Criminal Appeal No. 3513/2012. Case: Mohd. Shukur Vs The State of Karnataka. Karnataka High Court
|Case Number:||Criminal Appeal No. 3513/2012|
|Party Name:||Mohd. Shukur Vs The State of Karnataka|
|Counsel:||For Appellant: S.K. Venkata Reddy, Advocate and For Respondents: Prakash Yeli, Addl. SPP|
|Judges:||Aravind Kumar and B.A. Patil, JJ.|
|Issue:||Indian Evidence Act, 1872 - Sections 114, 27; Indian Penal Code 1860, (IPC) - Section 302|
|Judgement Date:||March 23, 2017|
|Court:||Karnataka High Court|
Aravind Kumar, J.
1. Appellant herein challenges his conviction for the offence under Section 302 of the Indian Penal Code (hereinafter called 'IPC for short) by the trial Court.
2. The gist of the prosecution case is as under: Complainant is Smt. Mehaboob Bee a resident of Yakbal Colony, Gulbarga is residing with accused and her daughter Ms. Rizwana. Ms. Rizwana was a practicing Advocate and accused is her son and Ms. Rizwana was said to be having illicit relationship with one Shiraj Pasha and same was not approved by the complainant and the accused; there was quarrel in the family over the said relationship between Ms. Rizwana, complainant and the accused in that regard and accused is said to have warned his sister Ms. Rizwana to cut off her illicit relationship with Siraj Pasha and enraged by this deceased was threatening her mother and accused and had demanded them to vacate the house; Fifteen days prior to the incident Ms. Rizwana had given a threat to the complainant and the accused, that she would take away their life by showing a dagger and on 22.03.2010 at 8.00 a.m. when mother Mehaboob Bee was proceeding to attend nature's call with the assistance of her son-accused, Ms. Rizwana again threatened the complainant and accused by showing dagger and demanded them to vacate the house as otherwise she would not let them alive and in the said quarrel she tried to hit accused with a dagger and same was avoided by him and at that point of time accused had caught hold of her hair and pulled her down and forcibly snatched the dagger from deceased and stabbed on her stomach and thigh and also on her back by using the dagger which caused bleeding injuries to her; accused had taken the body of Ms. Rizwana outside the gate onto the road and informed his mother that he would surrender before the police along with dagger. It is the further case of the prosecution that, on hearing about the incident PW-14 - PSI went to the place of incident and recorded the statement of complainant.
3. Based on the said complaint the PSI of Raghavendra Nagar Town Police Station registered a case in Crime No. 29/2010 under Section 302 of IPC at 9.45 a.m. against accused and submitted the FIR (Ex. P-24) to the jurisdictional Court through the constable PW-27. Thereafter, PSI is said to have proceeded to the place of incident and carried out inquest mahazar in the presence of Jayunisa Begum - PW-2 and Mohammad Ibrahim - PW-3 and after drawing the inquest panchanama Ex. P-12 dead body of Ms. Rizwana was sent for post mortem examination. Dr. Irfan Ali PW-8 conducted the postmortem examination of deceased Ms. Rizwana as per Ex. P-20 and the I.O. PW-18 took up the investigation of the case.
4. The I.O. PW-18 is said to have recovered the dagger M.O.-1 used to commit the offence as per mahazar Ex. P-13 and prepared the spot panchanama as per Ex. P-15 after visiting the spot. The I.O. is said to have seized blood stained rubber band, blood stained mud M.O.-7 and plain mud M.O.-8 from the place of incident and is said to have interrogated the accused. Accused is said to have admitted that he had committed the murder of his sister and had voluntarily surrendered to the police. The voluntary statement of the accused is said to have been recorded by the I.O. PW-18 was marked as Ex. P-32 and on the basis of said voluntary statement I.O. is said to have visited the house of the accused and recovered the pyjama and banian M.O.-11 and M.O.-10 respectively and the place of incident was photographed as per Ex. P-26 to P-31 and the photographs of the deceased was marked as Ex. P-2 to P-10. The I.O. PW-18 is said to have recorded the statement of witnesses and also has drawn the cloth seizure panchanama Ex. P-16 namely the clothes of deceased Ms. Rizwana and had handed over the further investigation to PW-15 on 23.03.2010. The said I.O. PW-15 is said to have requested the PWD authorities to prepare the sketch of the place of incident and had received the same on 24.06.2010 as per Ex. P-21 and had forwarded all the material objects for forensic examination to forensic science laboratory and received the laboratory report as per Ex. P-25.
5. The accused was arrested on 22.03.2010 and the charge sheet was submitted to the jurisdictional JMFC Court on 04.06.2010. Later it was committed to the Court of Sessions and registered as S.C. No. 312/2010. On this basis, the prosecution sought for conviction of the accused. Prosecution had examined 18 witnesses as PW-1 to PW-18 and got marked Exs. P-1 to P-32 and M.O.s 1 to 11. No witnesses were examined on behalf of defence.
6. Before the learned trial judge the complainant PW-1 Mahaboob Bee turned hostile and denied having made the statement Ex. P-11 before the police. She was treated as hostile and was cross-examined. PW-2 and PW-3 witnesses to inquest panchanama Ex. P-12 also turned hostile and they did not support the case of the prosecution. PW-4 who was witness to Ex. P-13 to P-16 namely dagger seizure panchanama, cloth seizure panchanama, spot panchanama and cloth seizure panchanama respectively also turned hostile. PW-5 brother-in-law of the accused who was examined by the prosecution to prove that PW-1 complainant had informed him about the incident and accused committing the murder as stated in the statement Ex. P-17 had also turned hostile.
7. Likewise the witness PW-6 the elder sister of the accused, PW-7 brother of accused who were examined to prove that PW-1 had informed these witnesses about the incident and accused committing the murder as stated in their respective statements Ex. P-18 and P-19 had also turned hostile and had not supported the case of the prosecution.
8. PW-10 and PW-11 who were examined by the prosecution to prove that they had made the statements as per Ex. P-22 and P-23 of having went to the place of incident and had learnt about the incident from PW-1 also turned hostile and they had not supported the case of the prosecution.
9. The learned Judge recorded the judgment of conviction, inter alia, on the following findings:
(1) The incident had taken place in front of the gate of the house of the complainant and perhaps PW-1 has tried to save the accused (her son) from sentence.
(2) The information given by PW-1 about the incident having been recorded by PSI of Raghavendra Nagar Town Police Station i.e. PW-14 and there has been no delay in recording the statement and his evidence is believable.
(3) Presence of accused at the time of incident is nowhere denied by PW-14, PW-15 and PW-18 and PW-18 had specifically stated in his evidence that after the incident accused himself came to the police station along with dagger M.O.-1 and this evidence is supported by the fact that the accused was produced before the committal JMFC on 22.03.2010 at 8.15 p.m. and the said JMFC had received the FIR after the incident on 22.03.2010 at 11.00 a.m. and the cumulative effect of these facts would establish the presence of the accused and the time of the incident and thereafter he had surrendered along with the dagger M.O.-1 before ASI Madan at Raghavendra Nagar Town Police Station.
(4) No explanation was forthcoming from the accused as to why deceased Ms. Rizwana though having sustained 7 to 8 stab injuries had not raised hue and cry if she had been purportedly stabbed by anyone else other than the accused. The clothes of the accused were lying by the side of the water tank and the place of the incident is little away from the water tank and as such it is highly improbable for PW-18 to observe blood stained cloths of accused and the time of inspection of the place of incident and as such the sessions Court accepted the voluntary statement of the accused.
(5) The evidence of PW-14, 15 and 18 establish the facts to connect the accused and PW-18 had recovered the blood stained clothes of the accused based on the voluntary statement given by the accused.
(6) The blood stained cloths of the accused recovered on the basis of the voluntary statement of the accused as per Ex. P-25 discloses the said blood stains were that of the deceased.
(7) The evidence of Mallikarjun PW-14 and Dr. Irfan Ali PW-8 indicating the death of the deceased is on account of the injuries sustained by her on her vital parts of the body and no explanation is offered by the accused as to how the deceased sustained injuries.
10. On the reasons assigned hereinabove the learned Sessions Judge held that prosecution had proved that accused had committed the offence punishable under section 302 of the IPC and accordingly convicted him for the said offence and sentenced him to life imprisonment and imposed fine of Rs. 10,000/- by judgment dated 08.11.2011 and order of sentence dated 09.11.2011.
11. We have heard the arguments of Sri S.K. Venkat Reddy, learned counsel appearing on behalf of Sri Sanjay Kulkarni for appellant - accused and Sri Prakash Yeli, learned Addl. State Public Prosecutor for the State. Perused the records.
12. It is the contention of the learned counsel appearing for the appellant that learned Sessions Judge had failed to meticulously appreciate the available material on record inasmuch as trial Court ought to have noticed that independent eye witnesses to the incident had turned hostile; lapses in investigating process has been overlooked; the alleged incident had not occurred in the manner as laid by the prosecution and it had failed to prove the genesis of the crime; all the witnesses had turned hostile including the complainant PW-1 and except the official witnesses none of the prosecution witnesses had supported the prosecution and even circumstantial evidence relied upon was not sufficient to convict and trial Judge on an inference drawn has convicted the accused; prosecution had failed to establish the motive by examining Mr. Siraj; prosecution had failed to prove a recovery of blood stained cloth at the instance of the accused; Assistant Sub-Inspector of Police before whom the...
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