Karnataka High Court
Mohd. Shukur S/O Shaik Mehboob vs The State Of Karnataka on 23 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF MARCH 2017
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL No.3513/2012
Between:
Mohd. Shukur S/o Shaik Mehboob
Age 30 years, Occ. Private Work
R/o Mudhgal, Tq. Lingasugar,
Dist Raichur
Now at Yakbal Colony, Gulbarga
... Appellant
(By Sri S.K.Venkata Reddy, Advocate)
And:
The State of Karnataka
Through Raghavendra Nagar
Police Station, Gulbarga
Represented by its
State Public Prosecutor
High Court of Karnataka,
Circuit Bench at Gulbarga.
...Respondent
(By Sri Prakash Yeli, Addl. SPP)
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment, order of conviction
and sentence dated 08.11.2011 passed in Sessions Case
No.312/2010 on the file of IV Addl. Sessions Judge,
Gulbarga, wherein, convicting the appellant-accused for the
offence punishable under Section 302 of IPC.
This appeal having been heard, reserved for
judgment and coming on for pronouncement of
judgment this day, Aravind Kumar J., delivered the
following:-
JUDGMENT
Appellant herein challenges his conviction for the offence under Section 302 of the Indian Penal Code (hereinafter called 'IPC' for short) by the trial Court.
2. The gist of the prosecution case is as under:
Complainant is Smt. Mehaboob Bee a resident of Yakbal Colony, Gulbarga is residing with accused and her daughter Ms.Rizwana. Ms.Rizwana was a practicing Advocate and accused is her son and Ms.Rizwana was said to be having illicit relationship with one Shiraj Pasha and same was not approved by the complainant and the accused; there was quarrel in the family over the said relationship between Ms.Rizwana, complainant 3 and the accused in that regard and accused is said to have warned his sister Ms. Rizwana to cut off her illicit relationship with Siraj Pasha and enraged by this deceased was threatening her mother and accused and had demanded them to vacate the house; Fifteen days prior to the incident Ms.Rizwana had given a threat to the complainant and the accused, that she would take away their life by showing a dagger and on 22.03.2010 at 8.00 a.m. when mother Mehaboob Bee was was proceeding to attend nature's call with the assistance of her son-accused, Ms.Rizwana again threatened the complainant and accused by showing dagger and demanded them to vacate the house as otherwise she would not let them alive and in the said quarrel she tried to hit accused with a dagger and same was avoided by him and at that point of time accused had caught hold of her hair and pulled her down and forcibly snatched the dagger from deceased and stabbed on her stomach and thigh and also on her back by using the 4 dagger which caused bleeding injuries to her; accused had taken the body of Ms.Rizwana outside the gate onto the road and informed his mother that he would surrender before the police along with dagger. It is the further case of the prosecution that, on hearing about the incident PW-14 - PSI went to the place of incident and recorded the statement of complainant.
3. Based on the said complaint the PSI of Raghavendra Nagar Town Police Station registered a case in Crime No.29/2010 under Section 302 of IPC at 9.45 a.m. against accused and submitted the FIR (Ex.P-
24) to the jurisdictional Court through the constable PW-27. Thereafter, PSI is said to have proceeded to the place of incident and carried out inquest mahazar in the presence of Jayunisa Begum - PW-2 and Mohammad Ibrahim - PW-3 and after drawing the inquest panchanama Ex.P-12 dead body of Ms. Rizwana was sent for post mortem examination. Dr. Irfan Ali PW-8 5 conducted the postmortem examination of deceased Ms.Rizwana as per Ex.P-20 and the I.O. PW-18 took up the investigation of the case.
4. The I.O. PW-18 is said to have recovered the dagger M.O.-1 used to commit the offence as per mahazar Ex.P-13 and prepared the spot panchanama as per Ex.P-15 after visiting the spot. The I.O. is said to have seized blood stained rubber band, blood stained mud M.O.-7 and plain mud M.O.-8 from the place of incident and is said to have interrogated the accused. Accused is said to have admitted that he had committed the murder of his sister and had voluntarily surrendered to the police. The voluntary statement of the accused is said to have been recorded by the I.O. PW-18 was marked as Ex.P-32 and on the basis of said voluntary statement I.O. is said to have visited the house of the accused and recovered the pyjama and banian M.O.-11 and M.O.-10 respectively and the place 6 of incident was photographed as per Ex.P-26 to P-31 and the photographs of the deceased was marked as Ex.P-2 to P-10. The I.O. PW-18 is said to have recorded the statement of witnesses and also has drawn the cloth seizure panchanama Ex.P-16 namely the clothes of deceased Ms.Rizwana and had handed over the further investigation to PW-15 on 23.03.2010. The said I.O. PW-15 is said to have requested the PWD authorities to prepare the sketch of the place of incident and had received the same on 24.06.2010 as per Ex.P-21 and had forwarded all the material objects for forensic examination to forensic science laboratory and received the laboratory report as per Ex.P-25.
5. The accused was arrested on 22.03.2010 and the charge sheet was submitted to the jurisdictional JMFC Court on 04.06.2010. Later it was committed to the Court of Sessions and registered as S.C.No.312/2010. On this basis, the prosecution 7 sought for conviction of the accused. Prosecution had examined 18 witnesses as PW-1 to PW-18 and got marked Exs.P-1 to P-32 and M.O.s 1 to 11. No witnesses were examined on behalf of defence.
6. Before the learned trial judge the complainant PW-1 Mahaboob Bee turned hostile and denied having made the statement Ex.P-11 before the police. She was treated as hostile and was cross- examined. PW-2 and PW-3 witnesses to inquest panchanama Ex.P-12 also turned hostile and they did not support the case of the prosecution. PW-4 who was witness to Ex.P-13 to P-16 namely dagger seizure panchanama, cloth seizure panchanama, spot panchanama and cloth seizure panchanama respectively also turned hostile. PW-5 brother-in-law of the accused who was examined by the prosecution to prove that PW-1 complainant had informed him about 8 the incident and accused committing the murder as stated in the statement Ex.P-17 had also turned hostile.
7. Likewise the witness PW-6 the elder sister of the accused, PW-7 brother of accused who were examined to prove that PW-1 had informed these witnesses about the incident and accused committing the murder as stated in their respective statements Ex.P-18 and P-19 had also turned hostile and had not supported the case of the prosecution.
8. PW-10 and PW-11 who were examined by the prosecution to prove that they had made the statements as per Ex.P-22 and P-23 of having went to the place of incident and had learnt about the incident from PW-1 also turned hostile and they had not supported the case of the prosecution.
9. The learned Judge recorded the judgment of conviction, inter alia, on the following findings: 9
(1) The incident had taken place in front of the gate of the house of the complainant and perhaps PW-1 has tried to save the accused (her son) from sentence.
(2) The information given by PW-1 about the incident having been recorded by PSI of Raghavendra Nagar Town Police Station i.e. PW-14 and there has been no delay in recording the statement and his evidence is believable.
(3) Presence of accused at the time of incident is nowhere denied by PW-14, PW-15 and PW-18 and PW-18 had specifically stated in his evidence that after the incident accused himself came to the police station along with dagger M.O.-1 and this evidence is supported by the fact that the accused was produced before the committal JMFC on 22.03.2010 at 8.15 p.m. and the said JMFC had received the FIR after the incident on 22.03.2010 at 11.00 a.m. and the cumulative effect of these facts would establish the presence of the accused and 10 the time of the incident and thereafter he had surrendered along with the dagger M.O.-1 before ASI Madan at Raghavendra Nagar Town Police Station.
(4) No explanation was forthcoming from the accused as to why deceased Ms.Rizwana though having sustained 7 to 8 stab injuries had not raised hue and cry if she had been purportedly stabbed by anyone else other than the accused. The clothes of the accused were lying by the side of the water tank and the place of the incident is little away from the water tank and as such it is highly improbable for PW-18 to observe blood stained cloths of accused and the time of inspection of the place of incident and as such the sessions Court accepted the voluntary statement of the accused.
(5) The evidence of PW-14, 15 and 18 establish the facts to connect the accused and PW-18 had recovered the blood stained clothes of the accused based on 11 the voluntary statement given by the accused.
(6) The blood stained cloths of the accused recovered on the basis of the voluntary statement of the accused as per Ex.P-25 discloses the said blood stains were that of the deceased.
(7) The evidence of Mallikarjun PW-14 and Dr. Irfan Ali PW-8 indicating the death of the deceased is on account of the injuries sustained by her on her vital parts of the body and no explanation is offered by the accused as to how the deceased sustained injuries.
10. On the reasons assigned hereinabove the learned Sessions Judge held that prosecution had proved that accused had committed the offence punishable under section 302 of the IPC and accordingly convicted him for the said offence and sentenced him to life imprisonment and imposed fine of 12 Rs.10,000/- by judgment dated 08.11.2011 and order of sentence dated 09.11.2011.
11. We have heard the arguments of Sri S.K. Venkat Reddy, learned counsel appearing on behalf of Sri Sanjay Kulkarni for appellant - accused and Sri Prakash Yeli, learned Addl. State Public Prosecutor for the State. Perused the records.
12. It is the contention of the learned counsel appearing for the appellant that learned Sessions Judge had failed to meticulously appreciate the available material on record inasmuch as trial Court ought to have noticed that independent eye witnesses to the incident had turned hostile; lapses in investigating process has been overlooked; the alleged incident had not occurred in the manner as laid by the prosecution and it had failed to prove the genesis of the crime; all the witnesses had turned hostile including the complainant PW-1 and except the official witnesses 13 none of the prosecution witnesses had supported the prosecution and even circumstantial evidence relied upon was not sufficient to convict and trial Judge on an inference drawn has convicted the accused; prosecution had failed to establish the motive by examining Mr.Siraj; prosecution had failed to prove a recovery of blood stained cloth at the instance of the accused ; Assistant Sub-Inspector of Police before whom the alleged dagger is produced by the accused was not examined and prosecution had failed to prove that the cloth seized at the instance of the accused were his clothes; having arrived at a conclusion at the initial stage that accused could not have intended to kill the deceased erred in convicting the accused for life. It is further contended that though prosecution had utterly failed to prove its case beyond all reasonable doubt, the Sessions Judge without properly analysing and evaluating the evidence has erroneously convicted the appellant on assumption and presumptions. Hence, it is contended that 14 impugned judgment of the trial Court is liable to be set aside and as such he prays for allowing the appeal.
13. Per contra Sri Prakash Yeli, the learned Additional State Public Prosecutor has contended that there is material to show that deceased had motive to murder his sister namely the deceased Ms.Rizwana since she had an illicit relationship with one Mr.Siraj and there was constant threat from the accused to the deceased to discontinue said relationship. Hence, he contends that learned Sessions Judge by considering the material on record has rightly convicted the appellant based on circumstantial evidence and accused has not made out any ground calling for interference at the hands of this Court. Hence, he prays for confirming the judgment of learned Sessions Judge which is under challenge by dismissing the appeal.
14. Sessions Court had framed following points for its consideration:
15
(1) Whether the prosecution proves that the accused has committed murder of deceased Rizwana by assaulting with dagger and thereby committed an office punishable under Section 302 of IPC?
(2) What order?
15. The learned Sessions Judge answered point No.1 in the affirmative and convicted him to life imprisonment with fine of Rs.10,000/- for the offence punishable under Section 302 of IPC.
16. As already noticed hereinabove the gist of the prosecution case is that the deceased Ms.Rizwana and illicit relationship with one Mr.Siraj and accused had warned her not to continue said illicit relationship with him and fifteen days prior to incident deceased had threatened her mother namely the complainant and also the accused to take away their life by showing a dagger if they came in her way. It was further case of prosecution that on 22.03.2010 at 8.00 a.m. 16 complainant namely the mother of the deceased was proceeding to attend nature call with the assistance of her son i.e. accused and at that time deceased threatened the complainant and the accused to vacate her house and had picked up a quarrel in that regard and also tried to assault the accused with the dagger and at that point of time he caught hold of her hair and pulled her down and had assaulted her causing bleeding injuries and thereafter surrendered before the police along with dagger.
17. Prosecution claimed that PW-14 had heard about the incident and he went to the scene of incident and recorded the statement of the complainant PW-1 and registered the complaint in Crime No.29/2010 under Section 302 of IPC and on conclusion of investigation charge sheet was filed. in this background we have examined the deposition of the witnesses. 17
18. Insofar as PW-1 complainant is concerned, she is none other than mother of the deceased and accused. Complaint came to be marked as Ex.P-1 and her further statement made before the police was marked as Ex.P11. She has denied the contents of both Ex.P1 and P-11. She has been cross-examined in extenso by the prosecution and nothing worthwhile has been elicited in her cross-examination. In fact she has denied the entire case of the prosecution.
19. PW-2 who is a witness to the inquest panchanama Ex.P-12 examined by the prosecution had turned hostile and she did not support the case of the prosecution. Nothing has been elicited in her cross- examination to discredit her testimony.
20. PW-3 who was witness to Ex.P12 - inquest panchanama, Ex.P13 dagger seizure panchanama, Ex.P14 cloth seizure panchanama Ex.P15 spot mahazar where under hair band of the deceased sample mud and 18 blood stained mud were drawn and Ex.p16 cloth on the dead body of Ms.Rizwana seizure panchanama did not support the case of the prosecution. His cross- examination would indicate that it is one of total denial
21. PW-4 witness to Ex.P-13 to P-16 has also not supported the case of the prosecution. His cross examination by the prosecution after treating him as hostile witness would also indicate that nothing worthwhile has been elicited and his evidence would indicate that it is total denial of the prosecution case.
22. PW-5 who came to be examined on behalf of the prosecution to prove about the act of murder committed by the accused as stated by him in Ex.P-17 (statement of PW-5) would disclose that he has completely disowned his statement Ex.P-5 and he has not supported the case of the prosecution. 19
23. PW-6 who is the elder sister of the deceased and she has denied having affixed her signature to the statement Ex.P-18. In other words she has not supported the case of the prosecution.
24. PW-7 who is the brother of accused and deceased and examined by the prosecution to inform that the complainant namely PW-1 and informed this witness about the incident and accused having murdered as stated in his statement Ex.P-19 did not support the prosecution and he has also disowned his statement in Ex.P9 and the signature found therein. Nothing worthwhile has been elicited in his cross- examination.
25. PW-8 is the doctor who conducted the postmortem on the dead body of Ms.Rizwana on 22.03.2010 between 3.00 p.m. to 4.30 p.m. and through him the P.M. report came to be marked as Ex.P-20. He has opined that death was due to shock and 20 hemorrhage as a result of multiple injuries sustained by the deceased on the vital organs like liver, kidney and intestine and death had occurred within 24 hours. He has also opined that such external injuries can be caused by use of M.O.-1 dagger.
26. PW-9 is the Junior Engineer in public works Department and he had inspected the scene of occurrence and had drawn the spot sketch which came to be marked as Ex.P-21.
27. PW-10 was examined to prove the contents of his statement marked as Ex.P-10 did not support the case of the prosecution and he has turned hostile.
28. PW-11 who was claimed to have made statement before the police as per Ex.P23 to the effect that he along with PW-10 had proceeded to the spot and had learnt about the incident from PW-1, had not supported the prosecution case and he had turned 21 hostile and denied his signature found on Ex.P23. No worthwhile admissions has been elicited in the cross examination by the prosecution.
29. PW-12 is the woman Police Constable who is said to have watched the dead body and who claims to have brought back the clothes worn by the deceased and which came to be marked as M.O.-1 M.O-2 M.O.4 and M.O.5.
30. PW-13 is the Head Constable who claim to have carried 11 articles as per the instructions of I.O. to forensic science laboratory and delivered the same at the laboratory.
31. PW-14 is the Police Sub-Inspector who worked at Raghavendra Nagar Town Police Station from 27.01.2009 to 27.07.2011. He has deposed that he received a message from ASI Madan Rao on 22.03.2010 about murder having taken place at Yakbal colony and 22 claims to have visited the scene of incident at 9.00 a.m. and recorded the statement of the complainant PW-1 as per Ex.P1 and returned to the police station and registered the case in Crime No.29/2010 under Section 302 IPC. He is said to have submitted the FIR Ex.P24 to Court through PW-17. He is also said to have held inquest panchanama as per Ex.P-12 and his signature was identified as Ex.P-12(c) and he is said to have deputed PW-12 and others to transport the dead body for postmortem. PW-5 is said to have made statement as per Ex.P17 before PW-14. He also claims to have served the photographer PW-16 to obtain the photographs Ex.P2 to P10 of the deceased and he is said to have handed over the investigation to Police Inspector -PW-18.
32. PW-15 is the Police Inspector at Ashok Nagar Police Station and who had worked at said Police Station from 25.08.2010 to 30.04.2011 and claims to 23 have investigated the case and 11 articles were sent to FSL and is said to have recorded the statements of PW- 10 and PW-11 as per Ex.P22 and P-23 respectively. He is also said to have submitted the charge sheet on 04.06.2010 and he has deposed that he received the FSL report Ex.P-25 on 27.10.2010 and submitted to the Court.
33. PW-16 photographer has deposed that he has taken the photographs of the dead body as per Ex.P2 to P10 and also the photographs of the blood stained wall as per Ex.P26 to P-31. He has not been cross-examined by the accused.
34. PW-17 is the police constable who is said to have carried the FIR Ex.P-24 on 22.03.2010 at 11.00 a.m. and delivered the same to the Court.
35. PW-18 who was the Police Inspector at Raghavendra Nagar Town Police Station and working 24 from July 2009 and he had taken up the investigation from the PSI on the orders of Deputy Superintendent of Police on 22.03.2010 and states that he had drawn the dagger seizure panchanama Ex.P-13 i.e. M.O.-1 produced by the ASI. He also deposes that he had drawn the spot panchanama as per Ex.P-15 and recorded the voluntary statement of the accused Ex.P- 32 and also the further statement of the complainant PW-1 as per Ex.P-11. He also deposes that he had recorded the statements of PW6 and PW7 as per Ex.P- 18 and 19. Clothes found on the dead body of the deceased produced by PC 1522 has been seized as per cloth seizure panchanama Ex.P16. He is said to have handed over further investigation of the case to P.I. Brahmapur Police Station - PW-15.
36. As could be seen from the prosecution case the motive alleged against the accused for murdering his sister Ms.Rizwana is on the ground that she was 25 having illicit relationship with one Mr.Siraj Pasha and despite warnings issued by him and his mother complainant CW-1 deceased had not stopped her illicit relationship with Mr. Siraj Pasha. In this background it has to be examined as to whether the prosecution has proved the motive or not. It requires to be noticed at the outset that prosecution has not examined Siraj Pasha with whom deceased was having illicit relationship and learned Sessions Judge has solely relied upon statement of PW-1 marked as Ex.P-1 whereunder, she is said to have stated that she had been threatened by deceased Rizwana whenever she advised her to cut off her relationship with Siraj Pasha and in this regard there was dispute fifteen days prior to the death of Ms. Rizwana. For accepting the case of prosecution, learned Sessions Judge has proceeded to connect the incident of murder to the incident which purportedly took place fifteen days earlier. Indisputedly complainant (PW-1) had turned hostile. Though she has been cross- 26 examined, nothing has been elicited to establish motive. However, the evidence of the I.O. PW- 18 and 15 which came to be relied upon by the prosecution and accepted by Sessions Judge would disclose that motive on the part of accused to commit murder of Ms. Rizwana is her alleged illicit relationship which is based only on the statement of the complainant as per Ex.P-1 and also on the basis of the voluntary statement of accused which came to be marked as Ex.P-32. When complainant has turned hostile and she has disowned the contents of the complaint Ex.P-1 prosecution had to establish the link for motive. In other words, it had to establish that there was a scuffle or dispute fifteen days prior to date of incident. This was not done by the prosecution. Though complainant PW-1 has been cross-examined by the prosecution, nothing worthwhile has been extracted in the cross-examination to establish such motive. None of the independent witnesses have been examined on behalf of the prosecution to drive home the motive on 27 the part of the accused to take away the life of his sister Ms. Rizwana. In the absence of any cogent evidence, we are of the considered view that the prosecution has failed to prove the motive on the part of the accused to take away the life of his sister Ms. Rizwana.
37. The prosecution has relied upon three circumstances to prove the offence against the accused, namely (i) presence of the accused at the police station;
(ii) accused failing to explain the injuries sustained by the deceased Ms. Rizwana; and (iii) the deceased and the accused were residing in the same premises at the time of the incident. When prosecution bases its case on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, are to be cogently and firmly established. The Hon'ble Apex Court in the case of Rukia Begum vs. State of Karnataka reported in (2011) 4 SCC 779 has held to the following effect:
28
"16. No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner.
17. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and- fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."29
38. It is not in dispute that there are no eye- witness to the incident. The spot panchanama Ex.P-15 when perused would disclose that incident took place at 8.00 a.m. near the gate in an open space and the said gate was accessible to enter the house of the complainant and it is visible to the road where public have access. As such it was not incumbent upon the accused to explain the injuries sustained by Ms. Rizwana, particularly when prosecution has not contended that death of Ms.Rizwana had taken place inside the house.
39. It is the case of the prosecution that accused had voluntarily surrendered before the police on 22.03.2010 with M.O.-1 dagger and he had produced the said dagger to ASI Madan or Madan Rao or Madan Gaikwad. However, surprisingly said ASI Madan or Madan Rao/Gaikwad was not cited as a witness by the prosecution. The I.O. PW-18 in his deposition dated 30 28.10.2011 had admitted that accused had handed over the dagger M.O.-1 to the PSI Madan and after taking over further investigation on the directions of Deputy Superintendent of Police he seized the same under seizure panchanama Ex.P-13 at Raghavendra Nagar Town Police Station. The witnesses to said seizure panchanma PW-3 and PW-4 have turned hostile and they have not supported the case of the prosecution. No worthwhile admissions has been elicited in the cross- examination of PW-3 and PW-4. The I.O. PW18 who claimed to have affixed his signature to the dagger seizure panchanama Ex.P-13 as per Ex.P-13(c) has also admitted that ASI is empowered not only to receive the complaint in respect of cognizable offences but he is also empowered to draw panchanama whenever any material object used for commission of an offence is produced before him. Prosecution has not only failed to examine ASI Madan but has also not explained as to why M.O.1 dagger was not seized by said ASI-Madan at 31 Police Station when purportedly accused surrendered. PW-18 also admits in his cross-examination that when he visited Raghavendra Nagar Town Police Station on 22.03.2010 the PSI was present at the station and he did not make available the panchanama, the statement of the accused or the details of the Station House Dairy (for short SHD) to him. In view of the said inconsistency or lacuna in the investigation we are of the considered view that learned Sessions Judge was not justified in drawing an inference that accused might have committed the murder of Ms.Rizwana and it is contrary to the evidence on record. The prosecution must prove its case beyond reasonable doubt and presumption of commission of offence cannot be drawn by applying Section 114 of the Evidence Act.
40. The evidence of PW-14 PSI would disclose that he received telephonic information from ASI - Madan Rao about murder having occurred at Yakbal 32 colony and as such he is said to have proceeded to the scene of incident and recorded the statement/complaint of PW-1. In fact PW-14 has admitted that when he went to the scene of incident ASI Madan was present at the spot. He also admits that when he made inspection of the scene of incident he did not find any material object purported to have been used for committing the crime at scene of incident. He does not state that accused surrendered before him. He also does not state that accused had handed over the dagger M.O.-1 to him at the police station. On the other hand PW-18 states that PSI of Raghavendra Nagar Town Police Station i.e. PW- 14 had received the dagger M.O.-1 from the accused which was seized as per seizure panchanama Ex.P-13 in the presence of PW-3 and PW-4. However, these two witnesses namely PW-3 and PW-4 have not supported the prosecution as already noticed hereinabove. 33
41. A perusal of dagger seizure panchanama Ex.P-13 would disclose that it has been drawn on 22.03.2010 between 1.00 p.m. to 2.00 p.m. at Raghavendra Nagar Town Police Station and it would also disclose that PW-3 and PW-4 had been informed by the police officials about accused having committed the murder of his sister Ms.Rizwana. Contents of panchanama Ex.P-13 would further disclose that accused had surrendered at the Raghavendra Nagar Town Police Station along with the dagger M.O.-1 before the ASI-Madan Gaikwad. It would also disclose that the said ASI Madan Gaikwad had taken out M.O.-1 dagger in the presence of PW-3 and PW-4 from a cupboard located in the room where the station house writer would sit at the police station. Yet, ASI Madan Gaikwad was not examined by the prosecution. On this short ground itself it can be concluded that prosecution had failed to prove seizure of M.O.-1. According to prosecution PW-3 and PW-4 are said to have witnessed 34 dagger being produced by ASI Madan before the Investigating Officer PW-18 after taking out from the cup-board located in the room of the writer of the Raghavendra Nagar Town Police Station as per seizure panchanama Ex.P-13. However, PW-18 has not stated so in his evidence. On account of these inconsistencies in the prosecution case it cannot be held that the prosecution has proved the guilt of the accused beyond reasonable doubt. Panchanama Ex.P-13 would also disclose that M.O.-1 was blood stained and accused had bandage to his right hand which was blood stained and it was removed in the presence of PW-3 and PW-4 and seized under same panchanama Ex.P-13. Forensic Science Laboratory report Ex.P-25 though indicates that blood found on M.O.-1 (dagger) and M.O.-2 (bandage cloth found on the hand of accused) seized under Ex.P- 13 was 'B' group, it has not been brought on record that blood group of deceased and accused is also 'B' group so as to connect the link. PW-18 has also deposed that 35 when he came to the Raghavendra Nagar Town Police Station in the morning on 22.03.2010 ASI present at the station had produced the dagger M.O.-1 which came to be seized under Ex.P-13 panchanama in the presence of the witnesses PW-3 and PW-4. In other words, PW-18 admits that the PSI PW-14 was present at the police station when seizure panchanama Ex.P-13 was drawn at 8.00 a.m. In another breath PW-18 has stated that Raghavendra Nagar PSI did not meet him at the Police Station. He further states that PSI of Raghavendra Nagar Town Police Station was at the scene of incident when he (PW-18) went there. The prosecution has not examined said ASI before whom the accused is said to have surrendered and handed over M.O.-1 dagger. The learned trial judge has relied upon the evidence of PW-18 to arrive at a conclusion that after the incident accused himself came to the police station along with the dagger M.O.-1. However, his deposition recorded on 28.10.2011 would disclose that 36 ASI produced the dagger M.O.-1 received from the accused and as such he seized of M.O.-1 under the panchanama Ex.P13 is not proved. In that view of the matter finding recorded by the learned judge with regard to seizure of M.O.-1 is contrary to evidence available on record. The alleged weapon used to commit the crime is not seized at the instance of the accused. On the other hand PW-18 I.O. states that he seized the said weapon under Ex.P-13 on 22.03.2010 in the presence of PW-3 and PW-4 between 1.00 pm. to 2.00 pm who have not supported the case of the prosecution. There is no explanation forthcoming from either PW-18 or PW-14 as to why the alleged weapon M.O.-1 was not seized between 9.00 a.m. to 1.00 p.m. since the prosecution claims that the accused had surrendered at Raghavendra Nagar Town Police Station at 9.00 a.m. itself along with M.O.-1. On account of non-explanation of this fact by the prosecution the alleged seizure of the M.O.-1 dagger cannot be held as proved. Thus, 37 prosecution has failed to prove that accused had surrendered at Raghavendra Nagar Town Police Station on 22.03.2010.
42. Yet another intriguing factor which cannot go unnoticed is the fact that prosecution had failed to prove that ASI of Raghavendra Nagar Town Police Station had reduced into writing in the station house dairy about the fact what was purportedly stated by the accused on 22.03.2010. It has also failed to prove that accused had entered the Raghavendra Nagar Town Police Station on 22.03.2010 along with dagger M.O.-1 since said fact had not been entered in the station house diary. PSI PW-14 and ASI - Madan had not arrested the accused on 22.03.2010 and like wise PW- 18 also did not arrest the accused and he is said to have recorded the voluntary statement of accused as per Ex.P-32. M.O.-1 dagger allegedly used to commit the offence has not been produced by the accused since the 38 prosecution has failed to prove its seizure and the witnesses PW-3 and PW-4 had not supported the case of the prosecution it cannot be held that M.O.-1 was seized at the instance of accused. It is rather surprising as to why the dagger M.O.1 was not seized immediately when accused surrendered before the Raghavnedra Nagar Town Police Station at 8.30 a.m on 22.03.2010.
43. The prosecution had claimed that blood stains found on the bandage cloth M.O.-2 was that of the accused and yet did not obtain the blood sample of the accused for getting it tested to ascertain his blood group. Though FSL report Ex.P-25 was relied upon to contend that the blood group found on items M.O.-2 was 'B' blood group, there is no evidence to indicate the blood group of accused is also 'B' group.
44. Prosecution has utterly failed to prove the discovery and recovery of alleged clothes of accused said to have been worn by him at the time of incident and 39 even according to the deposition of PW-14 and PW-18 they had visited the scene of incident on the date of alleged incident and the spot where clothes of the accused were seized under panchanama Ex.P-14 was easily accessible to any person and any normal person who visits the place of incident would have seen it. PW- 14 ASI who states that he visited the scene of incident on 22.03.2010 at 9.30 a.m. admits in his cross- examination dated 12.08.2011 that he was at the scene of incident for about half an hour and also admits that he did not find any incriminating material used for committing the crime or any other material was found at the scene of incident. This fact having not been noticed by PW-14 and the subsequent seizure of clothes of accused under panchanama Ex.P-14 as stated by PW-15 would lead to the irresistible conclusion that said discovery and recovery is surrounded with suspicion and same cannot be believed. As per the cloth seizure panchanama Ex.P-14 drawn in the 40 presence of PW-3, PW-4 and PW-18 would disclose that accused had purportedly disclosed about alleged clothes worn by him at the time of the incident having been kept near washing store of his house and same is said to have been seized under panchanama Ex.P-14. The clothes of accused according to I.O. PW-18 was recovered on the basis of accused statement Ex.P-32 and recovered from the place where the accused was said to be residing and which is also the place where deceased, complainant alongwith accused were said to be residing, which is also the scene of incident. The inquest panchanama Ex.P-12 said to have been carried out on 22.03.2010 between 11.00 a.m. to 12.30 p.m. in the presence of PW-14 does not indicate about noting of the details like stone used for washing the clothes or any blood stained clothes lying there while explaining the details of residential house where deceased was residing with her mother - complainant and the accused. The spot panchanama Ex.P-15 when perused 41 would also indicate that it relates to the scene of incident which according to the prosecution having occurred in front of the above said house. PW-18 in his cross-examination dated 28.10.2011 admits having visited the house where the deceased, accused and complainant was staying on 22.03.2010 at 8.00 a.m. He also admits that there is a water tank and any clothes kept at the place where it was found can be seen if a person stands in front of the said water tank. If it were to be so, it has to be held that prosecution had failed to explain as to why the clothes said to have been worn by the accused at the time of commission of offence which was purportedly seized on 22.03.2010 lying next to the water tank was not indicated or specified in the spot panchanama Ex.P-15. With regard to Section 27 of the Evidence Act, what is important is discovery of the material object at the disclosure of the accused. However, such disclosure alone would not automatically lead to the conclusion that offence is 42 committed by the accused. In fact, on such disclosure, burden lies on the prosecution to establish a close link between discovery of the material objection and its use in commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. The scope and ambit of Section 27 has been authoritatively stated by Privy Council in Pulukuri Kotayya vs. King Emperor reported in AIR 1947 Privy Council 67 and same is re-produced herein below:
"...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that' I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads 43 to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
45. On account of prosecution having failed to establish the discovery and recovery of alleged clothes on accused it cannot be held that prosecution has proved the guilt of the accused beyond reasonable doubt.
46. Since prosecution has relied upon circumstantial evidence to prove the guilt of the accused it was incumbent upon the prosecution to prove all those circumstances that would lead to the inference that the accused alone had committed the alleged crime and none else and we are of the considered view that prosecution has failed in this regard. 44
47. The statement of PW-18 would disclose that accused was not arrested by him on 22.03.2010. The PSI PW-14 who claims to have got message from ASI Madan Rao/Gaikwad states that he recorded the statement of PW-1 as per Ex.P1 till 9.30 a.m. He also states that he registered the case Crime No.29/2010 under Section 302 IPC after returning from the scene of incident. He also states that he was at scene of incident from 9.30 a.m. to 10.00 a.m. However, PW-18 states when he went to Police Station on 22.03.2010 at 8.00 a.m. Crime No.29/2010 had already been registered against accused. Neither PW-14 nor PW-18 state that they had arrested the accused. This inconsistency has not been explained by the prosecution.
48. Police manual would indicate the instructions issued to the officers for packing and transmitting the articles namely the material objects which are to be forwarded to the experts. Paragraph 45 1454 and 1455 of the police manual would indicate as to the packing material to be used and mode of the packing of the material objects. It reads as under:
PACKING MATERIAL "1454. Material objects, by virtue of their varied nature require different types of packing materials. In the selection of such material the following points should be kept in view;
a. the packing material should be of sufficient strength to withstand rough handling and wear and tear during transmission by rail or road, b. it should completely cover the material object, c. it should afford ample protection to the material object against breakage and d. it should permit of secure nailing or stitching to form a compact parcel and of sealing.
MODE OF PACKING 1455. (1) While marking the items, the following precautions are to be taken.46
i. Each article should be separately packed and labelled serially in Form No.151.
ii. Label containing signature of the IO should be marked in such a way that marking will not interfere or destroy evidence material.
iii. More than one item should never be packed together. The clothing of the deceased may however be sent as one packing, but each item containing stains or other clues should be packed separately. However all such packages may be sent together in one box or bundle. Similar action should be taken for the clothing of the accused. Articles belonging to the accused and deceased should never be packed together, as by this, stains may be transferred from one article to another thus destroying the value of semen or other physiological substances, if any on the clothing of the accused or suspected person. It should be borne in mind that stains on clothing should be dried properly in the shade before packing.47
iv. Articles which are themselves material objects, like gunnies, mats and pieces of cloth should never be used as wrapper for other articles in the case.
v. Clothes requiring examination for seminal stains should be sent as a whole, care being taken to cover the suspected dried stains with cotton wool to prevent them from being damaged during transit.
vi. If a number of bottles are to be sent, they should be so packed that they do not break in transit.
vii. More than one item should never be packed together. However, if there are a number of packets belonging to one case, such packets may be put and packed in a box or outer covering unless there is disparity in the size of the various articles. Articles belonging to different cases should not be sent together in one package. The container of the items should also be marked as described above.48
viii. Articles concerned in one and the same bloodstain case should, as far as possible, be forwarded to the chemical examiner at the same time, so that specimen stains from them may be forwarded in one parcel.
ix. Objects for tool marks examination should be protected from sources which can induce scratches and abrasions. It is very important to note that the tool which is to be examined by the laboratory should not be fitted into a tool mark. This condition will equally hold good for items connected with gun shot cases. Similarly, a knife which is said to have been involved in a criminal case should never be fitted into a wound which is suspected to have been made by the knife.
x. The liquid samples and/or the control samples should never be placed in the same packet as the questioned samples are likely to run into the risk of breakage resulting in contamination of the sample either during transit or otherwise.
49
xi. Each container/packet should be sealed
with seals having distinguishing
mark/s. Impression found on keys,
rings, coins, police-buttons, weights and other common objects must not be used for the purpose of sealing. Specimen impression of the seal used for sealing the items should immediately be sent with attestation.
xii. Each container/item should be labelled in Form No.151 with the following information:
(a) Crime number, Police Station & section of law
(b) Serial number of the article
(c) Description of the article
(d) Signature of the investigating officer with date (2) Investigating Officer shall use hand gloves while collecting the clue materials from the scene of crime. This is in order to prevent the contamination of the clue materials.
(3) Labels should be as concise as possible and the words that imply conclusions such as 'victim' 'bullet hole' 'accused' 'deceased' 'murder' "weapon" should be avoided.50
(i) Articles to be sent to the expert should be kept in sight or under lock and key till they are packed and dispatched.
They should be sent through a Police officer, ordinarily a constable.
(ii) While forwarding the exhibits for examination a letter of advice in triplicate in Form No.153 will have to be sent describing the following.
1. Police Station, Crime number and section of law
2. Facts of the cases in brief
3. Description of each of the articles and mode of packing
4. Specific nature of opinion required on each of the exhibits.
5. Whether any of the exhibits is to the returned or not (4) The above letter of advice should be forwarded by an officer of the rank of Sub- Divisional officer and above. The forwarding officer should make arrangements by authorising an officer in his behalf to receive the articles examined by the Laboratory within 10 days of time from the date of receipt of certificate of opinion, failing which 51 the FSL would not hold the responsibility for the unclaimed articles.
(5) It should be noted that the articles and substances forwarded by Police or Magistrates to the Chemical Examiner for medico legal purposes cannot be accepted unless the Police officer who carries such articles or substance appears in his uniform and if he is a Constable or Head constable, with his numerals also. If such officer should be one attached to the COD it would suffice if he produces his sannad or identity card. The police officer carrying the articles for the chemical examination should be cited as a witness in the charge sheet and examined as a prosecution witness.
It is worthwhile to know the functions of different sections in Forensic Science Laboratory which conduct analysis of the material objects forwarded by the Investigating agency."
49. According to the prosecution M.O.-1 to M.O.- 11 which came to be seized under Exs.P-13, P-15 and P-16 is said to have been forwarded to the Forensic 52 Science Laboratory through PW-13. The deposition of PW-13 does not suggest as to the date on which the said M.O.-1 to M.O.-11 was carried by him and delivered to the Forensic Science Laboratory at Gulbarga. The witnesses to the said M.O. seizure panchanamas namely PW-3 and Pw-4 have not supported the prosecution case. Prosecution has failed to explain as to why M.O1 to M.O.11 were kept in police station from 22.03.2010 to 24.04.2010 and no explanation is offered by the prosecution in this regard. Prosecution has failed to prove that M.O.-1 to M.O.-11 were packed and sealed. It is not established by the prosecution that seal found on the cover of seized M.O's were intact when forwarded to FSL and the mode and method prescribed for packing and transmission of articles to expert as indicated in the Police Manual has not been followed by the investigating agency. Mere production of the weapon alleged to have been used for commissioner of the offence would not in any way help the prosecution, 53 particularly in the background of panch witnesses having disowned the seizure having taken place in their presence.
50. The prosecution case having rested on circumstantial evidence and the circumstances of conviction of the accused based on (1) deceased had met with an unnatural death; (2) death of deceased had occurred in the house of deceased and (3) accused had failed to offer any explanation in respect of the injuries sustained by the deceased are all the circumstances which have not lead us to believe that facts obtained in the case would lead to such conclusion inasmuch as chain of events do not pinpoint the guilt to the accused and the very presence of the accused at the scene of occurrence itself was not proved by the prosecution. Accused and complainant were residing with the deceased and as per the inquest panchanama Ex.P-12 and dead body was lying in the open space and 54 prosecution had failed to prove by tendering positive evidence to show any circumstance that accused was present at the residence of the deceased at the time of occurrence.
51. In the absence of motive being established by the prosecution and the prosecution witnesses having not supported the case of prosecution we are of the considered view that evidence tendered by prosecution was wholly insufficient for sustaining the charge of murder.
52. Further circumstantial evidence relied upon by the prosecution that accused alone had committed the crime since he had not explained the injuries found on the body of the deceased, is without any basis, since it is not for the accused to prove his defence and accused is not required to offer any explanation in that regard. It is for the prosecution to prove the charge against the accused beyond all reasonable doubts and 55 the authoritative pronouncement of the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 would indicate the cardinal principles regarding the appreciation of circumstantial evidence having been postulated, whenever the case is based on circumstantial evidence following features are required to be complied with as indicated by Hon'ble Apex Court and the salient features are:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' andnot 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should 56 be proved' as was held by this Courtin Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
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.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say.
they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent 57 with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
53. The conclusion arrived at by the trial judge to hold that accused was present at the scene of the incident is based on surmises and conjectures. None of the independent witnesses have stated the presence of the accused at the scene of the incident.
54. Therefore, on re-appreciation of entire evidence adduced by the prosecution, we are of the considered view that finding of the trial Court that prosecution had proved the guilt of the accused of having committed the offence punishable under section 302 of IPC and convicting the accused for said offence is an erroneous finding which is contrary to material on record and same cannot be sustained.
58
55. The learned trial judge has arrived at a conclusion at paragraph 9 of the judgment that though at the initial stage accused could not have any intention to kill Ms.Rizwana, but the acts of the accused in causing as many as eight stab injuries to Ms.Rizwana clearly indicates his intention of committing murder of Ms.Rizwana. The learned Judge erred in not appreciating that prosecution had failed to establish that chain of events purported to have lead to the murder of Ms.Rizwana was attributable to accused only or in other words no other view is possible to be taken. The circumstances which the prosecution has relied upon to prove the guilt of the accused had not been established and glaring lacuna in the evidence had been ignored by the learned Sessions Judge as discussed by us hereinabove.
Hence, we proceed to pass the following: 59
ORDER
(i) Appeal is hereby allowed.
(ii) Judgment of conviction and order of sentence dated 08.11.2011 passed in S.C.No.2012/2010 for the offence punishable under Section 302 of IPC is hereby set aside and appellant - accused is acquitted of the charges leveled against him.
(iii) Appellant - accused is set at liberty forthwith, if he is not required in any other case.
(iv) The bail bonds if executed by the appellant - accused, shall stand cancelled or discharged.
(v) The fine amount if any paid by the
appellant - accused is ordered to be
refunded to appellant-accused.
Sd/-
JUDGE
Sd/-
JUDGE
swk