Saleem Pasha vs State Of Karnataka
2022 Latest Caselaw 4174 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 11TH DAY OF MARCH, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                              AND

             THE HON'BLE MRS. JUSTICE M.G. UMA

              CRIMINAL APPEAL NO.899/2018


BETWEEN:
SALEEM PASHA,
S/O LATE SARDAR PASHA,
AGED ABOUT 30 YEARS,
AUTO DRIVER,
R/AT NEAR THE MASJID,
NEXT TO AUTO SHED,
JYOTHINAGAR, MYSURU - 570 019
                                                 ... APPELLANT

(BY SMT. NALINA.K, ADVOCATE)


AND:
STATE OF KARNATAKA,
BY NAZARABAD POLICE,
NAZARABAD, MYSURU - 570 010
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001
                                              ... RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP)

       THIS CRIMINAL APPEAL    IS FILED UNDER SECTION 374(2)

CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT

THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
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IMPUGNED JUDGMENT OF CONVICTION DATED 20.06.2016 AND

ORDER OF SENTENCE DATED 23.06.2016 PASSED BY THE I

ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.144/2013 -

CONVICTING    THE    APPELLANT/ACCUSED    FOR    THE    OFFENCE

PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.


      THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO

IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- AND IN

DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER

SIMPLE IMPRISONMENT FOR A PERIOD OF 3 MONTHS FOR THE

OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.


      FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO

UNDERGO IMPRISONMENT FOR A PERIOD OF 1 YEAR AND TO PAY

FINE OF RS.1,000/- AND IN DEFAULT OF PAYMENT OF FINE HE

SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A PERIOD

OF 15 DAYS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201

OF IPC.


      BOTH THE SENTENCES SHALL RUN CONCURRENTLY.


      AND    THE    APPELLANT/ACCUSED    PRAYS   THAT    HE   BE

ACQUITTED.


      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS

DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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                           JUDGMENT

The appellant-accused, who is none other than the

grandson of the deceased, has filed the criminal appeal

against the impugned judgment of conviction dated

20.06.2016 and order of sentence dated 23.06.2016 made in

S.C.No.144/2013 on the file of the learned I Additional

Sessions Judge, Mysuru (hereinafter referred to as 'trial

Court'), convicting him for the offence punishable under

Section 302 of IPC and sentencing to undergo imprisonment

for life and to pay fine of Rs.5,000/- and in default to pay fine,

to undergo simple imprisonment for further period of three

months and under Section 201 of IPC, sentencing to undergo

imprisonment for a period of one year and pay fine of

Rs.1,000/- and in default to pay fine, to undergo further

simple imprisonment for fifteen days.

2. On the statement of one Parashivappa, who is not

examined by the prosecution, the jurisdictional police

registered UDR No.3/2013 under Section 174(c) of Cr.P.C.,

stating that on 14.01.2013 at about 7.30 a.m., Parashivappa

had seen a dead body near Ayurvedic College Junction and

informed the police about it, the police conducted the inquest

mahazar on the dead body of a lady aged 60 years, could not

be identified at that time.

3. It is the case of the prosecution that later on, the

police got the information that the deceased was

Smt. Mumtaz Begum, the grandmother of the

accused/appellant and they have submitted a requisition to

the learned JMFC, to incorporate the provisions under

Sections 302 and 201 of IPC, on the ground that it was

suspected that Smt. Mumtaz Begum was died in an unnatural

circumstance and she was found to be murdered by some

unknown person. After investigation, the material on record

revealed that the accused has committed the murder of his

maternal grandmother for gain. Thereby, the incident

occurred on 12.01.2013, UDR came to be registered on

14.01.2013 and accused was arrested on 20.01.2013. After

investigation, the Investigating Officer filed the charge sheet

against the accused for the offences punishable under

Sections 302 and 201 of IPC.

4. After committal of the matter to the learned

Sessions Judge, he took cognizance of the offence, secured

the presence of the accused, framed charges and read over to

the accused in the language known to him. The accused

pleaded not guilty for the charges leveled against him for the

above said offences and claimed to be tried.

5. In order to prove the case of the prosecution, the

prosecution examined in all 21 witnesses as PWs.1 to 21 and

got marked Exs.P1 to P16 and material objects MO.1 to MO.6.

After completion of the evidence of prosecution witnesses, the

statement of the accused as contemplated under Section 313

of Cr.P.C., was recorded, where accused denied all the

incriminating materials adduced against him by the

prosecution witnesses but has not chosen to lead any

evidence in support of his defense.

6. Based on the aforesaid pleadings, the learned

Sessions Judge framed two points for consideration.

Considering both oral and documentary evidence on record,

the learned Sessions Judge answered both the points in the

affirmative holding that the prosecution proved beyond

reasonable doubt that on 12.01.2013, the accused had

demanded Rs.5,000/- with his maternal grandmother-

Smt.Mumtaz Begum, to pay it as advance money for securing

a rental accommodation and Mumtaz Begum had refused to

pay that money and insulted the accused with a statement

that if he wants money, he can push his wife to prostitution

and get money. Being irked with that statement, when

Mumtaz Begum wanted to purchase medicines with the help

of the accused, he took her to city and had tiffin with her.

Thereafterwards while returning home, took her to an isolated

place near Indus Wallis Ayurvedic Centre Junction at about

9.00 p.m., with an intention to murder her, pushed Mumtaz

Begum on the heap of the mud and stones and when she fell

on it facing the ground, sat on her back and strangulated

Mumtaz Begum by using the towel possessed by the accused

and thereby caused the death of Smt. Mumtaz Begum. He

removed her golden tops from her ears and ran away from

the spot. It is further held that, the prosecution proved

beyond reasonable doubt that after causing the murder of his

maternal grandmother-Smt. Mumtaz Begum and removing

the golden tops from her ears, the accused had pledged that

golden tops with CW.14-Pawn Broker and obtained loan of

Rs.6,000/-. He destroyed that pawn ticket to screen the

evidence. Accordingly, learned Sessions Judge by the

impugned judgment of conviction and order of sentence,

convicted the accused for the offences punishable under

Sections 302 and 201 of IPC.

7. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the trial court, the

accused is before this Court.

8. We have heard the learned counsel for the

parties.

9. Smt. Nalina.K, learned counsel for the

appellant/accused contended with vehemence that the

impugned judgment of conviction and order of sentence

passed by the trial Court convicting and sentencing the

accused for the offence punishable under Sections 302 and

201 of IPC is erroneous and contrary to the materials placed

on record and cannot be sustained. She would further contend

that the evidence of PWs.1, 3, 4, 7 and 8 are inconsistent but

still the trial Court proceeded to convict the accused

erroneously. She further contended that evidence of PW.17-

Doctor, cannot be relied upon as he has issued postmortem

report based on findings of FSL Report-Ex.P6 and opined that

death is due to Asphyxia. Though Histopathology Report was

not marked, still the learned Sessions Judge proceeded to

convict the accused erroneously.

10. She further contended that even according to the

prosecution, when the accused demanded Rs.5,000/- from his

maternal grand-mother, she scolded him by saying that if he

wants money, he shall push his wife to prostitution to get

money. Thereby, the accused must have enraged and due to

sudden provocation attacked the deceased and committed her

murder. Therefore, the present case falls under Section

304-Part II of IPC and not under Section 302 of IPC.

11. She further contented that there are no eye-

witnesses to the incident and entire case of the prosecution is

based on the circumstantial evidence and admittedly, the

complaint was lodged against unknown persons. Based on the

information given by one Parashivappa, the police proceeded

to register UDR No.3/2013 but the said Parashivappa has not

been examined. Thereby, the trial Court has proceeded to

convict the accused without any basis. Therefore, she prays

for allowing the criminal appeal by setting aside the impugned

judgment of conviction and order of sentence passed by the

trial Court.

12. Per contra, Sri. K.Nageshwarappa, learned High

Court Government Pleader while justifying the impugned

judgment of conviction and order of sentence passed by the

trial Court, contended that the homicidal death of the

deceased is not in dispute as can be seen from the evidence

of the Doctor-PW.17 and postmortem report. He would further

contend that the accused being the grandson of the deceased,

has committed the murder for gain. The same is evidence of

the prosecution witnesses-PW.1, who is none other than the

son of the deceased, PW.4-Amararam is the Pawn Broker,

with whom the accused pledged MO.1/Golden Ear Studs/Tops

and Amararam has also identified Exs.P2, P3. PWs.7 and 8 are

the grandson and grand-daughter of the deceased, have

specifically stated about the involvement of the accused in the

homicidal death of the deceased and PW.8 further stated that

he has last seen the accused and deceased together. Thereby,

the trial Court is justified in convicting the accused for the

offences punishable under Sections 302 and 201 of IPC.

Therefore, he sought to dismiss the criminal appeal.

13. In view of the aforesaid rival contentions urged by

learned counsel for the parties, the only point that would arise

for our consideration in this appeal is:

"Whether the trial Court is justified in convicting the appellant/accused for the offences punishable under Sections 302 and 201 of IPC and whether the appellant/accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court, in the facts and circumstances of the case?"

14. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire material including original records of

trial Court carefully.

15. This Court being the Appellate Court, in order to

re-appreciate the entire materials on record, it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon.

(i) PW.1 - Wajid Khan is the son of the deceased, who deposed that on information received by the police,

he went to the spot and identified the dead body of his mother and also identified MO.1-gold ear studs, MO.2 to MO.5, the clothes worn by the deceased. Though he is not an eye-witness to the incident, supported the case of the prosecution.

(ii) PW.2 - Gopala is the witness to the spot mahazar -

Ex.P1, who turned hostile.

(iii) PW.3 - Suhel Baig, the grandson of the deceased and witness to Ex.P1, Ex.P2 and Ex.P3 and also identified MO.6-Towel used in the commission of offence. Though he is not an eye-witness to the incident, supported the case of the prosecution.

(iv) PW.4 - Amararam is the Pawn Broker, who deposed that the accused has pledged golden ear studs/tops i.e., MO.1 with him and received Rs.6,000/-, for which receipt was given, which is marked at Ex.P3 and identified the same along with MO.1 and Ex.P2. He supported the case of the prosecution.

(v) PW.5 - Mohammed Ghouse is the owner of Goods Autorickshaw, who has deposed that the accused was plying his autorickshaw on rent and was paying hire on weekly basis. He supported the case of the prosecution.

(vi) PW.6 - Shabeer, deposed that earlier he had seen the accused and knew that he used to drive goods

auto. He further stated that accused one day went to his house and informed him that there is no diesel in his auto and asked for diesel. Therefore, he has given a bottle of kerosene to the accused. He supported the case of the prosecution.

(vii) PW.7 - Sakeeb Pasha is the grandson of the deceased, who has deposed that the accused is his nephew and his house is about 50 meters away from the house of the deceased. He further stated that his grand-mother used to stay alone in the house. Therefore, in the night he used to sleep in the house of his grand-mother and his relative Nehakhanam was also sleeping in her house. Witness further deposed that the accused has taken his grand- mother in autorickshaw to the chamundi hills and has committed her murder and has removed the golden ear studs worn by her and pledged/mortgaged the same. He supported the case of the prosecution.

(viii) PW.8 - Fareen Taj is the grand-daughter of the deceased, who has deposed that when she along with her aunt and nephew went to the house of the deceased, at that time, the accused was in her house and took her with him in his auto. When witness asked the accused that she will also accompany them. But the accused refused. She has

last seen the accused and the deceased together. She supported the case of the prosecution.

(ix) PW.9 - Iqbal Pasha alias Mamu, turned hostile.

(x) PW.10 - Lakshmana is running mobile canteen/road side eatery business, who has deposed that he has last seen the accused and deceased together, when they came to his hotel at about 8.00 p.m., had tiffin and gone together. He supported the case of the prosecution.

(xi) PW.11 - Abida.B is the daughter of the deceased and maternal aunt of the accused. She deposed that she received information about the death of her mother through phone from her brother/PW.1 and at that time accused was in her house. She supported the case of the prosecution.

(xii) PW.12 - K.J.Puttaraju is the junior engineer, who has prepared the sketch-Ex.P4. He supported the case of the prosecution.

(xiii) PW.13 - Babu said to be preparing tea in the Star Tea Corner, which was situated in Udayagiri Main Road, Mysuru. He turned hostile.

(xiv) PW.14 - Sujatha.K.M., the Scientific Officer, RFSL, Mysuru, has issued FSL Report-Ex.P6 and deposed

that no poison was found in the sample. She supported the case of the prosecution.

(xv) PW.15 - Ranganath.K.M., the head constable, who registered the UDR No.3/2013 under Section 174(c) of Cr.P.C. and identified Ex.P8, recorded the statement of the complainant-Parashivappa in respect of UDR complaint. He supported the case of the prosecution.

(xvi) PW.16 - M.M.Babu, the head constable who arrested and produced the accused before the Police Inspector. His report is marked at Ex.P9. He supported the case of the prosecution.

(xvii) PW.17 - Dr.Pramod Kumar.G.S., who conducted the postmortem of the deceased on 14.01.2013 and issued Ex.P10 - postmortem report. His opinion on MO.6-Towel is marked at Ex.P11. He has opined that the death was due to Asphyxia as a result of traumatic compression of chest and neck. He supported the case of the prosecution.

(xviii) PW.18 - Madhukesha, police constable, recorded the statement of CW.1-Parashivappa, who is not examined by the prosecution. He supported the case of the prosecution.

(xix) PW.19 - H.M.Madhu, PSI, who has received the postmortem report of the deceased on 19.01.2013

and converted UDR No.3/2013 to Cr.No.12/2013 for the offences punishable under Sections 302 and 201 of IPC. He supported the case of the prosecution.

(xx) PW.20 - G.Udaya Ravi, PSI, who registered a case in Cr.No.12/2013 and conducted inquest over dead body of the deceased. Ex.P15 is the Inquest Mahazar. He supported the case of the prosecution.

(xxi) PW.21 - G.N.Mohan, PSI, who conducted the investigation, after recording the statements of the accused and witnesses, filed charge sheet against the accused. He supported the case of the prosecution.

Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge has proceeded to

convict and sentence the accused for the offences punishable

under Sections 302 and 201 of IPC.

16. On careful perusal of both oral and documentary

evidence on record, it clearly depicts that the death of the

deceased is homicidal death as can be seen from the evidence

of PW.17-Doctor who stated on oath that he has received the

dead body of the Smt. Mumtaz Begum to conduct postmortem

examination on 14.01.2013 and on the same day at about

11.15 a.m. to 12.30 p.m., the postmortem examination was

conducted and found both external and internal injuries, as

under:

External injuries:-

• Brownish black discoloration of skin measuring 8 cm X 7 cm over front of neck extending from chin, which is 6 cm above supra sternal notch.

• An area of brownish black discoloration of skin over left cheek measuring 10 cm x 7 cm.

Internal injuries:-

• On opening chest, extravesation of blood seen over outerior and posterior aspect of manubrio-sternal region with fracture of sternum at manubrio-sternal junction. Fracture of right side ribs from 3rd to 10th ribs with reddish staining at edges of fracture site. 3rd rib fractured at cost condral junction, 4th, 8th, 9th and 10th ribs fractured at midclavicular line, 5th rib fractured anterior oxillary line, 6th and 7th rib at costo chondral junction.

• On the left side fractures of multiple ribs from 2nd to 7th seen at anterior region with surrounding reddish brown staining at edges and in inter costal muscles. 2nd rib fracture at midclavicular line, 3rd, 4th, 7th, 8th ribs at costo-chondoral junction, 5th and 6th ribs fractured at mid axillary line. Fracture of left side ribs also seen at

posterior axillary line and posterior asepct 2.5 cm lateral to vertebral bodies from 2nd to 7th ribs with surrounding reddish staining at edges and intercostal muscles.

• Bloodless dissection of neck structures:- Reddish brown discolouration below the chin area corresponding to skin structure which is brownish black discoloured on external examination.

• Dissection of strap muscles showed reddish brown discolouration on both sides but more on left side strap muscles.

• I have also taken internal parts of body namely stomach intenstain, kidney and liver and seal the same and sent for FSL report. Further I have also sent pieces of both lungs, sternum, ribs on both sides, skin over neck and left cheek, sent to histopathological examination.

17. The evidence of PW.1, who is none other than the

son of the deceased and PW.4, before whom the accused

pledged MO.1 and who identified Ex.P2 and Ex.P3, PW.7 and

PW.8 who are the grand-children of the deceased, have

specifically stated about the involvement of the accused in the

homicidal death of the deceased. Thereby, it is clear that the

motive for murder is for gain. PW.1 and PW.7 clearly stated

that the accused, after committing the murder of the

deceased, has removed the golden ear studs from the dead

body and has pledged the same with PW.4 for Rs.6,000/- for

which receipt-Ex.P3 was given.

18. PW.8 and PW.10 have last seen the accused and

deceased together. PW.10 specifically stated that one day at

8.00 p.m., both accused and deceased came to his mobile

canteen/road side eatery hotel and had tiffin, for which they

paid money and went together in auto. Thereby, the

prosecution has proved beyond reasonable doubt the

homicidal death of the deceased.

19. The evidence of the prosecution witnesses clearly

depicts that on the date of the incident, accused was with the

deceased i.e., his grand-mother. The burden is on the

accused to discharge as to what happened to his grand-

mother, under the provisions of Section 106 of the Indian

Evidence Act. Admittedly, he has not discharged the burden

shifted on him and has not produced any materials or

documents to prove that he came to know about the death of

his grand-mother after four days from the date of her death.

This statement of the accused is contrary to the evidence of

PW.4, who stated on oath that the accused pledged

ornaments i.e., golden ear studs of deceased with him and

PWs.8 and 10, who have stated that they have last seen the

accused and deceased together.

20. The accused has taken a specific plea to question

No.29 under Section 313 of Cr.P.C., that he is no way

concerned to the case. He came to know about the death of

his grand-mother after four days from the date of her death.

Thereby, he has taken a plea of alibi. Once the plea of alibi is

taken, the burden is on the accused to discharge as to where

he was and what had happened to his grand-mother, under

the provisions of Section 103 of the Indian Evidence Act as

held by the Hon'ble Supreme Court in the case of STATE OF

HARYANA v. SHER SINGH AND OTHERS reported in AIR

1981 SC 1021, wherein, at paragraph-4, it is held as under:

"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

21. The evidence of the prosecution witnesses and

material on record clearly depicts the presence of the accused

along with the deceased on the date of the incident. In the

entire statement recorded under Section 313(5) of Cr.P.C., he

denied all the questions in toto except taking plea that he

came to know about the death of his grand-mother after four

days from the date of her death and he has not offered any

explanation with regard to his presence as stated on oath by

PWs.4, 8 and 10. Thereby, adverse inference has to be drawn

against the accused in view of the dictum of the Hon'ble

Supreme Court in the case of PRAHLAD v. STATE OF

RAJASTHAN reported in (2019) 14 SCC 438 at Paragraph-

11, it has held as under:

"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused".

22. PW.21, the Investigating Officer has recovered

MO.1 at the instance of the accused as per Ex.P1-seizure

mahazar and the witnesses PWs.3 and 4 have supported the

case of the prosecution. Even on the case of the

circumstantial evidence, the prosecution has proved the

circumstances from the beginning till the completion of the

investigation and involvement of the accused in the homicidal

death of the deceased. Thereby, the learned Sessions Judge,

considering the entire material on record, has rightly came to

the conclusion that the prosecution has proved beyond

reasonable doubt that on 12.01.2013, the accused had

demanded Rs.5,000/- with his maternal grandmother-

Smt.Mumtaz Begum, to pay it as advance money for securing

a rental accommodation and Mumtaz Begum had refused to

pay that money and insulted the accused with a statement

that if he wants money, he can push his wife to prostitution

and get money and being irked with that statement, when

Mumtaz Begum wanted to purchase medicines with the help

of the accused, accused took her to city and got her fed with

tiffin in the road side eatery hotel belonging to PW.10 and

thereafterwards while returning to home, took her to an

isolated place near Indus Wallis Ayurvedic Centre Junction at

about 9.00 p.m., with an intention to murder her, pushed

Mumtaz Begum on the heaps of mud and stones and when

she fell on it facing the ground, sat on her back and

strangulated Mumtaz Begum by using the towel-MO.6

possessed by the accused and thereby caused the death of

the deceased and removed her golden tops from her ears and

ran away from the spot. The accused pledged the said ear

studs of the deceased with PW.4 and obtained an amount of

Rs.6,000/-, the receipt of the same is as per Ex.P3. Thereby,

the learned Sessions Judge is justified in convicting the

accused for the offence punishable under Section 302 of IPC

and sentencing to undergo imprisonment for life and to pay

fine of Rs.5,000/- and in default to pay fine, to undergo

simple imprisonment for further period of three months and

under Section 201 of IPC, sentenced to undergo imprisonment

for a period of one year and pay fine of Rs.1,000/- and in

default to pay fine, to undergo further simple imprisonment

for fifteen days.

23. On re-appreciation of the entire material on

record, we are of the considered opinion that the learned

counsel for the accused has not made out any ground to

interfere with the impugned judgment of conviction and order

of sentence. The same is in accordance with law.

24. For the reasons stated above, we answer the

point raised in the appeal in Negative holding that the accused

has not made out any ground to interfere with the impugned

judgment of conviction and order of sentence.

25. In view of the above we pass the following:

ORDER

(i) Criminal Appeal is hereby dismissed as devoid of merits.

(ii) The impugned judgment of conviction dated 20.06.2016 and order of sentence dated 23.06.2016 made in S.C.No.144/2013 on the file of the learned I Additional Sessions Judge, Mysuru, convicting the accused for the offence punishable under Section 302 of IPC and sentencing to undergo imprisonment for life and to pay fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for further period of three months and under Section

201 of IPC, sentenced to undergo imprisonment for a period of one year and pay fine of Rs.1,000/-and in default to pay fine, to undergo further simple imprisonment for fifteen days, is hereby confirmed.

Registry shall send back the Trial Court Records along

with copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

SMJ