Karnataka High Court

Shabbir Pasha vs The State Of Karnataka on 14 December, 2023

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                                                   NC: 2023:KHC:46379-DB
                                                   CRL.A No. 427 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 14TH DAY OF DECEMBER, 2023

                                      PRESENT
               THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                         AND
                    THE HON'BLE MR JUSTICE VENKATESH NAIK T
                         CRIMINAL APPEAL NO.427 OF 2018
            BETWEEN:

                SHABBIR PASHA
                S/O. LATE IBRAHIM @ SEERAJ PASHA
                AGED ABOUT 21 YEARS
                R/O. MASEEDI ROAD
                4TH WARD, TALUK OFFICE ROAD
                DEVANAHALLI TOWN
                BENGALURU RURAL DISTRICT
                PIN CODE NO. 562 110.
                                                             ...APPELLANT
               (BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR
                   SRI NASIR ALI, ADVOCATE)
            AND:

                THE STATE OF KARNATAKA
                BY DEVANAHALLI POLICE
                REP. BY THE STATE PUBLIC PROSECUTOR
Digitally       HIGH COURT OF KARNATAKA STATE
signed by
VINUTHA M       BENGALURU-560 001.
Location:                                                  ...RESPONDENT
HIGH            (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
COURT OF
KARNATAKA
                  THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
            CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
            05.02.2018 PASSED BY THE V ADDITIONAL DISTRICT AND
            SESSIONS    JUDGE,    DEVANAHALLI    IN  S.C.NO.15007/2016
            - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
            PUNISHABLE UNDER SECTION 302 OF IPC.

                 THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
            THIS DAY, SREENIVAS HARISH KUMAR., DELIVERED THE
            FOLLOWING:
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                                           NC: 2023:KHC:46379-DB
                                            CRL.A No. 427 of 2018




                          JUDGMENT

This appeal is by the accused in Sessions case

No.15007/2016 on the file of V Addl. District and

Sessions Judge, Devanahalli. The accused has

stood convicted for the offence punishable under

section 302 of Indian Penal Code, 1860(for short

'IPC') and sentenced to life imprisonment, besides

fine for Rs.20,000/-

2. The prosecution case is that the wife of the

accused viz., Harshia Khanam was found dead in

the early hours of 26.11.2015 in her residence at

Devanahalli. The deceased and accused got

married as they were in love with each other

inspite of opposition by the mother of the

deceased and the parents of the accused. They

were living in a rented house at Devanahalli. They

led a cordial matrimonial life for about three

months after the marriage, and thereafter the

accused started suspecting fidelity of his wife after

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having noticed her telephoning somebody which

resulted in frequent quarrel between them. The

deceased was from Chickballapur and it appears

that PW-5 had advised both of them to lead a

cordial life. Thereafter, the incident occurred.

3. FIR was registered at the instance of PW-1

father of the deceased. Ex-P1 is the report made

by PW-1 to the police and Ex-P19 is the FIR.

Investigation led to charge sheeting the accused.

The prosecution examined twelve witnesses, relied

on twenty three documents as per Ex-P1 to P23

and seven material objects M.O.1 to M.O.7 in order

to establish its case. Ex-D1 was marked during

cross examination of PW-2. Assessing the

evidence, the trial court recorded reasons that,

since the death occurred inside the residence of

the accused and the deceased, burden was on the

accused to explain as to how the death occurred.

As the accused failed to give explanation, the trial

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court came to the conclusion that accused had

caused the death. The findings of the trial court

are found in paras 19 and 20 of the impugned

judgment.

4. We have heard the arguments of

Sri. Hashmath Pasha, learned Senior counsel

appearing for the accused/appellant and

Sri. Vijay Kumar Majage, learned SPP-II appearing

for the respondent-State.

5. It is the argument of Sri. Hashmath Pasha

that prominent witnesses are PW-6 and PW-7. They

were not the eyewitnesses to the incident. PW-1,

the father of the deceased made a report to the

police after learning about death of his daughter.

Both PW-6 and PW-7 do not establish the fact that

the accused was very much present in the house

during the time when the incident occurred. The

accused was working in the airport. His

explanation under section 313 Cr.P.C. was that he

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left home at 4.30 a.m. to go to his work at airport.

According to the prosecution, the incident occurred

at 5.00 p.m. In the absence of evidence that the

accused was very much present in the house, the

courts cannot apply section 106 of the Evidence

Act, 1872 against the accused. The accused was

supposed to give explanation for the death only if

his presence was proved. Initial burden of proving

the presence of the accused was on the

prosecution and since there is no such evidence,

the trial court committed an error in recording

conviction against the accused by applying section

106 of the Indian Evidence Act, 1872.

6. In support of his arguments, learned Senior

counsel placed reliance on two judgments of the

Hon'ble Supreme Court in the case of ARVIND

SINGH v. STATE OF BIHAR, (2001) 6 SCC 407

and R. SREENIVASA v. STATE OF KARNATAKA,

2023 SCC Onine SC 1132. Therefore, it was his

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argument that the impugned judgment cannot be

sustained, the accused deserves acquittal and

hence, this appeal is to be allowed.

7. Sri. Vijay Kumar Majage, learned SPP-II

argues that the trial court is justified in applying

section 106 of the Indian Evidence Act, 1872

inasmuch as, the evidence of PW-6 and PW-7

discloses that the accused and the deceased were

living in the house of PW-6. PW-6 is the landlord

and PW-7 is the neighbour of the accused. The

death occurred in the early hours of 26.11.2015;

that means he was very much present till that

time. Though PW-6 and PW-7 have stated that they

did not see the accused in the house, the presence

of the accused can be inferred from the facts and

circumstances. The trial court is justified in

holding accused guilty of the offence and

therefore, the appeal deserves to be dismissed.

We have perused the entire evidence.

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8. PW-1 being the father of the deceased is

not an eyewitness. He has just stated that after

receiving telephone call about the death of his

daughter, he came to Devanahalli and saw the

dead body. He observed nail marks on the neck of

the deceased. He suspected involvement of the

accused and therefore, made a complaint to the

police as per Ex-P1. He has also spoken about the

differences that erupted between the accused and

the deceased a few months after their marriage

and panchayath convened at masjid at

Chikkaballapur, where both of them had been

advised to lead a cordial life.

9. PW-2 is the sister of the deceased. She too

blames the accused to be responsible for the

death.

10. PW-3 states that deceased married the

accused because of love between them and started

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living at Devanahalli. He stated that he came to

know through PW-1 about ill-treatment on the

deceased. So all these witnesses do not state that

the accused was present in the house during that

night.

11. PW-5 has stated about giving advice to

the accused and the deceased to lead a

harmonious life. But the evidence of PW-6 and

PW-7 is important in the sense that PW-6 was the

landlord of the house, where the accused was

living with his wife and PW-7 is the neighbour.

They have stated that the accused was working at

airport and that he was living happily with his

wife. Their consistent statements are that they

were not aware of the reason for the death of the

deceased. Though PW-7 has stated that she came

to know that the accused himself caused death, it

was just a hearsay. So it is clear that these two

witnesses do not establish the fact that the

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accused was very much present during night till

5.00 a.m. on 26.11.2015 i.e., time of the incident.

12. PW-10 is the doctor who conducted post

mortem examination and Ex-P18 is the post-

mortem report. PW-10 notices two injuries on the

neck of the deceased and opined that the 'death

was due to asphyxia as a result of manual

strangulation-throttling'. Therefore, from the

evidence of PW-10, it becomes clear that the death

of deceased was homicidal.

13. The trial court has relied on the judgment

of the Hon'ble Supreme Court in the case of

Khim Singh v. State of Uttarakhand, 2014(4)

Crimes 434(SC). The facts of that case disclose

that the mother of the accused herself gave evidence

testifying the presence of the accused. It was in

that circumstance, the court drew an inference that

accused should alone explain the reason for the

death of his wife. Same is not the position

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here. The death occurred at 5.00 a.m. according to

the prosecution. PW-6 and PW-7 do not establish

the fact that the accused was very much present in

the house. The explanation of the accused is that

he left home at 4.30 a.m. itself to attend his

airport work. If the findings of the trial court are

seen, it appears that it has drawn conclusion based

on surmises under the presumption that the

accused was very much present in the house.

14. In the case of Arvind Singh supra, the

Hon'ble Supreme Court has observed at para 21 as

below:-

21. "Mr H.L. Agrawal, learned Senior Advocate, however, emphatically contended that considering the hour of the day and the factum of the wife being burnt and no other explanation coming forth, question of the husband escaping the liability of murder does not and cannot arise. We are however unable to lend out concurrence to the aforesaid.

While it is true that the husband being the companion in the bedroom ought to be able to explain as to the circumstances but there exists an obligation on the part of the prosecution to prove the guilt of

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the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape therefrom."

15. In the case of R. Sreenivasa referred

supra, it is observed by the Hon'ble Supreme Court

at para 14 which is as below:-

14. The decision relied upon by learned counsel for the State [Kashi Ram (supra)] is not relevant in the instant facts and circumstances for the simple reason that in the said case, the fact of 'last seen' had been established and thus, it was held that the accuse d therein, in whose company the victim was last seen had to explain as to what happened. Whereas in the present case, the very fact whether the deceased had in fact gone with the appellant, after which his dead body was found had not been proved, as is the requirement in law. In Kashi Ram (supra) itself, this is evincible from the subsequent paragraph:

'24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the

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respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.'

(emphasis supplied)

16. Therefore, what we find from the evidence

is that the presence of the accused at the time of

the incident is not established. Only if his presence

is proved, he has an obligation to give explanation

for the cause of death. It is true that according to

section 106 of the Indian Evidence Act, the facts

which are within the knowledge of the person must

be disclosed and failure to do so will result in

drawing adverse inference against him. To apply

this principle in a criminal case, especially in case

of death, it is necessary that the prosecution must

first prove the presence of the accused or the