Karnataka High Court
Mustaf S/O Moulasab Gulashi vs The State Of Karnataka on 3 June, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
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CRL.A No. 100246 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100246 OF 2020 (C)
BETWEEN:
1. MUSTAF S/O MOULASAB GULASHI
AGED: 33 YEARS, R/O: MUDAKAVI,
TQ: RAMDURG-591132,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. S L MATTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE BENDIGERI P.S.,
HUBBALLI-580020,
R/BY ADDITIONAL SPP,
HIGH COURT OF KARANTAKA,
DHARWAD BENCH,
Digitally signed by J
MAMATHA
Location: High
DHARWAD.
J Court of Karnataka,
MAMATHA Dharwad Bench
Dharwad.
Date: 2022.06.15
14:53:50 +0530
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY I ADDL. DISTRICT
AND SESSIONS JUDGE, DHARWAD (SITTING AT HUBBALLI) IN
SESSIONS CASE NO.171/2017, DATED 20/02/2020 AND ORDER
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CRL.A No. 100246 of 2020
DATED 27/02/2020 SENTENCED TO SUFFER RIGOROUS LIFE
IMPRISONMENT i.e. FOR REMAINING PERIOD OF HIS LIFE
AND TO PAY FINE OF RS.20,000/- FOR THE OFFENCE
PUNISHABLE U/S 302 IPC AND ACQUIT THE APPELLANT
HEREIN FOR THE ALLEGATIONS MADE AGAINST HIM AND HE
MAY KINDLY BE SET AT LIBERTY.
THIS APPEAL COMING ON FOR FURTHER HEARING,
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. Aggrieved by the order of conviction and sentence
passed against him for the offence punishable under Section
302 IPC, the accused in S.C.No.171/2017 on the file of the
I Addl. District and Sessions Judge, Dharwad, sitting at
Hubballi, has preferred this appeal.
3. The appellant was prosecuted in S.C.No.171/2017
for the offence punishable under Section 302 IPC on the basis
the complaint said to have been lodged by PW-1 as per Ex.P.2
before PW-21. It was alleged in the complaint that the
appellant came to the house of PW-1 on 01.02.2017 at 5 p.m.,
along with his wife Asha and their child. It was further alleged
that on 02.02.2017 between 9 and 9.30 a.m, after PW-1 and
PW-4 left for their work, the accused asked PW-5 to stay
CRL.A No. 100246 of 2020
outside the house as he had to talk to the victim. Thereafter,
the appellant and Asha were behind the closed doors. When
PW-5 was sitting outside, PW-1 was passing in front of her
house. PW-5, mother of PW-1 informed her that the appellant
left the house along with his child. Then Asha was found lying
breathless with throttling marks on her neck. It was further
alleged that then PW-1 with the help of the people assembled
there, shifted Asha to KIMS Hospital, Hubballi, where she was
declared dead. She also stated in the complaint that the
appellant has throttled Asha due to some ill-will and committed
her murder.
4. On the basis of the complaint, PW-21 registered the
FIR as per Ex.P.30 against the appellant. After issuing the
requisition to the Tahsildar to conduct the inquest, he handed
over the further investigation to PW-22. PW-22 on conducting
the investigation filed the charge-sheet against the appellant as
aforesaid. For the purpose of convenience parties will be
referred to henceforth according to the ranks before the trial
Court.
5. Some of the undisputed facts are as follows:
CRL.A No. 100246 of 2020
The accused was the resident of Mudakavi village of
Ramnagar taluk, Belagavi district. That the marriage of the
accused and deceased Asha was solemnized about 6 years prior
to 02.02.2017. Out of the said marriage, the couple had two
daughters. PWs-6 and 7 are the mother and father, PW-8 is
the elder sister of deceased Asha. PW-5 is the grand-mother of
the accused. PW-4 is the daughter of PW-1. PWs-1 and 4 were
living in a rented house in Byali plot situated at Mantur road,
Hubballi town. PW-9 was the owner of the said house. On
02.02.2017, Asha was found dead with throttling marks and
some other injuries on her body.
6. The case of the prosecution in brief is as follows:
After few months of the marriage, the accused started ill-
treating the victim. He used to return home drunk and assault
her frequently and send her to her parental house. The parents
of the victim and PW-16 Dilavarsab Allisab Karanachi, the elder
in the village had advised the accused, still the ill-treatment
continued. About 3 days prior to the incident, victim had
returned to her parental house after a quarrel. The accused
visited the house of the parents of the victim, represented that
CRL.A No. 100246 of 2020
he has set up a separate house in his village and took her from
the house of PWs-6 and 7. On 01.02.2017, he went to the
house of PW-1 in Hubballi. On 02.02.2017, after PW-1 and
PW-4 left for their work, the accused asked PW-5 to stay
outside the house as he has to talk to the victim. When PW-5
was sitting outside, the accused solicited sexual favour from
the victim which she declined. Being enraged by that, he
assaulted her and throttled her. Then left the house picking up
the child from the hands of PW-5. When, PW-1 was passing in
front of her house, PW-5 informed her about the accused
leaving the house. Then they went inside the house and found
the victim lying on the floor with the injuries. They shifted her
to KIMS Hospital where she was declared brought dead.
7. There were no eye-witnesses to the incident. The
case of the prosecution was based on following circumstantial
evidence:
i) Motive: that the accused was harassing the victim
due to his alcoholism and victim was fed up with
him. When she did not extend the sexual favours,
he killed her,
CRL.A No. 100246 of 2020
ii) The accused and the deceased were last seen
together. Thereafter, the victim found dead with
homicidal injuries,
iii) The medical evidence,
iv) The evidence of official witnesses namely, PW-23,
the Taluk Executive Magistrate, who conducted the
inquest and the police witnesses.
8. To prove the motive, the prosecution relied on the
evidence of PWs-6 and 7, the parents of the deceased, PW-8,
the sister of the victim and PW-16, Dilavarsab Allisab Ugargol,
the elder who conciliated in the matter. To prove the last seen
circumstance, the prosecution relied on the evidence of PWs-1,
4 and 5, the inmates of the house where the death allegedly
took place and PWs-6 and 7, the parents of the victim. To
prove that the death was homicidal one, the prosecution relied
on the evidence of PW-19, the doctor who conducted the Post
Mortem and his report, Ex.P.25.
9. Nodoubt, PWs-1, 4 and 5, the inquest mahazar
witnesses and spot mahazar witnesses did not support the
CRL.A No. 100246 of 2020
prosecution case. However, the trial Court relying on the
evidence of PWs-6 to 8 and 16, the medical evidence and some
statements in the evidence of PW-1 held that the circumstance
of motive and last seen together were proved. Further, relying
on the medical evidence, the trial Court held that the death was
homicidal one. The trial Court further held that since the victim
met homicidal death after the accused leaving the house of
PWs-6 and 7 and as per Section 106 of Evidence Act he did not
explain how the death occurred, that leads to the inference of
his guilt.
10. Based on such reasonings, the trial Court by the
impugned judgment and order convicted the appellant for the
offence punishable under Section 302 IPC and sentenced him to
rigorous imprisonment for remaining period of his life and fine
of Rs.20,000/-. Out of the said fine amount, Rs.5,000/- each
was ordered to be paid to two children of the victim, Rs.5,000/-
to the father of the accused and remaining Rs.5,000/- to be
remitted to the State.
CRL.A No. 100246 of 2020
11. Shri S.L.Matti, learned counsel for the appellant
seeks to assail the impugned judgment and order on the
following grounds:
i) PWs-1, 4 and 5, the witnesses to the last seen
theory did not support the case of the prosecution. The
witnesses to the spot mahazar, seizure mahazar and
inquest mahazar also did not support the prosecution
case.
ii) The Investigating Officer had not collected the bed
sheet and pillow allegedly found on the dead body at the
scene of offence and finger prints found on the dead
body,
iii) Except the interested testimony of PWs-6 to 8, the
parents and sister of the victim and PW-16, the relative of
PWs-6 to 8, absolutely there was no incriminating
evidence against the accused. Under such circumstances,
unless the entire chain of circumstances is complete, the
accused could not have been convicted.
CRL.A No. 100246 of 2020
iv) The impugned order of sentence for the remaining
part of the life is unsustainable. Therefore, the
impugned order of conviction and sentence is
unsustainable.
12. In support of his submissions, he relies on the
judgment of the Hon'ble Supreme Court in SHIVAJI
CHINTAPPA PATIL VS. STATE OF MAHARASHTRA reported
in 2021 (5) SCC 626.
13. Shri V.M.Banakar, learned Addl. State Public
Prosecutor justifying the impugned judgment and order makes
the following submission:
i) the relationship between the parties were not
disputed,
ii) PWs-1, 4 and 5 were admittedly the close relatives
of the accused. Therefore, they have not supported the
prosecution version. Despite that PW-1 gave crucial
admissions in her cross-examination,
iii) The evidence of PWs-6 to 8 and 16 was cogent and
consistent with regard to the motive,
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CRL.A No. 100246 of 2020
iv) The evidence of PWs-6 and 7 was cogent and
consistent with regard to the last seen circumstance,
v) The medical evidence clearly showed that the death
was homicidal one. Under such circumstance, it was for
the accused to explain how the death occurred which he
did not do,
vi) Even if the witnesses are hostile, the Court can rely
on the acceptable part of the statement of the hostile
witnesses to place the conviction,
vii) The chain of circumstances were complete and were
pointing out only to the hypothesis of the guilt of the
accused. Appreciating all such evidence, the trial Court
has rightly convicted and sentenced the accused,
viii) The judgment relied on by the counsel for the
appellant/accused is not applicable.
14. In support of his submission, he relied on the
judgment of the Hon'ble Supreme Court in VEER SINGH AND
OTHERS VS. STATE OF UTTAR PRADESH reported in 2014
(2) SCC 455.
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CRL.A No. 100246 of 2020
15. We have considered the submission of both side
and material on record. On such consideration, the questions
that arose for our consideration are:
i) Whether the trial Court was justified in holding that
the charge brought against the accused was proved
beyond reasonable doubt?
ii) Whether the trial Court was justified in sentencing
the accused for the remaining of his life?
ANALYSIS
16. As already pointed out, the relationship between
the parties and the death of the victim was not disputed. The
question is whether the death was homicidal one and the
accused was the author of the death?
REG: NATURE OF DEATH
17. To prove that the death was homicidal one, the
prosecution relied on the evidence of PW-19, the doctor who
conducted the autopsy and Ex.P.25, the Post Mortem report. It
was not disputed that PW-19, conducted the post mortem
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CRL.A No. 100246 of 2020
examination on the dead body of the victim. According to
PW-19, he found the following injuries on the dead body:
i) Abraded contusion measuring 7 X 6 cm present
over right neck,
ii) Abraded contusion measuring 4 X 3 cm present
over left neck,
iii) Crescentic nail scratch abrasion measuring 0.3 cms
over left angle of lower jaw,
iv) Two nail scratch abrasion measuring 0.2 cms
present over front of lower 1/3rd of left forearm,
v) Nail scratch abrasion measuring 0.5 cms x 0.1 cms
present over right middle finger,
vi) Scratch abrasion measuring 0.1 cms x 1 cm present
over back of neck,
vii) Abraded contusion measuring 3 X 2 cm present
over back of lower part of neck,
viii) Abraded contusion measuring 4 X 3 cm present
over back of right shoulder.
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CRL.A No. 100246 of 2020
18. On examining the injuries, he deposes that the
Hyoid bone was fractured on right side, all injuries were fresh
and ante mortem. He opined that the death was due to
asphyxia as a result of the manual strangulation (throttling). It
was not the defence of the accused that the death was suicidal
one. No such suggestion was made to PW-19 or to any other
witnesses. Only an attempt was made to suggest to PW-19
that the death was accidental one which he denied. But such
theory was not putforth by the accused either under 313
statement or by way of any defence statement.
19. The victim was the wife of the accused. If at all she
died of an accident, he should have explained the cause of the
accident and how it took place which was not done. Only a
hypothetical suggestion was putforth to PW-19 to the effect
that if a lady is struck in vail, the injuries found in Ex.P.25
could be caused which he denied. First of all, there was no
ligature material around the neck of the victim. Secondly,
injury Nos.3 to 5, 7 and 8 found on the back of the neck and
shoulder were not explained. They only show the struggle
mark. If it was a case of accidental strangulation, there is no
possibility of causing such injuries. Therefore, the theory of
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CRL.A No. 100246 of 2020
accidental injuries is unacceptable. Having regard to that and
the failure of the accused to explain the death as per Section
106 of the Indian Evidence Act, this Court does not find any
error in the trial Court's finding that the death was homicidal
one.
Reg: Motive
20. It is the case of the prosecution that few days after
marriage, the accused was addicted to alcohol and started ill-
treating the victim physically and mentally and in that
connection, she used to come to her parental house frequently.
On such occasion, the parents and relatives including PWs-8
and 16 had pacified the victim and they were sending her back.
It is material to note that the death has occurred within 7 years
of the marriage. The death was homicidal one.
21. PWs-6 to 8, the parents and sister of the deceased
have consistently stated that the accused used to frequently
beat Asha, send her to her parental house and later he used to
come with the elders and take her back. The only suggestion
to these witnesses is that earlier they had not filed any further
complaint before the police alleging ill-treatment. Admittedly,
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CRL.A No. 100246 of 2020
there were two children out of the marriage. The evidence of
PWs-6 to 8 shows that their endeavour was to set right the
family life of the accused and the victim. Therefore, their
evidence regarding cruelty cannot be thrown out of the board
only on the ground of they not filing complaint earlier. In the
cross-examination of PWs-6 to 8, no motive muchless the
strong motive is attributed to them to falsely implicate him.
The grand children of PWs-6 and 7 had lost their mother. If the
accused is sent to jail on false implication, the grandchildren
were becoming orphans. Therefore, if everything was normal
there was no reason for PWs-6 to 8 to falsely implicate the
accused.
22. So far as PW-16, it is stated that he was a relative
of PWs-6 to 8, therefore, he has supported the case of the
prosecution. But, no such suggestion was made to PW-16 in
his cross-examination. Further, PW-16 was aged 66 years
while he deposed before the Court. He fairly says that he
himself told PW-7 about the quarrel between the accused and
deceased but had not told about the cause of quarrel. He only
states that he had advised both of them to live harmoniously.
There was no exaggeration in his evidence. Such evidence of
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CRL.A No. 100246 of 2020
PWs-6 to 8 and 16 is further probabilized by the homicidal
death of the victim. Therefore, this Court does not find any
error in the trial Court accepting the evidence of PWs-6 to 8
and 16 to hold that the motive circumstance is proved.
Reg: Last seen circumstance
23. To prove this circumstance, the prosecution relied
on the evidence of PWs-1 and 4 to 7. According to PWs-6 and
7, the accused had dropped the victim in their house about 3
days prior to the death and a day prior to her death, he came
to their house and took her saying that he has set up a
separate house in his village and is taking back her to his
village. Then they were informed that the victim is dead in
Hubballi. That evidence of PWs-6 and 7 was not controverted
by the accused in his cross-examination.
24. No doubt, PWs-1, 4 and 5 did not support the case
of the prosecution about the accused staying in their house and
leaving thereafter with his child. However, they did not dispute
that they were in a rented house in Byali plot of Mantur road,
Hubballi. The trial Court even observed the conduct of PW-1
who initially said that she does not know Kannada and she
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CRL.A No. 100246 of 2020
knows only Urdu. But, during the course of cross-examination
though the question was put to her in Urdu, she answered in
Kannada. PWs-1, 4 and 5 admit that they are the close
relatives of the accused.
25. In the evidence of PW-1, there was no clear cut
denial of the accused and victim visiting their house and
staying there and then the accused leaving her house. PW-1
only pleads her ignorance of the facts. Her evidence shows her
reluctance to answer directly. She admits that Ex.P.4 and
Ex.P.5, photographs were taken in her house. She also admits
the photographs, Ex.P.6 to Ex.P.8 and that her mother is
depicted in photographs Ex.P.7 and Ex.P.8. Though in the
chief-examination, PW-1 pleaded her ignorance about the
material facts of the presence of accused staying with victim
and their son in her house, in the cross-examination by the
prosecution after treating her as hostile she unequivocally
admitted that one day prior to the incident, the accused came
to her house along with victim and their child and stayed there.
26. PW-1 further admitted that on 02.02.2017 after
having breakfast herself and her daughter PW-4 left the house
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CRL.A No. 100246 of 2020
for their work and at that time, her mother, PW-5, the accused,
victim Asha and their child were in the house. She also
admitted that at 9 a.m when she was passing in front of their
house to fetch certain things required by her employer, her
mother was sitting in front of the house. But she pleads her
ignorance that her mother told her that the accused stayed for
sometime in the house along with the victim alone behind the
closed doors and then he picked up the child and went away.
But she did not deny that.
27. The Hon'ble Supreme Court at paragraph 19 in
VEER SINGH'S case referred to supra, about the appreciation
of the evidence of hostile witness has held as follows:
" It is settled law that the testimony of the hostile
witness need not be discarded in toto and that
portion of testimony in the chief-examination which
supports the prosecution case can be taken for
consideration. In the present case, in the examination-
in-chief itself PW 5 Hazoor Singh has admitted about his
going to the place of occurrence along with Gurdip Singh
and Jaswant Singh on hearing the noise of firing and cries
emanating from the house of Shisha Singh and Mohar
Singh and the narration of the occurrence by Harbans
Kaur to them which led to lodging of the complaint. The
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CRL.A No. 100246 of 2020
above testimony of PW 5 lends credence to the testimony
of PW 4"
(Emphasis supplied)
28. In view of the aforesaid judgment, the trial Court
was justified in relying on the aforesaid part of the evidence of
PW-1 to the effect that the last seen circumstance with regard
to the accused staying in the house of PW-1 with the victim and
leaving was proved.
29. Even if the evidence of PWs-1, 4 and 5 is excluded,
the evidence of PWs-6 and 7 clearly shows that the accused left
their house one day prior to the victim was found dead.
According to their evidence, he took the victim saying that he
has set up a separate house in his village. But victim was
found dead in Hubballi town. Therefore, it was for the accused
to explain how the victim was found in Hubballi and cause of
such homicidal death. Absolutely, there was no explanation
either in the cross-examination of the prosecution witnesses or
in his examination under Section 313 Cr.P.C. Therefore, the
trial Court rightly held that the last seen circumstance was
proved.
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CRL.A No. 100246 of 2020
CONCLUSION
30. The aforesaid discussion shows that motive
circumstance was proved and the last seen theory was also
proved beyond reasonable doubt and the death was homicidal
death. Therefore, even if the other witnesses turned hostile,
the chain of circumstances was completed to point out the guilt
of the accused. Having regard to the fact that the victim was
found dead with homicidal injuries after she was last seen with
the accused who was her husband, it was for him to explain
how and where they parted their ways which was not done.
Therefore, the trial Court was justified in invoking Section 106
of the Evidence Act and also in holding that it was the quality of
the evidence and not quantity of the evidence in view of
Section 134 of the Evidence Act.
31. In SHIVAJI CHINTAPPA PATIL's case, except the
strangulation mark, there was no other external injuries to
suggest the struggle of the victim or any other external
violence. Therefore, it was for the prosecution to discharge its
primary burden of proving beyond reasonable doubt that the
death was homicidal one and then Section 106 of the Evidence
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CRL.A No. 100246 of 2020
Act comes into play. Therefore, the said judgment is not
applicable to the facts of the present case.
32. So far as the conviction of the appellant, the trial
Court's judgment and order is passed on sound appreciation of
the evidence and law. Therefore, it does not call for any
interference.
33. So far as the order of sentence, the trial Court has
sentenced the accused for rigorous life imprisonment i.e., for
remaining period of his life. At the time of the incident, the
accused was aged 30 years and had no other criminal
antecedents. The maximum punishment prescribed for the
offence punishable under Section 302 IPC is imprisonment for
life. The imposition of sentence of imprisonment for the entire
remaining life is a special category of sentence which totally
takes away the power of the executives to give remission of the
sentence.
34. The Hon'ble Supreme Court in UNION OF INDIA
VS. V.SHRIHARAN reported in 2016 (7) SCC 1 has by
majority decision held that such special category of sentence
can be imposed only by the High Court and not by the trial
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CRL.A No. 100246 of 2020
Court. Therefore, that part of the sentence only requires to be
modified.
35. Therefore, the following:
ORDER
i) The appeal is partly allowed,
ii) The impugned order of conviction is hereby
confirmed. The impugned order of sentence is
modified as follows:
a) The accused is sentenced to undergo
rigorous imprisonment for life and fine of
Rs.20,000/-.
b) The order with regard to apportionment
of the fine amount and disposal of the properties is
maintained.
(Sd/-)
JUDGE
(Sd-)
JUDGE
JM
