Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1204 (KAR)

Bandenavaz v. State of Karnataka

2023-10-11

MOHAMMAD NAWAZ, RAJESH RAI K.

body2023
JUDGMENT RAJESH RAI K., J. The appellant has filed this appeal against the judgment dtd. 8/3/2018 passed by the learned II Addl. District & Sessions Judge at Raichur in S.C.No.51/2016, wherein the learned Sessions Judge convicted the appellant for the offence punishable under Sec. 302 of IPC and sentenced him to undergo imprisonment throughout life and pay fine of Rs.20, 000.00 and in default to pay the fine, same to be recovered as arrears of land revenue. 2. The brief facts which led to the trial of the appellant are as follows: The complainant in this case Bibi Fatima married deceased Nabi Rasool about 12 years prior to the date of incident and having four children. Deceased Nabi Rasool was addicted to alcohol and about two months prior to the incident, he started to raise quarrel with the complainant (examined as PW1) every night in drunken mood. The accused/appellant being younger brother of the complainant, used to advice the deceased not to rise quarrel. Eight days prior to the incident, the deceased abused the complainant stating that the complainant and her mother are belonging to the family of prostitutes. Accused/appellant again advised the deceased and threatened him stating that he would murder him if he continued such acts of quarrel with the complainant. However, the complainant has responded telling him that it is quite common in all the families. On 31/1/2016 at about 6.00 p.m., the complainant and her children were in Janata house of PW2 situated at village Kadadaral, Tq: Lingasugur. Accused was cutting the branches of a tree standing in front of the house of the complainant. The deceased came home and as usual raised quarrel with the complainant and started to beat her. Hearing the quarrel accused came there stating that he would kill the deceased since he repeated such acts with the complainant. Thereby, all of a sudden the accused assaulted deceased Nabi Rasool i.e. the husband of complainant PW1 with an axe over his head, neck and chin and committed his murdered. 3. PW1, wife of the deceased and sister of the accused lodged the complaint on the same day at about 7.00 p.m. as per Ex.P1 before PW12 and the same was registered in Crime No.20/2016 dtd. 31/1/2016 as per Ex.P16. 3. PW1, wife of the deceased and sister of the accused lodged the complaint on the same day at about 7.00 p.m. as per Ex.P1 before PW12 and the same was registered in Crime No.20/2016 dtd. 31/1/2016 as per Ex.P16. Thereafter, PW12-the Investigation officer conducted the spot mahazar, inquest mahazar and after recording statements of the witnesses and obtaining necessary documents, he laid the charge sheet against the accused for the offence punishable under Sec. 302 IPC before the committal court. After committal of the case before the Sessions Court, the learned Sessions Judge having found prima-facie case against the accused, framed charge under Sec. 302 IPC. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined as many as 12 witnesses as PW1 to PW12 so also 19 documents marked as Ex.P1 to Ex.P19 and 7 material objects i.e. MO.1 to MO.7. After conclusion of the prosecution evidence, the incriminating portion of the evidence of the material witnesses was read over to the accused as contemplated under Sec. 313 of Cr.PC, however, the accused denied his involvement in the crime. He pleaded that a false case has been lodged against him and he claimed to be innocent. However, no witness in defence has been examined by the accused. 5. The learned Sessions Judge after considering the entire evidence on record, recorded conviction and imposed sentence as aforesaid upon the accused. The said judgment is challenged under this appeal. 6. We have heard the learned counsel Sri. Shivashankar H.Manur for the appellant/accused and Sri. Siddaling P.Patil, learned Addl. SPP for respondent-State. 7. The learned counsel appearing on behalf of the accused, challenged the judgment of the trial Court interalia contending that the prosecution has miserably failed to bring home the guilt of the accused by leading cogent and reliable evidence. The learned Sessions Judge held the accused guilty simply on surmises and conjecture, therefore the accused deserves to be acquitted. He would further contend that the prosecution has totally relied on the evidence of sole eye witness PW1 in this case, who is none other than the wife of the deceased and brother of the complainant. The learned Sessions Judge held the accused guilty simply on surmises and conjecture, therefore the accused deserves to be acquitted. He would further contend that the prosecution has totally relied on the evidence of sole eye witness PW1 in this case, who is none other than the wife of the deceased and brother of the complainant. In her cross examination, she categorically admitted that there is a wall between the kitchen and hall and the persons standing in the kitchen cannot see the person in the house. Hence, there is no possibility for her to witness the incident since she was inside the house at the time of incident. Further, absolutely there is no corroboration to her version since all the other witnesses are circumstantial / hearsay witnesses. According to the learned counsel, much evidentiary value cannot be attached to the evidence of PW1 who is a most interested witness. He would further contend that the learned Sessions Judge seriously erred by not relying on the defence of the accused that PW2 the mother of PW1 and accused, owned 6 acres of land and PW1 lodged a false complaint at the instigation of other members of the family to get the said property with a hope that if the accused goes to prison she will get the said property. Though the said defence is probable one, the Sessions Judge failed to appreciate the same. The learned counsel lastly contended that there are contradictions in the evidence of the material witnesses including the Investigation Officer PW12. Hence based on such evidence, the learned Sessions Judge ought not have convicted the accused for the charges leveled against him. 8. The learned counsel alternatively contended that on perusal of the facts and circumstances of the case, the same false under the purview of exception 1 and 4 of 300 of IPC and at the most the accused is liable to be convicted for the offence punishable under Sec. 304(1) of IPC. According to the learned counsel, the accused had no such intention/ motive to commit the murder of the deceased. The entire incident occurred in a spur of moment and in a grave and sudden provocation. As such, he alternatively prays to modify the conviction order. 9. Per contra, the learned Addl. According to the learned counsel, the accused had no such intention/ motive to commit the murder of the deceased. The entire incident occurred in a spur of moment and in a grave and sudden provocation. As such, he alternatively prays to modify the conviction order. 9. Per contra, the learned Addl. SPP submitted that the prosecution has clearly established the guilt of the accused and no exception can be taken to the reasons indicated by the Trial Court under a well reasoned judgment. The evidence has also been analyzed in great detail by the Trial Court, therefore, no question of any interference is called for with the conviction recorded by the Trial Court. 10. He would further contend that, on perusal of the evidence available on record, PW1 being the wife of deceased and brother of accused witnessed the incident and she categorically deposed the manner in which the accused committed the murder of her husband. Her evidence corroborates with the medical evidence. The prosecution proved the other circumstances of recovery of the weapon at the instance of accused which was used for the commission of the crime so also the blood stained clothes of the accused. According to the learned Addl. SPP, the prosecution also proved the motive for the commission of the crime by adducing evidence of PW2 i.e. mother of the accused and mother-in-law of the deceased. The evidence of PW3 and PW4 i.e. the sisters of accused, also supported the case of the prosecution and deposed about the motive for the commission of the crime. Hence, according to the learned Addl. SPP, the prosecution proved its case beyond all reasonable doubt. He also further contended that this case will not fall under the ambit of exception 1 of Sec. 300 of IPC, since the manner in which he assaulted the deceased on his vital part repeatedly with deadly weapon clearly shows his intention to commit the murder of the deceased. Accordingly, he prays to dismiss the appeal. 11. We have independently analyzed the entire oral and documentary evidence on record, in order to appreciate the respective contention of the learned counsel for the parties. Having heard the learned counsel for the parties so also having perused the documents and evidence available on record, the points that would arise for our consideration are: 1) Whether the judgment under appeal suffers from any perversity or illegality? Having heard the learned counsel for the parties so also having perused the documents and evidence available on record, the points that would arise for our consideration are: 1) Whether the judgment under appeal suffers from any perversity or illegality? 2) Whether the Trial Court is justified in convicting the accused for the offence punishable under Sec. 302 of IPC? 12. On a careful perusal of the evidence available on record: 13. PW1 Bibi Fatima, complainant in this case is none other than the wife of the deceased and sister of the accused. She has stated in her evidence that 1 year 8 months prior, one day at 6.00 p.m. near her house Kadadaral, accused assaulted her husband Nabi Rasool with MO.1 axe, over his throat and head, for the reason that the deceased raised a quarrel with her in drunken mood. Thereafter, she lodged the complaint before the police as per Ex.P1. She identified the complaint, and MO.1-axe that as the weapon used by the accused to commit the murder. 14. PW2-Hussain Bee is the mother of accused and mother-in-law of deceased, stated in her evidence that one and half years ago she had been to work and returned to the house in the evening. At that time, PW1 was crying, on enquiry she revealed that the accused committed the murder of her husband. 15. PW3-Khaja Bee the sister of the accused as well as PW1, deposed that 1 year 10 months ago when she was outside her house, she heard the hue and cry from the house of her sister. Hence, she rushed there at that time, the accused was running away from that place and she saw the deceased had sustained injuries on his throat and head, on enquiry PW1 informed her that the deceased assaulted her husband with axe. 16. PW4-Nabisab is the husband of PW3. He has deposed similar to PW3, that after hearing the hue and cry of PW1, he rushed to the house of PW1, and saw the deceased with bleeding injuries and PW1 informed him that, the accused has committed the said act. 17. PW5-Meeru Hussain, is a witness to the inquest panchanama conducted over the dead body of the deceased as per Ex.P6. He is also a witness for seizure of MO.1-Axe under recovery mahazar as per Ex.P7. 17. PW5-Meeru Hussain, is a witness to the inquest panchanama conducted over the dead body of the deceased as per Ex.P6. He is also a witness for seizure of MO.1-Axe under recovery mahazar as per Ex.P7. Further, a witness to the spot mahazar Ex.P8 and seizure mahazar Ex.P9 i.e. the clothes of the accused and one more seizure mahazar Ex.P10 i.e. the recovery of the clothes of the deceased. He has supported the case of prosecution. 18. PW6-Khajasab is a co-pancha for Ex.P7, ExP8, Ex.P9 and Ex.P10 and he has supported the case of prosecution. 19. PW7-Zaheerabee is the mother of deceased, who is a circumstantial witness deposed in respect of motive for the incident. 20. PW8 Imamali is the father of PW7. He has deposed that the accused was in prison in a murder case, earlier to this incident. PW1 informed him over phone that herself and deceased were quarreling with each other, at that time, the accused committed the murder of her husband. This witness being circumstantial witness deposed about the motive for the commission of the crime by the accused. 21. PW9-Dr. Nagaraj, conducted the autopsy over the dead body and issued the post mortem report as per Ex.P12. His opinion in respect of the weapon is marked as Ex.P13. 22. PW10 is the Junior Engineer of PWD, conducted the spot sketch as per Ex.P14. 23. PW11-Syed Chand Pasha, the then police constable of Mudgal, is a formal witness, took the dead body of the deceased to the Government Hospital for post mortem examination. 24. PW12 is the Investigation Officer, conducted the investigation and laid the charge sheet against the accused for the offence punishable under Sec. 302 of IPC. 25. In order to prove the homicidal death of the deceased, the prosecution has relied on the evidence of PW3-doctor, who conducted autopsy over the dead body and also the post mortem report marked as per Ex.P12. On a perusal of Ex.P12, the opinion given by the doctor has to the cause of death is "due to shock after the grievous injuries sustained on head with sharp and hard object". The said evidence of PW3-doctor, corroborates with Ex.P6 inquest panchanama and also the evidence of PW5, PW6 and the investigation officer PW12. PW5 and PW6 have identified the injuries over the dead body and also identified their signatures on Ex.P6 inquest panchanama. The said evidence of PW3-doctor, corroborates with Ex.P6 inquest panchanama and also the evidence of PW5, PW6 and the investigation officer PW12. PW5 and PW6 have identified the injuries over the dead body and also identified their signatures on Ex.P6 inquest panchanama. Nevertheless, the doctor PW9 gave an opinion that the injuries mentioned in the PM report may be caused by MO.1-axe, as per Ex.P13. Hence, on perusal of the above evidence, the prosecution has established the homicidal death of the deceased. 26. In order to connect the accused to the homicidal death of the deceased, on perusal of the evidence of PW1, wife of the deceased and brother of the accused, she has unequivocally stated that on the date of incident, at about 6.00 p.m. the accused assaulted her husband with the axe on his throat, neck and head for the reason that her husband was quarreling with her in drunken state. She has also stated that, at the time of incident the accused was cutting branches of a tree in front of her house. She was alone in the house along with her small daughter. Thereafter, she lodged the complaint before the police as per Ex.P1. On perusal of Ex.P1, the contents of complaint, the same corroborates with the evidence of PW1. The said complaint was lodged by PW1 immediately after the incident and based on the same, FIR was registered against the accused in Crime No.20/2016 on 31/1/2016 at about 7.00 p.m. i.e. one hour of the incident. Though the learned counsel for the defence cross-examined PW1 at length, nothing worthwhile has been elicited from her mouth to discard her version. PW1 identified MO.1-axe before the Court and deposed that the accused assaulted her husband with the said weapon MO.1. Her version corroborates with the evidence of PW4. 27. According to PW4, on the date of incident, at about 6.00 p.m., she heard the hue and cry from the house of PW1, as such she went to the house of PW1, at that time she saw the deceased had sustained severe injuries on his neck, head and he was lying dead. On enquiry, PW1 informed that accused assaulted her husband. On enquiry, PW1 informed that accused assaulted her husband. PW3 who is the wife of PW4, has also stated that he along with PW3 went to the house of accused on the date of incident and saw the deceased with severe injuries on his throat and head. The accused was running from the said spot. On enquiry, PW1 informed that the accused committed the murder of her husband. In view of the consistent evidence of PW1, PW3 and PW4, the prosecution has established that the accused has assaulted the deceased with MO.1-axe and caused his death. 28. PW1 has categorically deposed about the motive for the commission of crime by the accused that, the accused committed the murder of the deceased for the reason that the deceased being drunkard, used to quarrel with his wife i.e. PW1. Hence, on earlier occasions, the accused had warned the deceased that if he continues his act of abusing PW1 then, he would commit his murder. Later on the date of incident i.e. 31/1/2016, at about 6.00 p.m. when the accused was cutting branches of a tree in front of the house of deceased and on seeing the deceased quarreling with PW1, he came with the axe and assaulted on the deceased on his vital parts of the body and committed his murder. This version is supported by the evidence of PW4 to PW7. Though the learned counsel for the defence cross-examined all these witnesses, nothing worthwhile was elicited to discard their version. It is pertinent to note that all the above witnesses are not only the relatives of PW1 but the relatives of the accused as well. Hence, there is no reason to disbelieve their version on the ground that they are interested witnesses and family members of the deceased. As a matter of fact, the mother of the accused, PW2 has also deposed against him that he has committed the murder of deceased. Further, all these witnesses categorically deposed that before the incident, the accused had murdered his maternal uncle and he was convicted by the Court and was in jail. Hence, on perusal of the above evidence, the prosecution has proved the motive for the commission of the crime. Further, all these witnesses categorically deposed that before the incident, the accused had murdered his maternal uncle and he was convicted by the Court and was in jail. Hence, on perusal of the above evidence, the prosecution has proved the motive for the commission of the crime. The learned counsel for the appellant contended that the evidence of PW1 to PW4 and PW7 and PW8 suffers from contradictions and omissions in respect of the motive for the commission of the crime. However, it is settled position of law by the Hon'ble Apex Court in catena of judgments, that in a case based on direct eye witness to the incident, motive will not play a vital role. However, in the case on hand, PW1 is the eye witness to the incident. Hence, the contention of the learned counsel for the appellant cannot be accepted. 29. On perusal of the evidence of PW5 and PW6 coupled with the evidence of the PW12 I.O., the prosecution has also proved the recovery of MO.1-axe used by the accused for the commission of the crime, under mahazar Ex.P7 and also the recovery of shirt of accused, under Ex.P9 mahazar. PW5 and PW6 have supported the case of prosecution. The axe i.e. MO.1 and shirt of accused MO.3 and the shirt of the deceased were sent to FSL by the prosecution. The said report was marked Ex.P19, which depicts that the blood stains were detected in the axe and the shirt of accused and the deceased and they were stained with human blood belongs to 'A' blood group. In such circumstances, the prosecution also proved that the accused has committed the offence by assaulting the deceased with the MO.1-axe. 30. It is clear from the evidence of PW1 that except herself, no one witnessed the accused assaulting the deceased. She is the only eye witness. However, immediately after the incident PW3 and PW4 rushed to her house and they have seen the dead body of the deceased and accused running from the spot. PW1 has informed them that it is the accused who committed the offence. The accused has not placed on record any material to disprove the evidence of PW1 to PW4, PW7 and PW8. Per contra, their evidence is consistent and corroborates with each other. PW1 has informed them that it is the accused who committed the offence. The accused has not placed on record any material to disprove the evidence of PW1 to PW4, PW7 and PW8. Per contra, their evidence is consistent and corroborates with each other. Hence, on scrutiny of the evidence of the above witnesses, the oral testimony of the above witness corroborates with the medical evidence tendered by PW9 and establishes the guilt of the accused. 31. Having carefully gone through the evidence of above witnesses, examined in this case, we find no possible and justifiable reason whatsoever to disbelieve and discard the testimony of PW1, the eye witness and the other circumstantial witnesses. PW1 is a trustworthy witness and her evidence cannot be brushed aside for minor contradictions. The Hon'ble Apex Court in the case of Ravasaheb Alias Ravasahebgouda V/s State of Karnataka, (2023) 5 SCC 391 , held that the evidence of sole related eyewitness can be basis for conviction, particularly when there is no vagueness in his/her testimony with respect to the act committed by the accused. The Hon'ble Apex Court in para 17 of the said judgment held that: "It is clear that it is the quality and not the quantity of the witnesses that matters. Further in para 25 of the said judgment, it is stated that "a witness being a close relative is not a ground enough to reject his/her testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of the general application". 32. The learned counsel for the appellant alternatively submitted that, this case will come under exception (1) and (4) of Sec. 300 of IPC and the accused is liable to be convicted for the offence punishable under Sec. 304(1) instead of Sec. 302 of IPC. He would contend that the accused being the brother of PW1, while pacifying the quarrel between PW1 and deceased, due to sudden loss of self control, he might have assaulted the deceased without any intention or motive to commit his murder. Hence, the incident took place in a grave and sudden provocation which comes within the ambit of above exceptions to Sec. 300 of IPC. 33. Hence, the incident took place in a grave and sudden provocation which comes within the ambit of above exceptions to Sec. 300 of IPC. 33. On perusal of the facts and circumstances of the case, and also the evidence available on record, PW1 clearly deposed that herself and her husband were quarrelling in the house and at that time, without any reason the accused entered their house and assaulted the deceased with deadly weapon i.e. MO.1. On perusal of the PM report, there are three injuries caused to the deceased on his vital part i.e. throat, neck and head of the deceased, which clearly shows that the accused had such intention to commit the murder of the deceased, since he repeatedly assaulted the deceased with the deadly weapon on his neck, head and throat which are vital parts of the body. There is no reason for the accused to be provoked, since the deceased had not quarrelled with him. A perusal of exception 4 of Sec. 300, the act of the accused does not fit into the said proviso which reads "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the case on hand, there was no sudden fight between accused and deceased. Further, the accused has taken undue advantage of the situation and acted in a cruel manner by assaulting the deceased with axe repeatedly on his head, neck and throat. Such being the case, the act of the accused cannot be termed as, the same was committed in a heat of passion and in a sudden loss of self control. Hence, we decline to accept the submission of the learned counsel for the appellant that this case comes under the ambit of the above exceptions to Sec. 300 of IPC instead Sec. 302 of IPC. 34. The Trial Court has recorded the findings of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case. In view of the aforesaid discussion, we do not find any justifiable grounds to interfere with the conviction and sentence passed by the Trial Court. 35. 34. The Trial Court has recorded the findings of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case. In view of the aforesaid discussion, we do not find any justifiable grounds to interfere with the conviction and sentence passed by the Trial Court. 35. However, the sentence imposed against accused by the trial Court by directing him to undergo imprisonment i.e., till his last breath is concerned, in our considered view the said sentence is not sustainable under law, for the reason that, the Hon'ble Apex Court in the case of Union of India vs. V.Sriharan Alias Murugan and others reported in 2016 (7) SCC has held that awarding of said special category sentence, in substitution of death sentence, that is, sentence barring remission under Cr.PC for specified term beyond 14 yrs, or life imprisonment barring remission for rest of life, held (per majority), is valid - Clarified, however power under Arts. 72 and 161, which is not the same as the statutory power of remission, is not affected - Award of non-remittable specified sentence or life imprisonment barring remission for rest of life, held, not violative of separation of powers - Such special sentence when imposed under substantive provisions of IPC, does not overlap procedural power under Cr.PC either - Considering crime situation in India (particularly nexus between hardened criminals and illgotten wealth, and nature of heinous crimes on the rise), delay in disposal of cases, and balancing interest of victims with those of convicts, such special category sentence is necessary. Further held (per majority), such special category sentence can only be imposed by High Court or supreme Court and not by trial court. 36. In such circumstances, the Sessions Court cannot exercise power to impose imprisonment to accused to suffer imprisonment throughout life for the offence punishable under Sec. 302 of IPC. Nevertheless, the Hon'ble Apex Court in the case of Dharma Deo Yadav V/s State of Uttara Pradesh, (2014) 5 SCC 509 , laid down three tests, namely, Crime test, Criminal test and Rarest rare test. So for the present case is concerned, both the crime and criminal tests have been satisfied against the accused but, rarest rare test is concerned, the prosecution failed to prove the same by leading cogent evidence that the crime was committed in a barbaric manner. So for the present case is concerned, both the crime and criminal tests have been satisfied against the accused but, rarest rare test is concerned, the prosecution failed to prove the same by leading cogent evidence that the crime was committed in a barbaric manner. Hence, the instant case would not fall under the category of rarest of the rare case. As such, the punishment awarded by the trial Court imposing imprisonment throughout his life has to be modified to life imprisonment. 37. In that view of the matter, we answer the points raised above and proceed to pass the following: ORDER i) Criminal Appeal No.200044/2018 filed by accused is hereby allowed-in-part. ii) The judgment of conviction passed in S.C.No.51/2016 dtd. 8/3/2018 by the II Addl. District and Sessions Judge at Raichur, convicting the accused for the offence 302 of IPC is confirmed. However, the sentence imposed by the Trial Court i.e. to suffer imprisonment throughout life and to pay fine of Rs.20, 000.00 for the offence under Sec. 302 of IPC, in default to pay the fine, same shall be recovered as arrears of land revenue, is hereby modified. iii) Accused is sentenced to undergo Rigorous Imprisonment for life and shall pay fine of Rs.20, 000.00 and in default of payment of fine, he shall undergo simple imprisonment for one year. iv) Registry is directed to send back the trial Court records along with the copy of this order to the learned Sessions Judge, forthwith.