Karnataka High Court
Errappa @ Erranna S/O Prabhu Helur vs The State Of Karnataka on 17 April, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
1
Crl.A.No.200126/2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL APPEAL NO.200126/2019
BETWEEN:
ERRAPPA @ ERRANNA
S/O PRABHU HELUR,
AGE : 55 YEARS,
OCC: BUSINESS,
R/O MARKUNDA,
TQ. & DIST: BIDAR - 584 101.
...APPELLANT
(BY SRI ISHWARAJ S.CHOWDAPUR, ADVOCATE)
AND
THE STATE OF KARNATAKA,
THROUGH BEMALKHED P.S.,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 103.
...RESPONDENT
(BY SRI PRAKASH YELI, ADDL. SPP)
2
Crl.A.No.200126/2019
THIS CRIMINAL APPEAL FILED UNDER
SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE ORDER OF CONVICTION
PASSED IN SESSIONS CASE NO.137/2013 BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, BIDAR DATED 01.10.2014
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302
AND 392 OF IPC INCLUDING FINE AMOUNT AND ACQUIT THE
APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.03.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D.HUDDAR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant being the accused has preferred this appeal under Section 374(2) of Code of Criminal Procedure (for short 'Cr.P.C') being aggrieved and dissatisfied with the judgment of his conviction and sentence passed by the Additional District and Sessions Judge, Bidar in Sessions Case No.137/2013 dated 01.10.2014, convicting him for the offences punishable under Sections 392 and 302 of Indian Penal Code (for short `IPC') and sentencing him to undergo rigorous imprisonment for five years and pay a fine of `25,000/- for the offence punishable under Section 392 of IPC and sentencing him to life imprisonment not less than the life and fine of `20,000/- for the offence 3 Crl.A.No.200126/2019 punishable under Section 302 of IPC with default sentence. It is ordered that the sentences shall run concurrently.
2. The brief relevant facts leading up to this appeal are as under :
That the Police Sub-Inspector of Bhemalkhed Police Station, Bidar has submitted the charge-sheet against the accused for the offences punishable under Sections 302 and 392 of IPC based upon a complaint submitted by one Khashim Ali S/o Mohammed Ali Alivale resident of the address so stated in the complaint.
3. It is alleged in the complaint that, complainant is residing at Markunda Village, Taluk and District Bidar along with his parents. His parents have got three sons and two daughters and complainant is the eldest son. It is stated that, the family of the complainant is possessing 12 acres of land at Markunda-Shivar and his father Mohammed Ali S/o Mastan Ali takes care of the same. As usual in the morning hours on 10.03.2013, his mother Munibegum, aged 50 years took the lunch to her husband i.e., father of the complainant 4 Crl.A.No.200126/2019 at about 11.00 a.m., and went towards their land. His father had gone to his land in the morning hours itself. Complainant was in the village to attend funeral ceremony of one Smt.Jaheerbi W/o Allauddin.
4. It is stated that at about 2.00 a.m. one Saberali S/o Ahamad Ali, the son of elder paternal uncle of complainant called the complainant through phone from the land and he informed that, the mother of the complainant though left from the house with lunch to her husband, but has not reached the land. Complainant became panic. His brother Mehaboob also informed about not reaching of their mother with lunch to their land. Therefore, complainant and his brother started searching separately. When they were so searching, went towards the land of one Rajkumar S/o Nagayya Swamy, the resident of their village. There they noticed on the katta of the land of Rajkumar of lying of dead body of their mother Munni Begum. This fact was informed to the complainant by his brother; it was about 6.00 p.m. on that day. Complainant went to the said place and noticed the injuries on his mother's body i.e., on her right cheek, 5 Crl.A.No.200126/2019 forehead, tongue, both ears and neck. It is noticed that by using the deadly weapon by stabbing her, she appears to have been killed. He noticed missing of her ear ornament which were snatched and there was a tearing of her ear lobes. So also the golden wedlock, gold and silver ornaments worn by the deceased were found missing. It is alleged that some unknown persons might have committed dacoity and murder on the person of the deceased.
5. The complainant informed this fact to his friend Iqbal Sharif through telephone. The said Iqbal Sharif came to the spot and informed to the Police Sub-Inspector of Bhemalkhed about the incident through telephone. On receipt of the information, police came to the spot. At that time, there was heavy rain fall and storm. Therefore, at the advice of the police, they shifted the dead body to Mannaekhalli Government Hospital. Thereafter, complainant submitted a computerized complaint before PW.15-Suresh Mallppa Bhavimani the then PSI of Bhemalkhed Police Station as per Ex.P.4. This PW.15 on receipt of the information at 7.00 p.m. visited Markunda Village, noticed dead body and 6 Crl.A.No.200126/2019 since it was raining, he shifted the dead body to the aforesaid hospital as stated above. Based upon Ex.P4, he registered the crime in Crime No.12/2013, prepared the FIR as per Ex.P.1 and set the criminal law in motion.
6. On 10.03.2013 itself PW.23-Shivanand, Revansiddappa Pawadshetty, the then Police Sub Inspector of Chitaguppa, took-up the further investigation and went to Mannaekhelli Primary Health Care Centre, conducted the inquest panchanama on the dead body of deceased in between 10.45 p.m. to 11.45 p.m. as per Ex.P.5 in presence of panchas. He recorded the statements of PW.8-Maheboob, PW.10-Mohammed Ali and CW.2 - Iqbal Sharif.
7. On 11.03.2013 PW.16-Rajappa produced clothes of the deceased which are marked as MOs.1 to 3. He seized the said clothes under Ex.P.8 by preparing the panchanama in between 10.00 a.m to 10.45 a.m. He visited the scene of offence at 12.00 noon and prepared the panchanama as per Ex.P.6 till 1.00 p.m.. He seized MO.4 to 8 under Ex.P.6. Prepared the scene of occurrence sketch as per Ex.P.14. 7 Crl.A.No.200126/2019 Recorded the statement of PW.3, PWs.9 to 14 and 20 and CW.2.
8. On 25.03.2013 accused was produced before him by PW.15. He arrested him and recorded his voluntary statement as per Ex.P.15. Then he invited PW.7 and CW.9 panch witnesses. Accused as per his voluntary statement, led the police and panchas to his house at Markunda Village and by entering the house accused brought a pair of ear buds, bugadi, silver toe rings and kamkati which are marked at MOs.1 to 13. He seized the said gold ornaments and weapon under Ex.P.7. Investigation Officer was accompanied with PW.2 the photographer to record the videography. He recorded further statement of PWs.3, 8, 9, 10 and 11. On 26.03.2013, he recorded the statement of PW.22, further statements of CW.2, PWs.12 and 13. On 31.03.2013 he collected post mortem report as per Ex.P.12 along with opinion as per Ex.P.13. He sent seized articles to Forensic Science Laboratory, Kalaburagi for scientific examination and report. On 18.04.2013, he collected RTC extract of the land where the said incident has occurred. The said RTC extract is 8 Crl.A.No.200126/2019 at Ex.P.3. On 18.03.2013 he collected the khata extract as per Ex.P.16 and FSL report as per Ex.P.17, mobile call details as per Ex.P.18 and after completion of investigation he filed charge-sheet.
9. After filing the charge-sheet, the jurisdictional Magistrate took the cognizance of the offences. Copies of the police papers were furnished to the accused person as contemplated under Section 207 of Cr.P.C. As the offences were exclusively triable by the Sessions Court, the jurisdictional Magistrate i.e., JMFC-II Court, Bidar by his order dated 20.07.2013 committed the case to the Sessions Court for trial.
10. The learned Additional Sessions Judge, Bidar after committal, secured the presence of the accused. Framed the charges against the accused person for the offences punishable under Sections 392 and 302 of IPC, accused pleaded not guilty and claimed to be tried
11. The prosecution to prove the guilt of the accused examined in all 23 witnesses and got marked Ex.P.1 to 9 Crl.A.No.200126/2019 Ex.P.15 with respective signatures thereon and also MO.1 to 14 and closed prosecution evidence.
12. After closure of the prosecution evidence, accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.
13. The learned Sessions Judge having heard the arguments and on perusal of the oral and documentary evidence found the accused guilty of the offences punishable under Sections 392 and 302 of IPC and convicted and sentenced him as stated above.
14. This judgment is now challenged by the appellant/accused on the following grounds :-
• The conviction and sentence passed by the trial Court is against the facts and evidence placed on record. The trial Court has committed error in holding that accused is guilty.10 Crl.A.No.200126/2019
• The prosecution has not proved its case beyond all reasonable doubt. There are no eyewitnesses to the alleged incident and the case is based on circumstantial evidence.
• No chain of circumstances conclusively proved the case of the prosecution. The trial Court relied upon the evidence of the PW.12 which is not probable and acceptable. Evidence of PWs.13 and 14 is not cogent and is not sufficient to pass an order of conviction and sentence. The Investigating Officer has created the voluntary statement of accused. There is no proper appreciation of the evidence by the trial court. There is no proper identification of the ornaments of the deceased. The prosecution has improved its version during the course of trial.
• The trial Court has imposed sentence to suffer imprisonment till the death of accused which is not in accordance with law. The sentence passed is bad in law. There was no premeditation or intention to kill the deceased.
• Amongst other grounds, it is prayed to allow the appeal and set aside the conviction and sentence passed by the trial Court.11 Crl.A.No.200126/2019
15. After filing this appeal, it is admitted. The learned Additional State Public Prosecutor took notice of this appeal. Trial court records are secured.
16. We have heard the arguments of learned counsel for appellant/accused and the learned Additional State Public Prosecutor at length.
17. The learned counsel for accused/appellant took us to various oral and documentary evidence and submits that the evidence so placed on record by the prosecution suffers from lack of material particulars and do not inspire any confidence so as to prove the guilt of the accused. Only on surmises and conjectures, the conviction order is passed by the trial Court which according to him is illegal. In support of his submission he relied upon the following citations :
• (2022) ACR 978 in the case of Raju @ Rajendra Prasad vs. State of Rajasthan • 2019 (2) Crimes 50 (Karn.) in the case of Ranjith K. & others vs. State of Karnataka by MICO Layout Police Station 12 Crl.A.No.200126/2019
18. As against this submission, the learned Additional State Public Prosecutor supported the reasons being assigned by the trial Court in passing an order of conviction and sentence by the trial Court. It is pre-plan murder to rob the gold ornaments of the deceased by the accused as accused was well acquainted with the day-to-day activities of the deceased visiting the land every day with lunch to her husband.
19. He submits that the evidence of complainant and recovery panchas and the Investigating Officer proves the connect and link in establishing the guilt of the accused. It is the accused and accused alone who has committed the offence in the manner stated by the prosecution. Therefore, he justifies the order of conviction and sentence passed by the trial Court.
20. We have given our anxious consideration to the arguments of both side and perused the records.
21. As rightly submitted by both the side, this case is purely based upon circumstantial evidence. When a case is 13 Crl.A.No.200126/2019 based upon circumstantial evidence, it is for the prosecution to prove the guilt of the accused by establishing all the chain of circumstances which link the accused in the commission of crime.
22. As it is murder case, before discussing the other evidence, it is to be proved by the prosecution that, whether prosecution is able to establish the homicidal death of deceased Munibegum.
23. To ascertain the same, we have to read the evidence of following witnesses :-
PW.3 - Kasimali is the complainant and PW.8 -
Maheboob Mohammed Ali is the brother of the complainant.
According to the evidence of these two witnesses they noticed the injuries on the person of deceased on her cheek, forehead, back side behead. They also noticed about missing of her gold ornaments and silver toe rings.
24. PW.4-Kashimbee is pancha to Ex.P.5 the inquest panchanama. She has noticed the injuries on the person of deceased i.e., cut injury on the ears, injury on the neck, 14 Crl.A.No.200126/2019 cheek tongue. She identifies the cloths like blouse, sari and langa which are marked at MOs.1 to 3.
25. PW.23 has conducted the inquest panchanama as per Ex.P.5 and seized MOs.4 to 9 under Ex.P.8 the scene of occurrence panchanama. Coupled with that, we have the evidence of PW.21-Dr.Vijayakumar Suryavanshi wherein he has stated that on 11.03.2012 in between 0.30 a.m. and 2.30 a.m., he conducted post mortem on the dead body of Munibegum and noticed the following injuries on her person:-
i. A hole measuring 4 cm x 2 cm on trachea region;
ii. A hole measuring 2 cm x 1 cm on right eyebrow;
iii. A cut injury on the right and left ear;
iv. An incised wound measuring 6 cm x 1 cm on the right side of the neck; and v. I noticed hair line fracture on occipital bone.
26. According to Doctor the injuries were anti mortem in nature. He deposes that the death occurred within 8-12 hours of his post mortem examination. On account of 15 Crl.A.No.200126/2019 shock of hemorrhage because of the injuries she must have died. He has issued post mortem report as per Ex.P.12. He identifies M.O-13-Kamakatti which has been sent by the police and opines that injuries found on the dead body could be caused by using M.O-13. To that effect he has issued Ex.P.13.
27. On over all reading of the evidence of the witnesses and contents of the inquest and post mortem report which are not denied by the defence, it can conclusively be held that deceased Munibegum has suffered homicidal death. Thus, prosecution is able to prove the homicidal death of the deceased.
28. Though the prosecution is able to establish that deceased Muni Begum has suffered homicidal death, that does not mean that it is accused and accused alone is responsible for her death. This case is purely based upon circumstantial evidence. When a case is based upon circumstantial evidence, it is the duty of the prosecution to prove the same with all legal evidence.16 Crl.A.No.200126/2019
29. The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted that so far as the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved"
and "must be or should be proved" as held by the Hon'ble Supreme Court of India in Shivaji Sahebrao Bobade & Another vs State Of Maharashtra1 wherein the observations made are as under:
"...certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. The facts so embellished should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explanaitable on any other hypothesis except that the accused guilty.
The circumstances should be of a
conclusive nature and tendency,
1
(1973) 2 SCC 793
17
Crl.A.No.200126/2019
They should exclude possible hypotheses except the one to be proved, and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
30. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shocks the conscience of any court, yet, suspicion however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. It is a well established rule of criminal justice that "fouler the crime higher the proof". In the instant case, life and liberty of a subject was at stake. As the accused was given a life imprisonment, a very careful, cautious and meticulous approach is necessary to be made.
31. On examination of record and the impugned judgment, it is seen that the circumstances founding the 18 Crl.A.No.200126/2019 conviction are, leading to discovery of the weapon of offence and gold ornaments worn by the deceased having blood stains and the motive of the appellant/accused.
32. PW.1-Gundappa was the then Police Constable carried FIR and complaint to the jurisdictional Magistrate after its registration. Except the denial nothing is elicited from the mouth of this witness. Therefore, the said FIR had reached the jurisdictional Magistrate at 12.15 p.m. on 11.03.2013. To the extent of reaching FIR to the jurisdictional Magistrate we believe his evidence.
33. PW.2-Tayab the another Police Constable had obtained the RTC extract where the offence has taken place as per Ex.P3. There is no cross-examination directed to PW.2. Thus getting Ex.P3 from the office of the Tahasildar, we believe his evidence.
34. PWs.3 and 8 have spoken before the Court about they noticing the dead body of their mother and injury on her person. To the extent of they noticing the dead body in the 19 Crl.A.No.200126/2019 landed property of Rajkumar and the injury on her person, we believe their evidence.
35. PW.5-Mohammad Ismail and PW.6-Yousuf Miyan are the panchas to Ex.P.6 wherein as per their evidence, at the scene of offence panchanama was prepared and under Ex.P.6, MOs.4 to 7 are seized and they are Tiffin box, cloth kunchige, sickle, pair of hawai chappals. So also the police have seized blood stained mud as per M.O.8 and sample mud as per M.O.9. No effective cross-examination is directed to PWs.5 and 6 by the defence i.e. except bald denial nothing is elicited to disbelieve the contents of the spot panchanama being conducted in presence of PWs.5 and 6. Thus, the panchanama is duly proved by the prosecution.
36. PW.7-Mohammad Wajid is pancha to Ex.P.7 wherein the so called kamakatti marked at M.O.13 has been seized at the instance of the accused as per his evidence. He says accused took himself, CW.9 and police to his house at Markunda Village and opened a lock and produced MOs.10 to 20 Crl.A.No.200126/2019 12 and 13. They were seized under Ex.P.7. Except the denial nothing is elicited from the mouth of this witness.
37. PW.9-Nousin Begum is the wife of complainant- PW.3. She speaks about leaving of Muni Begum from the house along with the lunch box to give the same to her husband and getting knowledge about murder of Muni Begum in the land of CW.18 - Rajkumar. It is stated by her that on the previous day accused had been to her house for the purpose of begging and he was found observing the ornaments of the person of Muni Begum. She says that, after 10-12 days of murder of Muni Begum, she was called to the police station and there the ornaments were shown to her which are marked at MOs.10 to 12. She identified by them. There is denial of all these facts in the cross-examination. Except PW.9, no witnesses have stated either in their examination-in-chief or in their respective cross-examination that, accused was a beggar. When such evidence is spoken to by her, it requires corroboration.
21Crl.A.No.200126/2019
38. PW.10-Mohammad Ali is none other than the husband of deceased Muni Begum. As per his evidence, as his wife Muni Begum did not reach the landed property with lunch to him, he informed the same to PWs.1 and 8 through CW.14. Thereafter, he noticed the dead body of Muni Begum in the lands of Rajkumar S/o Nagayya. Evidently, he is not an eyewitness to the said incident of murder. To the extent of noticing non arrival of Muni Begum to his landed property with lunch, informing his sons about the same and noticing the dead body as stated above, his evidence is to be believed.
39. PW.11 - Saber Ali is the nephew of PW.8 and it is PW.9 who informed of stating that his wife has not come with lunch box. Thereafter, he informed the said fact to PW.8. To that extent his evidence is to be believed. He also says that, during evening hours he came to know about the murder of Muni Begum and went to the said place, noticed the dead body. He identified the ornaments MOs.10 to 12. He is a hearsay witness about visiting the house of the deceased for the purpose of begging.
22Crl.A.No.200126/2019
40. PW.12-Sharanappa being an agriculturist, according to him, in between 10.00 or 10.30 a.m., when he was returning from his agricultural land, he noticed the accused on the way proceeding towards agricultural land of PW.10. At that time, he noticed that accused was carrying kamakatti marked at M.O.13 with him. He also noticed deceased Muni Begum proceeding on the road with lunch box towards agricultural land of PW.10. There was distance between deceased and the accused i.e., about 60-80 feet deceased was ahead. He further states that, he came to know about murder of Muni Begum. According to prosecution, he is an eyewitness of seeing deceased and the accused moving towards the agricultural land of PW.10 and there is a distance of 60-80 feet in between them. It is a common knowledge and experience that the agriculturist/farmers visit their agricultural land along with weapons like Katti, sickle etc., to do agricultural operations. None of the witnesses stated that accused was not at all having any landed property in the said village. Just this 23 Crl.A.No.200126/2019 PW.12 has noticed as per his evidence the movement of accused on the road towards agricultural land.
41. PW.13 - Anand S/o Narasappa is a person who noticed accused at about 12.00 wearing the blood-stained clothes on his person. He enquired, but, the accused did not talk with him and he was found frightened. Evidently, in this case, the said blood stained clothes are not seized by the police. In the voluntary statement, it is stated by accused that he had thrown the said clothes in a halla and has disclosed to the police that in which halla he has thrown them. But no attempt was made by the Investigating Officer to seize them. So in the absence of seizure of the so called blood stained clothes, the evidence of PW.13 would not help the case of the prosecution.
42. PW.14 - Nagamma is also one of the witness relied upon by the prosecution that, on the day of death of deceased, accused went to the house of this PW.14 at about 6 or 7 p.m. along with M.O.13 and told that he has murdered Muni Begum and also would kill her. So as per the case of 24 Crl.A.No.200126/2019 the prosecution, this accused has confessed about his guilt and also gave threat to kill her. But in the cross-examination in clear words at para 3, she states, 'it is true to say that, there was enmity developed between myself and the accused even prior to the incident.' So this evidence itself spoken to by PW.14 shows that, she is having some ill-will against accused and so as to implicate him she must have stated so. This possibility cannot be ruled out.
43. PW.15 was the Police Sub Inspector who received the message of murder in the agricultural land of Rajkumar Swamy on 10.03.2013 at about 6.30 p.m. He went to the said place at 7.00 p.m. and as it was raining, he made arrangement to shift the dead body and recorded the statement of PW.3 as per Ex.P.4 and went to the police station, registered the crime. To that extent, we believe his evidence.
44. PW.16 - Rajappa was the Police Constable who collected MOs.1 to 3 and produced before the Investigating 25 Crl.A.No.200126/2019 Officer. To the extent of producing them before IO, we believe his evidence.
45. PW.17 -Azimoddin Siddique was the Panchayat Development Officer who has issued a demand register extract of house of accused. But is not marked in evidence. To the extent of issuing demand register we believe his evidence.
46. PW.18 - Sharanappa was called to the police station on 11.03.2013 wherein MOs.1 to 3 are produced by Rajappa, Police Constable in his presence. The Police have seized them under Ex.P.8. To that extent, we believe his evidence.
47. PW.19 - Basawaraj is the photographer who has snapped at Ex.P.9 to 11. To the extent of taking photographs, we believe his evidence.
48. PW.20 - Rajkumar S/o Nagayya is the owner of Sy.No.284 of Markunda Village the dead body of deceased was found. This fact is not disputed by the defence in a proper manner.
26Crl.A.No.200126/2019
49. PW.22-Nayeemoddin S/o Khaleemuddin is a videographer. According to him on 25.03.2013 i.e., after 15 days of the incident accused led the police and panchas to his house and produced MOs.10 to 13 before investigating officer. Investigating officer has prepared Ex.P.7 and he videographed the said production of MOs.10 to 13. So as per his evidence though the incident has taken place on 10.03.2013, but the said seizure of ornaments was done after 15 days i.e., on 15.03.2013. Except the denial in the cross-examination noting is elicited.
50. PW.23 is the Investigating Officer and he has filed the charge-sheet after completion of the investigation.
51. On overall reading of the evidence so placed on record by the prosecution, as stated supra, this case is purely based on circumstantial evidence and whether the prosecution is able to establish its case with legal evidence based on only recovery is a question.
52. On 10.3.2013, the incident had taken place. Accused was arrested on 25.3.2013 by the Police. In the 27 Crl.A.No.200126/2019 presence of Panchas and Investigating officer, accused gave voluntary statement when he was in police custody as per Ex.P15. PW.7 and CW.9 were the Panchas.
53. Thus accused gave information that he would point out his house in which he has concealed the gold ornaments. This statement made by the accused is admissible under Section 27 of the Indian Evidence Act. Thereafter, accused took them to his house, at his instance, went inside the house by opening the same and removed the gold and silver ornaments from where he has concealed and produced them before the IO. In the presence of Panchas, Investigating officer prepared the Panchanama as per Ex.P7 in between 11.00 p.m. and 1.00 p.m. and seized said pair of ear studs, bugudi, silver toe rings, kamakatti which are marked as MO nos. 1 to 13.
54. There is no direct evidence as regards the involvement of the accused in the murder and robbery of the deceased. From the evidence both oral and documentary, following circumstances are relied upon by the prosecution: 28 Crl.A.No.200126/2019
1. Accused was seen going towards landed property and was found following the deceased at a distance of 50 to 60 ft.
2. The deceased was wearing golden ear rings, nose stud, wedlock and silver ornaments. Her ear lobes were found cut and injured which indicated that in the process of removal of the ear rings, such injuries were caused.
3. Recovery of such gold and silver ornaments from the house of the accused at his instance.
4. Human blood noticed on the gold ornaments.
55. Learned Sessions Judge has believed the above circumstances and has found the accused guilty of the offences under Section 392 and 302 of IPC.
56. Sofar as, first circumstance is concerned, it is just an evidence that, deceased was moving ahead of the accused at a distance of 50 to 60 ft. and accused was following. There is an evidence that PW.13 Anand S/o. Narasappa noticing that accused was found moving towards the village with blood stained clothes. But, those blood stained clothes are not seized by the Police. This is the weak evidence to connect the accused in the commission of the crime of murder of deceased by the accused. 29 Crl.A.No.200126/2019
57. Another circumstance is brought on record that accused gave threat to PW.14 Nagamma stating that he has killed deceased and he is going to kill this Nagamma also. Evidently, PW.14 has spoken before the Court that there is animosity between herself and accused. Therefore, her evidence to that effect cannot be believed as animosity between them is spoken to by her. This circumstance of her say cannot be connected to the accused to the commission of the crime. The learned Sessions Judge ought to have appreciated such evidence and would have discarded the same.
58. We are now left with the evidence of recovery of the ornaments of the deceased on the basis of his confession statement under Section 27 of the Evidence Act, leaving apart for the time being the aspect of concerning injuries inflicted on the deceased. The question then is, whether there was discovery of incriminating articles in consequence of information received from the accused in custody and whether such recovery warrants a presumption 30 Crl.A.No.200126/2019 to be drawn under Section 114 of the Indian Evidence Act, and if so, to what extent that presumption has to be drawn.
59. As the presumption under Section 114 of the Evidence Act looms large in this case, a brief discussion on the basic postulates and evidentiary implications of presumption of fact may not be out of place. A presumption of fact is a type of circumstantial evidence which, in the absence of direct evidence becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of the our criminal law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. The presumption under Section 114 is of course revertible. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the 31 Crl.A.No.200126/2019 mind of the Judge. These facts should be looked into from the angle of common sense, common experience, men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not.
60. Among the illustrations appended to Section 114 of the Evidence Act, the very first one is, what concerns us in the present case. "The Court may presume - that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for possession."
61. The Taylor in his treatise on Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in Section 114( a):
"The possession of stolen property recently after the commission of the theft is prima facie evidence that the possessor was either the thief or the receiver, according to the other circumstances of the case, and this presumption, when unexplained either by direct evidence, or by the characters and habits of the possessor, or 32 Crl.A.No.200126/2019 otherwise, is usually regarded by the jury as a conclusive. The question what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand."
62. This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any proof of what is called the corpus delicti.
63. We shall now examine as first step whether the conditions or to put it in other words, factual circumstances contemplated by illustration (a) to Section 114 are fulfilled.
64. There can be no doubt in this case that, the ornaments were located in his house at the instance of the accused were the personal belongings of the deceased and there were being worn by the deceased. The evidence of the witnesses so examined in this case such as complainant, his brother, husband of the deceased, daughter-in-law of the deceased and others bear testimony to this fact and even a grueling cross-examination could not raise a cloud on the veracity of their deposition on this aspect. 33 Crl.A.No.200126/2019
65. The next step which has to be proved by the prosecution is, the possession of the said ornaments of the deceased soon after the incident. The incident took place on 10.3.2013 accused was arrested on 25.3.2013 gave his voluntary statement as per the evidence panchas PW.7 and CW.7 and the Investigating officer, that as per the voluntary statement when accused was in custody, at his instance said MOs. Nos.10 to 13 are recovered on the date of arrest itself. For a period of 15 days accused was absconding. PW.7 and Investigating officer have deposed that they accompanied accused and in their presence he has produced MOs.10 to 13. When there is a consistent evidence about identification of MOs.10 to 13 by the aforesaid witnesses and identification of the same by panchas at the time of seizure, it gives no room to suspect that they were produced by the accused having concealed them after the commission of the crime.
66. These PW.7 and 9 have stated that Police have called them and accused was in their custody. Altogether went to the house of accused at his instance. That means police had got confirmed about concealing of those material 34 Crl.A.No.200126/2019 objects by the accused. Therefore, as rightly pointed out by the learned Sessions Judge the statement of witnesses were recorded after the seizure of the said ornaments. The Investigating officer has seized them. From the evidence of PW.7 and Investigating officer, it can be deduced that the information furnished by accused to the police attracts the provisions of Indian Evidence Act. Therefore, the argument of the learned counsel for the accused-appellant that there was no information leading to discovery of the material object and the statement of the accused is, inadmissible under Section 27 was rightly repelled by the trial Court. There is no good reason to take a different view in this regard.
67. We are left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of accused under Section 27 of the Evidence Act, if the discoveries are to be believed which ought to be. The next two questions are, whether the accused shall be deemed to be in possession of the articles so concealed by him in his house and whether such possession could be said to be recent possession.
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68. Here in this case, the accused has concealed the said MOs.10 to 13 in his house and have produced them at his own instance from where he has hidden them. Such statement of the accused is admissible during the evidence leading to discovery. It was a recent possession i.e. on the date of arrest itself after giving his voluntary statement he has produced them in the presence of panchas. It is laid down by the Hon'ble Supreme Court Earabhadrappa Alias Krishnappa vs State Of Karnataka2, while reiterating the principle that no fixed time limit can be laid to determine whether possession is recent or otherwise, it is held that even a period of one year was not too long having regard to the fact that the accused suddenly disappeared after the incident and he was absconding for a long time. In the present case, accused was absconding for 15 days and apprehended on 25.3.2013, and gave information about the gold and silver ornaments and this lead to the discovery of stolen property. Having regard to the nature of the articles, it is difficult to visualize that, it would have changed hands 2 AIR 1983 SC 446 36 Crl.A.No.200126/2019 within this short time and ultimately landed itself in the possession of the accused. The accused, on his part, did not come forward with any such explanation. Whether the accused is capable of affording to have such ornaments with him is not made clear. No such evidence is brought on record.
69. In the light of the above discussion, in the instant case, the presumption under Section 114 illustration (a) could be safely drawn and the circumstances of the recovery of the incriminating articles within a reasonable time after the incident at the place that is his house shown by the accused unerringly points to the involvement of the accused. Be it noted that the appellant/accused who was in a position to explain as to how he could lay his hands on the stolen articles or how he had the knowledge of concealment of the stolen property, did nothing to explain; on the other hand, he denied the whole case of the prosecution which in the light of the evidence adduced by the prosecution must be considered to be false. By omitting to explain, it must be inferred that either he intended to suppress the truth or invite the risk of 37 Crl.A.No.200126/2019 presumption being drawn. Thus, the presumption as to the commission of offence envisaged by illustration (a) of 114 is the minimum that could be drawn and that is what the trial court did.
70. The above discussion paves way for consideration of a more important question whether having regard to the facts of this case, the presumption should be extended to the perpetration of the offence of robbery or murder or both? Presumption envisaged by illustration (a) to Section 114 has been stretched in decided cases to make a similar presumption as the basis for conviction for graver offences of robbery and murder, if they are part of the same transaction. Strictly speaking, such presumption does not come within the sweep of illustration (a) though in some cases, it has been referred to while upholding the conviction for robbery and murder. The illustration only provides an analogy in such a case.
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71. In Gulab Chand vs. State of Madhya Pradesh3, it is held by the Hon'ble Supreme Court that, "where presumption under Section 114 of the Evidence Act, was carried to the utmost extent. In that case, the accused were charged under Sections 120-B, 302, 394 and 397 for having committed the murder and robbery. The appellants were convicted under Sec.380 of IPC. On appeal by the State, the High Court reversed the order of acquittal and convicted the appellant Gulab Chand under Section 302, 394 and 397 of IPC. The conviction of the other accused was modified to one under Section 411 of IPC. In that case, within a few days after the incident, on the search of the appellant's house, various articles were found including ornaments belonging to the deceased. Some of the ornaments were also recovered from the shop on the basis of the information given by the accused. The Court started the discussion with the preface; "it is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the 3 (1995) 3 SCC 574 39 Crl.A.No.200126/2019 offence of murder and robbery. But, culpability for the aforesaid offence will depend upon the facts and circumstances of the case and nature of evidence adduced".
72. In the said judgment, the Hon'ble Supreme Court also referred the judgment in Tulasi Ram Kanu vs. State4 wherein the court has observed that; "if the ornaments of the deceased were found in possession of a person soon after the murder a presumption of guilt can follow. But, several months have expired, the presumption may not be permitted to be drawn. Having regard to the close proximity of the time of recovery and lack of credible information for the possession thereof and on account of dealing with the ornaments, immediately after the crime, it was held that a reasonable inference of commission of offence could be drawn against the accused."
73. If this analogy is applied to the present facts of the case, the evidence so placed on record by the prosecution proves the immediate recovery of MOs. No.10 to 13 at the instance of the accused. Thus, in a given case, the 40 Crl.A.No.200126/2019 prosecution could successfully prove its case that the offences of robbery and murder were committed in one and the same transaction and soon thereafter, the stolen properties were recovered. In the given facts and circumstances of the case, legitimately we can draw presumption not only of the fact that accused who is found in possession of the stolen articles was found committed the robbery but also that he has committed the murder as per law laid down in Gulab Chand case referred supra. Thus, the prosecution is able to prove the guilt of the accused beyond all reasonable doubt. No doubt, the learned trial Court has given different reasons for conviction but, has rightly come to the conclusion. Therefore, we do not find error committed by the trial Court in finding the accused guilty of committing the offence under Sec.392 and 302 of IPC.
74. Therefore, the judgment of conviction so passed by the trial Court vide judgment dated 1.10.2014 deserves to be confirmed holding that the appeal filed by the appellant lacks merits.
4 (AIR 1954 SC 1) 41 Crl.A.No.200126/2019
75. So far as sentence is concerned, the learned trial Court has sentenced the accused for the offence punishable under Sec.392 of IPC to undergo RI for five years with fine of Rs.20,000/- with default clause and also sentenced the accused for the offence punishable under Sec.302 of IPC to undergo life imprisonment not less than the life with fine of Rs.20,000/- with default sentence with an order to run the substantive sentence concurrently.
76. So far as sentence so imposed by the trial Court is concerned, for the offence punishable under Sec.392 of IPC, the sentence so imposed is RI for five years with fine of Rs.20,000/- with default clause and for the offence punishable under SEc.302 of IPC sentence so imposed is, life imprisonment not less than the life and fine of Rs.20,000/- with default clause.
77. The criminal law in general adheres to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a 42 Crl.A.No.200126/2019 sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. It is settled principle of law that punishment ought to always to fit the crime, yet in practice, sentences are determined largely by other considerations. Sometimes, it is the correctional needs of the perpetrator that are offered to justify a sentence.
78. Proportion between crime and punishment is a goal respected in principle and inspite of errant notions, it remains a strong influence in the determination of sentence. With regard to the sentence, a land mark judgment of the Hon'ble Supreme Court of India in Bachan Singh vs. State of Punjab5, at para.202, laid down various principles for awarding sentence. The same are extracted hereunder:
"Aggravating Circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or 5 (1980) 2 SCC 684 43 Crl.A.No.200126/2019
(b) if the murder involves exceptional depravity;
or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed.
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Cr.PC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.44 Crl.A.No.200126/2019
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person, (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
79. In another case of Judgment in Hazara Singh vs. Raj Kumar6, (2013) 9 SCC 516, the Hon'ble Supreme Court has observed at paras.10 and 11 as under:
"10. In Hazara Singh v. Raj Kumar (2013) 9 SCC 516 :(2014) 1 SCC (Cri) 159] this Court has observed that:(SCC p. 521, para 10) "10. ... it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of 6 (2013) 9 SCC 516 45 Crl.A.No.200126/2019 the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
This Court further observed that: (Hazara Singh case [(2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159] , SCC p. 521, para 11) "11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases."
11. In Shailesh Jasvantbhai v. State of Gujarat [(2006)2 SCC 359 : (2006) 1 SCC (Cri) 499] the Apex Court opined that: (SCC pp. 361- 62, paras 7-8) "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that:
'State of criminal law continues to be--as it should be --a decisive reflection of social 46 Crl.A.No.200126/2019 consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc."
80. If the aforesaid crime test and criminal tests are applied to the present facts of this case, accused is found guilty of committing robbery and murder of deceased Munni Begum in broad day light for personal gain. He committed robbery of her gold and silver ornaments and to conceal the said crime, he has murdered the said victim. It is a broad daylight robbery and murder. It has come in the evidence that accused was a beggar. But, there is no evidence to 47 Crl.A.No.200126/2019 prove the same. Except his age, there are no mitigating circumstances so as to show leniency in imposing the sentence. The minimum sentence that is to be imposed for the offence punishable under Sec.302 of IPC is life imprisonment and fine. But, the learned trial Court has imposed the sentence of life imprisonment not less than the life of the accused. No reasons have been assigned by the trial Court to impose such sentence. It has not considered the aggravating circumstances, mitigating circumstances by applying the crime test and criminal test stated supra as laid down by the Hon'ble Supreme Court of India in Bachan Singh case stated supra. It is submitted that the accused is first offender and has no criminal antecedents. The manner and circumstances in and under which the offence was committed that is because of extreme mental or emotional disturbance or extreme provocation etc., would have been considered by the trial Court. In the normal course of life, the circumstance with regard to the behaviour of the accused also plays an important role. On appreciation of the evidence, the crime was committed in a pre-ordained manner, i.e. first 48 Crl.A.No.200126/2019 robbery and then murder. That is, the death resulted in the course of commission of another crime and that there was possibility of consequences being construed by the accused by himself with regard to the commission of the primary crime being committed by him. In various cases where the death penalty has been awarded, the Hon'ble Supreme Court of India have commuted the said death sentence into life imprisonment taking into consideration of other evidence being placed on record.
81. The facts of this case do not come under the definition of 'rarest of rare case' or the sentence to be imposed till life of the accused. Therefore, if all these factual features coupled with the present position of law and personal liberty of a person as per the provisions of the Indian Constitution, if the said sentence so imposed for the offence under Sec.302 of IPC to undergo life imprisonment not less than life of the accused is converted into life imprisonment, it would meet the ends of justice. So far as sentence imposed for the offence under Sec.392 of IPC is concerned, it is to be maintained.
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82. Accordingly, we pass the following:
ORDER Appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is allowed in part. with modification of the sentence for the offence punishable under Sec.302 of IPC.
Accordingly, we modify the order of sentence of the trial Court for the offence punishable under Section 302 of IPC. We direct that the appellant/accused shall undergo imprisonment for life.
So far as sentence passed for the offence punishable under Section 392 of IPC and imposition of fine for offences under Sec.302 and 392 of IPC with default sentence are affirmed and maintained.
Send back the trial Court records forthwith along with copy of the judgment to the trial Court.
SD/-
JUDGE SD/-
JUDGE Sk/sn