Karnataka High Court
Husensab Fakirsab Pinjar @ Nadaf vs State Of Karnataka on 15 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100281 OF 2020
BETWEEN:
HUSENSAB FAKIRSAB PINJAR @ NADAF
AGE: 23 YEARS,
R/O: SANKADAL, TAL: NARGUND,
DIST: GADAG.
...APPELLANT
(BY SMT. ANURADHA DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH RAMDURG POLICE STATION.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN S.C.NO.311/2015 ON
THE FILE OF VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE
BELAGAVI AND TO SET ASIDE CONVICTION AND ORDER OF
SENTENCE DATED 19.06.2019 APPELLANT/ACCUSED FOR THE
OFFENCES U/S 376, 302, 201 AND 404 R/W 34 OF IPC PASSED BY
VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE BELAGAVI IN
SC NO.311/2015 AND AN ORDER OF ACQUITTAL IN FAVOR OF THE
APPELLANT THEREBY ALLOWING THE PRESENT APPEAL.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 07.12.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of conviction and order of sentence passed against the appellant for the offence punishable under Sections 376, 302, 201 and 404 read with 34 of Indian Penal Code.
2. Factual matrix of the case of the prosecution is as under:
2.1 The accused on 17.08.2015 at about 21-00 hours, took the deceased/victim on his motorcycle bearing Reg.No.KA-26/S-8866 from Chikkanaragund via Mudnkoppa, Mullur and Ramadurga to the vacant land of Shyla Ghatad situated at Batakurgi village, Ramadurg taluk and committed forcible sexual intercourse on her in the night and on 18.08.2015 at 5-00 hours, intentionally committed murder of the victim by tying her neck with veil tightly and removed cloths and gold ornaments from the dead body of the victim 3 knowing that the said gold ornaments were in the possession of the victim at the time of her death and dishonestly misappropriated the same for his own use and later with an intention to destroy the evidence, thrown the dead body under the bund of the land and thereby committed the offence punishable under Sections 376, 302, 201 and 404 read with 34 of Indian Penal Code.
2.2 The learned Senior Civil Judge took cognizance against the accused and committed the matter to the Sessions Court invoking Section 207 of Code of Criminal Procedure since the offences are exclusively triable by the Sessions Judge and the Sessions Judge on receipt of records, registered the case in S.C.No.311/2015 and framed charges since the accused has denied the charge leveled against him.
2.3 The prosecution in order to prove its case, examined PW.1 to PW.21 and got marked documents at Ex.P.1 to Ex.P.50 and MO.1 to MO.25. On completion of evidence of the prosecution side, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure 4 giving an opportunity to explain the incriminatory circumstances against the appellant - accused. The accused has not led any defence evidence.
2.4 The trial Court having considered the material available on record, answered all the points which have been framed with regard to offences under Sections 376, 302, 201 and 404 read with 34 of Indian Penal Code. The accused is sentenced to undergo life imprisonment and to pay fine of Rs.2,00,000/- for the offence punishable under Section 302 of Indian Penal Code. In default to pay fine, he is directed to undergo rigorous imprisonment for a period of two years; The accused is also sentenced to rigorous imprisonment for ten years and also to pay fine of Rs.50,000/- for the offence punishable under Section 376 of Indian Penal Code. In default, to undergo rigorous imprisonment for a period of two years;
The accused is also sentenced to undergo simple imprisonment for three years and also to pay fine of Rs.25,000/- for the offence punishable under Section 201 of Indian Penal Code. In default of payment of fine amount, the 5 accused is directed to undergo simple imprisonment for a period of one year; The accused is also sentenced to undergo simple imprisonment for two years and to pay fine of Rs.25,000/- for the offence punishable under Section 404 of Indian Penal Code. In default of payment of fine, the accused is directed to undergo simple imprisonment for a period of one year; The amount received as fine from the accused is ordered to be paid to the mother of the victim as compensation and also copy of the judgment is ordered to be given to DLS for determining the victim compensation under Section 357(A) of Cr.P.C. It is also ordered that imprisonment undergone by the accused shall be given set off and all sentences shall run concurrently.
3. Being aggrieved by the judgment of conviction and order of sentence, the present appeal is filed by the accused.
4. The main contention of the accused in this appeal is that the trial Court has mechanically passed the impugned judgment without ascertaining the facts and also without examining all the relevant aspects i.e. practical position of law. 6 The trial Court has erred in not examining the owner of the land where the body has been found. The owner of the land as per the complaint is one Smt.Shyla Ghatad who is nowhere in the picture and the prosecution has failed to produce her as prosecution witness. The trial Court has erred in relying upon the prosecution's case that the recovery proceedings were conducted at three places. The prosecution has submitted cloths, ornaments and simcards which were recovered at three different places but the owners of the land and their ROR have not been brought before this Court. The trial Court has erred in not noticing that PW.9, PW.10 and PW.14 have not supported the case of the prosecution. The trial Court has also erred to note that PW.11 the husband of the deceased has not supported the case of the prosecution. The trial Court has erred in not analyzing the statements of the doctor who has deposed that the victim did not have any injuries. The trial Court has failed to notice that the deceased was in relationship with the accused and the evidence on record disclose the same. The trial Court has also erred to note that the deceased has gone out of the village on her accord. The evidence on 7 record as well as the case papers disclose that the accused was neither present nor seen by any of the prosecution witnesses committing the offence and there are no direct eyewitnesses.
5. Counsel for the appellant - accused also vehemently contends that when the case rests upon circumstantial evidence, there must be a chain link in respect of each of the events and in the absence of such materials, the trial Court ought not to have convicted and sentenced the accused. The counsel would vehemently contend that the deceased is also married and both of them are from different villages. No injuries are found either on her private part and also other injuries evidencing case of homicidal and materials are contradictory to each other. The articles are away from 6 K.M. from the place where the alleged offence has been committed.
6. The counsel would also submit that the accused was arrested on 28.08.2015 and radiological report is dated 31.08.2015, the medical examination is conducted on 8 09.09.2015 and in the absence of any establishment of link and motive, the trial Court ought not to have convicted the accused. The trial Court has committed an error in convicting the accused and sentencing him for the above offences in the absence of connecting material and none of the circumstances support the case of the prosecution.
7. Per contra, learned Additional SPP appearing for the State would submit that it is not in dispute that it is a case of homicidal and cause of death is also on account of strangulation. The counsel would submit that PW.4 and PW.8 have categorically deposed that both of them were together and they have also purchased water bottle from the shop of PW.8. The other witness PW.12 also noticed the accused went with a bag in the early morning. The counsel would submit that evidence of PW.1 to PW.3 is very clear with regard to the illicit relationship between the accused and the deceased and the same has been spoken by the prosecution witnesses.
8. Counsel also submits that PW.6 is the recovery witness and MO's are recovered at the instance of the accused 9 and the same has been proved by the prosecution coupled with the evidence of PW.21 investigating officer who seized the same in the presence of panch witness PW.6. Counsel would also submit that Ex.P.7 is the mahazar in order to prove the recovery at the instance of the accused. The counsel would also submit that the recovery of the articles is at the instance of the accused and the same was within the knowledge of the accused and he had showed the place where he kept the same after committing the murder and the same is not a public place. The counsel also submits that MO.5 to MO.8 and MO.9 to MO.12 are seized at the instance of accused at different places which have been shown by the accused himself. No doubt, common mahazar was drawn for seizure of the same. Ex.P.43 is the voluntary statement, wherein the accused had made a statement that if he is taken along with them he would point out the places where he kept the MO's. While recovery, CD is also made in terms of Ex.P.13. Witnesses PW.6 and PW.8 are the last seen witnesses who have seen both the accused and deceased and there is no effective cross-examination to disbelieve their evidence. 10 Counsel would also submit that except nicker in the body, no other cloths were there and cloths were also seized at the instance of the accused.
9. He would also submit that the trial Court having taken note of all these materials, minutely examined the same and given a definite finding that the accused had only committed the murder after having forcible sexual intercourse with her.
10. In reply to the arguments, the counsel for the appellant would contend that the statements are only vindictive statements and the illicit relationship between the deceased and accused has not been proved and the prosecution has failed to prove the same.
11. Having heard the learned counsel for the appellant and also the leaned Additional SPP appearing for the State and on perusal of the material, the points that would arise for our consideration are:
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i. Whether the trial Court has committed an error in convicting the accused for the offence invoked against him i.e. Sections 376, 302, 201 and 404 of Indian Penal Code?
ii. What order?
12. Having perused the charges leveled against the accused, it is the case of the prosecution that the accused took the victim on 17.08.2015 at 21-00 hours on his motorcycle bearing Reg.No.KA-26/S-8866 from Chikkanaragund via Mudnkoppa, Mullur and Ramadurga to the land of one Shyla Ghatad situated at Batakurgi village, Ramdurg taluk and committed forcible sexual intercourse on her in the night and on 18.08.2015 at 5-00 hours in the early morning intentionally committed the murder of the victim by tying her neck with veil tightly and removed the cloths and gold ornaments from the dead body of the victim with an intention to dishonestly misappropriate the same for his own use and with an intention to destroy the evidence, thrown the dead body under the bund.
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13. The prosecution mainly relies upon the evidence of PW.1 to PW.21 and documentary evidence at Ex.P.1 to Ex.P.50 and MO.1 to MO.25. Before assessing the evidence with regard to connecting the accused whether he had alone committed the murder of the victim, we intend to examine the medical evidence. In order to comes to a conclusion that whether it is a case of homicidal or not, this Court has to mainly rely upon the evidence of PW.13, doctor who conducted the post-mortem examination.
14. On perusal of evidence of PW.13 who is a assistant professor, BIMS, Belagavi, in his evidence he says that on 19.08.2015 at about 9.00 a.m. he has received a requisition to conduct autopsy and having received the requisition in terms of Ex.P.20 he had conducted the autopsy on the body of the victim. MO.1 to MO.3 are the broken bangles green coloured. MO.16 and MO.15 were found on the body of the deceased and the same have been collected and given to the police. On external examination of the body of the deceased found tongue is protruding and bitten between the teethes. 13 Post-mortem blebs is seen all over the body. Post-mortem pleeing of skin is seen over the back of chest. Buttocks and behind 'Radha Krishna' is seen over front of right forearm. Scalp hairs are brownish in colour, 50 CMs in lengths, pleeted with a red band pubic hairs 0.5 CM in length black in colour. In his evidence he says that, on examination found the external injuries of ligature mark transverse is seen in front and sides of neck measuring 22 cm x 0.5 cms below the thyroid cartilage and is situated 10 cm below the chin, 7 cm below the right ear lobule 10 cm below the left ear bobule. Skin of the ligature mark is darkened and hardened. Thyroid bone and thyroid cartilage are intact. Both ear lobes are lacerated, torn in the middle. On internal examination of the body, on reflection blood extravasation is seen on left tempero parietal area seen. Hemorrhage is seen in left parietal area. Stomach is empty. Blood and viscara are preserved and sent to FSL for chemical analysis. All the injuries are antemortem and fresh in nature. External vaginal cervical are taken and sent to FSL for analysis. Vaginal and cervical smears are sent to pathology department for analysis. Sternum is preserved and sent for 14 DNA analysis. The doctor in his evidence opined that, the time since death 1-3 days i.e. 24 hours to 72 hours. After receipt of the FSL report, he has received requisition requesting him to give final opinion regarding cause of death of the victim. He has given final report as per Ex.P.24. The cause of death is due to asphyxia as a result of strangulation. He has also received requisition from the investigating officer as to whether MO.8 could cause the ligature mark described in post- mortem report and he opined that it could be caused by the type of ligature material examined when twisted completely. He has given report in terms of Ex.P.26.
15. This witness was subjected to cross-examination. In the cross-examination, it is elicited that there would be corresponding external injuries in order to have internal injury. If earring is forcibly snatched there will be a lobe injury and also bleeding to the ear. There is no vaginal injuries. His report has shown pubic hairs combed with matting. Apart from that there is no other signs of the sexual assault. It is elicited that since investigating officer has not sought any opinion 15 regarding sexual assault on the victim, therefore there is no occasion for him to give his opinion regarding sexual assault. Since the word 'matting' is used by him in his opinion, that itself suggests about the sexual intercourse. But though the same has been sent for FSL, there is no opinion about the same. Therefore, he cannot say positively. There is no ligature marks found on the back of the neck. Thyroid bone is not fractured.
16. Having considered the oral and documentary evidence pertaining to cause of death is concerned, it is the opinion of the doctor in terms of Ex.P.24 that the cause of death is due to asphyxia as a result of strangulation. It is also important to note that that investigating officer also sought requisition as to whether that strangulation can be done by using MO.8 and the doctor also opined in terms of Ex.P.26 that MO.8 could cause the ligature mark which is found on the body if this type of ligature material is twisted completely to cause the same. In the cross-examination, nothing is elicited with regard to the cause of death is due to asphyxia as a 16 result of strangulation and nothing is suggested to the witness also that cause of death is not on account of strangulation and hence, it is clear that it is a case of homicidal and hence we accept the evidence of the prosecution witnesses i.e. PW.13 with regard to the homicidal is concerned.
17. Now the question before the Court is with regard to whether the deceased was subjected to sexual assault prior to committing the murder. It is the case of the prosecution that she was subjected to sexual act and thereafter the accused has committed the murder. It is to be noted that PW.13 has not spoken in her chief evidence as to whether the victim was subjected to sexual act or not. But only in the cross- examination, it is elicited that no vaginal injuries are there but in the chief also PW.13 says that no injuries are found in the private part. It is also important to note that with regard to sexual act is concerned, PW.13 in his evidence, he says is that post-mortem report has shown pubic hairs combed with matting. Apart from that there are no other signs of sexual assault. It is also important to note that PW.13 categorically 17 says that the investigating officer has not sought any opinion regarding sexual assault on the victim. Therefore, there is no occasion for her to give any opinion regarding the sexual assault. Hence, it is clear that no opinion is sought for sexual assault is concerned and no vaginal injuries are also found and the trial Court has only taken note of post-mortem report which has shown pubic hairs combed with matting and hence comes to the conclusion that she was subjected to sexual assault.
18. When there is no positive evidence before the Court as to whether she was subjected to sexual assault or not and PW.13 also says that there is no occasion for her to give any opinion regarding the sexual assault, only saying about 'matting' in her opinion itself, suggests about sexual intercourse and the same is not positive evidence before the Court. It is also her evidence that though the same has been sent to FSL, there is no opinion about the same and no such opinion is also received from the FSL. Therefore, she cannot say positively. When such material is available before the 18 Court, the trial Court ought not to have comes to the conclusion that she was subjected to sexual act prior to committing the murder. In the absence of such positive evidence and when PW.13 also has not given any opinion on that and her evidence is also very clear that the investigating officer has not sought any opinion regarding sexual assault of the victim, the trial Court ought not to have comes to the conclusion that she was subjected to sexual act prior to committing the murder.
19. Having reanalysed the material available on record particularly the evidence of PW.13 - doctor and her evidence is not positive regarding subjecting her for sexual act, we are of the opinion that the trial Court has committed an error in convicting the accused for the offence under Section 376 of Indian Penal Code and hence it requires interference with regard to the finding of the trial Court since the trial Court has only considered the post-mortem report wherein it is shown as 'pubic hairs combed with matting' and comes to such a conclusion. The same is incomplete evidence with regard to 19 subjecting her for sexual act and hence requires interference by this Court.
20. Now coming to the aspect of whether the accused alone had committed the murder, the prosecution mainly relies upon the evidence of PW.4 and PW.8. Evidence of PW.4 is very clear that on 17.08.2015 at about 8.30 p.m when he went to attend the nature call and while returning, he found the accused and victim were near the canal and both of them were talking and there was a motorcycle and this accused took her in motorcycle towards Benakappa village and then he left to his house but CW.9 came and enquired him about the deceased and then he informed to CW.9 that the accused took her in the motorcycle. In the cross-examination, except eliciting that at that time there was darkness and he cannot see the face in the said darkness and the same has been admitted. It is suggested that he is falsely deposing that the accused took the deceased in motorcycle and the said suggestion was denied.
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21. The other witness PW.8 in his evidence, he says that at around 10.00 p.m. on 17.08.2015 both the accused and the deceased came to his shop and they purchased a water bottle of Omkar company and both of them left his shop and he also identifies the said bottle and says that the very same bottle was purchased from his shop. He came to know about committing the murder through police and he was taken to police station and he identified seized MO.5 to MO.8. In the cross-examination, he admits that similar type of water bottle will be available in the other shops also. It is also suggested that he is falsely deposing that both of them came and purchased the water bottle and the said suggestion was denied.
22. The other witness PW.12 in his evidence he says that he was making walking on 18.08.2015 in the early morning at 5.00 at Batakurki village and he found the accused at around 5.30 a.m. and he was on the motorcycle with a bag and on the very same day he came to know that at 3 O'clock a lady was murdered. The police called him to the police station 21 on 20.08.2015 and showed the accused and he identified him. He was subjected to cross-examination. In the cross- examination, he says that at the time when he has seen the accused there was darkness but he says that he was at a distance of 200 feet and he cannot tell as to what cloth was worn by the accused at that time. It is suggested that he is deposing falsely before the Court and the said suggestion was denied.
23. Having considered the evidence, PW.4 speaks with regard to the accused and deceased were together at around 8.30 p.m. and both of them talking with each other and thereafter accused took the deceased on his motorcycle and the same was informed to CW.9 on the very next date when he was making search of his sister and also PW.8 speaks with regard to purchase of water bottle at 10.00 P.M. on the very same day night and also PW.12 speaks with regard to he found the accused in the early morning at 5.30 on the next day. In the cross-examination of these witnesses, nothing is elicited to disbelieve the case of the prosecution except that 22 there was a darkness in the night and also in the early morning and no suggestion was made that these witnesses were having ill-will against the accused to speak about they have last seen the deceased and the accused and falsely deposing before the Court and no animosity is also elicited.
24. When such being the case and when these witnesses have last seen the accused as well as the deceased and also the movement of accused in the early morning at 5.30, the trial Court has rightly accepted the evidence of PW.4, PW.8 and PW.12 who have last seen the accused and deceased and murder is also committed on the very next day in the early morning and PW.12 found the cloth bag on the motorcycle of the deceased.
25. In order to connect the link that this accused and deceased were having an affair with each other, it is important to note that PW.11 is the husband of the deceased and no doubt he says that his marriage was solemnized with the deceased in 2014 but his evidence is very clear that the deceased has not led marital life with him and when he used 23 to demand to lead marital life, she used to threaten him that she would commit suicide and hence he kept quite but no doubt he has not spoken anything about the illicit relationship. But in the evidence of PW.3 who is the brother of the deceased, he categorically says that when she used to come to Chikkanaragund, she was moving along with the accused and having touch with him and even they advised her not to do the same. The other witness PW.2 also speaks about deceased was moving along with the accused and the said fact is also brought to the notice of PW.3 and also to her mother to advice her. PW.1 is only the informant who reported about the body but he gave complaint in terms of Ex.P.1. The other witness PW.7 is also sister of the deceased and she is having acquaintance with accused and she categorically says that her sister whenever used to come to village, she used to be very close with the accused and her brothers also advised her sister not to do same.
26. Having considered the evidence of these witnesses, particularly PW.2, PW.3 and PW.7, PW.2 is a villager and PW.3 24 and PW.7 are the brother and sister of the deceased and all of them have deposed regarding the conduct of the deceased and roaming with the accused whenever she used to come to the village. Their evidence disclose that both the deceased as well as accused were having affinity with each other and in order to disbelieve their evidence, nothing is elicited from the mouth of these witnesses as to why they are speaking against the accused and nothing is elicited with regard to animosity between these witnesses and accused.
27. The other connecting material relied upon by the prosecution is PW.6. PW.6 speaks that on 28.08.2015 he was called to the police station and CW.5 was also present and also found the accused and accused made a statement that if he is taken along with them, he is going to show the place where he kept the articles after committing the murder. Hence, the accused and panch witnesses and police went to the spot and he had produced a chudidar top, slip and veil and body was also taken and thereafter he led all of them and he had produced tali, ear-rings and three simcards and mahazar 25 was drawn in terms of Ex.P.7 and this witness is a recovery witness.
28. In the cross-examination of this witness, nothing is elicited and further got clarified to PW.6 that on the say of the accused only all of them went to the spot but had not seen the record of rights and the place where he kept cloth is a public place i.e. 10 meter inside the public road and the same is not visible to the public. It is even suggested to the witness PW.6 that karimani tali was in the same condition. It is suggested that nothing is seized at the instance of the accused and the same was denied.
29. It is important to note that while recovering the same, PW.19 witness who is a photographer also reiterates in his evidence that the accused only led them and produced the articles and he had taken the photographs of seizure of MO.5 to Mo.8 and MO.9 to MO.12 in terms of Ex.P.3, Ex.P.4, Ex.P.9, Ex.P.10, Ex.P.11 and Ex.P.12. In the cross-examination of PW.19 also, except eliciting the date is not mentioned, nothing is suggested to the witness that he did not take those 26 photographs and in the CD his shop is not found but nothing is elicited that he was not taken along with the accused and panch witnesses.
30. Having perused the evidence of PW.6 and PW.19, the evidence of PW.21 investigating officer is clear that the accused only took them to place situated within the Batakurki limits and to the land belonging to one Mahalingappa Duggani and after showing the place informed that he has ravished the victim and killed her in the same place.
31. These materials clearly disclose with regard to the recovery at the instance of the accused and evidence of PW.6, PW.19 and also investigating officer is clear regarding seizure is concerned and the same is not discarded by the defence counsel to disbelieve their evidence. Those two independent witnesses are not having any animosity against the accused to speak against him and recoveries are also proved.
32. Having reanalyzed the material available on record, no doubt the case rests upon circumstantial evidence and 27 there are no direct evidence. This Court has already discussed the medical evidence with regard to the cause of death of the victim. This Court also while reanalyzing the material on record, has taken note of the evidence of PW.4, PW.8, PW.12 with regard to last seen the accused as well as the victim and so also taken note of the evidence of PW.1 to PW.3 and PW.7 and also PW.11 who is the husband of the victim who had spoken that the deceased had not co-operated with him to lead matrimonial relationship. The other witnesses, particularly the brother and sister of the deceased i.e. PW.3 and PW.7 have spoken that the deceased used to roam along with the accused and so also PW.2 who is a villager had found both of them and informed the same to the villagers which establishes that the accused and the victim were having close affinity with each other and the fact that she was married but not led marital life with the husband.
33. As regards the recovery, evidence of PW.6 and PW.19 photographer coupled with the evidence of PW.21 investigating officer, establishes recovery of the belongings of 28 the deceased at the instance of the accused and witnesses have withstood the cross-examination and evidence of PW.6 and PW.19 with regard to recovery of MO's is also established. Apart from that CD was also marked at Ex.P.13 and the same evidences that the investigating officer i.e. PW.21 has drawn the spot mahazar and also seized MO.5 to MO.8 and MO.9 to MO.12 and photographs were also marked. In the evidence of prosecution witnesses, nothing is elicited from the mouth of the witnesses that they are having any animosity against the accused to falsely implicate him as an accused.
34. Having considered the overall evidence of PW.6 and also the evidence of other prosecution witnesses regarding last seen and recovery at the instance of the accused, the reason for committing the murder is that though victim married PW.11, she did not lead her marital life with him and instead used to roam along with accused and on the previous date of her death also she was with the accused. All these material establishes the link between each of the incident. The dead body was also found under the bund and the accused 29 had removed her entire cloth except the nicker and kept the same in a hidden place and the same was recovered at the instance of the accused. The articles are belonging to the victim were also recovered at the instance of the accused. Hence, the trial Court has taken note of Section 27 of the Evidence Act to discover all the belongings of the deceased at the instance of the accused.
35. Having reassessed both oral and documentary evidence, particularly the material objects which have been recovered, the prosecution has proved the guilt against the accused beyond all reasonable doubt. We have given our anxious consideration to the overall evidence available on record and we do not find any error committed by the trial Court in assessing the evidence on record. The belongings of the deceased were also within the knowledge of the accused and the evidence of prosecution witnesses, particularly PW.6 and PW.19 photographer is credible and hence, we do not find any error committed by the trial Court in appreciating the evidence.
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36. The trial Court also taken note of 313 statement of the accused and it is only a total denial and he did not offer any explanation whatsoever in respect of incriminating circumstances which goes against him and he ought to have given explanation if he has been falsely implicated in the case on hand and hence, we do not find any error in coming to the conclusion that the accused only had committed the murder of the victim.
37. This Court already comes to the conclusion that in order to attract the offence under Section 376 of Indian Penal Code, there are no ingredients and materials and rest of the conviction and sentence for the other offence does not require interference and hence we answer the above point as partly affirmative.
38. In view of the above discussion, we pass the following:
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ORDER The appeal is allowed in part.
The judgment of conviction and order of sentence in respect of offence punishable under Section 376 of Indian Penal Code are hereby set aside.
The fine amount, if any, deposited for the offence punishable under Section 376 of Indian Penal Code, is ordered to be refunded to the appellant - accused digitally.
The judgment of conviction and order of sentence in respect of offence punishable under Sections 302, 201 and 404 of Indian Penal Code are hereby confirmed.
The registry is directed to send the original records to the trial Court forthwith with copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE SH