Karnataka High Court
Mynuddin S/O. Abdulsab Kerur vs The State Of Karnataka on 22 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100218 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO.100218 OF 2018 (C)
BETWEEN:
MYNUDDIN S/O.ABDULSAB KERUR
AGE:41 YEARS, OCC:LABOUR,
R/O. NEAR DARGA, ILKAL,
HUNAGUND TALUK, DIST:BAGALKOT.
...APPELLANT
(BY SRI.M.B.GUNDAWADE, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA
BY ILKAL POLICE STATION,
REP BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., TO ADMIT THE APPEAL AND CALL FOR THE RECORDS AND
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
25.10.2017 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN S.C. NO.79/2015 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND FURTHER
BE PLEASED TO ACQUIT THE APPELLANT OF THE CHARGE LEVELED
AGAINST HIM, IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY
M.G.S.KAMAL J., DELIVERED THE FOLLOWING.
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CRL.A No. 100218 of 2018
JUDGMENT
Present appeal by the appellant-accused, aggrieved by the judgment and order dated 25.10.2017 passed in S.C. No.79/2015 on the file of the Principal District and Sessions Judge, Bagalkot, (hereinafter referred to as "trial Court" for short) by which the accused is held guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short) and further sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- and indefault of payment of fine amount, to undergo further simple imprisonment for three months.
2. The case of the prosecution is that accused suspecting fidelity of his wife-Smt.Nahidabegam with his own father Abudlsab Kerur had killed her on 12.05.2015 at 04:00 a.m., in his house situated near Darga at Ilkal town. A complaint in this regard was filed on 12.05.2015 by the brother of the deceased namely Ismail Mubarak Pendari-PW16 before the respondent-Police. After the investigation, the respondent- Police filed the charge sheet against the accused for the offence punishable under Section 302 of IPC. The prosecution examined 24 witnesses in support of its case against the -3- CRL.A No. 100218 of 2018 accused and exhibited 29 documents as Exs.P1 to P29 and identified 7 material objects as MOs.1 to 7. The accused during recording of the statement under Section 313 of Cr.P.C. has denied all the incriminating material evidence appearing against him and has not led any evidence in his defence. The trial Court by the impugned judgment and order, sentenced the accused to undergo imprisonment for life under Section 302 of IPC as above.
3. Sri.M.B.Gundawade, learned counsel for the appellant-accused reiterating the grounds urged in the memorandum of appeal submitted that as per the medical report, deceased died due to the shock after being inflicted a blow by the blunt object which obviously ought to have created some noise while according to the prosecution, the children of the accused and the deceased were sleeping with them at the time of the offence and they did not hear any noise and they were told about the incident by their grandmother when they woke up in the morning, this creates serious doubts about the very presence of the children in the house at the time of the incident. That the evidence of Doctor-PW4 to the effect that he working in District Hospital at Bagalakote and that he went to -4- CRL.A No. 100218 of 2018 Ilkal Government Hospital to conduct the postmortem without providing any details about his going to Ilkal Hospital raises further doubt about the medical evidence and the very postmortem report submitted by him. That according to the prosecution, accused had confessed about the crime to his mother, brother and children which amounts to extra judicial confession and cannot be relied upon to handover the serious punishment of life imprisonment. That the story of recovery of weapon used by the accused is unbelievable and contrary to the evidence of other witnesses. Hence seeks for allowing of the appeal.
4. Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the judgment and order passed by the trial Court submits that the prosecution has established the guilt of the accused beyond reasonable doubt duly supported by all the witnesses more particularly PW7-brother, PW2- mother and PW4-the father of the accused. That the extra judicial confession made by the accused is duly corroborated with the other material evidence and therefore, the reliance placed thereon is just and proper. Minor omissions in the investigation cannot be the ground for disbelieving the case of -5- CRL.A No. 100218 of 2018 the prosecution. No grounds are made out. Hence sought for dismissal of the appeal.
5. Heard the learned counsel for the parties. Perused the records. The point that arise for consideration is:
"Whether the trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC?"
ANALYSIS
6. PW16-Ismail Mubarak Pendari, the brother of the deceased, is the complainant in this case. Perusal of the compliant at Ex.P13 reveals that deceased-Nahidabegam was married to the accused and they were blessed with three sons namely Mohammed Yasin, Mohammed Raj and Mohammed Kaif. The accused was earlier doing centering work and had suffered paralytic stroke. The parents of the deceased had provided financial and other support for the recovery of the accused. The deceased was earning by preparing and selling sweets for the maintenance of the family. The accused was taunting and harassing the deceased suspecting her fidelity. Though he was advised by the family members and elders not to harass and suspect the deceased. That a week before the -6- CRL.A No. 100218 of 2018 date of the incident, the deceased had been to her parental house at Jamakhandi and had returned to her home at Ilkal on 11.05.2015. That early morning of 12.05.2015 the brother of the accused namely Shabbirahmed-PW7 had informed PW16 that the accused had killed the deceased while she was asleep and had asked them to come immediately. Accordingly, PW16 and others went to Ilkal and found the accused in the pool of blood with severe blood injury on her head. PW9- Smt.Shamshadbegam - the mother-in-law of the deceased had informed them that when she was going out to purchase some vegetables, enquired the accused who was sitting in front of his house if his wife was awake and was willing to go with her to buy the vegetables, to which the accused replied that he has killed her. On hearing the same, PW9 went inside and found children sleeping in the room. She woke them up and thereafter tried to wake up the deceased, but she was dead with the severe injury on her head. Her blanket was soaked with blood. Thereafter, when the complainant alongwith neighbours had enquired the accused, he revealed that deceased was of not chaste, had illicit relationship with her father, therefore, he assaulted her with the iron rod at 04:00 -7- CRL.A No. 100218 of 2018 a.m. in the morning and killed her. The said complaint was registered in Crime No.74/2015.
Cause of death:
7. PW4-Dr.Vijay @ Dadesab in his evidence has stated that he conducted the postmortem of the dead body of the deceased between 05:30 to 06:45 p.m., on 12.05.2015 and found the following injuries:
"1. Contused laceration over left temporal region just behind left ear measuring 10 X 4 cm2, bleeding.
2. Contused laceration over central finger of left hand measuring 1 X 0.5 cm2, bleeding.
3. Contused abrasions over right arm and forearm of various sizes."
8. As per his opinion stated in the postmortem report at Ex.P5, the cause of the death of the deceased was "due to shock as a result of injury sustained over head". The said witness has opined that the injuries mentioned in Ex.P5 could be caused by an iron rod as per MO5. In the cross-examination, the said witness has stated that he received the requisition to conduct the postmortem of the dead body of deceased while he was in the District Hospital at Bagalakote. As he was the only forensic expert in the district, he was requisitioned by the Medical Officer of Ilkal Government Hospital. He has admitted -8- CRL.A No. 100218 of 2018 that in his report at Ex.P5 he has not mentioned as to which side of rod at MO5 could cause the injuries listed in Ex.P5. Nothing else has been elicited from this witness to discredit his evidence with regard to conducting of the postmortem and his opinion for the cause of death. Thus the prosecution has established the death of the deceased was of homicidal.
9. The case of the prosecution is based on circumstantial evidence namely accused suspecting the fidelity of his wife-deceased-Nahidabegam. PW9-the mother of the accused who was the first person to have interacted with the accused on the date of the incident and with whom the accused is stated to have confided about he committing the crime. PW7 is the brother of the accused who was the second person to have visited the place of incident. PWs.2 and 3 are the sons of the deceased who stated to have been sleeping in the same room at the time of incident and were woken up by PW9. Therefore, it is appropriate to scrutinize the evidence of these witnesses to assess the veracity of the prosecution version.
10. PW9-Smt.Shamshadbegum, the mother of the accused is the first person to have learnt about the accused -9- CRL.A No. 100218 of 2018 committing the murder of the deceased. The said witness has stated that the marriage of the deceased was conducted with the accused about 16 years ago. That the accused was staying in a separate house with his wife and three sons and that she and her husband and two children with their family were residing in the next house. That the accused was carrying on the centering work and he had suffered paralytic stroke and deceased had spent money for his treatment. That the accused was suspecting the fidelity of the deceased. She has also spoken about accused alleging deceased having illicit relationship with her husband PW14-Abudlsab Kerur. That the accused used to fight with the deceased in alcoholic condition and he was advised by the family members and elders to mend his ways. That at 06:30 in the morning of 12.05.2015, when she wanted to go out to purchase vegetables, she went to the house of the deceased to take her along. That time, accused was sitting in front of the house on a chair and when she enquired with the accused if the deceased was awake, the accused replied that he had "sent her above". Thereafter, she went inside the house and tried to wake up the deceased, but she was dead. She woke up the children who were sleeping in
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CRL.A No. 100218 of 2018 the same room and she also found blood on the blanket of the deceased and on the wall. Thereafter, she informed her son PW7 who alongwith the other people of the lane went to the house of the accused and found the dead body of the deceased. That when PW7 enquired with the accused, he replied that since the deceased had illicit relationship with his father, he killed her at 04:00 a.m. In the cross-examination, nothing has been elicited to discredit the evidence of PW9 except suggestion denying her evidence.
11. PW7-Shabirahamed, the brother of the deceased has stated that the accused who was suspecting his deceased wife whenever she spoke to any person, that about 10 to 15 days prior to the incident, accused in an inebriated condition had told that the deceased had illicit relationship with their father and they had advised accused not to suspect the deceased. That on 12.05.2015 at about 06:15 a.m., his mother-PW9 had woken him up screaming about accused committing the offence and that his mother had narrated about the incident. He has also spoken about he informing PW16 over phone and about visit of the Police to the spot. He has identified MOs.1 to 4. Even to this witness except making
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CRL.A No. 100218 of 2018 suggestions denying his evidence, nothing has been elicited to discredit his evidence.
12. PW14-Abdulsab, the father of the accused who has also spoken about the accused suspecting his wife having illicit relationship with him to which the accused was advised. That on the date of the incident, he had gone to Bagalakote Hospital at about 06:00 a.m. for his treatment and he returned in the evening and he was informed about the incident by PWs.7 and
9. Nothing has been elicited from this witness except suggesting that he is supporting the case of the prosecution for his affection to the deceased-daughter-in-law.
13. PWs.2 and 3-Mohammed Yasin and Mohammed Raj are the sons of accused and the deceased. They have stated that their father in an inebriated condition was quarrelling with their mother. That a day prior to the incident, their mother alongwith them had come to Ilkal at about 10:00 p.m., and accused had prepared food and when sat to eat, accused picked up the quarrel with the deceased and had warned her that he would kill her. Since this was the routine fight, they went to sleep. Their father and mother slept at a distance. That at
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CRL.A No. 100218 of 2018 06:00 a.m. on the following morning, their grandmother-PW9 woke them up by screaming about their father killing their mother and they found their mother was lying in pool of blood with injury on left side of her head and the blood on the blanket and the wall. Their father was sitting outside on a chair and grandmother narrated them the incident. By then, PW7 and other people from the lane came to the spot and PW7 called their uncle-PW16 over phone. The Police have taken their statement and they identified the material objects. That after two to three days of the incident, they were taken before the Magistrate, who recorded the statement as per Ex.P3. In the cross-examination, it is suggested their mother was selling sweets and was therefore known to many in the lane and in their place. They have denied the suggestion that the creditors from whom their mother had borrowed money used to visit their house. The witnesses have stated that they learnt about the assault by the deceased by a rod from the accused. They have denied the suggestion that since their mother used to go out to sell the sweets she was being harassed by some people and also some people were angry at her for financial transaction.
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CRL.A No. 100218 of 2018
14. From the evidence of the aforesaid witnesses who are none other than the parents, brothers and the sons of the accused, it is seen that there is consistency in their version with regard to accused harassing and suspecting the deceased and also accused alleging about her illicit relationship. The accused had confided with PW9 at first and thereafter with PW7 and PWs.2 and 3 of he murdering his wife for her alleged illicit relationship with his own father. The learned counsel for the accused submitted that the confession being extra judicial in nature cannot be relied upon without there being any independent and cogent evidence. In this regard, the learned Additional State Public Prosecutor relied upon the judgment of the Apex Court in the case of Sahadevn and another vs. State of Tamil Nadu reported in (2012) 6 SCC 403 wherein at paragraph 16 of the said judgment, the Apex Court has laid down the principles governing the extra judicial confession.
"16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused:
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i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
15. The evidence of PWs.9, 7, 14, 2 and 3 read in the light of the aforesaid legal principles appears to be natural and true and reliable. No reason or circumstances brought out by the defence to disbelieve the versions of these witnesses. It is to be noticed that these witnesses are the very own parents, brother and sons of the accused who in normal circumstances always wish the welfare of the accused, but in the instant case, they have in unison deposed about the conduct of the accused before and after the commission of the offence. Therefore, this Court is of the considered view that the versions of these witnesses including with regard to accused confiding with PW9
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CRL.A No. 100218 of 2018 and others as stated above can be taken into consideration for the purpose of the case of the prosecution.
16. PW16-the complainant and brother of the deceased has in his deposition reiterated the contents of the compliant at Ex.P13 and has identified his signature at Ex.P13(b). He has identified the four photographs marked at Ex.P15. Nothing has been elicited in the cross-examination to discredit the said witness reaching the spot and filing the complaint as above.
17. The other witnesses produced by the prosecution are PW11-Siddappa, PW13-Maheshappa are the neighbours of the accused who have spoken about they advising the accused not to suspect his wife. They have also spoken about they visiting the house of the accused on the date of the incident and speaking to the accused who had informed them of he killing the deceased at 04:00 a.m. suspecting her fidelity, nothing has been elicited in the cross-examination to discredit the evidence of these witnesses.
18. Similarly PW19-Yasin, a resident of Jamakhandi and PW21-Ibrahimsab, the neighbour of the accused have deposed that they had advised the accused on several occasion not to
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CRL.A No. 100218 of 2018 suspect the deceased, but he had continued to suspect and harass the deceased. Their version has not been disputed by the defence.
19. PW17-Farooq is the panch witness to the inquest panchanama as per Ex.P16. Ex.P18 is the spot panchanama. Ex.P20 is the seizure mahazar by which the accused had handed over iron rod and his blood stained white T-shirt and lungi. Ex.P22 is the seizure mahazar of dress of the deceased. The said witness has supported the case of the prosecution and has withstood the test of cross-examination.
20. PW15-Mohammed Rafiq is the first Investigation Officer who has spoken about he receiving the complaint as per Ex.P13 and registering the case in Crime No.74/2015. In the cross-examination, the said witness has admitted that before receiving the complaint, he had received the information about the death of deceased.
21. PW24 is the second Investigation Officer, who has spoken about he taking over the investigation from PW15 and thereafter visiting the spot and drawing the panchanama between 03:30 to 04:00 p.m. and preparing the inquest report,
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CRL.A No. 100218 of 2018 recording the statement of the witnesses, seizing the material objects from the body of the deceased in the presence of the witnesses and recovering the iron rod and the dress of the accused upon the information provided by the accused, as per Ex.P20 and thereafter filing the charge sheet. He has also spoken about obtaining the postmortem report at Ex.P5, drawing up of the sketch, obtaining the FSL report at Ex.P28.
22. In the cross-examination, the said witness has stated that the house of the accused consists of one room and he has seen vessels, clothes and beds. That in Ex.P16-inquest report, at question No.12, he has mentioned that the weapon used as iron rod and that he arrested the accused at 05:30 p.m. and the accused had given the voluntary statement between 06:00 to 06:30 p.m. Thereafter, the iron rod was recovered at 06:45 p.m. He has admitted that he has not seen the iron rod kept in the room. He has also not seen the dresses when he was preparing inquest report and spot panchanama.
23. Learned counsel for the appellant-accused referring to the deposition of PW24 submitted that the spot inspection at Ex.P18 has been conducted between 16:15 to 17:15 hours on
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CRL.A No. 100218 of 2018 12.05.2015 and a recovery of weapon and the dress as per Ex.P20 has been conducted between 17 hours to 20 hours on the same day. He submits that it is incomprehensible that in such a small room, as found in Ex.P25 measuring 20/10, the witnesses could not see the material objects recovered under Ex.P20. Therefore, he submits that the said piece of evidence cannot be relied upon.
24. He further submitted that the FIR was registered at 14:00 hours on 12.05.2015 and even prior to the registration of FIR, the Police had reached the spot and had initiated the investigation. He relies upon the judgment of the Apex Court in the case of Imrat Singh vs. The State of Madhya Pradesh reported in (2020) AIAR (Crl.) 168 to buttress his argument that there was a possibility of prosecution concocting the story after seeing the spot. The fact situation of the instant case is different and distinct from the one referred to in the aforesaid judgment relied upon by the learned counsel for the appellant. In the instant case, the dead body was found in the house of the accused and the incident was first informed by PW9-the mother of the accused. Her version is supported and corroborated with that of PWs.2, 3 and 7. There is nothing to
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CRL.A No. 100218 of 2018 disbelieve the case of the prosecution. No circumstances are made out to doubt concoction or creation of any story to implicate the accused in the matter.
25. Learned Additional State Public prosecutor has relied upon the judgment of the Apex Court in the case of Animireddy Venkata Ramana and others vs. Public Prosecutor, High Court of Madhya Pradesh reported in (2008) 5 SCC 368, wherein the Apex Court has held that when the information is received, by an officer of the in-charge Police Station, in terms of provisions of Cr.P.C. is expected to reach the place of occurrence as early as possible and it is not necessary for him to take that step only on the basis of first information.
26. It is necessary at this juncture to note that there is no dispute with regard to the fact that the incident had taken place in the house of the accused. The presence of the accused at the place and time of the incident is not disputed. It was therefore incumbent on the part of the accused to have discharge his burden of explaining the cause which was especially within his knowledge as contemplated under Section
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CRL.A No. 100218 of 2018 106 of the Indian Evidence Act. The prosecution has established the circumstances by completing the chain of events pointing the guilt only towards the accused ruling out any other possibility. In the circumstances, the accused had failed to provide any explanation regarding the incident. As held by the Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 1 SCC 681, if the accused failed to offer any cogent explanation or offers an explanation which is untrue, then it can be treated as an additional link in the chain of circumstances against the accused to make it complete. In the instant case, non- explanation by the accused let alone giving any untrue explanation leads to irresistible conclusion that the accused is the guilty of commission of offence.
27. For the aforesaid reasons and analysis and in the light of the legal principles referred to above, we are of the considered view that the appellant-accused has not made out any ground to disbelieve the case of the prosecution. The prosecution has established all the circumstances by completing the chain of events beyond reasonable doubts. The minor discrepancies sought to be made out by the appellant-accused
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CRL.A No. 100218 of 2018 in the version of the Investigation Officer with regard to the timings of drawing mahazar, recovering the material objects and arresting the accused would not dislodge the case of the prosecution. No grounds are made out warranting interference with the judgment and order passed by the trial Court. Hence, the following order:
ORDER The appeal is dismissed.
The judgment and order dated 25.10.2017 passed in S.C. No.79/2015 on the file of the Principal District and Sessions Judge, Bagalakote, is confirmed.
SD/-
JUDGE SD/-
JUDGE Rsh