Karnataka High Court
State By Hadadi P S vs Shafiulla on 30 August, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.JUSTICE DILIP B.BHOSALE
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
Crl.A.No.900/2007 (A)
BETWEEN:
State by Hadadi P.S.,
Davangere District.
...Appellant
(By Sri P.M.Nawaz, Addl. SPP)
AND :
Shafiulla
S/o Subhash Sab,
Aged 32 years,
Working in Mosque,
Mathi Village,
Davangere,
Present R/o Huvinmadu Village,
Davangere.
...Respondent
(By Sri D.P.Mahesh, Adv.,)
This Appeal is filed u/s 378(1) & (3) Cr.P.C praying to
grant leave to file an appeal against the Judgment
dt.06.01.2007 in S.C.No.85/2006 on the file of the Addl.
Sessions Judge, F.T.C-I, Davangere-acquitting the
respondent / accused for the offences P/U/S.302 and 201 of
I.P.C.
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This appeal coming on for orders this day, the Court
delivered the following:
ORAL JUDGMENT : (S.N.SATYANARAYANA J)
The prosecution having failed to secure conviction of respondent herein for the alleged offence of culpable homicide of his wife amounting to murder has come up in this appeal.
2. The case of prosecution is that respondent Shafiulla (accused) is the husband of deceased, Noorjanbi. Admittedly, respondent Shafiulla is the resident of Huvinamadu village of Davanagere Taluk and his marriage was performed with deceased in the year 2003. The case of prosecution is that after the marriage, for nearly a year, accused and deceased were leading happy married life and in the wed lock they have a female child. Subsequently, accused suspected the fidelity of his wife. Hence, there were frequent quarrels between the accused and deceased, which led to disharmony in the marriage and also led to accused and deceased living separately for some time. It is further stated that when deceased was residing in her paternal -3- house, with the mediation of well wishers both accused and deceased were brought together. In the meanwhile, it is stated that accused also got a job in Bangalore to work as Mouja (cook) in one of the mosques at Bangalore. Hence, he came to Bangalore along with his wife and daughter and settled down at Bangalore for a while. Since, said job was not lucrative and income derived therefrom was not sufficient to maintain the family, friction between accused and deceased continued. Thereafter, they came back to Hoovinamadu village, where they started living in a rented house. It is a house in Janatha Colony constructed for poor persons.
3. When matter stood thus, the complainant before trial Court, who is PW.1 in SC.No.85/2006 approached Hadadi Police Station at Davanagere District complaining that she was informed by one Mehboob Sab over telephone that her daughter Noorjanbi is done to death by her husband, the respondent herein in the intervening night of 16.5.2006 and 17.6.2006. Immediately on coming to know -4- of the incident she rushed to the place at about 10.00 am., and noticed that her daughter was lying on the floor of the house where accused had set up their matrimonial house in Hoovina Madu village. It was seen that the daughter of complainant had died with injuries suffered on her head and other portions of body. Immediately, thereafter, complaint was lodged vide Ex.P12 and thereafter the prosecution commenced investigation into the matter. It is seen that after recording complaint PW.32, Narayana Rajputh, the Circle Inspector of Police, Hadadi Police Station investigated into the matter and filed charge sheet against the accused alleging that during the intervening night of 16th and 17th of May 2006 respondent herein S/o Subhash Sab had committed the murder of his wife suspecting her fidelity.
4. In the proceedings before Sessions Court, prosecution relied upon the evidence of 32 witnesses to establish the guilt of accused in committing the murder of his wife. The Sessions Court after recording evidence and hearing the prosecution and as well as the counsel for -5- accused has acquitted the accused of the alleged charge of committing murder of his wife suspecting her fidelity. Being aggrieved by the same, the present appeal is preferred by the prosecution.
5. Heard the learned Special Public Prosecutor on behalf of prosecution and counsel for respondent/accused. On reappreciation of the evidence available on record in the light of the grounds of appeal it is seen that though prosecution has relied upon in all 32 witnesses to substantiate the charges levelled against the accused, it is only the complainant, PW.1 and her two other daughters PWs.10 and 11 who have supported the case of prosecution in tendering evidence to the effect that accused and deceased were married in the year 2003. Thereafter, they lived happily as husband and wife for one year and in the meanwhile, Noorjan delivered a female child. Thereafter, differences arose between them mainly for the reason that accused suspected the fidelity of his wife, deceased. In that behalf, there used to be frequent quarrels between them. -6-
6. It is the case of PWs.1, 10 and 11 that accused was constantly harassing his wife, ill-treating and also physically assaulting her. It is further stated that deceased and accused were living together. According to complainant- PW.1, the heinous crime of committing murder of Noorjan had taken place in the intervening night of 16.5.2006 and 17.5.2006 as she has come to know through PW.15, Mehboob Sab. On getting such information, she went and saw that the dead body of her daughter was lying on the floor with injuries on her head and other parts of body. According to her, the inquest, Post Mortem Report substantiate that death is caused due to shock and hemorrhage to vital organs as per the opinion of Doctor, who conducted Post Mortem i.e., Ex.P13. However, the court below while assessing the evidence noticed that there is serious lapse and lacuna on the part of prosecution in establishing the same beyond all reasonable doubt and the nexus between crime and accused in demonstrating that said offence is committed by accused.
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7. As could be seen from the material on record the persons who have affixed their signature as panchas to spot mahazar which is at Ex.P2, mahazar for seizure of clothes which is at Ex.P3, mahazar for recovery of the stone said to have been used by accused for committing offence vide Ex.P4 and inquest mahazar which is at Ex.P5, have turned hostile. Further, neighbours of deceased who are PWs.12, 13 and 14 have also stated that deceased Noorjan and deceased were cordial and that there was no visible differences between them which could lead to an interference that accused could have committed alleged crime. It is further seen that person who is said to have given information to complainant, namely, Mehboob Sab, PW.15 has turned around and stated that at no point of time he had informed the complainant regarding the alleged offence being committed by accused. Further it is also seen that owner of house Jamaal Sab, PW.16 in his evidence has stated that on 17.5.2006 he had arranged for a religious function in the Mosque where the accused was working as Mouza and his presence was required in the mosque for the said ceremony. As such, he -8- had gone to the house of accused at 5.30 in the morning on 17.5.2006. At that time the door of the house was opened by deceased Noorjan. Thereafter he took the accused along with him to reach the Mosque for the ceremony. Subsequently, he came to know about death of Noorjan at about 9.30 pm., on that day. This evidence of PW.16 will change the very version of the prosecution in directing the possibility of involvement of accused in committing the aforesaid alleged crime. If the evidence of PW.16 were to be believed that as on 17.5.2006 at 5.30 am., deceased Noorjan was still alive and if accused had accompanied him to Mosque at 5.30 am., and had stayed there till conclusion of ceremony, then question of accused committing the crime of murdering his wife subsequent to 5.30 am., would not arise. Even otherwise, the very theory of prosecution that death of Noorjan has taken place during the intervening night of 16th and 17th of May 2006 also will lose its credence in the light of evidence of PW.16.
8. With this all the important witnesses who could have given necessary information to point the involvement of -9- accused in the death of Noorjan being neutralised, the court below has rightly declined to accept the charges levelled by the prosecution against the accused/respondent herein. Therefore, dismissed the case of prosecution giving clean chit to respondent herein.
9. On going through the well reasoned judgment of court below, this Court find there is neither irregularity nor any error in assessing the material evidence available on record in rendering the aforesaid judgment acquitting the accused of the alleged offence. Therefore, this Court find there is no justifiable reason to interfere with the said judgment.
Accordingly, the appeal filed by prosecution is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Nd/-