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2020 DIGILAW 1334 (KAR)

Khaja v. State Of Karnataka

2020-07-06

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The appellant-accused is before this Court challenging the legality and correctness of the judgment passed by the I Addl. District and Sessions Judge, Ballari, in S.C.No.62/2014 dated 12.05.2016. 2. We have heard Sri J.Basavaraj, learned counsel appearing for the appellant/accused and Sri V.M.Banakar, learned Additional State Public Prosecutor, appearing for the State. 3. The story as narrated by the prosecution in brief is that the marriage of the accused and the deceased took place about 12 years prior to the incident. They lived happily for about two years. Thereafter, the accused started ill-treating and harassing the deceased and he was addicted to bad vices and used to drink the liquor. In that light, he used to force his wife/the deceased to pay amount for the purpose of purchasing the liquor and he also used to assault her. Many a times he had been advised by the parents of the deceased and the elders but he did not heed to the advice. The parents of the deceased advised that one or the other day, her life will come to an end. It is further stated that about two months prior to the incident, the deceased had obtained loan from Sthri Shakthi Group and on 04.06.2014 at 7 p.m., accused asked the deceased to pay the amount for his habits and picked up a quarrel. But, when the deceased refused to give the amount, at that time accused assaulted her with a iron bar on her head and as a result of the same, she suffered grievous bleeding injuries and she died on the spot. After receipt of the information by the complainant over the phone, he came and noticed the injuries over the body of the deceased and thereafter, he has filed the complaint. On the basis of the complaint, a case has been registered in Cr.No.114/2014. Thereafter, after investigation, charge-sheet came to be filed. 4. The learned Magistrate after following the procedure laid down under Sections 207 and 208 of the Code of Criminal Procedure, committed the case to the Sessions Court and the Sessions Court took the cognizance, secured the presence of the accused and after hearing the learned counsel for the accused and the learned Public Prosecutor, prepared the charge and the same was read over and explained to the accused. The accused pleaded not guilty and he requested to be tried. The accused pleaded not guilty and he requested to be tried. In that light, the case of the prosecution was fixed for trial. 5. To prove the case of the prosecution, the prosecution got examined as may as 21 witnesses, got marked Ex.P.1 to Ex.P.18 and M.Os.1 to 6. Thereafter, the statement of the accused was recorded under Section 313 of the Cr.P.C. The accused has not led any evidence on his behalf. But, however, he has got marked Exs.D.1 and 2 and after hearing the learned counsel appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed. 6. It is the submission of Sri J.Basavaraj, learned counsel for the appellant/accused that though there is no material as against the accused to connect the alleged crime, the trial Court only on circumstantial evidence has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that PWs-14 and 15 are the eye witnesses to the alleged incident and they are none other than the children of the deceased and the accused and they have not supported the case of the prosecution. Under such circumstances, the trial Court ought not to have taken shelter from the evidence of the other witnesses and ought not to have convicted the accused. It is his further submission that PWs-2 to 4 are nothing but hearsay witnesses and PWs-14 and 15 are the eye witnesses, they have not supported the case of the prosecution. It is his further submission that there is no material produced by the defence to show that when the deceased was not having any mobile phone at all then how she has called PWs-2 to 4 and they have witnessed the presence of the accused, has also not been properly explained by the prosecution. It is his further submission that at the instance of PW-2, the complaint has been registered and even in the complaint, the said theory has not been stated by the prosecution. It is his further submission that even though the last seen theory which the prosecution is intending to rely upon is not established, the trial Court has erroneously convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused. 7. It is his further submission that even though the last seen theory which the prosecution is intending to rely upon is not established, the trial Court has erroneously convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused. 7. Per contra, learned Additional Public Prosecutor vehemently argued and submitted that PWs-2 to 4 are the circumstantial witnesses and they have supported the case of the prosecution. They have clearly deposed that the accused used to ill-treat and harass the deceased demanding money from her for consuming the alcohol and in that light, when the accused came to know that the deceased had raised a loan from the Society, he demanded money from the deceased and when she refused, the said incident has taken place. It is his further submission that the trial Court taking into consideration the material aspects of the case has come to a right conclusion and has rightly convicted the accused. Hence, there are no good grounds made out by the appellant/accused to allow the appeal and to set aside the impugned judgment. On these grounds, he prayed to dismiss the appeal. 8. We have carefully and cautiously gone through the submissions made by the learned counsel for the appellant accused and the learned Additional S.P.P. for the respondent State. Perused the records including the Trial Court records. 9. To prove the case of the prosecution, the prosecution got examined as many as 21 witnesses. In this case, PWs-14 and 15 are the material witnesses who are none other than the children of the accused as well as the deceased and who were present at the time of alleged incident and they are eye witnesses to the alleged incident. But, unfortunately, those two witnesses have not supported the case of the prosecution and they have turned hostile. Hence, their evidence is not going to help the case of the prosecution in any manner. 10. Pw-1 is none other than the father of the deceased. But, unfortunately, those two witnesses have not supported the case of the prosecution and they have turned hostile. Hence, their evidence is not going to help the case of the prosecution in any manner. 10. Pw-1 is none other than the father of the deceased. Though, in his evidence he has deposed that his daughter had been given in marriage to the accused about 12 years back and they had two children out of the said wedlock, he has further deposed that the accused used to ill-treat and harass the deceased and she used to inform the same to her parents and a panchayath was also held in that regard. He has further deposed that even after holding of the panchayath, the accused continued the said ill-treatment and harassment for demand of money and on the date of the alleged incident, PW-2 called the complainant over phone and informed that the accused is assaulting the deceased and thereafter the complainant had come there. On perusal of his evidence, it is seen that he is not an eye witness and he has come to the place of incident only on receipt of phone call from PW-2. Though, in his evidence he has deposed that the accused used to ill-treat and harass the deceased and she used to inform the same to her parents over phone and the matter had been pacified with the help of elders, there are some contradictions which have been taken from the mouth of this witness wherein he has admitted the fact that his son-in-law/the accused used to go for painting work at 8 a.m. and used to return home at 8 p.m. and the parents of the accused also used to stay with him. The other suggestions made to this witness have been denied by him. 11. Pw-2 is the relative of PW-1 and he has deposed that on 04.06.2014, the accused assaulted the deceased with a crowbar and committed her murder. He has further deposed that on 14.06.2014 in the morning, he received a phone call from the deceased and she informed him about the ill-treatment and harassment meted out to her by the accused and asked him to advice the accused not do so wherein they came and advised the accused. He has further deposed that on 14.06.2014 in the morning, he received a phone call from the deceased and she informed him about the ill-treatment and harassment meted out to her by the accused and asked him to advice the accused not do so wherein they came and advised the accused. Again at about 6 p.m., he received a phone call from the deceased stating that the accused is ill-treating her and was saying that she will be done to death. Again, he along with PWs-3 and 4 came to the house of the accused and they noticed that the children of the accused who were outside the house were weeping and when they went near the door, the accused ran away and they saw the deceased lying in a pool of blood with injuries and thereafter when they made enquiries with the children, they informed that the accused assaulted the deceased and has committed her murder. 12. Pw-3 has reiterated the evidence of PW-2 so also PW-4. On perusal of the evidence produced by the prosecution, it is seen that in the morning some galata took place and PWs-2 to 4 had advised the accused and again at about 6 p.m. a phone call was received from the deceased saying that the accused is ill-treating and harassing her. But, on perusal of the records, no mobile phone has been seized to substantiate the fact that the deceased used to call these witnesses and inform about the ill-treatment and harassment. 13. On perusal of evidence of PW-7, during the course of cross-examination, he has clearly admitted that his sister was not having any mobile phone and he has not been cross-examined in that regard. Taking into consideration the said fact, we are of the considered opinion that if the deceased herself did not have any mobile phone, then how that she intimated these witnesses and on the basis of the said information, they came and advised in the first instance. Thereafter second time they received the call, she called when they came and at that time, they saw the accused who ran away from the house by pushing them. The evidence which has been produced by the prosecution is not trust worthy and reliable evidence. Thereafter second time they received the call, she called when they came and at that time, they saw the accused who ran away from the house by pushing them. The evidence which has been produced by the prosecution is not trust worthy and reliable evidence. When there is no consistency in the evidence of these witnesses, then how that they came to know about the accused assaulting the deceased, itself creates a doubt in the case of the prosecution, then thereafter they seeking the accused running away from the place of incident. 14. Pws-14 and 15, are none other than the children of the accused and the deceased. They have deposed that on 04.06.2014, they had been to tuitions at about 5 p.m. and after returning at 7.30 p.m., they saw people gathered near their house and they found that their mother was dead and they did not know the cause of her death and the body was kept outside the house. They have also deposed that when they came near the house, their father was not present and he had been to his work. That being the case, the presence of these witnesses and they seeing the accused going out of the house is not acceptable and reliable. The prosecution has brought these two eye witnesses i.e., PWs-14 and 15 who have not supported the case of the prosecution and they have been treated as hostile. Under such circumstances, the thin circumstantial evidence of these witnesses to the effect that when they came after receipt of the information by the deceased and at that time, the accused ran away from their house creates a doubt in the case of the prosecution. 15. It is the contention of the learned counsel for the appellant that PWs-2 to 4 are residing at a distance of 2 kms away from the house of the accused. Even though they had received the information and had come to the place of incident, the accused will not be staying at the scene of offence after committing the murder so that somebody can come and see him. The conduct of these witnesses is not natural and probable. In that light also, the evidence of PWs-2 and 4 does not appear to be natural and probable. 16. The conduct of these witnesses is not natural and probable. In that light also, the evidence of PWs-2 and 4 does not appear to be natural and probable. 16. Pws-14 and 15 have deposed in their evidence that they themselves, father, mother and grand parents also used to stay along with them in their house. The prosecution has not examined the parents of the accused. Even, if the case of the prosecution is accepted that the accused was last seen near the house of the deceased running away from that place, a presumption under Section 106 of the Evidence Act also cannot be drawn. The prosecution in order to attract the provisions of Section 106 of the Evidence Act, has to establish the fact that the said place is not accessible to any other person, especially when the evidence itself indicates the fact that along with the accused and the deceased, parents of the accused were also staying in the said house. Under such circumstance, the presumption drawn by the trial Court to bring home the guilt of the accused on the ground of last seen theory is not acceptable. 17. Pw-5 is the inquest mahazar panch to Ex.P.4 and he has also not supported the case of the prosecution. PW-6 is the mother of the deceased and she has only spoken with regard to the ill-treatment and harassment meted out by the accused to the deceased and nothing more than that is elicited in her evidence. 18. Pw-7 is the brother of the deceased and he has deposed to the effect that he has come to the scene of offence only on receipt of a phone call and he is also not a material witness. PW-8 has deposed to the effect that he has not identified the body of the deceased and he has not advised the accused regarding ill-treatment and harassment. 19. Pws-9 and 10 are also inquest mahazar panchas to Ex.P.4 and they have not supported the case of the prosecution. Exs.P.11 and 12 are the spot mahazar panchas to Ex.P.2 and they have not supported the case of the prosecution. PW-13 is the recovery mahazar pancha to Ex.P.7 whereunder the blood stained shirt of the accused has been seized and the said witness is also a mahazar witness to seizure of the clothes of the deceased as per Ex.P.8. 20. Exs.P.11 and 12 are the spot mahazar panchas to Ex.P.2 and they have not supported the case of the prosecution. PW-13 is the recovery mahazar pancha to Ex.P.7 whereunder the blood stained shirt of the accused has been seized and the said witness is also a mahazar witness to seizure of the clothes of the deceased as per Ex.P.8. 20. Pws-14 and 15 are the daughters of the deceased and they have also not supported the case of the prosecution. 21. Pw-16 is a pancha to the seizure mahazar Exs.P.7 and 8 wherein one iron rod and one blood stained cloth belonging to the accused have been seized and he has not supported the case of the prosecution. 22. Pw-17 is the doctor who has conducted autopsy over the body of the deceased and has issued the post mortem report as per Ex.P.13 and he has also given his opinion as per Ex.P.14. 23. Pw-18 is the CPI who investigated the case and filed the charge-sheet against the accused. PW-19 is the Assistant Executive Engineer from BESCOM and he has given the report as per Ex.P.16 to the effect that on 04.06.2014, there was no interruption regarding electricity supply in the area of the house of the accused and the deceased. 24. Pw-20 is the police constable who has carried the FIR Ex.P.18 to the jurisdictional Court and submitted the same. PW-21 is the PSI who received the complaint as per Ex.P.1 and registered the case as per Ex.P.18. 25. On perusal of the evidence and materials on record, it is seen that except the stray sentences of PWs-2 to 4 that they have seen the accused running out of the house, none of the other material is substantiated to prove the case of the prosecution so as to bring home the guilt of the accused beyond all reasonable doubt. As discussed above that evidence is also very weak type of evidence. A perusal of evidence of PWs-2 to 4 shows that there are many contradictions in their statement during the course of cross-examination. Under such circumstances, the trial Court ought not to have relied upon the said evidence and ought not to have convicted the accused. As discussed above that evidence is also very weak type of evidence. A perusal of evidence of PWs-2 to 4 shows that there are many contradictions in their statement during the course of cross-examination. Under such circumstances, the trial Court ought not to have relied upon the said evidence and ought not to have convicted the accused. Merely because the accused has not filed any complaint, on that basis, no inference can be drawn that it is the accused who has committed the alleged offence when the presence of the accused itself is doubtful. The trial Court has lost sight of the fact that the prosecution has to substantiate its case on the material placed on record with cogent and acceptable evidence and it cannot convict the accused on the weakness of the accused. The trial Court has not properly appreciated the evidence and has not given any cogent and acceptable reasons for coming to the conclusion that the accused has committed the alleged offence. 26. Taking into consideration the above facts and circumstances, we are of the considered opinion that though there are latches and doubts in the case of the prosecution, without giving the benefit of doubt to the accused, the trial Court has erroneously convicted the accused. In that light, the judgment of the trial Court deserves to be set aside. 27. For the discussion held by us above, we pass the following order: ORDER The appeal filed by the appellant-accused is allowed and the judgment of conviction and order of sentence dated 12.05.2016 passed by the learned I Additional District & Sessions Judge, Ballari, in S.C.No.62/2014 is hereby set aside. Consequently, the appellant-accused is acquitted of all the charges levelled against him. He is set at liberty forthwith. Registry is directed to communicate the operative portion of the judgment to the concerned jail authorities and the learned I Additional District & Sessions Judge, Ballari, through e-mail so as to release the appellantaccused, i.e., Mr.Khaja S/o Mohammaed Hussain forthwith, if he is not required in any other case. Registry is directed to send back the trial Court records forthwith.