Karnataka High Court
Errappa @ Erranna S/O Prabhu Helur vs The State Of Karnataka on 17 April, 2023
Bench: S.Sunil Dutt Yadav, Ramachandra D. Huddar
1
Crl.A.No.200126/2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL APPEAL NO.200126/2019
BETWEEN:
ERRAPPA @ ERRANNA
S/O PRABHU HELUR,
AGE : 55 YEARS,
OCC: BUSINESS,
R/O MARKUNDA,
TQ. & DIST: BIDAR - 584 101.
...APPELLANT
(BY SRI ISHWARAJ S.CHOWDAPUR, ADVOCATE)
AND
THE STATE OF KARNATAKA,
THROUGH BEMALKHED P.S.,
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 103.
...RESPONDENT
(BY SRI PRAKASH YELI, ADDL. SPP)
2
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THIS CRIMINAL APPEAL FILED UNDER
SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE ORDER OF CONVICTION
PASSED IN SESSIONS CASE NO.137/2013 BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, BIDAR DATED 01.10.2014
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302
AND 392 OF IPC INCLUDING FINE AMOUNT AND ACQUIT THE
APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.03.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, RAMACHANDRA D.HUDDAR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The appellant being the accused has preferred this
appeal under Section 374(2) of Code of Criminal Procedure
(for short 'Cr.P.C') being aggrieved and dissatisfied with the
judgment of his conviction and sentence passed by the
Additional District and Sessions Judge, Bidar in Sessions Case
No.137/2013 dated 01.10.2014, convicting him for the
offences punishable under Sections 392 and 302 of Indian
Penal Code (for short `IPC') and sentencing him to undergo
rigorous imprisonment for five years and pay a fine of
`25,000/- for the offence punishable under
Section 392 of IPC and sentencing him to life imprisonment
not less than the life and fine of `20,000/- for the offence
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punishable under Section 302 of IPC with default sentence. It
is ordered that the sentences shall run concurrently.
2. The brief relevant facts leading up to this appeal
are as under :
That the Police Sub-Inspector of Bhemalkhed Police
Station, Bidar has submitted the charge-sheet against the
accused for the offences punishable under Sections 302 and
392 of IPC based upon a complaint submitted by one
Khashim Ali S/o Mohammed Ali Alivale resident of the
address so stated in the complaint.
3. It is alleged in the complaint that, complainant is
residing at Markunda Village, Taluk and District Bidar along
with his parents. His parents have got three sons and two
daughters and complainant is the eldest son. It is stated
that, the family of the complainant is possessing 12 acres of
land at Markunda-Shivar and his father Mohammed Ali S/o
Mastan Ali takes care of the same. As usual in the morning
hours on 10.03.2013, his mother Munibegum, aged 50 years
took the lunch to her husband i.e., father of the complainant
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at about 11.00 a.m., and went towards their land. His father
had gone to his land in the morning hours itself. Complainant
was in the village to attend funeral ceremony of one
Smt.Jaheerbi W/o Allauddin.
4. It is stated that at about 2.00 a.m. one Saberali
S/o Ahamad Ali, the son of elder paternal uncle of
complainant called the complainant through phone from the
land and he informed that, the mother of the complainant
though left from the house with lunch to her husband, but
has not reached the land. Complainant became panic. His
brother Mehaboob also informed about not reaching of their
mother with lunch to their land. Therefore, complainant and
his brother started searching separately. When they were so
searching, went towards the land of one Rajkumar S/o
Nagayya Swamy, the resident of their village. There they
noticed on the katta of the land of Rajkumar of lying of dead
body of their mother Munni Begum. This fact was informed to
the complainant by his brother; it was about 6.00 p.m. on
that day. Complainant went to the said place and noticed the
injuries on his mother's body i.e., on her right cheek,
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forehead, tongue, both ears and neck. It is noticed that by
using the deadly weapon by stabbing her, she appears to
have been killed. He noticed missing of her ear ornament
which were snatched and there was a tearing of her ear
lobes. So also the golden wedlock, gold and silver ornaments
worn by the deceased were found missing. It is alleged that
some unknown persons might have committed dacoity and
murder on the person of the deceased.
5. The complainant informed this fact to his friend
Iqbal Sharif through telephone. The said Iqbal Sharif came to
the spot and informed to the Police Sub-Inspector of
Bhemalkhed about the incident through telephone. On
receipt of the information, police came to the spot. At that
time, there was heavy rain fall and storm. Therefore, at the
advice of the police, they shifted the dead body to
Mannaekhalli Government Hospital. Thereafter, complainant
submitted a computerized complaint before PW.15-Suresh
Mallppa Bhavimani the then PSI of Bhemalkhed Police Station
as per Ex.P.4. This PW.15 on receipt of the information at
7.00 p.m. visited Markunda Village, noticed dead body and
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since it was raining, he shifted the dead body to the
aforesaid hospital as stated above. Based upon Ex.P4, he
registered the crime in Crime No.12/2013, prepared the FIR
as per Ex.P.1 and set the criminal law in motion.
6. On 10.03.2013 itself PW.23-Shivanand,
Revansiddappa Pawadshetty, the then Police Sub Inspector of
Chitaguppa, took-up the further investigation and went to
Mannaekhelli Primary Health Care Centre, conducted the
inquest panchanama on the dead body of deceased in
between 10.45 p.m. to 11.45 p.m. as per Ex.P.5 in presence
of panchas. He recorded the statements of PW.8-Maheboob,
PW.10-Mohammed Ali and CW.2 - Iqbal Sharif.
7. On 11.03.2013 PW.16-Rajappa produced clothes
of the deceased which are marked as MOs.1 to 3. He seized
the said clothes under Ex.P.8 by preparing the panchanama
in between 10.00 a.m to 10.45 a.m. He visited the scene of
offence at 12.00 noon and prepared the panchanama as per
Ex.P.6 till 1.00 p.m.. He seized MO.4 to 8 under Ex.P.6.
Prepared the scene of occurrence sketch as per Ex.P.14.
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Recorded the statement of PW.3, PWs.9 to 14 and 20 and
CW.2.
8. On 25.03.2013 accused was produced before him
by PW.15. He arrested him and recorded his voluntary
statement as per Ex.P.15. Then he invited PW.7 and CW.9
panch witnesses. Accused as per his voluntary statement, led
the police and panchas to his house at Markunda Village and
by entering the house accused brought a pair of ear buds,
bugadi, silver toe rings and kamkati which are marked at
MOs.1 to 13. He seized the said gold ornaments and weapon
under Ex.P.7. Investigation Officer was accompanied with
PW.2 the photographer to record the videography. He
recorded further statement of PWs.3, 8, 9, 10 and 11. On
26.03.2013, he recorded the statement of PW.22, further
statements of CW.2, PWs.12 and 13. On 31.03.2013 he
collected post mortem report as per Ex.P.12 along with
opinion as per Ex.P.13. He sent seized articles to Forensic
Science Laboratory, Kalaburagi for scientific examination and
report. On 18.04.2013, he collected RTC extract of the land
where the said incident has occurred. The said RTC extract is
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at Ex.P.3. On 18.03.2013 he collected the khata extract as
per Ex.P.16 and FSL report as per Ex.P.17, mobile call details
as per Ex.P.18 and after completion of investigation he filed
charge-sheet.
9. After filing the charge-sheet, the jurisdictional
Magistrate took the cognizance of the offences. Copies of the
police papers were furnished to the accused person as
contemplated under Section 207 of Cr.P.C. As the offences
were exclusively triable by the Sessions Court, the
jurisdictional Magistrate i.e., JMFC-II Court, Bidar by his
order dated 20.07.2013 committed the case to the Sessions
Court for trial.
10. The learned Additional Sessions Judge, Bidar
after committal, secured the presence of the accused.
Framed the charges against the accused person for the
offences punishable under Sections 392 and 302 of IPC,
accused pleaded not guilty and claimed to be tried
11. The prosecution to prove the guilt of the accused
examined in all 23 witnesses and got marked Ex.P.1 to
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Ex.P.15 with respective signatures thereon and also MO.1 to
14 and closed prosecution evidence.
12. After closure of the prosecution evidence,
accused was questioned under Section 313 of Cr.P.C so as to
enable him to answer the incriminating circumstances
appearing in the evidence of the prosecution witnesses. He
denied his complicity in the crime and did not choose to lead
any defence evidence on his behalf.
13. The learned Sessions Judge having heard the
arguments and on perusal of the oral and documentary
evidence found the accused guilty of the offences punishable
under Sections 392 and 302 of IPC and convicted and
sentenced him as stated above.
14. This judgment is now challenged by the
appellant/accused on the following grounds :-
• The conviction and sentence passed by the trial
Court is against the facts and evidence placed on
record. The trial Court has committed error in
holding that accused is guilty.
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• The prosecution has not proved its case beyond all
reasonable doubt. There are no eyewitnesses to
the alleged incident and the case is based on
circumstantial evidence.
• No chain of circumstances conclusively proved the
case of the prosecution. The trial Court relied upon
the evidence of the PW.12 which is not probable
and acceptable. Evidence of PWs.13 and 14 is not
cogent and is not sufficient to pass an order of
conviction and sentence. The Investigating Officer
has created the voluntary statement of accused.
There is no proper appreciation of the evidence by
the trial court. There is no proper identification of
the ornaments of the deceased. The prosecution
has improved its version during the course of trial.
• The trial Court has imposed sentence to suffer
imprisonment till the death of accused which is not
in accordance with law. The sentence passed is
bad in law. There was no premeditation or
intention to kill the deceased.
• Amongst other grounds, it is prayed to allow the
appeal and set aside the conviction and sentence
passed by the trial Court.
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15. After filing this appeal, it is admitted. The learned
Additional State Public Prosecutor took notice of this appeal.
Trial court records are secured.
16. We have heard the arguments of learned counsel
for appellant/accused and the learned Additional State Public
Prosecutor at length.
17. The learned counsel for accused/appellant took
us to various oral and documentary evidence and submits
that the evidence so placed on record by the prosecution
suffers from lack of material particulars and do not inspire
any confidence so as to prove the guilt of the accused. Only
on surmises and conjectures, the conviction order is passed
by the trial Court which according to him is illegal. In support
of his submission he relied upon the following citations :
• (2022) ACR 978 in the case of Raju @
Rajendra Prasad vs. State of Rajasthan
• 2019 (2) Crimes 50 (Karn.) in the case of
Ranjith K. & others vs. State of Karnataka by
MICO Layout Police Station
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18. As against this submission, the learned Additional
State Public Prosecutor supported the reasons being assigned
by the trial Court in passing an order of conviction and
sentence by the trial Court. It is pre-plan murder to rob the
gold ornaments of the deceased by the accused as accused
was well acquainted with the day-to-day activities of the
deceased visiting the land every day with lunch to her
husband.
19. He submits that the evidence of complainant and
recovery panchas and the Investigating Officer proves the
connect and link in establishing the guilt of the accused. It is
the accused and accused alone who has committed the
offence in the manner stated by the prosecution. Therefore,
he justifies the order of conviction and sentence passed by
the trial Court.
20. We have given our anxious consideration to the
arguments of both side and perused the records.
21. As rightly submitted by both the side, this case is
purely based upon circumstantial evidence. When a case is
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based upon circumstantial evidence, it is for the prosecution
to prove the guilt of the accused by establishing all the chain
of circumstances which link the accused in the commission of
crime.
22. As it is murder case, before discussing the other
evidence, it is to be proved by the prosecution that, whether
prosecution is able to establish the homicidal death of
deceased Munibegum.
23. To ascertain the same, we have to read the
evidence of following witnesses :-
PW.3 - Kasimali is the complainant and PW.8 -
Maheboob Mohammed Ali is the brother of the complainant.
According to the evidence of these two witnesses they
noticed the injuries on the person of deceased on her cheek,
forehead, back side behead. They also noticed about missing
of her gold ornaments and silver toe rings.
24. PW.4-Kashimbee is pancha to Ex.P.5 the inquest
panchanama. She has noticed the injuries on the person of
deceased i.e., cut injury on the ears, injury on the neck,
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cheek tongue. She identifies the cloths like blouse, sari and
langa which are marked at MOs.1 to 3.
25. PW.23 has conducted the inquest panchanama as
per Ex.P.5 and seized MOs.4 to 9 under Ex.P.8 the scene of
occurrence panchanama. Coupled with that, we have the
evidence of PW.21-Dr.Vijayakumar Suryavanshi wherein he
has stated that on 11.03.2012 in between 0.30 a.m. and
2.30 a.m., he conducted post mortem on the dead body of
Munibegum and noticed the following injuries on her person:-
i. A hole measuring 4 cm x 2 cm on trachea region;
ii. A hole measuring 2 cm x 1 cm on right eyebrow;
iii. A cut injury on the right and left ear;
iv. An incised wound measuring 6 cm x 1 cm on the
right side of the neck; and
v. I noticed hair line fracture on occipital bone.
26. According to Doctor the injuries were anti
mortem in nature. He deposes that the death occurred within
8-12 hours of his post mortem examination. On account of
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shock of hemorrhage because of the injuries she must have
died. He has issued post mortem report as per Ex.P.12. He
identifies M.O-13-Kamakatti which has been sent by the
police and opines that injuries found on the dead body could
be caused by using M.O-13. To that effect he has issued
Ex.P.13.
27. On over all reading of the evidence of the
witnesses and contents of the inquest and post mortem
report which are not denied by the defence, it can
conclusively be held that deceased Munibegum has suffered
homicidal death. Thus, prosecution is able to prove the
homicidal death of the deceased.
28. Though the prosecution is able to establish that
deceased Muni Begum has suffered homicidal death, that
does not mean that it is accused and accused alone is
responsible for her death. This case is purely based upon
circumstantial evidence. When a case is based upon
circumstantial evidence, it is the duty of the prosecution to
prove the same with all legal evidence.
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29. The circumstances from which the conclusion of
guilt is to be drawn should be fully established. It may be
noted that so far as the circumstances concerned "must or
should" and not "may be" established. There is not only a
grammatical but a legal distinction between "may be proved"
and "must be or should be proved" as held by the Hon'ble
Supreme Court of India in Shivaji Sahebrao Bobade &
Another vs State Of Maharashtra1 wherein the
observations made are as under:
"...certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the mental
distance between 'may be' and 'must be' is long
and divides vague conjectures from sure
conclusions. The facts so embellished should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explanaitable on any other hypothesis except
that the accused guilty.
The circumstances should be of a
conclusive nature and tendency,
(1973) 2 SCC 793
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They should exclude possible hypotheses
except the one to be proved, and
There must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the
accused."
30. We can fully understand that though the case
superficially viewed bears an ugly look so as to prima facie
shocks the conscience of any court, yet, suspicion however
great it may be, cannot take the place of legal proof. A moral
conviction however strong or genuine cannot amount to a
legal conviction supportable in law. It is a well established
rule of criminal justice that "fouler the crime higher the
proof". In the instant case, life and liberty of a subject was at
stake. As the accused was given a life imprisonment, a very
careful, cautious and meticulous approach is necessary to be
made.
31. On examination of record and the impugned
judgment, it is seen that the circumstances founding the
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conviction are, leading to discovery of the weapon of offence
and gold ornaments worn by the deceased having blood
stains and the motive of the appellant/accused.
32. PW.1-Gundappa was the then Police Constable
carried FIR and complaint to the jurisdictional Magistrate
after its registration. Except the denial nothing is elicited
from the mouth of this witness. Therefore, the said FIR had
reached the jurisdictional Magistrate at 12.15 p.m. on
11.03.2013. To the extent of reaching FIR to the
jurisdictional Magistrate we believe his evidence.
33. PW.2-Tayab the another Police Constable had
obtained the RTC extract where the offence has taken place
as per Ex.P3. There is no cross-examination directed to
PW.2. Thus getting Ex.P3 from the office of the Tahasildar,
we believe his evidence.
34. PWs.3 and 8 have spoken before the Court about
they noticing the dead body of their mother and injury on her
person. To the extent of they noticing the dead body in the
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landed property of Rajkumar and the injury on her person,
we believe their evidence.
35. PW.5-Mohammad Ismail and PW.6-Yousuf Miyan
are the panchas to Ex.P.6 wherein as per their evidence, at
the scene of offence panchanama was prepared and under
Ex.P.6, MOs.4 to 7 are seized and they are Tiffin box, cloth
kunchige, sickle, pair of hawai chappals. So also the police
have seized blood stained mud as per M.O.8 and sample mud
as per M.O.9. No effective cross-examination is directed to
PWs.5 and 6 by the defence i.e. except bald denial nothing is
elicited to disbelieve the contents of the spot panchanama
being conducted in presence of PWs.5 and 6. Thus, the
panchanama is duly proved by the prosecution.
36. PW.7-Mohammad Wajid is pancha to Ex.P.7
wherein the so called kamakatti marked at M.O.13 has been
seized at the instance of the accused as per his evidence. He
says accused took himself, CW.9 and police to his house at
Markunda Village and opened a lock and produced MOs.10 to
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12 and 13. They were seized under Ex.P.7. Except the denial
nothing is elicited from the mouth of this witness.
37. PW.9-Nousin Begum is the wife of complainant-
PW.3. She speaks about leaving of Muni Begum from the
house along with the lunch box to give the same to her
husband and getting knowledge about murder of Muni
Begum in the land of CW.18 - Rajkumar. It is stated by her
that on the previous day accused had been to her house for
the purpose of begging and he was found observing the
ornaments of the person of Muni Begum. She says that, after
10-12 days of murder of Muni Begum, she was called to the
police station and there the ornaments were shown to her
which are marked at MOs.10 to 12. She identified by them.
There is denial of all these facts in the cross-examination.
Except PW.9, no witnesses have stated either in their
examination-in-chief or in their respective cross-examination
that, accused was a beggar. When such evidence is spoken
to by her, it requires corroboration.
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38. PW.10-Mohammad Ali is none other than the
husband of deceased Muni Begum. As per his evidence, as
his wife Muni Begum did not reach the landed property with
lunch to him, he informed the same to PWs.1 and 8 through
CW.14. Thereafter, he noticed the dead body of Muni Begum
in the lands of Rajkumar S/o Nagayya. Evidently, he is not
an eyewitness to the said incident of murder. To the extent
of noticing non arrival of Muni Begum to his landed property
with lunch, informing his sons about the same and noticing
the dead body as stated above, his evidence is to be
believed.
39. PW.11 - Saber Ali is the nephew of PW.8 and it is
PW.9 who informed of stating that his wife has not come with
lunch box. Thereafter, he informed the said fact to PW.8. To
that extent his evidence is to be believed. He also says that,
during evening hours he came to know about the murder of
Muni Begum and went to the said place, noticed the dead
body. He identified the ornaments MOs.10 to 12. He is a
hearsay witness about visiting the house of the deceased for
the purpose of begging.
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40. PW.12-Sharanappa being an agriculturist,
according to him, in between 10.00 or 10.30 a.m., when he
was returning from his agricultural land, he noticed the
accused on the way proceeding towards agricultural land of
PW.10. At that time, he noticed that accused was carrying
kamakatti marked at M.O.13 with him. He also noticed
deceased Muni Begum proceeding on the road with lunch box
towards agricultural land of PW.10. There was distance
between deceased and the accused i.e., about 60-80 feet
deceased was ahead. He further states that, he came to
know about murder of Muni Begum. According to
prosecution, he is an eyewitness of seeing deceased and the
accused moving towards the agricultural land of PW.10 and
there is a distance of 60-80 feet in between them. It is a
common knowledge and experience that the
agriculturist/farmers visit their agricultural land along with
weapons like Katti, sickle etc., to do agricultural operations.
None of the witnesses stated that accused was not at all
having any landed property in the said village. Just this
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PW.12 has noticed as per his evidence the movement of
accused on the road towards agricultural land.
41. PW.13 - Anand S/o Narasappa is a person who
noticed accused at about 12.00 wearing the blood-stained
clothes on his person. He enquired, but, the accused did not
talk with him and he was found frightened. Evidently, in this
case, the said blood stained clothes are not seized by the
police. In the voluntary statement, it is stated by accused
that he had thrown the said clothes in a halla and has
disclosed to the police that in which halla he has thrown
them. But no attempt was made by the Investigating Officer
to seize them. So in the absence of seizure of the so called
blood stained clothes, the evidence of PW.13 would not help
the case of the prosecution.
42. PW.14 - Nagamma is also one of the witness
relied upon by the prosecution that, on the day of death of
deceased, accused went to the house of this PW.14 at about
6 or 7 p.m. along with M.O.13 and told that he has murdered
Muni Begum and also would kill her. So as per the case of
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the prosecution, this accused has confessed about his guilt
and also gave threat to kill her. But in the cross-examination
in clear words at para 3, she states, 'it is true to say that,
there was enmity developed between myself and the accused
even prior to the incident.' So this evidence itself spoken to
by PW.14 shows that, she is having some ill-will against
accused and so as to implicate him she must have stated so.
This possibility cannot be ruled out.
43. PW.15 was the Police Sub Inspector who received
the message of murder in the agricultural land of Rajkumar
Swamy on 10.03.2013 at about 6.30 p.m. He went to the
said place at 7.00 p.m. and as it was raining, he made
arrangement to shift the dead body and recorded the
statement of PW.3 as per Ex.P.4 and went to the police
station, registered the crime. To that extent, we believe his
evidence.
44. PW.16 - Rajappa was the Police Constable who
collected MOs.1 to 3 and produced before the Investigating
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Officer. To the extent of producing them before IO, we
believe his evidence.
45. PW.17 -Azimoddin Siddique was the Panchayat
Development Officer who has issued a demand register
extract of house of accused. But is not marked in evidence.
To the extent of issuing demand register we believe his
evidence.
46. PW.18 - Sharanappa was called to the police
station on 11.03.2013 wherein MOs.1 to 3 are produced by
Rajappa, Police Constable in his presence. The Police have
seized them under Ex.P.8. To that extent, we believe his
evidence.
47. PW.19 - Basawaraj is the photographer who has
snapped at Ex.P.9 to 11. To the extent of taking
photographs, we believe his evidence.
48. PW.20 - Rajkumar S/o Nagayya is the owner of
Sy.No.284 of Markunda Village the dead body of deceased
was found. This fact is not disputed by the defence in a
proper manner.
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49. PW.22-Nayeemoddin S/o Khaleemuddin is a
videographer. According to him on 25.03.2013 i.e., after 15
days of the incident accused led the police and panchas to his
house and produced MOs.10 to 13 before investigating
officer. Investigating officer has prepared Ex.P.7 and he
videographed the said production of MOs.10 to 13. So as per
his evidence though the incident has taken place on
10.03.2013, but the said seizure of ornaments was done
after 15 days i.e., on 15.03.2013. Except the denial in the
cross-examination noting is elicited.
50. PW.23 is the Investigating Officer and he has
filed the charge-sheet after completion of the investigation.
51. On overall reading of the evidence so placed on
record by the prosecution, as stated supra, this case is
purely based on circumstantial evidence and whether the
prosecution is able to establish its case with legal evidence
based on only recovery is a question.
52. On 10.3.2013, the incident had taken place.
Accused was arrested on 25.3.2013 by the Police. In the
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presence of Panchas and Investigating officer, accused gave
voluntary statement when he was in police custody as per
Ex.P15. PW.7 and CW.9 were the Panchas.
53. Thus accused gave information that he would
point out his house in which he has concealed the gold
ornaments. This statement made by the accused is
admissible under Section 27 of the Indian Evidence Act.
Thereafter, accused took them to his house, at his instance,
went inside the house by opening the same and removed the
gold and silver ornaments from where he has concealed and
produced them before the IO. In the presence of Panchas,
Investigating officer prepared the Panchanama as per Ex.P7
in between 11.00 p.m. and 1.00 p.m. and seized said pair of
ear studs, bugudi, silver toe rings, kamakatti which are
marked as MO nos. 1 to 13.
54. There is no direct evidence as regards the
involvement of the accused in the murder and robbery of the
deceased. From the evidence both oral and documentary,
following circumstances are relied upon by the prosecution:
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1. Accused was seen going towards landed
property and was found following the
deceased at a distance of 50 to 60 ft.
2. The deceased was wearing golden ear rings,
nose stud, wedlock and silver ornaments. Her
ear lobes were found cut and injured which
indicated that in the process of removal of the
ear rings, such injuries were caused.
3. Recovery of such gold and silver ornaments
from the house of the accused at his instance.
4. Human blood noticed on the gold ornaments.
55. Learned Sessions Judge has believed the above
circumstances and has found the accused guilty of the
offences under Section 392 and 302 of IPC.
56. Sofar as, first circumstance is concerned, it is
just an evidence that, deceased was moving ahead of the
accused at a distance of 50 to 60 ft. and accused was
following. There is an evidence that PW.13 Anand S/o.
Narasappa noticing that accused was found moving towards
the village with blood stained clothes. But, those blood
stained clothes are not seized by the Police. This is the weak
evidence to connect the accused in the commission of the
crime of murder of deceased by the accused.
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57. Another circumstance is brought on record that
accused gave threat to PW.14 Nagamma stating that he has
killed deceased and he is going to kill this Nagamma also.
Evidently, PW.14 has spoken before the Court that there is
animosity between herself and accused. Therefore, her
evidence to that effect cannot be believed as animosity
between them is spoken to by her. This circumstance of her
say cannot be connected to the accused to the commission of
the crime. The learned Sessions Judge ought to have
appreciated such evidence and would have discarded the
same.
58. We are now left with the evidence of recovery of
the ornaments of the deceased on the basis of his confession
statement under Section 27 of the Evidence Act,
leaving apart for the time being the aspect of concerning
injuries inflicted on the deceased. The question then is,
whether there was discovery of incriminating articles in
consequence of information received from the accused in
custody and whether such recovery warrants a presumption
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to be drawn under Section 114 of the Indian Evidence Act,
and if so, to what extent that presumption has to be drawn.
59. As the presumption under Section 114 of the
Evidence Act looms large in this case, a brief discussion on
the basic postulates and evidentiary implications of
presumption of fact may not be out of place. A presumption
of fact is a type of circumstantial evidence which, in the
absence of direct evidence becomes a valuable tool in the
hands of the Court to reach the truth without unduly diluting
the presumption in favour of the innocence of the accused
which is the foundation of the our criminal law. It is an
inference of fact drawn from another proved fact taking due
note of common experience and common course of events.
The presumption under Section 114 is of course revertible.
When once the presumption is drawn, the duty of producing
evidence to the contra so as to rebut the presumption is cast
on the party who is subjected to the rigour of that
presumption. Before drawing the presumption as to the
existence of a fact on which there is no direct evidence, the
facts of the particular case should remain uppermost in the
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mind of the Judge. These facts should be looked into from
the angle of common sense, common experience, men and
matters and then a conscious decision has to be arrived at
whether to draw the presumption or not.
60. Among the illustrations appended to
Section 114 of the Evidence Act, the very first one is, what
concerns us in the present case. "The Court may presume -
that a man who is in possession of stolen goods soon after
the theft is either the thief or has received the goods
knowing them to be stolen unless he can account for
possession."
61. The Taylor in his treatise on Law of Evidence has
this to say on the nature and scope of the presumption
similar to the one contained in Section 114( a):
"The possession of stolen property recently
after the commission of the theft is prima facie
evidence that the possessor was either the thief
or the receiver, according to the other
circumstances of the case, and this presumption,
when unexplained either by direct evidence, or
by the characters and habits of the possessor, or
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otherwise, is usually regarded by the jury as a
conclusive. The question what amounts to recent
possession varies according to whether the stolen
article is or is not calculated to pass readily from
hand to hand."
62. This presumption which in all cases is one of fact
rather than of law, is occasionally so strong as to render
unnecessary any proof of what is called the corpus delicti.
63. We shall now examine as first step whether the
conditions or to put it in other words, factual circumstances
contemplated by illustration (a) to Section 114 are fulfilled.
64. There can be no doubt in this case that, the
ornaments were located in his house at the instance of the
accused were the personal belongings of the deceased and
there were being worn by the deceased. The evidence of the
witnesses so examined in this case such as complainant, his
brother, husband of the deceased, daughter-in-law of the
deceased and others bear testimony to this fact and even a
grueling cross-examination could not raise a cloud on the
veracity of their deposition on this aspect.
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65. The next step which has to be proved by the
prosecution is, the possession of the said ornaments of the
deceased soon after the incident. The incident took place on
10.3.2013 accused was arrested on 25.3.2013 gave his
voluntary statement as per the evidence panchas PW.7 and
CW.7 and the Investigating officer, that as per the voluntary
statement when accused was in custody, at his instance said
MOs. Nos.10 to 13 are recovered on the date of arrest itself.
For a period of 15 days accused was absconding. PW.7 and
Investigating officer have deposed that they accompanied
accused and in their presence he has produced MOs.10 to 13.
When there is a consistent evidence about identification of
MOs.10 to 13 by the aforesaid witnesses and identification of
the same by panchas at the time of seizure, it gives no room
to suspect that they were produced by the accused having
concealed them after the commission of the crime.
66. These PW.7 and 9 have stated that Police have
called them and accused was in their custody. Altogether
went to the house of accused at his instance. That means
police had got confirmed about concealing of those material
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objects by the accused. Therefore, as rightly pointed out by
the learned Sessions Judge the statement of witnesses were
recorded after the seizure of the said ornaments. The
Investigating officer has seized them. From the evidence of
PW.7 and Investigating officer, it can be deduced that the
information furnished by accused to the police attracts the
provisions of Indian Evidence Act. Therefore, the argument of
the learned counsel for the accused-appellant that there was
no information leading to discovery of the material object
and the statement of the accused is, inadmissible under
Section 27 was rightly repelled by the trial Court. There is no
good reason to take a different view in this regard.
67. We are left with the evidence of recovery of the
ornaments of the deceased on the basis of the confessional
statement of accused under Section 27 of the Evidence Act, if
the discoveries are to be believed which ought to be. The
next two questions are, whether the accused shall be
deemed to be in possession of the articles so concealed by
him in his house and whether such possession could be said
to be recent possession.
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68. Here in this case, the accused has concealed the
said MOs.10 to 13 in his house and have produced them at
his own instance from where he has hidden them. Such
statement of the accused is admissible during the evidence
leading to discovery. It was a recent possession i.e. on the
date of arrest itself after giving his voluntary statement he
has produced them in the presence of panchas. It is laid
down by the Hon'ble Supreme Court Earabhadrappa Alias
Krishnappa vs State Of Karnataka2, while reiterating the
principle that no fixed time limit can be laid to determine
whether possession is recent or otherwise, it is held that
even a period of one year was not too long having regard to
the fact that the accused suddenly disappeared after the
incident and he was absconding for a long time. In the
present case, accused was absconding for 15 days and
apprehended on 25.3.2013, and gave information about the
gold and silver ornaments and this lead to the discovery of
stolen property. Having regard to the nature of the articles, it
is difficult to visualize that, it would have changed hands
AIR 1983 SC 446
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within this short time and ultimately landed itself in the
possession of the accused. The accused, on his part, did not
come forward with any such explanation. Whether the
accused is capable of affording to have such ornaments with
him is not made clear. No such evidence is brought on
record.
69. In the light of the above discussion, in the instant
case, the presumption under Section 114 illustration (a)
could be safely drawn and the circumstances of the recovery
of the incriminating articles within a reasonable time after
the incident at the place that is his house shown by the
accused unerringly points to the involvement of the accused.
Be it noted that the appellant/accused who was in a position
to explain as to how he could lay his hands on the stolen
articles or how he had the knowledge of concealment of the
stolen property, did nothing to explain; on the other hand, he
denied the whole case of the prosecution which in the light of
the evidence adduced by the prosecution must be considered
to be false. By omitting to explain, it must be inferred that
either he intended to suppress the truth or invite the risk of
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presumption being drawn. Thus, the presumption as to the
commission of offence envisaged by illustration (a) of 114 is
the minimum that could be drawn and that is what the trial
court did.
70. The above discussion paves way for consideration
of a more important question whether having regard to the
facts of this case, the presumption should be extended to the
perpetration of the offence of robbery or murder or both?
Presumption envisaged by illustration (a) to Section 114 has
been stretched in decided cases to make a similar
presumption as the basis for conviction for graver offences of
robbery and murder, if they are part of the same transaction.
Strictly speaking, such presumption does not come within the
sweep of illustration (a) though in some cases, it has been
referred to while upholding the conviction for robbery and
murder. The illustration only provides an analogy in such a
case.
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71. In Gulab Chand vs. State of Madhya
Pradesh3, it is held by the Hon'ble Supreme Court that,
"where presumption under Section 114 of the Evidence Act,
was carried to the utmost extent. In that case, the accused
were charged under Sections 120-B, 302, 394 and 397 for
having committed the murder and robbery. The appellants
were convicted under Sec.380 of IPC. On appeal by the
State, the High Court reversed the order of acquittal and
convicted the appellant Gulab Chand under Section 302, 394
and 397 of IPC. The conviction of the other accused was
modified to one under Section 411 of IPC. In that case,
within a few days after the incident, on the search of the
appellant's house, various articles were found including
ornaments belonging to the deceased. Some of the
ornaments were also recovered from the shop on the basis of
the information given by the accused. The Court started the
discussion with the preface; "it is true that simply on the
recovery of stolen articles, no inference can be drawn that a
person in possession of the stolen articles is guilty of the
(1995) 3 SCC 574
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offence of murder and robbery. But, culpability for the
aforesaid offence will depend upon the facts and
circumstances of the case and nature of evidence adduced".
72. In the said judgment, the Hon'ble Supreme Court
also referred the judgment in Tulasi Ram Kanu vs. State4
wherein the court has observed that; "if the ornaments of the
deceased were found in possession of a person soon after the
murder a presumption of guilt can follow. But, several
months have expired, the presumption may not be permitted
to be drawn. Having regard to the close proximity of the time
of recovery and lack of credible information for the
possession thereof and on account of dealing with the
ornaments, immediately after the crime, it was held that a
reasonable inference of commission of offence could be
drawn against the accused."
73. If this analogy is applied to the present facts of
the case, the evidence so placed on record by the
prosecution proves the immediate recovery of MOs. No.10 to
13 at the instance of the accused. Thus, in a given case, the
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prosecution could successfully prove its case that the
offences of robbery and murder were committed in one and
the same transaction and soon thereafter, the stolen
properties were recovered. In the given facts and
circumstances of the case, legitimately we can draw
presumption not only of the fact that accused who is found in
possession of the stolen articles was found committed the
robbery but also that he has committed the murder as per
law laid down in Gulab Chand case referred supra. Thus, the
prosecution is able to prove the guilt of the accused beyond
all reasonable doubt. No doubt, the learned trial Court has
given different reasons for conviction but, has rightly come to
the conclusion. Therefore, we do not find error committed by
the trial Court in finding the accused guilty of committing the
offence under Sec.392 and 302 of IPC.
74. Therefore, the judgment of conviction so passed
by the trial Court vide judgment dated 1.10.2014 deserves to
be confirmed holding that the appeal filed by the appellant
lacks merits.
(AIR 1954 SC 1)
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75. So far as sentence is concerned, the learned trial
Court has sentenced the accused for the offence punishable
under Sec.392 of IPC to undergo RI for five years with fine of
Rs.20,000/- with default clause and also sentenced the
accused for the offence punishable under Sec.302 of IPC to
undergo life imprisonment not less than the life with fine of
Rs.20,000/- with default sentence with an order to run the
substantive sentence concurrently.
76. So far as sentence so imposed by the trial Court
is concerned, for the offence punishable under Sec.392 of
IPC, the sentence so imposed is RI for five years with fine of
Rs.20,000/- with default clause and for the offence
punishable under SEc.302 of IPC sentence so imposed is, life
imprisonment not less than the life and fine of Rs.20,000/-
with default clause.
77. The criminal law in general adheres to the
principle of proportionality in prescribing liability according to
the culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the Judge in arriving at a
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sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are
raised by the special facts of each case. It is settled principle
of law that punishment ought to always to fit the crime, yet
in practice, sentences are determined largely by other
considerations. Sometimes, it is the correctional needs of the
perpetrator that are offered to justify a sentence.
78. Proportion between crime and punishment is a
goal respected in principle and inspite of errant notions, it
remains a strong influence in the determination of sentence.
With regard to the sentence, a land mark judgment of the
Hon'ble Supreme Court of India in Bachan Singh vs. State
of Punjab5, at para.202, laid down various principles for
awarding sentence. The same are extracted hereunder:
"Aggravating Circumstances: A Court
may, however, in the following cases impose the
penalty of death in its discretion:
(a) if the murder has been committed after
previous planning and involves extreme
brutality; or
(1980) 2 SCC 684
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(b) if the murder involves exceptional depravity;
or
(c) if the murder is of a member of any of the
armed forces of the Union or of a member of
any police force or of any public servant and
was committed.
(i) while such member or public servant was on
duty; or
(ii) in consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of his
duty as such member or public servant
whether at the time of murder he was such
member or public servant, as the case may
be, or had ceased to be such member or
public servant; or
(d) if the murder is of a person who had acted in
the lawful discharge of his duty
under Section 43 of the Cr.PC, 1973, or who
had rendered assistance to a Magistrate or a
police officer demanding his aid or requiring
his assistance under Section 37 and Section
129 of the said Code.
Mitigating circumstances: In the
exercise of its discretion in the above cases, the
Court shall take into account the following
circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death.
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(3) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated. The State shall
by evidence prove that the accused does not
satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the
case the accused believed that he was
morally justified in committing the offence.
(6) That the accused acted under the duress or
domination of another person, (7) That the
condition of the accused showed that he was
mentally defective and that the said defect
impaired his capacity to appreciate the
criminality of his conduct.
79. In another case of Judgment in Hazara Singh
vs. Raj Kumar6, (2013) 9 SCC 516, the Hon'ble Supreme
Court has observed at paras.10 and 11 as under:
"10. In Hazara Singh v. Raj Kumar (2013) 9
SCC 516 :(2014) 1 SCC (Cri) 159] this Court has
observed that:(SCC p. 521, para 10)
"10. ... it is the duty of the courts to
consider all the relevant factors to impose an
appropriate sentence. The legislature has
bestowed upon the judiciary this enormous
discretion in the sentencing policy, which must be
exercised with utmost care and caution. The
punishment awarded should be directly
proportionate to the nature and the magnitude of
(2013) 9 SCC 516
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the offence. The benchmark of proportionate
sentencing can assist the Judges in arriving at a
fair and impartial verdict."
This Court further observed that: (Hazara
Singh case [(2013) 9 SCC 516 : (2014) 1 SCC
(Cri) 159] , SCC p. 521, para 11)
"11. The cardinal principle of sentencing
policy is that the sentence imposed on an
offender should reflect the crime he has
committed and it should be proportionate to the
gravity of the offence. This Court has repeatedly
stressed the central role of proportionality in
sentencing of offenders in numerous cases."
11. In Shailesh Jasvantbhai v. State of
Gujarat [(2006)2 SCC 359 : (2006) 1 SCC (Cri)
499] the Apex Court opined that: (SCC pp. 361-
62, paras 7-8)
"7. The law regulates social interests,
arbitrates conflicting claims and demands.
Security of persons and property of the people is
an essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict
where living law must find answer to the new
challenges and the courts are required to mould
the sentencing system to meet the challenges.
The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must
be the object of law which must be achieved by
imposing appropriate sentence. Therefore, law as
a cornerstone of the edifice of 'order' should meet
the challenges confronting the society. Friedman
in his Law in Changing Society stated that:
'State of criminal law continues to be--as it
should be --a decisive reflection of social
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consciousness of society.' Therefore, in operating
the sentencing system, law should adopt the
corrective machinery or deterrence based on
factual matrix. By deft modulation, sentencing
process be stern where it should be, and
tempered with mercy where it warrants to be. The
facts and given circumstances in each case, the
nature of the crime, the manner in which it was
planned and committed, the motive for
commission of the crime, the conduct of the
accused, the nature of weapons used and all other
attending circumstances are relevant facts which
would enter into the area of consideration.
8. Therefore, undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public confidence
in the efficacy of law and society could not long
endure under such serious threats. It is,
therefore, the duty of every court to award proper
sentence having regard to the nature of the
offence and the manner in which it was executed
or committed, etc."
80. If the aforesaid crime test and criminal tests are
applied to the present facts of this case, accused is found
guilty of committing robbery and murder of deceased Munni
Begum in broad day light for personal gain. He committed
robbery of her gold and silver ornaments and to conceal the
said crime, he has murdered the said victim. It is a broad
daylight robbery and murder. It has come in the evidence
that accused was a beggar. But, there is no evidence to
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prove the same. Except his age, there are no mitigating
circumstances so as to show leniency in imposing the
sentence. The minimum sentence that is to be imposed for
the offence punishable under Sec.302 of IPC is life
imprisonment and fine. But, the learned trial Court has
imposed the sentence of life imprisonment not less than the
life of the accused. No reasons have been assigned by the
trial Court to impose such sentence. It has not considered
the aggravating circumstances, mitigating circumstances by
applying the crime test and criminal test stated supra as laid
down by the Hon'ble Supreme Court of India in Bachan
Singh case stated supra. It is submitted that the accused is
first offender and has no criminal antecedents. The manner
and circumstances in and under which the offence was
committed that is because of extreme mental or emotional
disturbance or extreme provocation etc., would have been
considered by the trial Court. In the normal course of life, the
circumstance with regard to the behaviour of the accused
also plays an important role. On appreciation of the evidence,
the crime was committed in a pre-ordained manner, i.e. first
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robbery and then murder. That is, the death resulted in the
course of commission of another crime and that there was
possibility of consequences being construed by the accused
by himself with regard to the commission of the primary
crime being committed by him. In various cases where the
death penalty has been awarded, the Hon'ble Supreme Court
of India have commuted the said death sentence into life
imprisonment taking into consideration of other evidence
being placed on record.
81. The facts of this case do not come under the
definition of 'rarest of rare case' or the sentence to be
imposed till life of the accused. Therefore, if all these factual
features coupled with the present position of law and
personal liberty of a person as per the provisions of the
Indian Constitution, if the said sentence so imposed for the
offence under Sec.302 of IPC to undergo life imprisonment
not less than life of the accused is converted into life
imprisonment, it would meet the ends of justice. So far as
sentence imposed for the offence under Sec.392 of IPC is
concerned, it is to be maintained.
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82. Accordingly, we pass the following:
ORDER
Appeal filed by the appellant/accused under
Section 374(2) of Cr.P.C. is allowed in part. with
modification of the sentence for the offence punishable under
Sec.302 of IPC.
Accordingly, we modify the order of sentence of the
trial Court for the offence punishable under Section 302 of
IPC. We direct that the appellant/accused shall undergo
imprisonment for life.
So far as sentence passed for the offence punishable
under Section 392 of IPC and imposition of fine for offences
under Sec.302 and 392 of IPC with default sentence are
affirmed and maintained.
Send back the trial Court records forthwith along with
copy of the judgment to the trial Court.
SD/-
JUDGE
SD/-
JUDGE
Sk/sn
