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2021 DIGILAW 173 (KAR)

Maheboob Hajaresab Dafedar v. State

2021-01-28

JOHN MICHAEL CUNHA, SHIVASHANKAR AMARANNAVAR

body2021
JUDGMENT : Shivashankar Amarannavar, J. 1. This appeal has been filed by the accused challenging the judgment of conviction dated 26.09.2011 and order of sentence dated 28.09.2011 for the offence punishable under Section 302 of IPC in SC No. 64/2011 dated 26.09.2012 whereunder the appellant accused is sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-. 2. It is the case of the prosecution that about 10 to 12 years ago deceased Smt. -Alimabi elder sister of the complainant-Mahammed Hussain was given in marriage to appellant accused-Maheboob Dafedar resident of Chinnakar village and they had two children. After 2-3 years of their marriage both the deceased and her husband had come to Yadgir and were residing in a rented house situated in Sadardarwaja lane, Yadgir and the deceased was doing tailoring work and her husband was running an Autorikshaw on rental basis. After two years of marriage, the appellant accused started suspecting the chastity of his wife and he used to quarrel with her. Whenever she talked with her relatives and her well wishers her husband, appellant accused used to quarrel with her and used to assault her under the pretext of illicit relationship. On 10.08.2011 the complainant was engaged in plastering a house at Hosalli cross at about 01.00 p.m. when he was near tea shop near Hosalli cross he came to know that a muslim lady was being murdered by a person by assaulting with chopper on her chin and she was taken to the hospital and therefore he went to mortuary of Government Hospital and found the dead body and he identified the said dead body as that of his sister. A person by name Tippanna son of Ramanna who witnessed the murder of sister of complainant was present in the hospital and on enquiry he told regarding the incident. The appellant accused took his wife near Gunj area of Yadgir town and committed her murder. The said complaint filed by Mahammed Hussain-brother of the deceased came to be registered in crime No. 96/2011 for the offence punishable under Section 302, IPC. The CPI after investigation filed charge sheet against the accused for the offence punishable under Section 302, IPC. 3. The prosecution, in order to prove its case, examined 26 witnesses as P.W. 1 to P.W. 26 and got marked Ex. P.1 to Ex. The CPI after investigation filed charge sheet against the accused for the offence punishable under Section 302, IPC. 3. The prosecution, in order to prove its case, examined 26 witnesses as P.W. 1 to P.W. 26 and got marked Ex. P.1 to Ex. P.28 and material objects M.O. 1 to M.O. 8. The accused was examined as required under Section 313, Cr.P.C. and he denied the incriminating evidence. 4. Heard arguments of Sri. Baburao Mangane, learned counsel appearing for appellant accused and Sri. Prakash Yeli, learned Additional SPP appearing for respondent State. 5. It is the contention of learned counsel appearing for appellant that the prosecution has not established the motive for the accused to commit the murder of his wife-deceased Alimabi. It is his further contention that P.W. 9 to P.W. 13 and P.W. 20 who are the eye-witnesses to the incident have not supported the case of the prosecution. It is his further contention that P.W. 16 who is the son of deceased and the accused has not stated regarding the motive for the quarrel between the accused and the deceased with regard to accused suspecting the fidelity of his wife. It is his further contention that FIR came to be registered at 03.00 p.m. and had reached the CJM at 06.15. p.m. and there was delay in sending the FIR. It is his further contention that P.W. 25 one Tippanna is projected as eye-witness and on looking to his evidence his presence on the spot at the time of incident is doubtful and he is a chance witness and he is unknown to the accused and the deceased. The Investigating Officer has not conducted any test identification. It is his further contention that there are several lapses in the investigation and pointed out those defects in the investigation as recorded by the trial Court in paragraph Nos. 32 to 38 of the judgment and those defects in the investigation are fatal to the case of the prosecution and the appellant is entitled for acquittal on that ground alone. 32 to 38 of the judgment and those defects in the investigation are fatal to the case of the prosecution and the appellant is entitled for acquittal on that ground alone. It is his further contention that the Autorikshaw which was seen in the scene of offence was in a damaged condition and the Investigation Officer has not conduced any investigation in that regard and P.W. 18 who is the owner of the said Autorikshaw has stated in his cross-examination that people told him that, his Autorikshaw dashed to the electric poll and sustained damage and he had not seen the Autorikshaw in the spot. It is his further contention that M. 0.5-machhu is alleged to have been recovered at the instance of accused from his house under recovery mahazar-Ex. P.5 along with a gunny bag but the Investigating Officer has not produced the said gunny bag. 6. Per contra learned Additional SPP contended that the evidence of P.W. 1, P.W. 15 and P.W. 16 established the motive for the accused to commit murder of his wife-deceased Alimabi. It is his further contention that even though P.W. 9 to P.W. 13 and P.W. 20 who were the eye-witnesses have turned hostile. P.W. 25 is the eye-witness and his testimony is trustworthy and he had identified the accused when he was shown to him in the police station and also in the Court. It is his further contention that the machhu used by the accused to assault the deceased has been recovered at his instance under Ex. P.5-recovery mahazar from his house. It is his further contention that even though there are some lapses and defects in the investigation and in spite of such lapses and defects in the investigation, the prosecution, from the available evidence on record, has proved that the appellant has committed the murder of his wife-Alimabi. 7. Having heard the arguments of learned counsel appearing for the appellant accused and the learned additional SPP and on perusal of the records, the following point arises for our consideration: 'Whether the prosecution has proved beyond all reasonable doubt that the appellant accused has committed the murder of his wife-Alimabi? 8. Our answer to the above point is in the affirmative for the following reasons: Death of the deceased Alimabi is a homicidal death is not in dispute. 8. Our answer to the above point is in the affirmative for the following reasons: Death of the deceased Alimabi is a homicidal death is not in dispute. P.W. 19-the Medical Officer who conducted the postmortem over the dead body of the deceased has given his opinion that cause of death of the deceased is "cardio respiratory failure due to obstruction to air entry into lungs (ASPHYXIA) as a result of injury sustained." MOTIVE 9. The appellant accused was residing with his wife-Alimabi in a rented house in Sadardarwaz area in Yadgir town. P.W. 1 is the brother, P.W. 14 is the younger sister and P.W. 15 is the mother of the deceased. It is the evidence of P.W. 1 that the accused used to suspect the fidelity of his wife and deceased used to tell the same to him whenever she used to visit his house and she used to tell them not to visit her house. It is for that reason the accused committed murder of deceased-Alimabi. It is the evidence of P.W. 14 that after the accused and the deceased came to Yadgir after two years of their marriage, they used to quarrel with each other and the accused used to suspect the fidelity of his wife and he used to assault her and question her whenever any relatives visited their house and the deceased used to tell the same to her when she used to visit her house. It is the evidence of P.W. 15 that after birth of children the accused used to suspect his' wife and he used to assault her and he used to quarrel with her whenever a relative visited their house and the deceased used to intimate the same when shed used to visit market at Yadgir on market day. P.W. 16 is the son of the accused and the deceased. He was aged about 11 years. It is his evidence that his father used to assault his mother. His father used to send his mother to bring beedi and after bringing beedi, he used to assault her on the ground that she came late. P.W. 16 is the son of the accused and the deceased. He was aged about 11 years. It is his evidence that his father used to assault his mother. His father used to send his mother to bring beedi and after bringing beedi, he used to assault her on the ground that she came late. Learned counsel appearing for the appellant contended that P.W. 16 who is the son of the accused and the deceased, resided with the accused and deceased and he had not stated anything with regard to any quarrel between the accused and the deceased and with regard to the accused suspecting the fidelity of the deceased. P.W. 16 was a boy aged about 11 years and he was too young to understand regarding any quarrel with regard to the accused suspecting the fidelity of the deceased. There is an eyewitness to the incident and as such the motive for committing the offence pales to insignificance. However, the motive established by the prosecution strengths its case. EYE-WITNESS 10. P.W. 9 to P.W. 13 and P.W. 20 who were the eye-witnesses to the incident have not supported the case of the prosecution and they have been treated as hostile. P.W. 25 is the sole eye-witness to the incident. It is the contention of learned counsel appearing for appellant that P.W. 25 is a chance witness and he has been planted in the case at the instance of P.W. 1 and his testimony is not believable. Presence of P.W. 25 in the hospital when P.W. 1 visited the hospital is stated in Ex. P.1-complaint which is filed at 02.00 p.m. It is the evidence of P.W. 24 that on 10.08.2011 at about 01.30 p.m. when he was in police station he received message from control room that there was a murder in Gunj area and he immediately went there and found the dead body of a female who had worn burka near Warknalli cross on Yadgir-Hyderabad road and at that time P.W. 25-Tippanna was present on the spot and with his help he had shifted the dead body to the hospital in the Autorikshaw. P.W. 8-Venkatesh who is the driver of the Autorikshaw in which the dead body of the deceased was transported from the spot to the hospital. P.W. 8-Venkatesh who is the driver of the Autorikshaw in which the dead body of the deceased was transported from the spot to the hospital. It is his evidence that at about 01.30 p.m. when he was returning in his Autorikshaw from Gunj area towards station, the PSI asked him to shift the dead body of a female which had fallen on the road and he along with another unknown person have shifted the dead body in the Autorikshaw to the Government Hospital. It is the evidence of P.W. 25 that he was doing mason work in the house of one Marwadi by name Nandalal on Yadgir road and at about 01.00 p.m., after finishing his work, he came to take tea on Hyderabad road and at that time he saw an Autorikshaw driven by a person wherein a lady was traveling and both of them got down and started quarrelling with each other and several persons had gathered there and the said person assaulted the woman with a hatyar on her chin and he had identified the said man when he was shown in the Court stating that he was the same person who had assaulted the said lady. It is his further evidence that the lady who sustained injury on her chin fell on the ground and the accused ran away towards Mylapur Agasi and the said lady had died and the ambulance which came there did not shift her to the hospital as she was dead and then the Police came in a jeep and secured an Autorikshaw and on the request of the police he had shifted the dead body by lifting it and placing it in the Autorikshaw and traveled in the said Autorikshaw to the Government Hospital, Yadgir and alighted the dead body from the Autorikshaw. In the cross-examination of P.W. 25 it is elicited that his clothes were not stained with blood and the dead body was in the back seat and he was also sitting in the back seat of the Autorikshaw. Even though the dead body was alighted from the Autorikshaw, his clothes were not stained with blood. The photographs of the dead body are at Ex. P.21 and Ex. 22. Even though the dead body was alighted from the Autorikshaw, his clothes were not stained with blood. The photographs of the dead body are at Ex. P.21 and Ex. 22. It is clear from the photographs that there were blood stains on the face, on the clothes near neck and therefore, clothes of P.W. 25 were not stained with blood even though he shifted' the dead body in the Autorikshaw to the hospital. P.W. 25 in his cross-examination has also stated that on seeing the quarrel several per-sons had gathered there but on seeing the weapon they had ran away and he also went inside a shop the shutter of which was closed and there were small windows in the shutter through which he saw the incident and he does not know whose shop it was and inside the said shop people were consuming liquor. Learned counsel appearing on behalf of appellant accused has contended that P.W. 23-Assistant Engineer, P.W.D. had prepared a sketch of the scene of offence as per Ex. P.15 and in that no wine shop was shown. To establish that there was a wine shop in Yadgir-Gunj circle by the side of the road, the evidence of P.W. 20 would be of some help. P.W. 20 even though cited as an eye-witness had not supported the case of the prosecution. But he had stated that he was the manager of the wine shop situated in Yadgir-Gunj circle by the side of road and he was not in the shop on the date of incident. It is the evidence of P.W. 25 that on that day at about 04.00 p.m. on coming to know that the police had arrested and brought the person to the police station he went there and on the police showing that person he had identified him. Learned counsel appearing on behalf of appellant accused has contended that at 04.00 p.m. on the date of incident the accused was not at all arrested and brought to the police station and therefore the evidence of P.W. 25 with regard to identifying the accused in the police station is doubtful. It is the evidence of P.W. 24-the PSI that he apprehended the accused near Hattiguni cross and brought him and produced him before the CPI and gave report as per Ex. P. 17 and when they secured the accused, it was 04.00 p.m. In Ex. It is the evidence of P.W. 24-the PSI that he apprehended the accused near Hattiguni cross and brought him and produced him before the CPI and gave report as per Ex. P. 17 and when they secured the accused, it was 04.00 p.m. In Ex. P.17 it is mentioned that the accused was apprehended at 04.00 p.m. and was produced before the CPI at 04.30 p.m. As per the evidence of P.W. 24 the accused was brought to the police station at 04.30 p.m. Merely because P.W. 25 has stated that he went to the police station at 04.00 p.m. his evidence cannot be disbelieved with regard to P.W. 25 identifying the accused at police station since P.W. 25 is a villager working as a mason. P.W. 25 had also identified the accused as the person who assaulted the deceased on seeing him in the Court at the time of giving evidence. Therefore, the failure of investigating agency to hold test identification parade does not have the effect of weakening the evidence of identification in Court as Cr.P.C. does not oblige the investigating agency to necessarily hold test identification parade nor is there any provision which accused may claim a right to holding of test identification parade. The said aspect has been considered by the Apex Court in the case of Sheo Shankar Singh v. State of Jharkhand and another, reported in : (2011) 3 SCC 654 : ( AIR 2011 SC 1403 ). The accused was a driver by profession and was running an Autorikshaw on hire basis. It is the evidence of P.W. 18 that he was the owner of the Autorikshaw bearing No. KA33-4507 and he had given it to the accused on hire of Rs. 200/- per day for a period of six months and the accused was paying the hire charges monthly. It is his further evidence that his Autorikshaw was on the scene of offence and the police had seized it and he subsequently got it released and it is at M.O. 6. In the cross-examination he has stated that there was no document for accused having hired his Autorikshaw. There is no denial in his cross-examination regarding the accused hiring the Autorikshaw of P.W. 18 bearing No. KA33-4507. Ex. P.20 is the photograph taken on the scene of offence wherein an Autorikshaw bearing No. KA33-4507 is seen. In the cross-examination he has stated that there was no document for accused having hired his Autorikshaw. There is no denial in his cross-examination regarding the accused hiring the Autorikshaw of P.W. 18 bearing No. KA33-4507. Ex. P.20 is the photograph taken on the scene of offence wherein an Autorikshaw bearing No. KA33-4507 is seen. There is no explanation by the accused as to how his Autorikshaw was there on the scene of offence. P.W. 18 has stated in his evidence that there was damage to his Autorikshaw, front glass was broken, top was torn and there was damage to the handle. In the cross-examination he has stated that neighbours told him that. his Autorikshaw dashed to the electric poll and there was damage. Learned counsel appearing for the appellant accused contended that the Investigating Officer had not conducted any investigation as to for what reason the Autorikshaw was damaged. Merely because no investigation is conducted with regard to the damage to the Autorikshaw, the entire case of the prosecution cannot be disbelieved. Even the accused has not explained how his Autorikshaw sustained damage. It is also not the defence of the accused that his Autorikshaw met with an accident and in that accident his wife sustained injuries. RECOVERY OF MACHHU (M.O. 5) 11. Ex. P.5 is the recovery panchanama under which M.O. 5 machhu was recovered at the instance of the accused from his house. P.W. 7 is one of the witnesses to Ex. P.5-recovery panchanama. It is the evidence of P.W. 7 that in the evening at about 06.00-06.30 p.m. the police called him to the house of accused situated at Dukhanwada, Hireagasi and at that time the accused had produced the machhu kept in a gunny bag hidden in his house and the said machhu was blood stained and police seized the said machhu and gunny bag and prepared mahazar as per Ex. P.5 and he had identified M.O. 5 as the said machhu seized under Ex. P.5. Nothing is elicited in the cross-examination to disbelieve the testimony of P.W. 7. Clothes of the deceased which she had worn are at M.O. 1 to M.O. 4 and they are, Burka, Odani, Jumper and Saree. P.W. 21, after postmortem examination had collected them from doctor and handed over the said clothes of the deceased to the CPI and gave report as per Ex. P. 13. Ex. Clothes of the deceased which she had worn are at M.O. 1 to M.O. 4 and they are, Burka, Odani, Jumper and Saree. P.W. 21, after postmortem examination had collected them from doctor and handed over the said clothes of the deceased to the CPI and gave report as per Ex. P. 13. Ex. P.19 is the FSL report wherein article No. 1-one machhu, article No. 2-one burka, article No. 3-one Jumper (blouse), article No. 4-one saree, article No. 5-mud and article No. 6-sample mud have been examined and it is opined that presence of blood was detected in article Nos. 1 to 5 and presence of blood was not detected in article No. 6. Article Nos. 1 to 5 were stained with human blood of A Group. Article Nos. 2 to 4 were clothes of deceased and article No. 5 was blood stained mud seized from the spot under spot panchanama-Ex. P.4. Blood group of the blood stains on article No. 1-machhu was also A Group which tallies with the blood group of deceased as found on article Nos. 2 to 4. Said aspect goes to establish that the machhu which was recovered at the instance of accused from his house was also stained with human blood of A Group. Non-production of gunny bag recovered under Ex. P.5 recovery mahazar, non-holding of parade which are defects in the investigation by itself cannot be a ground for acquittal of the accused. In the case of Shyamal Ghosh v. Sate of West Bengal reported in : 2012 Cri. LJ 3825 the Apex Court has held as under: "40. xxx. Of course, there are certain discrepancies in the investigation inasmuch as the investigating Officer failed to send the blood stained gunny bags and other recovered weapons to the FSL, to take photographs of the shops in question, prepare the site plan thereof, etc. Every discrepancy in investigation does not. weigh with the Court to an extent that it necessarily results in acquittal of the accused. These are the discrepancies/lapses of immaterial consequence. In fact, there is no serious dispute in the present case to the fact that the deceased had constructed shops on his own land. These shops were not the site of occurrence, but merely constituted a relatable fact. These are the discrepancies/lapses of immaterial consequence. In fact, there is no serious dispute in the present case to the fact that the deceased had constructed shops on his own land. These shops were not the site of occurrence, but merely constituted a relatable fact. Non-preparation of the site plan or not sending the gunny bags to the FSL cannot be said to be fatal to the case of prosecution in the circumstances of the present case. Of course, it would certainly have been better for the prosecution case if such steps were taken by the Investigating Officer. In C. Muniappan v. State of Tamil Nadu : (2010) 9 SCC 567 : ( AIR 2010 SC 3718 )], this Court has clearly stated the principle that the law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Similar view was taken by this Court in the case of Sheo Shankar Singh v. State of Jharkhand and another (2011) 3 SCC 654 : ( AIR 2011 SC 1403 )] wherein the Court held that failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the court would determine in the peculiar facts and circumstances of each case. Similarly, failure to make reference to the FSL in the circumstances of the case is no more than a deficiency in the investigation of the case and such deficiency does not necessarily lead to a conclusion that the prosecution case is totally unworthy of credit". Therefore, even though there are some lapses/defects in the investigation, the accused is not entitled to claim acquittal as the prosecution has proved the guilt of the accused beyond reasonable doubt. 12. On appreciation of the entire material on record we do not find any justifiable reason to differ with the view taken by the trial Court. We find that the trial Court has analysed the evidence of prosecution witness in right perspective. 12. On appreciation of the entire material on record we do not find any justifiable reason to differ with the view taken by the trial Court. We find that the trial Court has analysed the evidence of prosecution witness in right perspective. The conclusions drawn by the trial Court are based on legal evidence. We do not find any error or infirmity either in appreciation of evidence or findings recorded by the trial Judge warranting interference in exercise of appellate jurisdiction. The trial Court has considered all the facts and aspects of the case which clearly establish the guilt of the accused for the offence punishable under Section 302, IPC. Consequently the appeal being devoid of merits is liable to be dismissed. Accordingly, it is dismissed. The impugned judgment of conviction dated 26.09.2012 and order of sentence dated 28.09.2012 passed in S.C. No. 64/2011 by the learned District and Sessions Judge, Yadgir is confirmed.