Karnataka High Court
Husensab Fakirsab Pinjar @ Nadaf vs State Of Karnataka on 15 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100281 OF 2020
BETWEEN:
HUSENSAB FAKIRSAB PINJAR @ NADAF
AGE: 23 YEARS,
R/O: SANKADAL, TAL: NARGUND,
DIST: GADAG.
...APPELLANT
(BY SMT. ANURADHA DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH RAMDURG POLICE STATION.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN S.C.NO.311/2015 ON
THE FILE OF VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE
BELAGAVI AND TO SET ASIDE CONVICTION AND ORDER OF
SENTENCE DATED 19.06.2019 APPELLANT/ACCUSED FOR THE
OFFENCES U/S 376, 302, 201 AND 404 R/W 34 OF IPC PASSED BY
VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE BELAGAVI IN
SC NO.311/2015 AND AN ORDER OF ACQUITTAL IN FAVOR OF THE
APPELLANT THEREBY ALLOWING THE PRESENT APPEAL.
2
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 07.12.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of
conviction and order of sentence passed against the appellant
for the offence punishable under Sections 376, 302, 201 and
404 read with 34 of Indian Penal Code.
2. Factual matrix of the case of the prosecution is as
under:
2.1 The accused on 17.08.2015 at about 21-00 hours,
took the deceased/victim on his motorcycle bearing
Reg.No.KA-26/S-8866 from Chikkanaragund via Mudnkoppa,
Mullur and Ramadurga to the vacant land of Shyla Ghatad
situated at Batakurgi village, Ramadurg taluk and committed
forcible sexual intercourse on her in the night and on
18.08.2015 at 5-00 hours, intentionally committed murder of
the victim by tying her neck with veil tightly and removed
cloths and gold ornaments from the dead body of the victim
knowing that the said gold ornaments were in the possession
of the victim at the time of her death and dishonestly
misappropriated the same for his own use and later with an
intention to destroy the evidence, thrown the dead body under
the bund of the land and thereby committed the offence
punishable under Sections 376, 302, 201 and 404 read with
34 of Indian Penal Code.
2.2 The learned Senior Civil Judge took cognizance
against the accused and committed the matter to the Sessions
Court invoking Section 207 of Code of Criminal Procedure
since the offences are exclusively triable by the Sessions
Judge and the Sessions Judge on receipt of records, registered
the case in S.C.No.311/2015 and framed charges since the
accused has denied the charge leveled against him.
2.3 The prosecution in order to prove its case,
examined PW.1 to PW.21 and got marked documents at
Ex.P.1 to Ex.P.50 and MO.1 to MO.25. On completion of
evidence of the prosecution side, the statement of the accused
was recorded under Section 313 of Code of Criminal Procedure
giving an opportunity to explain the incriminatory
circumstances against the appellant - accused. The accused
has not led any defence evidence.
2.4 The trial Court having considered the material
available on record, answered all the points which have been
framed with regard to offences under Sections 376, 302, 201
and 404 read with 34 of Indian Penal Code. The accused is
sentenced to undergo life imprisonment and to pay fine of
Rs.2,00,000/- for the offence punishable under Section 302 of
Indian Penal Code. In default to pay fine, he is directed to
undergo rigorous imprisonment for a period of two years; The
accused is also sentenced to rigorous imprisonment for ten
years and also to pay fine of Rs.50,000/- for the offence
punishable under Section 376 of Indian Penal Code. In default,
to undergo rigorous imprisonment for a period of two years;
The accused is also sentenced to undergo simple
imprisonment for three years and also to pay fine of
Rs.25,000/- for the offence punishable under Section 201 of
Indian Penal Code. In default of payment of fine amount, the
accused is directed to undergo simple imprisonment for a
period of one year; The accused is also sentenced to undergo
simple imprisonment for two years and to pay fine of
Rs.25,000/- for the offence punishable under Section 404 of
Indian Penal Code. In default of payment of fine, the accused
is directed to undergo simple imprisonment for a period of one
year; The amount received as fine from the accused is ordered
to be paid to the mother of the victim as compensation and
also copy of the judgment is ordered to be given to DLS for
determining the victim compensation under Section 357(A) of
Cr.P.C. It is also ordered that imprisonment undergone by the
accused shall be given set off and all sentences shall run
concurrently.
3. Being aggrieved by the judgment of conviction and
order of sentence, the present appeal is filed by the accused.
4. The main contention of the accused in this appeal is
that the trial Court has mechanically passed the impugned
judgment without ascertaining the facts and also without
examining all the relevant aspects i.e. practical position of law.
The trial Court has erred in not examining the owner of the
land where the body has been found. The owner of the land as
per the complaint is one Smt.Shyla Ghatad who is nowhere in
the picture and the prosecution has failed to produce her as
prosecution witness. The trial Court has erred in relying upon
the prosecution's case that the recovery proceedings were
conducted at three places. The prosecution has submitted
cloths, ornaments and simcards which were recovered at three
different places but the owners of the land and their ROR have
not been brought before this Court. The trial Court has erred
in not noticing that PW.9, PW.10 and PW.14 have not
supported the case of the prosecution. The trial Court has also
erred to note that PW.11 the husband of the deceased has not
supported the case of the prosecution. The trial Court has
erred in not analyzing the statements of the doctor who has
deposed that the victim did not have any injuries. The trial
Court has failed to notice that the deceased was in relationship
with the accused and the evidence on record disclose the
same. The trial Court has also erred to note that the deceased
has gone out of the village on her accord. The evidence on
record as well as the case papers disclose that the accused
was neither present nor seen by any of the prosecution
witnesses committing the offence and there are no direct
eyewitnesses.
5. Counsel for the appellant - accused also
vehemently contends that when the case rests upon
circumstantial evidence, there must be a chain link in respect
of each of the events and in the absence of such materials,
the trial Court ought not to have convicted and sentenced the
accused. The counsel would vehemently contend that the
deceased is also married and both of them are from different
villages. No injuries are found either on her private part and
also other injuries evidencing case of homicidal and materials
are contradictory to each other. The articles are away from 6
K.M. from the place where the alleged offence has been
committed.
6. The counsel would also submit that the accused
was arrested on 28.08.2015 and radiological report is dated
31.08.2015, the medical examination is conducted on
09.09.2015 and in the absence of any establishment of link
and motive, the trial Court ought not to have convicted the
accused. The trial Court has committed an error in convicting
the accused and sentencing him for the above offences in the
absence of connecting material and none of the circumstances
support the case of the prosecution.
7. Per contra, learned Additional SPP appearing for the
State would submit that it is not in dispute that it is a case of
homicidal and cause of death is also on account of
strangulation. The counsel would submit that PW.4 and PW.8
have categorically deposed that both of them were together
and they have also purchased water bottle from the shop of
PW.8. The other witness PW.12 also noticed the accused went
with a bag in the early morning. The counsel would submit
that evidence of PW.1 to PW.3 is very clear with regard to the
illicit relationship between the accused and the deceased and
the same has been spoken by the prosecution witnesses.
8. Counsel also submits that PW.6 is the recovery
witness and MO's are recovered at the instance of the accused
and the same has been proved by the prosecution coupled
with the evidence of PW.21 investigating officer who seized
the same in the presence of panch witness PW.6. Counsel
would also submit that Ex.P.7 is the mahazar in order to prove
the recovery at the instance of the accused. The counsel
would also submit that the recovery of the articles is at the
instance of the accused and the same was within the
knowledge of the accused and he had showed the place where
he kept the same after committing the murder and the same
is not a public place. The counsel also submits that MO.5 to
MO.8 and MO.9 to MO.12 are seized at the instance of accused
at different places which have been shown by the accused
himself. No doubt, common mahazar was drawn for seizure of
the same. Ex.P.43 is the voluntary statement, wherein the
accused had made a statement that if he is taken along with
them he would point out the places where he kept the MO's.
While recovery, CD is also made in terms of Ex.P.13.
Witnesses PW.6 and PW.8 are the last seen witnesses who
have seen both the accused and deceased and there is no
effective cross-examination to disbelieve their evidence.
Counsel would also submit that except nicker in the body, no
other cloths were there and cloths were also seized at the
instance of the accused.
9. He would also submit that the trial Court having
taken note of all these materials, minutely examined the same
and given a definite finding that the accused had only
committed the murder after having forcible sexual intercourse
with her.
10. In reply to the arguments, the counsel for the
appellant would contend that the statements are only
vindictive statements and the illicit relationship between the
deceased and accused has not been proved and the
prosecution has failed to prove the same.
11. Having heard the learned counsel for the appellant
and also the leaned Additional SPP appearing for the State and
on perusal of the material, the points that would arise for our
consideration are:
i. Whether the trial Court has committed an
error in convicting the accused for the
offence invoked against him i.e. Sections
376, 302, 201 and 404 of Indian Penal
Code?
ii. What order?
12. Having perused the charges leveled against the
accused, it is the case of the prosecution that the accused
took the victim on 17.08.2015 at 21-00 hours on his
motorcycle bearing Reg.No.KA-26/S-8866 from
Chikkanaragund via Mudnkoppa, Mullur and Ramadurga to the
land of one Shyla Ghatad situated at Batakurgi village,
Ramdurg taluk and committed forcible sexual intercourse on
her in the night and on 18.08.2015 at 5-00 hours in the early
morning intentionally committed the murder of the victim by
tying her neck with veil tightly and removed the cloths and
gold ornaments from the dead body of the victim with an
intention to dishonestly misappropriate the same for his own
use and with an intention to destroy the evidence, thrown the
dead body under the bund.
13. The prosecution mainly relies upon the evidence of
PW.1 to PW.21 and documentary evidence at Ex.P.1 to
Ex.P.50 and MO.1 to MO.25. Before assessing the evidence
with regard to connecting the accused whether he had alone
committed the murder of the victim, we intend to examine the
medical evidence. In order to comes to a conclusion that
whether it is a case of homicidal or not, this Court has to
mainly rely upon the evidence of PW.13, doctor who
conducted the post-mortem examination.
14. On perusal of evidence of PW.13 who is a assistant
professor, BIMS, Belagavi, in his evidence he says that on
19.08.2015 at about 9.00 a.m. he has received a requisition
to conduct autopsy and having received the requisition in
terms of Ex.P.20 he had conducted the autopsy on the body of
the victim. MO.1 to MO.3 are the broken bangles green
coloured. MO.16 and MO.15 were found on the body of the
deceased and the same have been collected and given to the
police. On external examination of the body of the deceased
found tongue is protruding and bitten between the teethes.
Post-mortem blebs is seen all over the body. Post-mortem
pleeing of skin is seen over the back of chest. Buttocks and
behind 'Radha Krishna' is seen over front of right forearm.
Scalp hairs are brownish in colour, 50 CMs in lengths, pleeted
with a red band pubic hairs 0.5 CM in length black in colour. In
his evidence he says that, on examination found the external
injuries of ligature mark transverse is seen in front and sides
of neck measuring 22 cm x 0.5 cms below the thyroid
cartilage and is situated 10 cm below the chin, 7 cm below the
right ear lobule 10 cm below the left ear bobule. Skin of the
ligature mark is darkened and hardened. Thyroid bone and
thyroid cartilage are intact. Both ear lobes are lacerated, torn
in the middle. On internal examination of the body, on
reflection blood extravasation is seen on left tempero parietal
area seen. Hemorrhage is seen in left parietal area. Stomach
is empty. Blood and viscara are preserved and sent to FSL for
chemical analysis. All the injuries are antemortem and fresh in
nature. External vaginal cervical are taken and sent to FSL for
analysis. Vaginal and cervical smears are sent to pathology
department for analysis. Sternum is preserved and sent for
DNA analysis. The doctor in his evidence opined that, the time
since death 1-3 days i.e. 24 hours to 72 hours. After receipt of
the FSL report, he has received requisition requesting him to
give final opinion regarding cause of death of the victim. He
has given final report as per Ex.P.24. The cause of death is
due to asphyxia as a result of strangulation. He has also
received requisition from the investigating officer as to
whether MO.8 could cause the ligature mark described in post-
mortem report and he opined that it could be caused by the
type of ligature material examined when twisted completely.
He has given report in terms of Ex.P.26.
15. This witness was subjected to cross-examination.
In the cross-examination, it is elicited that there would be
corresponding external injuries in order to have internal
injury. If earring is forcibly snatched there will be a lobe injury
and also bleeding to the ear. There is no vaginal injuries. His
report has shown pubic hairs combed with matting. Apart from
that there is no other signs of the sexual assault. It is elicited
that since investigating officer has not sought any opinion
regarding sexual assault on the victim, therefore there is no
occasion for him to give his opinion regarding sexual assault.
Since the word 'matting' is used by him in his opinion, that
itself suggests about the sexual intercourse. But though the
same has been sent for FSL, there is no opinion about the
same. Therefore, he cannot say positively. There is no ligature
marks found on the back of the neck. Thyroid bone is not
fractured.
16. Having considered the oral and documentary
evidence pertaining to cause of death is concerned, it is the
opinion of the doctor in terms of Ex.P.24 that the cause of
death is due to asphyxia as a result of strangulation. It is also
important to note that that investigating officer also sought
requisition as to whether that strangulation can be done by
using MO.8 and the doctor also opined in terms of Ex.P.26
that MO.8 could cause the ligature mark which is found on the
body if this type of ligature material is twisted completely to
cause the same. In the cross-examination, nothing is elicited
with regard to the cause of death is due to asphyxia as a
result of strangulation and nothing is suggested to the witness
also that cause of death is not on account of strangulation and
hence, it is clear that it is a case of homicidal and hence we
accept the evidence of the prosecution witnesses i.e. PW.13
with regard to the homicidal is concerned.
17. Now the question before the Court is with regard to
whether the deceased was subjected to sexual assault prior to
committing the murder. It is the case of the prosecution that
she was subjected to sexual act and thereafter the accused
has committed the murder. It is to be noted that PW.13 has
not spoken in her chief evidence as to whether the victim was
subjected to sexual act or not. But only in the cross-
examination, it is elicited that no vaginal injuries are there but
in the chief also PW.13 says that no injuries are found in the
private part. It is also important to note that with regard to
sexual act is concerned, PW.13 in his evidence, he says is that
post-mortem report has shown pubic hairs combed with
matting. Apart from that there are no other signs of sexual
assault. It is also important to note that PW.13 categorically
says that the investigating officer has not sought any opinion
regarding sexual assault on the victim. Therefore, there is no
occasion for her to give any opinion regarding the sexual
assault. Hence, it is clear that no opinion is sought for sexual
assault is concerned and no vaginal injuries are also found and
the trial Court has only taken note of post-mortem report
which has shown pubic hairs combed with matting and hence
comes to the conclusion that she was subjected to sexual
assault.
18. When there is no positive evidence before the Court
as to whether she was subjected to sexual assault or not and
PW.13 also says that there is no occasion for her to give any
opinion regarding the sexual assault, only saying about
'matting' in her opinion itself, suggests about sexual
intercourse and the same is not positive evidence before the
Court. It is also her evidence that though the same has been
sent to FSL, there is no opinion about the same and no such
opinion is also received from the FSL. Therefore, she cannot
say positively. When such material is available before the
Court, the trial Court ought not to have comes to the
conclusion that she was subjected to sexual act prior to
committing the murder. In the absence of such positive
evidence and when PW.13 also has not given any opinion on
that and her evidence is also very clear that the investigating
officer has not sought any opinion regarding sexual assault of
the victim, the trial Court ought not to have comes to the
conclusion that she was subjected to sexual act prior to
committing the murder.
19. Having reanalysed the material available on record
particularly the evidence of PW.13 - doctor and her evidence is
not positive regarding subjecting her for sexual act, we are of
the opinion that the trial Court has committed an error in
convicting the accused for the offence under Section 376 of
Indian Penal Code and hence it requires interference with
regard to the finding of the trial Court since the trial Court has
only considered the post-mortem report wherein it is shown as
'pubic hairs combed with matting' and comes to such a
conclusion. The same is incomplete evidence with regard to
subjecting her for sexual act and hence requires interference
by this Court.
20. Now coming to the aspect of whether the accused
alone had committed the murder, the prosecution mainly
relies upon the evidence of PW.4 and PW.8. Evidence of PW.4
is very clear that on 17.08.2015 at about 8.30 p.m when he
went to attend the nature call and while returning, he found
the accused and victim were near the canal and both of them
were talking and there was a motorcycle and this accused took
her in motorcycle towards Benakappa village and then he left
to his house but CW.9 came and enquired him about the
deceased and then he informed to CW.9 that the accused took
her in the motorcycle. In the cross-examination, except
eliciting that at that time there was darkness and he cannot
see the face in the said darkness and the same has been
admitted. It is suggested that he is falsely deposing that the
accused took the deceased in motorcycle and the said
suggestion was denied.
21. The other witness PW.8 in his evidence, he says
that at around 10.00 p.m. on 17.08.2015 both the accused
and the deceased came to his shop and they purchased a
water bottle of Omkar company and both of them left his shop
and he also identifies the said bottle and says that the very
same bottle was purchased from his shop. He came to know
about committing the murder through police and he was taken
to police station and he identified seized MO.5 to MO.8. In the
cross-examination, he admits that similar type of water bottle
will be available in the other shops also. It is also suggested
that he is falsely deposing that both of them came and
purchased the water bottle and the said suggestion was
denied.
22. The other witness PW.12 in his evidence he says
that he was making walking on 18.08.2015 in the early
morning at 5.00 at Batakurki village and he found the accused
at around 5.30 a.m. and he was on the motorcycle with a bag
and on the very same day he came to know that at 3 O'clock a
lady was murdered. The police called him to the police station
on 20.08.2015 and showed the accused and he identified him.
He was subjected to cross-examination. In the cross-
examination, he says that at the time when he has seen the
accused there was darkness but he says that he was at a
distance of 200 feet and he cannot tell as to what cloth was
worn by the accused at that time. It is suggested that he is
deposing falsely before the Court and the said suggestion was
denied.
23. Having considered the evidence, PW.4 speaks with
regard to the accused and deceased were together at around
8.30 p.m. and both of them talking with each other and
thereafter accused took the deceased on his motorcycle and
the same was informed to CW.9 on the very next date when
he was making search of his sister and also PW.8 speaks with
regard to purchase of water bottle at 10.00 P.M. on the very
same day night and also PW.12 speaks with regard to he
found the accused in the early morning at 5.30 on the next
day. In the cross-examination of these witnesses, nothing is
elicited to disbelieve the case of the prosecution except that
there was a darkness in the night and also in the early
morning and no suggestion was made that these witnesses
were having ill-will against the accused to speak about they
have last seen the deceased and the accused and falsely
deposing before the Court and no animosity is also elicited.
24. When such being the case and when these
witnesses have last seen the accused as well as the deceased
and also the movement of accused in the early morning at
5.30, the trial Court has rightly accepted the evidence of
PW.4, PW.8 and PW.12 who have last seen the accused and
deceased and murder is also committed on the very next day
in the early morning and PW.12 found the cloth bag on the
motorcycle of the deceased.
25. In order to connect the link that this accused and
deceased were having an affair with each other, it is important
to note that PW.11 is the husband of the deceased and no
doubt he says that his marriage was solemnized with the
deceased in 2014 but his evidence is very clear that the
deceased has not led marital life with him and when he used
to demand to lead marital life, she used to threaten him that
she would commit suicide and hence he kept quite but no
doubt he has not spoken anything about the illicit relationship.
But in the evidence of PW.3 who is the brother of the
deceased, he categorically says that when she used to come
to Chikkanaragund, she was moving along with the accused
and having touch with him and even they advised her not to
do the same. The other witness PW.2 also speaks about
deceased was moving along with the accused and the said fact
is also brought to the notice of PW.3 and also to her mother to
advice her. PW.1 is only the informant who reported about the
body but he gave complaint in terms of Ex.P.1. The other
witness PW.7 is also sister of the deceased and she is having
acquaintance with accused and she categorically says that her
sister whenever used to come to village, she used to be very
close with the accused and her brothers also advised her sister
not to do same.
26. Having considered the evidence of these witnesses,
particularly PW.2, PW.3 and PW.7, PW.2 is a villager and PW.3
and PW.7 are the brother and sister of the deceased and all of
them have deposed regarding the conduct of the deceased
and roaming with the accused whenever she used to come to
the village. Their evidence disclose that both the deceased as
well as accused were having affinity with each other and in
order to disbelieve their evidence, nothing is elicited from the
mouth of these witnesses as to why they are speaking against
the accused and nothing is elicited with regard to animosity
between these witnesses and accused.
27. The other connecting material relied upon by the
prosecution is PW.6. PW.6 speaks that on 28.08.2015 he was
called to the police station and CW.5 was also present and
also found the accused and accused made a statement that if
he is taken along with them, he is going to show the place
where he kept the articles after committing the murder.
Hence, the accused and panch witnesses and police went to
the spot and he had produced a chudidar top, slip and veil and
body was also taken and thereafter he led all of them and he
had produced tali, ear-rings and three simcards and mahazar
was drawn in terms of Ex.P.7 and this witness is a recovery
witness.
28. In the cross-examination of this witness, nothing is
elicited and further got clarified to PW.6 that on the say of the
accused only all of them went to the spot but had not seen the
record of rights and the place where he kept cloth is a public
place i.e. 10 meter inside the public road and the same is not
visible to the public. It is even suggested to the witness PW.6
that karimani tali was in the same condition. It is suggested
that nothing is seized at the instance of the accused and the
same was denied.
29. It is important to note that while recovering the
same, PW.19 witness who is a photographer also reiterates in
his evidence that the accused only led them and produced the
articles and he had taken the photographs of seizure of MO.5
to Mo.8 and MO.9 to MO.12 in terms of Ex.P.3, Ex.P.4, Ex.P.9,
Ex.P.10, Ex.P.11 and Ex.P.12. In the cross-examination of
PW.19 also, except eliciting the date is not mentioned, nothing
is suggested to the witness that he did not take those
photographs and in the CD his shop is not found but nothing is
elicited that he was not taken along with the accused and
panch witnesses.
30. Having perused the evidence of PW.6 and PW.19,
the evidence of PW.21 investigating officer is clear that the
accused only took them to place situated within the Batakurki
limits and to the land belonging to one Mahalingappa Duggani
and after showing the place informed that he has ravished the
victim and killed her in the same place.
31. These materials clearly disclose with regard to the
recovery at the instance of the accused and evidence of PW.6,
PW.19 and also investigating officer is clear regarding seizure
is concerned and the same is not discarded by the defence
counsel to disbelieve their evidence. Those two independent
witnesses are not having any animosity against the accused to
speak against him and recoveries are also proved.
32. Having reanalyzed the material available on record,
no doubt the case rests upon circumstantial evidence and
there are no direct evidence. This Court has already discussed
the medical evidence with regard to the cause of death of the
victim. This Court also while reanalyzing the material on
record, has taken note of the evidence of PW.4, PW.8, PW.12
with regard to last seen the accused as well as the victim and
so also taken note of the evidence of PW.1 to PW.3 and PW.7
and also PW.11 who is the husband of the victim who had
spoken that the deceased had not co-operated with him to
lead matrimonial relationship. The other witnesses,
particularly the brother and sister of the deceased i.e. PW.3
and PW.7 have spoken that the deceased used to roam along
with the accused and so also PW.2 who is a villager had found
both of them and informed the same to the villagers which
establishes that the accused and the victim were having close
affinity with each other and the fact that she was married but
not led marital life with the husband.
33. As regards the recovery, evidence of PW.6 and
PW.19 photographer coupled with the evidence of PW.21
investigating officer, establishes recovery of the belongings of
the deceased at the instance of the accused and witnesses
have withstood the cross-examination and evidence of PW.6
and PW.19 with regard to recovery of MO's is also established.
Apart from that CD was also marked at Ex.P.13 and the same
evidences that the investigating officer i.e. PW.21 has drawn
the spot mahazar and also seized MO.5 to MO.8 and MO.9 to
MO.12 and photographs were also marked. In the evidence of
prosecution witnesses, nothing is elicited from the mouth of
the witnesses that they are having any animosity against the
accused to falsely implicate him as an accused.
34. Having considered the overall evidence of PW.6 and
also the evidence of other prosecution witnesses regarding
last seen and recovery at the instance of the accused, the
reason for committing the murder is that though victim
married PW.11, she did not lead her marital life with him and
instead used to roam along with accused and on the previous
date of her death also she was with the accused. All these
material establishes the link between each of the incident. The
dead body was also found under the bund and the accused
had removed her entire cloth except the nicker and kept the
same in a hidden place and the same was recovered at the
instance of the accused. The articles are belonging to the
victim were also recovered at the instance of the accused.
Hence, the trial Court has taken note of Section 27 of the
Evidence Act to discover all the belongings of the deceased at
the instance of the accused.
35. Having reassessed both oral and documentary
evidence, particularly the material objects which have been
recovered, the prosecution has proved the guilt against the
accused beyond all reasonable doubt. We have given our
anxious consideration to the overall evidence available on
record and we do not find any error committed by the trial
Court in assessing the evidence on record. The belongings of
the deceased were also within the knowledge of the accused
and the evidence of prosecution witnesses, particularly PW.6
and PW.19 photographer is credible and hence, we do not find
any error committed by the trial Court in appreciating the
evidence.
36. The trial Court also taken note of 313 statement of
the accused and it is only a total denial and he did not offer
any explanation whatsoever in respect of incriminating
circumstances which goes against him and he ought to have
given explanation if he has been falsely implicated in the case
on hand and hence, we do not find any error in coming to the
conclusion that the accused only had committed the murder of
the victim.
37. This Court already comes to the conclusion that in
order to attract the offence under Section 376 of Indian Penal
Code, there are no ingredients and materials and rest of the
conviction and sentence for the other offence does not require
interference and hence we answer the above point as partly
affirmative.
38. In view of the above discussion, we pass the
following:
ORDER
The appeal is allowed in part.
The judgment of conviction and order of sentence in
respect of offence punishable under Section 376 of Indian
Penal Code are hereby set aside.
The fine amount, if any, deposited for the offence
punishable under Section 376 of Indian Penal Code, is ordered
to be refunded to the appellant - accused digitally.
The judgment of conviction and order of sentence in
respect of offence punishable under Sections 302, 201 and
404 of Indian Penal Code are hereby confirmed.
The registry is directed to send the original records to
the trial Court forthwith with copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
SH
