Karnataka High Court

Bandenavaz vs The State Of Karnataka on 11 October, 2023

Bench: Mohammad Nawaz, Rajesh Rai K

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                                                   NC: 2023:KHC-K:8127-DB
                                                       CRL.A No. 200044 of 2018




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                              PRESENT

                          THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                                 AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                             CRIMINAL APPEAL NO.200044 OF 2018 (374)

                      BETWEEN:

                      BANDENAVAZ S/ AMEENSAB BILLER
                      AGE: 39 YEARS, OCC: COOLIE,
                      R/O. KADADARAL,
                      TQ. LINGASUGUR,
                      DIST. RAICHUR - 584 101.
                                                                   ...APPELLANT

                      (BY SRI. SHIVASHANKAR H. MANUR, ADVOCATE)

                      AND:
Digitally signed by
SOMANATH
PENTAPPA MITTE        THE STATE OF KARNATAKA
Location: HIGH        THROUGH MUDGAL POLICE STATION,
COURT OF
KARNATAKA             REPRESENTED BY THE PUBLIC PROSECUTOR
                      HIGH COURT OF KARNATAKA
                      AT: KALABURAGI BENCH - 585 103.
                                                                 ...RESPONDENT
                      (BY SRI. SIDDALINGA P. PATIL, ADDL. SPP)

                           THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
                      (2) OF CR.P.C. PRAYING TO CALL FOR THE RECORDS IN
                      S.C.NO.51/2016 ON THE FILE OF II ADDL. DISTRICT AND
                      SESSIONS JUDGE AT RAICHUR AND EXAMINED THE LEGALITY,
                      PROPRIETY OF THE PROCEEDINGS OF THE IMPUGNED
                      JUDGMENT, AFTER HEARING THE PROSECUTION AND
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                                    NC: 2023:KHC-K:8127-DB
                                         CRL.A No. 200044 of 2018




APPELLANT KINDLY SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE AND PENALTY IMPOSED BY THE
TRIAL COURT ON DATED 08.03.2018 IN S.C.NO.51/2016 AND
SET THE APPELLANT AT LIBERTY HOLDING THAT THE
PROSECUTION HAS NOT PROVED THE GUILT OF THE
APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY.


     THESE APPEAL COMING ON FOR FURTHER HEARING AND
HAVING BEEN HEARD AND RESERVED ON 27.09.2023 COMING
ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K. J.,
DELIVERED THE FOLLOWING:

                            JUDGMENT

The appellant has filed this appeal against the

judgment dated 08.03.2018 passed by the learned II Addl.

District & Sessions Judge at Raichur in S.C.No.51/2016,

wherein the learned Sessions Judge convicted the

appellant for the offence punishable under Section 302 of

IPC and sentenced him to undergo imprisonment

throughout life and pay fine of Rs.20,000/- and in default

to pay the fine, same to be recovered as arrears of land

revenue.

2. The brief facts which led to the trial of the

appellant are as follows:

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The complainant in this case Bibi Fatima married

deceased Nabi Rasool about 12 years prior to the date of

incident and having four children. Deceased Nabi Rasool

was addicted to alcohol and about two months prior to the

incident, he started to raise quarrel with the complainant

(examined as PW1) every night in drunken mood. The

accused/appellant being younger brother of the

complainant, used to advice the deceased not to rise

quarrel. Eight days prior to the incident, the deceased

abused the complainant stating that the complainant and

her mother are belonging to the family of prostitutes.

Accused/appellant again advised the deceased and

threatened him stating that he would murder him if he

continued such acts of quarrel with the complainant.

However, the complainant has responded telling him that

it is quite common in all the families.

On 31.01.2016 at about 6.00 p.m., the complainant

and her children were in Janata house of PW2 situated at

village Kadadaral, Tq: Lingasugur. Accused was cutting

the branches of a tree standing in front of the house of the

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complainant. The deceased came home and as usual

raised quarrel with the complainant and started to beat

her. Hearing the quarrel accused came there stating that

he would kill the deceased since he repeated such acts

with the complainant. Thereby, all of a sudden the

accused assaulted deceased Nabi Rasool i.e. the husband

of complainant PW1 with an axe over his head, neck and

chin and committed his murdered.

3. PW1, wife of the deceased and sister of the

accused lodged the complaint on the same day at about

7.00 p.m. as per Ex.P1 before PW12 and the same was

registered in Crime No.20/2016 dated 31.01.2016 as per

Ex.P16. Thereafter, PW12-the Investigation officer

conducted the spot mahazar, inquest mahazar and after

recording statements of the witnesses and obtaining

necessary documents, he laid the charge sheet against the

accused for the offence punishable under Section 302 IPC

before the committal court. After committal of the case

before the Sessions Court, the learned Sessions Judge

having found prima-facie case against the accused, framed

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charge under Section 302 IPC. The accused pleaded not

guilty to the charge and claimed to be tried.

4. In order to bring home the guilt of the accused,

the prosecution examined as many as 12 witnesses as

PW1 to PW12 so also 19 documents marked as Ex.P1 to

Ex.P19 and 7 material objects i.e. MO.1 to MO.7. After

conclusion of the prosecution evidence, the incriminating

portion of the evidence of the material witnesses was read

over to the accused as contemplated under Section 313 of

Cr.PC, however, the accused denied his involvement in the

crime. He pleaded that a false case has been lodged

against him and he claimed to be innocent. However, no

witness in defence has been examined by the accused.

5. The learned Sessions Judge after considering

the entire evidence on record, recorded conviction and

imposed sentence as aforesaid upon the accused. The

said judgment is challenged under this appeal.

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6. We have heard the learned counsel Sri.

Shivashankar H.Manur for the appellant/accused and Sri.

Siddaling P.Patil, learned Addl. SPP for respondent-State.

7. The learned counsel appearing on behalf of the

accused, challenged the judgment of the trial Court

interalia contending that the prosecution has miserably

failed to bring home the guilt of the accused by leading

cogent and reliable evidence. The learned Sessions Judge

held the accused guilty simply on surmises and conjecture,

therefore the accused deserves to be acquitted. He would

further contend that the prosecution has totally relied on

the evidence of sole eye witness PW1 in this case, who is

none other than the wife of the deceased and brother of

the complainant. In her cross examination, she

categorically admitted that there is a wall between the

kitchen and hall and the persons standing in the kitchen

cannot see the person in the house. Hence, there is no

possibility for her to witness the incident since she was

inside the house at the time of incident. Further,

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absolutely there is no corroboration to her version since all

the other witnesses are circumstantial / hearsay

witnesses. According to the learned counsel, much

evidentiary value cannot be attached to the evidence of

PW1 who is a most interested witness. He would further

contend that the learned Sessions Judge seriously erred by

not relying on the defence of the accused that PW2 the

mother of PW1 and accused, owned 6 acres of land and

PW1 lodged a false complaint at the instigation of other

members of the family to get the said property with a

hope that if the accused goes to prison she will get the

said property. Though the said defence is probable one,

the Sessions Judge failed to appreciate the same. The

learned counsel lastly contended that there are

contradictions in the evidence of the material witnesses

including the Investigation Officer PW12. Hence based on

such evidence, the learned Sessions Judge ought not have

convicted the accused for the charges leveled against him.

8. The learned counsel alternatively contended

that on perusal of the facts and circumstances of the case,

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the same false under the purview of exception 1 and 4 of

300 of IPC and at the most the accused is liable to be

convicted for the offence punishable under Section 304(1)

of IPC. According to the learned counsel, the accused had

no such intention/ motive to commit the murder of the

deceased. The entire incident occurred in a spur of

moment and in a grave and sudden provocation. As such,

he alternatively prays to modify the conviction order.

9. Per contra, the learned Addl. SPP submitted

that the prosecution has clearly established the guilt of the

accused and no exception can be taken to the reasons

indicated by the Trial Court under a well reasoned

judgment. The evidence has also been analyzed in great

detail by the Trial Court, therefore, no question of any

interference is called for with the conviction recorded by

the Trial Court.

10. He would further contend that, on perusal of

the evidence available on record, PW1 being the wife of

deceased and brother of accused witnessed the incident

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and she categorically deposed the manner in which the

accused committed the murder of her husband. Her

evidence corroborates with the medical evidence. The

prosecution proved the other circumstances of recovery of

the weapon at the instance of accused which was used for

the commission of the crime so also the blood stained

clothes of the accused. According to the learned Addl.

SPP, the prosecution also proved the motive for the

commission of the crime by adducing evidence of PW2 i.e.

mother of the accused and mother-in-law of the deceased.

The evidence of PW3 and PW4 i.e. the sisters of accused,

also supported the case of the prosecution and deposed

about the motive for the commission of the crime. Hence,

according to the learned Addl. SPP, the prosecution proved

its case beyond all reasonable doubt. He also further

contended that this case will not fall under the ambit of

exception 1 of Section 300 of IPC, since the manner in

which he assaulted the deceased on his vital part

repeatedly with deadly weapon clearly shows his intention

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to commit the murder of the deceased. Accordingly, he

prays to dismiss the appeal.

11. We have independently analyzed the entire oral

and documentary evidence on record, in order to

appreciate the respective contention of the learned

counsel for the parties. Having heard the learned counsel

for the parties so also having perused the documents and

evidence available on record, the points that would arise

for our consideration are:

1) Whether the judgment under appeal suffers

from any perversity or illegality?

2) Whether the Trial Court is justified in convicting

the accused for the offence punishable under

Section 302 of IPC?

12. On a careful perusal of the evidence available

on record:

13. PW1 Bibi Fatima, complainant in this case is

none other than the wife of the deceased and sister of the

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accused. She has stated in her evidence that 1 year 8

months prior, one day at 6.00 p.m. near her house

Kadadaral, accused assaulted her husband Nabi Rasool

with MO.1 axe, over his throat and head, for the reason

that the deceased raised a quarrel with her in drunken

mood. Thereafter, she lodged the complaint before the

police as per Ex.P1. She identified the complaint, and

MO.1-axe that as the weapon used by the accused to

commit the murder.

14. PW2-Hussain Bee is the mother of accused and

mother-in-law of deceased, stated in her evidence that

one and half years ago she had been to work and returned

to the house in the evening. At that time, PW1 was

crying, on enquiry she revealed that the accused

committed the murder of her husband.

15. PW3-Khaja Bee the sister of the accused as well

as PW1, deposed that 1 year 10 months ago when she

was outside her house, she heard the hue and cry from

the house of her sister. Hence, she rushed there at that

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time, the accused was running away from that place and

she saw the deceased had sustained injuries on his throat

and head, on enquiry PW1 informed her that the deceased

assaulted her husband with axe.

16. PW4-Nabisab is the husband of PW3. He has

deposed similar to PW3, that after hearing the hue and cry

of PW1, he rushed to the house of PW1, and saw the

deceased with bleeding injuries and PW1 informed him

that, the accused has committed the said act.

17. PW5-Meeru Hussain, is a witness to the inquest

panchanama conducted over the dead body of the

deceased as per Ex.P6. He is also a witness for seizure of

MO.1-Axe under recovery mahazar as per Ex.P7. Further,

a witness to the spot mahazar Ex.P8 and seizure mahazar

Ex.P9 i.e. the clothes of the accused and one more seizure

mahazar Ex.P10 i.e. the recovery of the clothes of the

deceased. He has supported the case of prosecution.

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18. PW6-Khajasab is a co-pancha for Ex.P7, ExP8,

Ex.P9 and Ex.P10 and he has supported the case of

prosecution.

19. PW7-Zaheerabee is the mother of deceased,

who is a circumstantial witness deposed in respect of

motive for the incident.

20. PW8 Imamali is the father of PW7. He has

deposed that the accused was in prison in a murder case,

earlier to this incident. PW1 informed him over phone that

herself and deceased were quarreling with each other, at

that time, the accused committed the murder of her

husband. This witness being circumstantial witness

deposed about the motive for the commission of the crime

by the accused.

21. PW9-Dr. Nagaraj, conducted the autopsy over

the dead body and issued the post mortem report as per

Ex.P12. His opinion in respect of the weapon is marked as

Ex.P13.

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22. PW10 is the Junior Engineer of PWD, conducted

the spot sketch as per Ex.P14.

23. PW11-Syed Chand Pasha, the then police

constable of Mudgal, is a formal witness, took the dead

body of the deceased to the Government Hospital for post

mortem examination.

24. PW12 is the Investigation Officer, conducted the

investigation and laid the charge sheet against the

accused for the offence punishable under Section 302 of

IPC.

25. In order to prove the homicidal death of the

deceased, the prosecution has relied on the evidence of

PW3-doctor, who conducted autopsy over the dead body

and also the post mortem report marked as per Ex.P12.

On a perusal of Ex.P12, the opinion given by the doctor

has to the cause of death is "due to shock after the

grievous injuries sustained on head with sharp and hard

object". The said evidence of PW3-doctor, corroborates

with Ex.P6 inquest panchanama and also the evidence of

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PW5, PW6 and the investigation officer PW12. PW5 and

PW6 have identified the injuries over the dead body and

also identified their signatures on Ex.P6 inquest

panchanama. Nevertheless, the doctor PW9 gave an

opinion that the injuries mentioned in the PM report may

be caused by MO.1-axe, as per Ex.P13. Hence, on perusal

of the above evidence, the prosecution has established the

homicidal death of the deceased.

26. In order to connect the accused to the

homicidal death of the deceased, on perusal of the

evidence of PW1, wife of the deceased and brother of the

accused, she has unequivocally stated that on the date of

incident, at about 6.00 p.m. the accused assaulted her

husband with the axe on his throat, neck and head for the

reason that her husband was quarreling with her in

drunken state. She has also stated that, at the time of

incident the accused was cutting branches of a tree in

front of her house. She was alone in the house along with

her small daughter. Thereafter, she lodged the complaint

before the police as per Ex.P1. On perusal of Ex.P1, the

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contents of complaint, the same corroborates with the

evidence of PW1. The said complaint was lodged by PW1

immediately after the incident and based on the same, FIR

was registered against the accused in Crime No.20/2016

on 31.01.2016 at about 7.00 p.m. i.e. one hour of the

incident. Though the learned counsel for the defence

cross-examined PW1 at length, nothing worthwhile has

been elicited from her mouth to discard her version. PW1

identified MO.1-axe before the Court and deposed that the

accused assaulted her husband with the said weapon

MO.1. Her version corroborates with the evidence of PW4.

27. According to PW4, on the date of incident, at

about 6.00 p.m., she heard the hue and cry from the

house of PW1, as such she went to the house of PW1, at

that time she saw the deceased had sustained severe

injuries on his neck, head and he was lying dead. On

enquiry, PW1 informed that accused assaulted her

husband. PW3 who is the wife of PW4, has also stated

that he along with PW3 went to the house of accused on

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the date of incident and saw the deceased with severe

injuries on his throat and head. The accused was running

from the said spot. On enquiry, PW1 informed that the

accused committed the murder of her husband. In view of

the consistent evidence of PW1, PW3 and PW4, the

prosecution has established that the accused has

assaulted the deceased with MO.1-axe and caused his

death.

28. PW1 has categorically deposed about the

motive for the commission of crime by the accused that,

the accused committed the murder of the deceased for the

reason that the deceased being drunkard, used to quarrel

with his wife i.e. PW1. Hence, on earlier occasions, the

accused had warned the deceased that if he continues his

act of abusing PW1 then, he would commit his murder.

Later on the date of incident i.e. 31.01.2016, at about

6.00 p.m. when the accused was cutting branches of a

tree in front of the house of deceased and on seeing the

deceased quarreling with PW1, he came with the axe and

assaulted on the deceased on his vital parts of the body

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and committed his murder. This version is supported by

the evidence of PW4 to PW7. Though the learned counsel

for the defence cross-examined all these witnesses,

nothing worthwhile was elicited to discard their version. It

is pertinent to note that all the above witnesses are not

only the relatives of PW1 but the relatives of the accused

as well. Hence, there is no reason to disbelieve their

version on the ground that they are interested witnesses

and family members of the deceased. As a matter of fact,

the mother of the accused, PW2 has also deposed against

him that he has committed the murder of deceased.

Further, all these witnesses categorically deposed that

before the incident, the accused had murdered his

maternal uncle and he was convicted by the Court and was

in jail. Hence, on perusal of the above evidence, the

prosecution has proved the motive for the commission of

the crime. The learned counsel for the appellant

contended that the evidence of PW1 to PW4 and PW7 and

PW8 suffers from contradictions and omissions in respect

of the motive for the commission of the crime. However,

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it is settled position of law by the Hon'ble Apex Court in

catena of judgments, that in a case based on direct eye

witness to the incident, motive will not play a vital role.

However, in the case on hand, PW1 is the eye witness to

the incident. Hence, the contention of the learned counsel

for the appellant cannot be accepted.

29. On perusal of the evidence of PW5 and PW6

coupled with the evidence of the PW12 I.O., the

prosecution has also proved the recovery of MO.1-axe

used by the accused for the commission of the crime,

under mahazar Ex.P7 and also the recovery of shirt of

accused, under Ex.P9 mahazar. PW5 and PW6 have

supported the case of prosecution. The axe i.e. MO.1 and

shirt of accused MO.3 and the shirt of the deceased were

sent to FSL by the prosecution. The said report was

marked Ex.P19, which depicts that the blood stains were

detected in the axe and the shirt of accused and the

deceased and they were stained with human blood belongs

to 'A' blood group. In such circumstances, the prosecution

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also proved that the accused has committed the offence

by assaulting the deceased with the MO.1-axe.

30. It is clear from the evidence of PW1 that except

herself, no one witnessed the accused assaulting the

deceased. She is the only eye witness. However,

immediately after the incident PW3 and PW4 rushed to her

house and they have seen the dead body of the deceased

and accused running from the spot. PW1 has informed

them that it is the accused who committed the offence.

The accused has not placed on record any material to

disprove the evidence of PW1 to PW4, PW7 and PW8. Per

contra, their evidence is consistent and corroborates with

each other. Hence, on scrutiny of the evidence of the

above witnesses, the oral testimony of the above witness

corroborates with the medical evidence tendered by PW9

and establishes the guilt of the accused.

31. Having carefully gone through the evidence of

above witnesses, examined in this case, we find no

possible and justifiable reason whatsoever to disbelieve

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and discard the testimony of PW1, the eye witness and the

other circumstantial witnesses. PW1 is a trustworthy

witness and her evidence cannot be brushed aside for

minor contradictions. The Hon'ble Apex Court in the case

of Ravasaheb Alias Ravasahebgouda V/s State of

Karnataka, (2023) 5 SCC 391, held that the evidence of

sole related eyewitness can be basis for conviction,

particularly when there is no vagueness in his/her

testimony with respect to the act committed by the

accused. The Hon'ble Apex Court in para 17 of the said

judgment held that:

"It is clear that it is the quality and not the quantity

of the witnesses that matters. Further in para 25 of the

said judgment, it is stated that "a witness being a close

relative is not a ground enough to reject his/her

testimony. Mechanical rejection of an even "partisan" or

"interested" witness may lead to failure of justice. The

principle of "falsus in uno, falsus in omnibus" is not one of

the general application".

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32. The learned counsel for the appellant

alternatively submitted that, this case will come under

exception (1) and (4) of Section 300 of IPC and the

accused is liable to be convicted for the offence punishable

under Section 304(1) instead of Section 302 of IPC. He

would contend that the accused being the brother of PW1,

while pacifying the quarrel between PW1 and deceased,

due to sudden loss of self control, he might have assaulted

the deceased without any intention or motive to commit

his murder. Hence, the incident took place in a grave and

sudden provocation which comes within the ambit of

above exceptions to Section 300 of IPC.

33. On perusal of the facts and circumstances of

the case, and also the evidence available on record, PW1

clearly deposed that herself and her husband were

quarrelling in the house and at that time, without any

reason the accused entered their house and assaulted the

deceased with deadly weapon i.e. MO.1. On perusal of the

PM report, there are three injuries caused to the deceased

on his vital part i.e. throat, neck and head of the

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deceased, which clearly shows that the accused had such

intention to commit the murder of the deceased, since he

repeatedly assaulted the deceased with the deadly weapon

on his neck, head and throat which are vital parts of the

body. There is no reason for the accused to be provoked,

since the deceased had not quarrelled with him. A perusal

of exception 4 of Section 300, the act of the accused does

not fit into the said proviso which reads "Culpable

homicide is not murder if it is committed without

premeditation in a sudden fight in the heat of passion

upon a sudden quarrel and without the offender having

taken undue advantage or acted in a cruel or unusual

manner. In the case on hand, there was no sudden fight

between accused and deceased. Further, the accused has

taken undue advantage of the situation and acted in a

cruel manner by assaulting the deceased with axe

repeatedly on his head, neck and throat. Such being the

case, the act of the accused cannot be termed as, the

same was committed in a heat of passion and in a sudden

loss of self control. Hence, we decline to accept the

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submission of the learned counsel for the appellant that

this case comes under the ambit of the above exceptions

to Section 300 of IPC instead Section 302 of IPC.

34. The Trial Court has recorded the findings of

guilt of the accused based upon proper appreciation of the

evidence led by the prosecution in this case. In view of

the aforesaid discussion, we do not find any justifiable

grounds to interfere with the conviction and sentence

passed by the Trial Court.

35. However, the sentence imposed against

accused by the trial Court by directing him to undergo

imprisonment i.e., till his last breath is concerned, in our

considered view the said sentence is not sustainable under

law, for the reason that, the Hon'ble Apex Court in the

case of Union of India vs. V.Sriharan Alias Murugan and

others reported in 2016 (7) SCC has held that awarding of

said special category sentence, in substitution of death

sentence, that is, sentence barring remission under Cr.PC

for specified term beyond 14 yrs, or life imprisonment

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barring remission for rest of life, held (per majority), is

valid - Clarified, however power under Arts. 72 and 161,

which is not the same as the statutory power of remission,

is not affected - Award of non-remittable specified

sentence or life imprisonment barring remission for rest of

life, held, not violative of separation of powers - Such

special sentence when imposed under substantive

provisions of IPC, does not overlap procedural power

under Cr.PC either - Considering crime situation in India

(particularly nexus between hardened criminals and ill-

gotten wealth, and nature of heinous crimes on the rise),

delay in disposal of cases, and balancing interest of victims

with those of convicts, such special category sentence is

necessary. Further held (per majority), such special

category sentence can only be imposed by High Court or

supreme Court and not by trial court.

36. In such circumstances, the Sessions Court cannot

exercise power to impose imprisonment to accused to

suffer imprisonment throughout life for the offence

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punishable under Section 302 of IPC. Nevertheless, the

Hon'ble Apex Court in the case of Dharma Deo Yadav V/s

State of Uttara Pradesh, (2014) 5 SCC 509, laid down

three tests, namely, Crime test, Criminal test and Rarest

rare test. So for the present case is concerned, both the

crime and criminal tests have been satisfied against the

accused but, rarest rare test is concerned, the prosecution

failed to prove the same by leading cogent evidence that

the crime was committed in a barbaric manner. Hence, the

instant case would not fall under the category of rarest of

the rare case. As such, the punishment awarded by the

trial Court imposing imprisonment throughout his life has

to be modified to life imprisonment.

37. In that view of the matter, we answer the

points raised above and proceed to pass the following:

ORDER

i) Criminal Appeal No.200044/2018 filed by accused is hereby allowed-in-part.

ii) The judgment of conviction passed in S.C.No.51/2016 dated 08.03.2018 by the II

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Addl. District and Sessions Judge at Raichur, convicting the accused for the offence 302 of IPC is confirmed. However, the sentence imposed by the Trial Court i.e. to suffer imprisonment throughout life and to pay fine of Rs.20,000/- for the offence under Section 302 of IPC, in default to pay the fine, same shall be recovered as arrears of land revenue, is hereby modified.

iii) Accused is sentenced to undergo Rigorous Imprisonment for life and shall pay fine of Rs.20,000/- and in default of payment of fine, he shall undergo simple imprisonment for one year.