wife Nasreen @ Fathima to go to his daughter's house at Mallapura. As the accused was suspecting the fidelity of his wife Nasreen since one year prior to the incident in question and was also quarrelling -3- with her in that regard, with an intention to kill her, took her along with him to Thyajavalli Road near Parameshwarappa's land at about 12.00 Noon and assaulted with stone on her head, face, and thereafter slit the throat with knife and thereby committed her murder. Thereafter, he informed the said fact to his son- PW.9 over phone. Thereafter, his son-PW.9 informed others and tried to search the dead body of the deceased. As it was late night, they could not find the dead body. On the next day, they found the dead body and thereafter PW.1, the son-in-law of the accused went to the Police Station and filed a complaint against the accused. On the basis of the complaint, police investigated the case and filed the charge sheet as against the accused. After filing of the charge sheet, the learned Magistrate took the cognizance and after following the formalities, as the case was triable by the Court of Sessions, the same was committed to the Sessions Court. Sessions Court took the cognizance and -4- secured the presence of the accused. After hearing the accused regarding framing of charge, the Sessions Court framed the charge. Since the accused pleaded not guilty and claimed to be tried, the trial was fixed.
3. In order to prove its case, the prosecution in all has examined 15 witnesses as PWs.1 to 15 and got marked the documents at Exs.P1 to P24 and also MO. Nos.1 to 16. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material as against him. Accused denied the same. After hearing the learned Public Prosecutor and the learned counsel for the accused, impugned judgment and order came to be passed convicting the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life.
4. It is the contention of the learned counsel for the accused-appellant herein that though the accused -5- informed his son over phone about committing of the murder of his wife, his son has not filed any complaint immediately. But on the next day, son-in-law of the accused has filed the complaint. Therefore, immediately after the information, non-filing of the complaint itself creates a doubt in the case of the prosecution. Though PW.7, who has last seen the deceased along with the accused on TVS XL Moped as he is the friend of PW.9, the son of the accused and he is an interested witness, his testimony is not trustworthy and reliable. But the trial Court, relying upon such evidence, has erroneously come to the conclusion that the accused has committed the offence and convicted him. It is further contention of the learned counsel for the accused-appellant herein that TVS Moped was seized from the open space by the side of the house of the son of the accused. The prosecution has not explained as to how and in what way the said Moped came to the said place. The entire case of the prosecution is based on the circumstantial evidence. All -6- the links have not been properly proved by the prosecution beyond all reasonable doubt. Under such circumstances, the trial Court ought to have acquitted the accused by holding that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. The recovery made at the instance of the accused regarding clothes and other articles is not in accordance with law. On that ground also, the accused is entitled to be acquitted.
5. Per contra, the learned Additional SPP appearing for the respondent-State has vehemently argued by contending that PW.9, son of the accused has seen the accused and deceased leaving the house on TVS Moped to go to his sister's house and subsequently PW.7 has also seen the accused and the deceased proceeding on the said moped. Thereafter, accused informed PW.9 over the phone about the act committed by him and on the next day dead body was found. All these circumstances -7- clearly establish the fact that the deceased was last seen together with the accused. Accused has not explained as to when and where he left the company of the deceased. In the absence of any such explanation, the Court can presume that the said act has been committed by the accused and accused alone. He further contended that the prosecution has also proved the aspect of motive as prior to the incident, accused used to quarrel with the deceased suspecting fidelity. This particular evidence is also produced by the prosecution by examining the sister of the deceased as well as the son of the deceased. He further contended that the conduct of the accused in absconding immediately after he informing the said act to PW.9 is also very much relevant, which points out the fact that the accused has committed the said offence. On these grounds, he prayed for dismissal of the appeal by confirming the impugned judgment and order. -8-
6. As aforementioned, the prosecution has examined 15 witnesses to prove its case.
i) PW.1 is the son-in-law of the accused, who filed the complaint as per Ex.P1. He is also a witness to spot mahazar as well as the inquest mahazar. He has deposed that accused was doing vegetable business.
After consuming alcohol he used to assault and ill-treat the deceased. His wife used to tell the said fact to him. He has further deposed that on 15.12.2011 at about 3.00 p.m., he received a phone call from PW.9 Hafeezulla stating that the accused has left the deceased in the forest area and asked him to go and search. But he neglected the said information, however at about 5.30 p.m on the very day, he went in search of the deceased, till 7.00 p.m., he could not trace the deceased as it was dark. On the next day, at about 11.00 a.m., the dead body of the deceased was found by the side of the road near the bushes. The deceased was found with injury to -9- her head. Her head was smashed with stone and her throat was slit. Thereafter, he filed the complaint as per Ex.P1. During the course of his cross-examination, it has been elicited that about 2-3 times, accused and the deceased had come to his house on TVS Moped. Except that, nothing has been elicited.
ii) PW.2 is the panch witness to the spot mahazar and inquest mahazar.
iii) PW.3 is the panch witness to recovery panchanama at Ex.P3, under which the bloodstained clothes of the accused were recovered at his instance. He has deposed that he received a phone call from the police to come to the Police Station and at that time the accused was seen in the Police Station. Accused took them and produced TVS Moped from a vacant site and the same was seized by drawing a mahazar at Ex.P4. Accused also took them to the place where he committed the murder of the deceased and there also the police
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seized a knife by drawing a mahazar at Ex.P5. During the course of the cross-examination, PW.3 has admitted that police told him that as they wanted to seize a motorcycle, they took him and at that time the accused was seen in the Police Station. He also admitted that he has signed the document in the Police Station.
iv) PW.4 is a panch witness to Ex.P11, under which MO.Nos.8 to 14, the clothes belonging to the deceased were seized.
v) PW.5 is the sister of the deceased, who has deposed that the deceased is her elder sister and accused used to assault her by consuming alcohol since one and half year prior to the incident in question. Accused was suspecting the fidelity of the deceased. He also used to inform her over phone that he would assault the deceased. She has further deposed that as it was a family affair, she only advised him. She further deposed that on 15.12.2011 at about 12.45 p.m., accused called
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her over phone, but as she was busy in Gram Panchayat Meeting, she could not answer the said call. After half- an-hour when she called back the accused, he informed that he committed the murder of the deceased. Thereafter, she went to the house of the deceased, where she came to know from the children of the deceased that accused had taken her at about 11.30 a.m. by telling that he would take her to their daughter's house. Thereafter they searched for the deceased in the house of the relatives, but it became in vein. On the next day i.e., on 16.12.2011 at 10.30 a.m., she received a phone call that the dead body was traced. During the course of her cross-examination, though many suggestions were made, she denied the same. It has been elicited that she has not informed the said fact to any other persons.
vi) PW.6 is the doctor who conducted autopsy over the body of the deceased Nasreen and has given his
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opinion to the effect that the death of the deceased was due to shock and hemorrhage, as a result of cut throat injury. PW.6 has also issued Ex.P12, the PM Report and his opinion at Ex.P13 with regard to the examination of the weapon used for commission of offence. During the course of cross-examination, nothing has been elicited from the mouth of this witness.
vii) PW.7 is a material witness who has deposed that in order to go to his village, he has to go via Thyajavalli and Somanakoppa Village and thereafter Mallapura. He further deposed that about 2 years 8 months' back, accused was going near Thyajavalli on TVS Moped at about 12.00 Noon and his wife Nasreen was with him on the said vehicle as a pillion rider. He has further deposed that they were proceeding to Mallpaura on the said vehicle, which is before the Court. During the course of cross-examination, it has been elicited that to go for tiles work, he has to leave by 9.00 a.m., and it
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has also been elicited that the lady who was sitting as a pillion rider was wearing burka covering her body except the face. Except this, nothing has been elicited from the mouth of this witness.
viii) PW.8 is the witness to inquest mahazar at Ex.P15.
ix) PW.9 is the son of the deceased. He has deposed that about 9 months' back his father committed the murder of his mother and on that day, when he was in the house, his parents left the house at about 11.00 a.m., to go to his sister's house at Mallapura on TVS Moped. At about 3.00 p.m., his father informed him over phone that near Thyajavalli, he committed the murder of his mother. Immediately after receiving such message, PW.9 informed PW.1-complainant, so also the relatives. They started searching for the dead body of the deceased near Thyajavalli, but they could not find the same as it was dark. On the next day, PW.1 informed him over the
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phone that near Ittur Cross, accused committed the murder of the deceased and the body was lying there. Thereafter, he went to the Government Hospital, Shimoga and saw the dead body of the deceased. He has further deposed that since from his childhood accused used to quarrel with his mother by suspecting her fidelity and used to assault her. In that context, relatives also used to advise the accused. In spite of the same, he did not bend his conduct. PW.9 identified the clothes of the deceased. During the course of his cross- examination, he admitted that he was having ill-will against the accused as he used to quarrel with the deceased. He has deposed that when PW.5 came to his house, she never told him that she received a phone call from the accused. Except that, nothing has been elicited from this witness.
x) PW. 10 is the elder brother of the accused. He has also deposed that the accused by consuming alcohol
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used to quarrel with the deceased and assault her by suspecting her fidelity and therefore he committed her murder. All suggestions during the course of his cross- examination were denied by him.
xi) PW.11 is the Police Constable who carried the clothes of the deceased after postmortem examination and produced before the Investigating Officer as per Ex.P11.
xii) PW.12 is also a Police Constable who carried the seized articles for chemical examination.
xiii) PW.13 is the ASI who received the complaint, registered the case, issued the FIR as per Ex.P21 and handed over further investigation to PW.14.
xiv) PW.14 is the Investigating Officer who investigated the case and filed the charge sheet as against the accused.
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xv) PW.15 is another Police Constable who apprehended the accused and produced him before the Investigating Officer along with his report as per Ex.P22.
7. With the aforesaid evidence, let us consider whether the prosecution has proved the guilt of the accused beyond reasonable doubt and whether the appellant-accused has made out any grounds so as to set aside the impugned judgment and order. Since there are no eye witnesses to the incident in question, the case of the prosecution entirely rests upon the circumstantial evidence. In case of circumstantial evidence, all the circumstances relied upon by the prosecution are to be linked with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then it can safely be held that the prosecution has proved the guilt of the accused beyond all reasonable doubt. This proposition of law has been
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laid down in the case of Shaikh Abdul Hameed and another Vs. State of Madhya Pradesh, reported in AIR 1998 SC 942.
8. In a case based on circumstantial evidence, motive plays a very important role. If motive coupled with other circumstances points out the guilt of the accused then the accused has to explain that he is not involved in the chain of events. Keeping in view the aforesaid principle of law, let us consider the case on hand. In order to establish its case, the prosecution has relied upon the circumstances, namely, motive; last seen together; recovery of the clothes, weapon used for commission of offence and the vehicle, at the instance of the accused; and abscondance of the accused immediately after the incident.
9. In so far as the circumstance regarding motive is concerned, the prosecution has relied upon the evidence of PWs.1, 5, 9 and 10. All these witnesses are the close
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relatives of the accused as well as the deceased, who consistently deposed that the accused used to consume alcohol and quarrel with the deceased by suspecting her fidelity prior to the incident in question. There is a corroboration in the evidence of all these witnesses. Even during the course of their cross-examination, nothing has been elicited so as to bring on record that because of some interest or animosity, the said witnesses are deposing against the accused. PW.1, the son-in-law of the accused, PW.9, the son of the accused and PW.10, the elder brother of the accused also consistently deposed that the accused used to consume alcohol and assault the deceased by suspecting her fidelity and he also used to harass her. In view of the same, it can safely be held that the prosecution has proved the first limb of its case that accused with the particular motive, took the deceased along with him and committed her murder.
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10. The second limb of the prosecution is that accused under the guise of going to his daughter's house, took the deceased on his TVS Moped, which has been deposed by his son-PW.9. PW.9 has deposed that accused took the deceased on TVS Moped to go to his sister's house at Mallapura. They left the house at about 11 a.m. During the course of cross-examination of PW.9, though it was suggested by the defence that he was not present in the house during the relevant time, the said suggestion was denied by him. In that light, the prosecution has established the fact that the accused left the house along with the deceased by informing the same to PW.9 has been proved.
11. The next circumstance on which the prosecution has relied upon is that the accused and the deceased were last seen together near the place of the incident. In this behalf, the prosecution has relied upon the evidence of PW.7, who has deposed that he was doing work of
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laying the tiles. He has further deposed that while going to his village, near Sagar Road, he find Thajavalli Village. To go to Mallapura, one has to go through Somanakoppa. He knew the accused. About two years, eight months' back, he saw the accused going on TVS Moped at Thyajavalli at about 12.00 Noon and he also saw the deceased Nasreen sitting as a pillion rider on the said vehicle and they were going towards Mallapura. At that time, he was going towards Shimoga side for his work. PW.7 also identified the said Moped. During the course of his cross-examination, surprisingly it has been elicited that the deceased was wearing burka when she was proceeding on the vehicle and though the entire body was covered with burka, the face of the deceased was not covered. The said evidence clearly establishes that on the date of the incident, accused and the deceased were proceeding towards Mallapura side and they were last seen together by PW.7. No doubt it is well established principle of law that accused cannot be
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convicted only on the basis of circumstance of last seen together without there being any satisfactory explanation by him. But in the instant case, there is a clinching chain of circumstances to point out the guilt of the accused apart from last seen theory put forth by the prosecution. Hence, the prosecution has clearly established that the accused and the deceased were last seen together and therefore, heavy burden lies upon the accused to prove the aspect as to when he left the company of the deceased. In the case on hand, no case has been made out by the accused as to when he departed the company of the deceased. Even in the statement of the accused recorded under Section 313 of Cr.P.C. he has also not given any such explanation. Under such circumstances, it can be inferred that it is the accused who had taken the deceased on his moped and subsequently he committed the murder by slitting her neck and assaulting with stone. Coupled with this, immediately after the incident, he also informed his son-PW.9 about he
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committing the murder of the deceased, which also strengthens the case of the prosecution in order to prove the fact that the accused and the deceased were last seen together and the accused committed the murder of the deceased Nasreen. The evidence produced by the prosecution in this behalf is cogent and acceptable.
12. At this juncture, we feel it just and proper to meet the contention of the learned counsel for the accused. It is his contention that PW.7 is the friend and interested witness as such his evidence and evidence of other relatives is not acceptable. It is well established principle of law that merely because the witnesses are relatives and interested, their testimony cannot be discarded, their evidence has to be scrutinized carefully. Usually it is the relatives and those witnesses who are having some intent in the family come before the Court and give evidence, no third party wants to involve himself into a criminal case. It is but natural that those
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who know each other if they are seen at a different place, they will be identified. There is no unnatural thing in the evidence of PW.7 and his presence at that time at that place. So also, evidence of other witnesses. In that light the contention of the learned counsel for the accused does not have any force and the same is rejected.
13. The last circumstance on which the prosecution is relying upon is that the recovery of the incriminating materials at the instance of the accused. As could be seen from the evidence of PW.14, the Investigating Officer, immediately after taking the charge of investigation, he entrusted his staff to trace the accused and PW.15 apprehended the accused and produced before him as per Ex.P22. Thereafter he recorded the voluntary statement of the accused. He seized the shirt of the accused by drawing a mahazar as per Ex.P3, in the presence of PW.3 who has also supported the case of the
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prosecution. PW.14 has further deposed that accused took him along with panch witnesses to an open space by the side of the house of the accused and he seized TVS XL Moped at the instance of the accused. Thereafter, accused took them to the place where he committed the murder of the deceased. He also produced a knife which was used for commission of offence and the same was seized by drawing a mahazar at Ex.P5 in the presence of PW.3.
14. As could be seen from the FSL report at Ex.P14, a shirt which was seized from the accused was sent to chemical examination. The said shirt, which was mentioned as Item No.2 in Ex.P14, was found stained with human blood. Accused has not given any explanation as to how his shirt was stained with human blood. Though it is the contention of learned counsel for the accused that the recovery which was made at the instance of the accused is not in consonance with the
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provision of Section 27 of the Indian Evidence Act ('Act' for short), but coupled with the other circumstances and the statement of the accused that he informed his son and PW.5 that he committed the murder of his wife corroborates the case of the prosecution. In that light, it can safely be held that the accused has committed the murder of the deceased and he has produced the incriminating materials which were within his knowledge. Evidence of PW.14, the Investigating Officer indicates that though a particular statement of the accused has not been got marked with reference to recovery, under Section 27 of the aforesaid Act, only because of some lacuna in conducting the investigation, other substantial evidence cannot be brushed aside.
15. It is the contention of the learned counsel for the accused that though accused informed about commission of offence, he did not file the complaint on the same day, but the complaint was filed by PW.1, the
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son-in-law of the accused on the next day. As could be seen from the evidence of the prosecution, immediately after receipt of phone call, PW.9 informed the same to PW.1 and other relatives, who started tracing the deceased, but they could not trace her. Next day they traced the dead body at about 10.30 or 11.00 a.m. Immediately, thereafter PW.1 has filed the complaint. It is but natural that though on receipt of phone call without confirming no such complaint will be filed. Even the evidence indicates that it is PW.1 who traced the dead body and thereafter he informed PW.9 and other relatives and went to the Police Station and filed the complaint. There is no unnatural thing so as to disbelieve the evidence of PWs.1 and 9. It is well established principle of law that anybody can set the criminal law into motion. In the instant case, it is none other than the son-in-law who traced the body and filed the complaint without there being any delay. In that
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context, the contention of the learned counsel for the accused is not acceptable and the same is rejected.
16. During the course of arguments, it is brought to our notice that there are some contradictions during the course of cross-examination of the witnesses, but however, those contradictions cannot be looked into for any purpose much less to discredit the testimony of the prosecution version because of the reason that in the case on hand such contradictions were not confronted with their statements which have been recorded by the police under Section 161 of Cr.P.C. To prove the contradictions, the statement must be marked and the said marked statement must be read out to the Investigating Officer. In this connection, it is relevant to refer to the decision of the Apex Court in the case of V.K.Mishra & another Vs. State of Uttarakhan & another, reported in (2015)9 SCC 588, wherein the Apex Court in paragraphs 14 to 19 has observed thus:-
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"14. Mr.K.T.S. Tulsi, learned Senior Counsel for the appellants submitted that FIR contains only allegations of torture and cruel behaviour on the part of the appellants towards the deceased and in his statement recorded by the police under Section 161 CrPC, PW 1 had not stated anything about the alleged dowry demand whereas in his statement recorded by the police PW 1 had only stated about many restrictions imposed on his daughter due to which Archana felt suffocated. Contending that there were no allegations of cruelty in connection with dowry demand or any such conduct of the appellants which could have driven Archana to commit suicide either in the FIR or in the statement of PW 1 recorded on the next day by the investigating officer, the learned Senior Counsel urged and tried to persuade us to look into the statement of PW 1 recorded under Section 161 CrPC.
15. Section 161 CrPC titled "Examination of witnesses by police" provides for oral
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examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 CrPC can be used at any trial are indicated in Section 162 CrPC. Section 162 CrPC reads as under:
'162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial
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whose statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation .-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having
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regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.'
16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The Statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re- examination of the witness if necessary.
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17. The Court cannot suo moto make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross- examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
'145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into
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writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.'
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to
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further proof of contradiction and it will be read while appreciating the must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
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17. Keeping in view the dictum laid down in the aforesaid decision, the contention of the learned counsel for the accused does not stand to reason and is liable to be rejected.
18. Even the Hon'ble Apex Court in its decision rendered in the case of Sudha Renukaiah & others Vs. State of Andhra Pradesh reported in (2017)13 SCC 81, has observed that minor contradictions and inconsistencies are immaterial and if there are some discrepancies in the statement of the eye witnesses in describing the injuries caused by the accused, the same is not given much importance.
19. In so far as the contention of the learned counsel for the accused-appellant that the Investigating Agency has not collected the call details of PW.9 and the accused to show that immediately after the incident, the accused informed PW.9 over phone about his committing the murder of the deceased is concerned, as could be
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seen from the cross-examination of the witnesses and other materials on record, the said fact has not been seriously contested by the accused. Be that as it may, PW.9 is none other than the son of the accused and deceased. He has also not having any hostility towards the accused. If the said call details were to be collected under the electronic recordings, then the question of proof arises under Section 65B of the Act. But in the case on hand, when no such material has been collected, proof of the same as contemplated under Section 65B of the Act does not come into picture. It is also well established principle of law that if there is any defect or illegality or lapses on the part of the Investigating Agency, the same is not a good ground to acquit the accused when other material on record substantially points out the guilt of the accused.
20. Even if the entire records are perused, including the evidence of the witnesses, no where it is brought on
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record that some one was grinding an axe against deceased so as to take away her life. But the prosecution has established through cogent and reliable evidence that the accused was grinding an axe against the deceased by suspending her fidelity. In that light, the evidence produced by the prosecution reposes confidence of this Court to hold that the accused has committed the alleged offence.
21. We have carefully and cautiously gone through the entire records, including the impugned judgment and order. We find that there is no perversity or illegality so as to interfere with the same by this Court. Hence, the judgment and order of conviction and sentence dated 28/29.9.2012 passed by the trial Court in SC.No.51/2012 is liable to be confirmed and accordingly it is confirmed.
22. At this juncture, we want to observe that while imposing sentence on the accused, the trial Court has sentenced him to undergo imprisonment for life. Even
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the trial Court has not stated as to whether it is RI or SI. But as could be seen from the provisions of Section 302 of IPC, the sentence must follow imprisonment and fine. For the purpose of brevity, we quote the said Section which reads as under:-
"Section 302. Punishment for murder - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
23. On close reading of the aforesaid Section, accused ought to have been sentenced to undergo imprisonment and fine. There is no discretion for the Court to only impose sentence on accused while convicting him for the offence punishable under Section 302 of IPC. The words used in the aforesaid Section are "imprisonment and fine", which clearly go to show that both should follow. Since the State has not filed any appeal, question of enhancing the sentence does not arise.
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In view of the aforesaid facts and circumstances, the appeal stands dismissed being devoid of merits.
The trial Court is directed to issue the conviction warrant as against the accused so as to serve the sentence imposed on him.
In view of dismissal of criminal appeal, I.A.No.2/2013 for suspension of sentence & bail does not survive for consideration. Hence, I.A.No.2/2013 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE *ck/-