Karnataka High Court
State Of Karnataka vs Tajabi D/O Muklumsab Mulla on 27 September, 2023
Bench: Sreenivas Harish Kumar, Ramachandra D. Huddar
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CRL.A No. 100247 of 2014
C/W CRL.A No. 100040 of 2015
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100247 OF 2014
C/W
CRIMINAL APPEAL NO. 100040 OF 2015
IN CRL.A.No.100247/2014:
BETWEEN:
SMT. FATIMABI W/O. SIKANDARSAB KINNAL,
AGE: 40 YEARS,
OCC: S.D.A. IN OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, BENGALURU-560001,
R/O. M.R.B.C.C, H.No.D-4, NARAGUND, DIST: GADAG.
...APPELLANT
SAMREEN (BY SMT. NIRMALA B. G, AMICUS CURIAE,
AYUB SMT.FATIMABI S.KINNAL, PARTY-IN-PERSON)
DESHNUR
Digitally signed AND:
by SAMREEN
AYUB DESHNUR
1. THE STATE OF KARNATAKA BY
Date: 2023.09.30
12:51:36 +0530 ITS RON POLICE STATION, MUNIRABAD,
REPRESENTED BY S.P.P, HIGH COURT,
DHARWAD BENCH BUILDING,
DHARWAD-580011.
2. TAJABI D/O. MUKLUMSAB MULLA,
MAJOR, OCC: HOUSEWORK,
R/O. BALAGANUR, TQ & DIST: GADAG.
...RESPONDENTS
(BY SRI. M. B. GUNDWADE, ADDL. SPP FOR R1,
SRI. K. L. PATIL, ADV. FOR R2)
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CRL.A No. 100247 of 2014
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THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATED
30.10.2014 IN S.C.NO.29/2005 PASSED BY THE ADDL.
DISTRICT & SESSIONS JUDGE, AT: GADAG, AND CONVICT THE
RESPONDENT NO.2 HEREIN/ACCUSED FOR AN OFFENCES
PUNISHABLE U.SECS. 143, 147, 148, 302, 207, 326 R/W SEC.
149 OF IPC.
IN CRL.A.No.100040/2015:
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY RON POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC
PROSECUTOR, ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M. B. GUNDWADE, ADDL. SPP)
AND:
TAJABI D/O. MUKLUMSAB MULLA,
R/O. BALAGANUR,
TALUK GADAG, DISTRICT GADAG
...RESPONDENT
(BY SRI. K. L. PATIL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(1)& (3)OF
CR.P.C. SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL PASSED
ON 30.10.2014 IN S.C.NO.29/2005, ON THE FILE ADDL. DIST.
& SESSIONS JUDGE, GADAG AND BE SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL AND PRAYING TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 143, 147, 148, 302, 307, 326 R/W SEC. 149 OF IPC..
THESE APPEALS, COMING ON FOR FURTHER HEARING ON
28.08.2023 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE FOLLOWING:
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JUDGMENT
PW-2 victim by name Smt.Fathimabi Sikandarsab
Kinnal has filed the appeal, Crl.A.No.100247/2014 and the
State of Karnataka represented by Addl. SPP has filed the
appeal, Crl.A.No.100040/2015 challenging the judgment of
acquittal of accused in S.C.No.29/2015 on the file of Addl.
District and Sessions Judge, Gadag. The accused was
charge-sheeted by the Circle Inspector, Ron, alleging
offences punishable under Sections 143, 147, 148, 302,
307, 326 read with Section 149 of IPC.
2. Parties to these appeals are referred to as per
their ranks assigned before the trial Court for the purpose
of convenience.
3. Before discussing the other aspects of this case,
it is just and proper to incorporate certain events which
have taken place with regard to the Crime No.113/2002
from which this case has been registered.
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4. A crime was registered against accused persons
in Cr.No.113/2002 and thereafter after filing charge-sheet,
after committal S.C.No.6/2003 came to be registered
against 5 accused persons. Thereafter, in view of the
evidence brought on record, during the course of trial in
S.C.No.6/2003, an application was filed under Section 319
of Cr.P.C. for impleading the accused in this case as co-
accused. As accused did not appear before the Court, her
presence was secured by issuing non-bailable warrant. A
case against her was split up and registered in
S.C.No.29/2005 and against other accused, the case in
S.C.No.6/2003 proceeded. It is brought on record by the
prosecution that after full fledged trial, S.C.No.6/2003
ended in conviction of all five accused persons. So far as
other two accused are concerned, still they are absconding
and the Sessions Case is still pending against them. So
far as accused in this case is concerned, separate trial was
conducted which concluded in acquittal of the accused.
Therefore, now both victim - PW-2 and the State are
before this Court assailing the said acquittal judgment.
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5. The facts leading to the case of the prosecution
are as under:
On 16.09.2002 one Khajesab Budnesab Mulla
resident of the address so narrated in the complaint Ex.P.1
by appearing before the PSI, Ron, filed a written complaint
alleging, that after retirement from Railway Department,
he was working on five years' contract basis in Railway
Department. He has 3 brothers and 5 sisters, both
younger and elder. His 5th sister Sahebi was married to a
resident of Gadag. In the wedlock with Tajbi he begot two
children by name Mumtazbi and Sikandarsab Adamsab.
The said Sikandarsab was working in Irrigation
Department as a cashier. He married to one Tajbi. In the
wedlock, Sikandarsab had children by name Chandsab,
aged 30 years, Anwar Hussain aged 26 years and
Shezadbegum. The said Chandsab was working at Kalasa
village in Kundgol taluk as R.M.P. doctor. The second son
Anwar Hussain was running an S.T.D. booth at
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Gopanakoppa, Hubballi. Daughter Shehzadbegum was
married to one Muneer Ahmed of Ron.
6. It is alleged by the complainant that prior to
filing of the complaint about 14-15 years back, the said
Sikandarsab had love affair with Mouneshwari r/o
Davalwad and after converting her to Islam, married her.
Thereafter, she was named Fathima. Wherever
Sikandarsab used to go for employment, he used to take
her. Because of this attitude of Sikandarsab, his first wife
Tajbi and her children were not in good terms with
Sikandarsab. Because of this, his two sons were
demanding to give their respective shares in the property
on the premise that whatever the property earned by
Sikandarsab will be given to Mouneshwari. Even they
were quarrelling with their father and used to advise him
to discontinue the relationship with Mouneshwari i.e.,
victim. For the last 5-6 years prior to filing of complaint,
at Koppal, where he was working, his elder son Chandsab
quarreled with him and advised his father to give up the
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relationship with Mouneshwari @ Fathima. As he did not
agree for the same, there was an attempt to stab
Sikandarsab by his elder son. At that time, the said
Mouneshwari @ Fathima tried to rescue Sikandarsab and
at that time, Chandsab took a knife and stabbed into the
stomach of the victim. The neighbours resolved the
dispute. Since then, the sons of Sikandarsab were having
animosity against their father.
7. A specific allegation has been made that on
14.09.2002, there was obsequies ceremony of son-in-law
of Sikandarsab by name Imamsab at Balaganur.
Therefore, Sikandarsab and his 3 children, his wife Tajbi,
Mouneshwari @ Fathima etc., attended the said function.
After completion of the said ceremony, on 15.09.2002, in
the morning hours, there was engagement ceremony of
second son of Sikandarsab by name Anwar Hussain.
Thereafter, all went away to their respective villages. On
15.09.2002, the said Sikandarsab and the victim went to
his daughter's house at Ron. It is alleged that on
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16.09.2002, when this complainant was in the Railway
Station, his son-in-law by name Ibrahimsab Kusugal came
to him and told that when he was coming from Yavagal, he
noticed that one person was found dead and another lady
was injured. Immediately, the complainant went to the
said place and identified the person as Sikandarsab Kinnal
as the person who had died and the victim was found
severely injured and was unconscious having sustained
grievous injuries on her head. Immediately, victim was
shifted to Belavanike hospital. It was alleged that some
unknown persons might have murdered Sikandarsab by
using deadly weapons and also have caused grievous
injuries on the person of victim at about 7 a.m. Therefore,
he prayed to take necessary action against the real
culprits. It is also stated that the scooter on which
deceased and victim were traveling was found fallen in the
landed property situated by the side of the road.
8. With these allegations, a complaint came to be
filed and registered in Cr.No.113/2002 of Ron police
station and the criminal law was set in motion.
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9. The Investigating Officer after completion of the
investigation and completion of the formalities of the
same, filed the charge-sheet initially against 5 accused
persons for the offences punishable under Section 143,
147, 148, 302, 307, 326 r/w 149 of IPC. Thereafter, in
view of the evidence brought on record, separate charge-
sheets are filed against the accused persons amongst
whom the present accused was one of the accused who
faced the trial separately in S.C.No.29/2005 on the file of
the Addl. District and Sessions Judge, Gadag.
10. To prove the case of the prosecution, in all the
prosecution examined 23 witnesses from PWs-1 to 23 and
got marked Ex.P.1 to Ex.P.34 with respective signatures
thereon and M.O.1 to M.O.21. During the course of cross-
examination, Ex.D.1 to Ex.D.3 were marked being the
portions of the statement of PW-2 i.e., victim.
11. The learned trial Court on hearing the
arguments and on perusal of the evidence placed on
record found the accused not guilty of the offences stated
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supra and consequentially, she was acquitted of the
aforesaid offences.
12. We have heard the arguments of learned
counsel for the appellant/State, victim/appellant and
learned counsel for accused.
13. It is the submission of PW-2 victim and Addl.
SPP that the main case ended in conviction and
consequentially, the five accused persons are undergoing
sentence passed by the Sessions Court and confirmed by
this Court. The presence of the present accused is very
much proved by the prosecution by adducing acceptable
evidence. It was this accused who caughthold the victim
along with other accused persons and abetted the other
accused persons to assault her. Therefore, this accused is
equally responsible for the commission of the crime. The
accused followed the victim and her husband and attacked
with deadly weapons. In the said incident, her husband
lost his life because of severe attack on him with deadly
weapons and he died at the spot. Even because of the
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assault on the person of the victim she had suffered
grievous injuries on her head. Some unknown persons
shifted her to hospital. In the hospital, she gave her
statement. Therefore, it is submitted that when she being
the eye-witness, could identify the presence of the present
accused at the place of occurrence, her evidence could not
have been discarded by the learned trial Court. Because
of her evidence only, police filed the separate charge-
sheets after investigation.
14. Consistently, PW-2 victim has stated about the
motive for the crime that this accused and her children
had the impression that deceased Sikandarsab would give
all his service benefits to the victim - PW-2 and they
wanted to grab the same. Because of this animosity,
there were several civil and criminal litigations in between
victim and accused and her children. It is submitted that
in view of the evidence of PW-2 victim being injured
eyewitness is sufficient to convict the accused. In support
of her submission, she relied upon entire evidence. Even
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Smt.Nirmala B.G., Amicus Curiae also took us through
various evidence. Similar submissions are made by the
learned Addl. SPP Shri M.B.Gundawade.
15. As against this submission, Shri K.L.Patil,
learned senior advocate submits that the evidence spoken
to by PW-2 victim is an afterthought. When she gave her
statement before the Investigating Officer, she did not
state the name of the present accused. For the first time,
when original trial was in progress, she took the name of
present accused as the person who was present at the
scene of occurrence. This accused is no way concerned to
the murder of her own husband. It is the concocted and
created story of the victim - PW-2 so as to seek sympathy
and take all the service benefits of Sikandarsab, the
deceased. He submits that several litigations are initiated
and are being defended by the victim. She has initiated so
many false and frivolous proceedings against the family of
the accused to harass them. The learned trial Court has
rightly acquitted the accused as there was no involvement
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of the present accused in the commission of the crime as
alleged by the prosecution. Therefore, he prays to dismiss
both the appeals.
16. Having heard the arguments of both the sides
and on perusal of the material placed on record, the
following points arise for our consideration:
i) Whether the judgment of acquittal of accused
passed by the trial Court suffers from illegality,
perversity and requires interference by this
Court?
ii) What order?
17. As narrated above, it is the case of murder of
deceased Sikandarsab. According to the prosecution,
deceased Sikandarsab suffered homicidal death. So far as
sufferance of homicidal death of deceased, in this case it is
not disputed. To prove the homicidal death, prosecution
relies upon the evidence of the doctor by name
Dr.Neelakantswamy Nyamalti, who conducted post
mortem and the Investigating Officer. The photographs
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and the negatives of the photographs of the dead body are
also marked in this case at Ex.P.24 and Ex.P.25. Post
mortem report is marked at Ex.P.10.
18. On perusal of the evidence of the doctor,
contents of the P.M. report and other evidence, it is seen
that the deceased suffered 3 lacerated wounds on the
head, left side of the occipital protuberance, left orbit, and
an incised wound over the middle of the neck size 10 cm X
½ cm X 2 cm and a contusion on the forehead. There
was fracture of the right frontal bone, membrane below
was ruptured and the doctor opines that the death was
due to neurogenic and hypovolemic shock secondary to
haematoma and bleeding.
19. It is the evidence on record by the prosecution
that the dead body of the deceased was found by the side
of the road near Yavagal. It is the evidence of the
Investigating Officer that it is the case of murder which is
not disputed.
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20. The Investigating Officer and doctor have
stated about the injuries suffered by the deceased and it is
the opinion of the doctor that, on examining M.O.1 to
M.O.4 that by assaulting the deceased by using this M.O.1
to M.O.4, the injuries may be possible. If all this evidence
is put together, the prosecution is able to establish the
homicidal death of deceased. Thus, the prosecution is
able to establish the homicidal death of the deceased
Sikandarsab.
21. So far as injuries suffered by the victim, the
prosecution relies upon the wound certificate marked
Ex.P.34. These injuries are also not disputed by the
defence. Even the evidence of the doctor i.e., PW-22
Dr.Sharanamma Pattanashetty shows that she examined
the victim and issued wound certificate Ex.P.34. Merely
because she suffered the injuries, it is not sufficient to
hold that it is the present accused who was responsible in
the commission of the crime against the victim.
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22. Ex.P.1 is the complaint lodged by one Khajesab
Budnesab Mulla. As per his complaint, on getting
information regarding assault on a man and woman, on
the road from Yavagal, he rushed to the said place. He
identified one Sikandersab Kinnal and Fathima. He noticed
the death of Sikandersab. Fathima, i.e., the victim had
suffered grievous injuries on her person i.e., on her head
and she was lying there. The said deceased Sikandersab
was found to be his sister's son. The said victim is the
second wife of Sikandersab. He shifted the injured to the
hospital. It is his allegation that some unknown persons
might have assaulted the deceased and the victim.
Because of said assault, Sikandersab died and victim
suffered grievous injuries. So as per his evidence, he is
not an eyewitness to the said incident.
23. To substantiate his assertions, the prosecution
examined him as PW-1. He speaks in line with the
contents of the complaint. He lodged a complaint as per
Ex.P.1. He identifies his signature on the complaint. It is
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elicited from the mouth of this PW-1 in the cross-
examination that when he went to the place where the
dead body was lying i.e., prior to his arrival or after his
arrival to the said place, he did not find the presence of
accused Tajbi at that place. It is his evidence that when
he was in Belavanike Government Hospital, accused Tajbi
came in a jeep from Hubballi along with her brothers'
children. He categorically states that there is no nexus in
between the murder of Sikandersab and assault on
Fathima and herself.
24. Thus, the evidence of PW-1 can be accepted to
the extent that he lodged a complaint on noticing the
death of Sikandersab and the injuries on the person of the
victim.
25. PW-2 Fathimabi is none else than the victim in
this case being the appellant in Crl.A.No.100247/2014.
She has been examined in installments. It is her evidence
that when herself and her husband were moving on the
two wheeler, in all 8 persons restrained them and
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assaulted them. It is her evidence that on the motorcycle
Chandsab, accused No.4-Yellappa and another Moulali
were there. Now the said Moulali is absconding. There
were other 3 persons who came towards the vehicle where
victim and her husband parked their vehicle. She
identified accused No.1-Anwar Hussain, accused No.5-
Ibrahimsab, accused No.3- Parashuram. For the first time
before the Court, she stated that accused Tajbi and
Krishna also came from their behind. She identified Tajbi
i.e., accused in this case.
26. It is her further evidence that when all the 8
persons surrounded them, her husband asked them that
why they had come. To that, the said 8 persons told that
they had come to finish him off. When her husband
caught-hold his scooter, accused No.2-Chandsab dragged
him by holding his hand. At that time, this victim - PW-2
was sitting as pillion rider. She jumped from the scooter.
Accused No.1 Anwar Hussain assaulted her husband with
wooden stick. Accused No.3-Krishna and accused No.5
assaulted her husband for 7-8 times with iron rod. Her
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husband fell down. Accused No.4 Yallappa assaulted with
kathari and chopped his neck. She further states that
accused Tajbi abetted them. She also caught-hold the
victim. When accused No.4 was being abetted by accused
Tajbi i.e., present accused she had left the hand of victim.
At that time, she was running towards Belavanike for
about 10-20 ft. Accused No.2 and Tajbi caught-hold her
and brought to the place of her husband. The other
accused were telling that let this victim be finished off.
Accused No.3-Parashuram and accused Moulali assaulted
her with iron rod. She lost her consciousness. When she
regained consciousness, she was at KMC Hospital,
Hubballi. At that time, she noticed the presence of police
there. On 24.09.2002, she was taken to Ron police
station after her discharge from the hospital and recorded
her statement on 25.09.2002. Thus, she alleges the
presence of present accused at the time of incident.
27. Ex.D.1 is the statement of the victim.
According to her, she has not stated as narrated in Ex.D.1
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before the police. On scrupulous reading of the entire
contents of her statement, she never stated about the
presence of accused Tajbi at the scene of offence when the
said alleged incident took place. Even she has stated that
this accused is the first wife of the deceased in their
marriage, two sons and one daughter were born. As she
is the second wife and as her husband was having children
from his first wife, she had undergone family planning
operation. Throughout her statement, she has stated
about her relationship with Sikandarsab and his first wife,
children etc., But in the evidence spoken to by her, she
denies the very relationship between accused Tajbi and
Sikandarsab. She states that at the time of incident
accused were telling that leaving Muslim girl her husband
had married a Hindu girl. They were having an eye on the
property and service benefits of deceased. She narrates
that in the year 1992, accused No.2 came to Koppal and
stabbed her. But, no complaint was lodged. She deposed
ignorance about the children born to Tajbi. She denies the
suggestion that she has not stated before the police about
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the presence of Tajbi at the time of incident. According to
her she has stated so.
28. In this case, PW-2 is the star witness and based
upon her evidence only in the original Sessions' Case,
separate charge-sheets were filed against three accused
persons by the Investigating Officer.
29. It is the evidence of PW-11 Shivanagouda, who
filed this split up charge-sheet that as per the orders of
the Court, he filed the separate charge-sheet against the
present accused and other two accused persons. In the
cross-examination, he states that before filing the
separate charge-sheet against the aforesaid 3 accused, he
did not scrutinize the earlier charge-sheets filed against 5
accused persons. At the time of filing charge-sheet
against the present accused he did not record the
statement of the witnesses. Again this PW-11 was
recalled to improve his version. He states that when he
filed split up charge-sheet he did not read the statements
of the witnesses. Thus, on reading the evidence of PW-11,
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as per the directions of the Court, he filed separate
charge-sheet against the present accused. His evidence
shows that without conducting any further investigation,
he filed the separate charge-sheet against the present
accused and other two accused persons.
30. When PW-2 gave her statement before the
Investigating Officer after her discharge from the KMC
Hospital, she never named the present accused being
present at the place where the incident has taken place.
For the first time during the course of evidence, she stated
about the presence of present accused and she catching-
hold PW-2 victim and also allegation is made against
present accused that she abetted to commit the offence. It
appears that it is an improved version made by PW-2 so
as to implicate the present accused.
31. PW-3 Ibrahimsab identified the dead body of
Sikandarsab and also injured Fathima ie., victim. He has
been declared as hostile witness by the prosecution.
Likewise, PW-4 Budansab also identified the dead body of
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Sikandarsab. He also helped to shift the injured to the
hospital. He too was declared a hostile witness. PW-5
Muneer Ahmed is stated to be witness who knew about the
incident. PW-6 Shehzadbegum is the daughter of the
present accused does not know as to how her father
Sikandarsab died. PW-7 Murigeppa knows this PW-2 and
he also states he does not know as to how Sikandarsab
died. So also PW-8 Abdul Majid. PW-13 Rangappa
Hanamappa Hattikatagi, PW-14 Mumtazbi, PW-16 -
Shankarappa Gavishiddappa Gejje, PW-17 Bharamappa @
Mudiyappa. All these witnesses have been declared
hostile. They were cross-examined at length by the
prosecution but nothing worth is elicited from their mouth
so as to disbelieve their evidence spoken in the
examination-in-chief.
32. PW-12 Subhash Shivappa Hosangadi, is the
scene of offence pancha and also pancha to other
panchanamas marked as Ex.P.15 to Ex.P.19 under which
certain articles were seized. He turned hostile. Though he
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was cross-examined but no incriminating evidence was
elicited from him.
33. PW-15 Veeresh was the photographer who took
the photographs at the time of conducting panchanama
marked at Ex.P.24 and Ex.P.25. He was not cross-
examined by the defence. The defence admits the
snapping of the photographs by this witness.
34. PW-20 G.Mahadeva was the PSI at the relevant
time who received the complaint on 16.09.2002 from
PW-1 and registered the crime in Crime No.113/2002 and
set the criminal law in motion. He conducted the spot
panchanama and seized 13 articles which are marked
M.Os.4 to 9, 11, 12 and 19. The said panchanama is
marked at Ex.P.14. Except denial nothing is elicited from
the mouth of this witness. Registering the crime and
seizure of the articles is not denied by the defence.
35. PW-18 Prabhakar Jadhav was the Head
Constable of Ron Police Station at the relevant time who
took the dead body of deceased Sikandarsab for the
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purpose of post mortem. The cloth worn by deceased
marked as M.Os.13 to 17 were brought to the police
station and he produced the same before the Investigating
Officer. He saw the same being seized under Ex.P.29
panchanama. There is no denial of this fact by the
defence.
36. PW-19 Wilson Sudhakar was the Investigating
Officer and he conducted part of the investigation and
handed over further investigation to PW-23 who filed the
charge-sheet after collecting necessary documents. It has
come in his evidence that at the time of his investigation,
no witness made any incriminating statement against the
present accused. No witness has stated that this present
accused has dragged the victim. Thus, the evidence of
this PW-23 is quite contrary to the evidence of PW-2 about
participation of present accused in the crime.
37. On overall reading of the evidence placed on
record by the prosecution, except the self serving
interested testimony of victim PW-2 - appellant in
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Crl.A.No.100247/2014, there is no other evidence brought
on record by the prosecution about participation of the
present accused in the commission of the crime.
38. No doubt, it is settled that in criminal cases,
injured witnesses are the best witnesses because their
presence at the time of incident if not disputed will have a
weight. But, in this case, PW-2 being the second wife of
deceased states about her relationship with Sikandarsab
as second wife. She converted her caste to Muslim and
renamed herself Fathima from Mouneshwari. In her
statement, she has clearly stated that the present accused
is the first wife of deceased and in that wedlock children
were born to them i.e., two sons and one daughter. This
deceased Sikandarsab and victim went to attend the
obsequies ceremony and thereafter participated in the
engagement ceremony of second son of Sikandarsab. She
speaks that the children of deceased were not happy that
their father has married this victim. It is her evidence that
these accused persons were under the impression that all
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the property and service benefits will be given to victim
Fathima depriving the rights of present accused and her
children. Therefore, they are not in cordial terms with
Sikandarsab. There was animosity against their father and
the victim. So perhaps this must have made the victim to
name the present accused for the first time when she gave
her evidence in original Sessions' Case.
39. As stated supra, without conducting further
investigation and without recording the statement of any
of the witnesses, a separate charge-sheet was filed by the
Investigating Officer against the present accused. Even it
is the evidence of Investigating Officer that no witness has
stated any incriminating evidence against present accused.
If that is so, interested testimony of PW-2 victim which is
self serving statement, does not help to connect the
present accused in the commission of the crime. Even in
original case also, except the victim, none of the witnesses
has stated about participation of the present accused in
the commission of the crime. If these factual features
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coupled with the self serving interested testimony of PW-2
is put together, there are no connecting links to connect
the present accused in the commission of the crime.
40. The criminal jurisprudence is that it is the duty
of the prosecution to prove the guilt of the accused beyond
all reasonable doubt. Even if a slightest doubt arises in
the case of prosecution, that benefit has to be given to the
accused. In this case, there is no incriminating evidence
against the present accused spoken to by any of the
witnesses including the Investigating Officer. Therefore,
guilt of the accused is not duly proved in accordance with
law. Hence, the prosecution in this case, has utterly failed
to prove the guilt of the accused beyond all reasonable
doubt. The victim-appellant and the State who have
preferred these two appeals have utterly failed to
substantiate the grounds stated in their respective appeal
memos and have failed to prove that the judgment of
acquittal passed by the trial Court suffers from any
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illegality or perversity. Therefore, both the appeals fail
and are liable to be dismissed.
41. Resultantly, we pass the following:
ORDER
a. Appeal filed by the victim- PW-2 Fathima in
Crl.A.No.100247/2014 and appeal filed by the
State in Crl.A.No.100040/2015 are dismissed,
b. The judgment passed by the Addl. District and
Sessions Judge, Gadag, in S.C.No.29/2005
dated 30.10.2014 is affirmed,
c. Order regarding disposal of properties is
maintained,
d. Intimate the final order to the trial Court
forthwith,
e. Bail bonds executed by accused if any, stand
cancelled.
Send back the trial court records along with copy of
the judgment forthwith.
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Smt. Nirmala B. G, learned counsel has assisted the
Court for the appellant in Crl.A.No.100247/2014. Her fee
is quantified at Rs.10,000/-. The fee of the Amicus Curiae
shall be paid by the District Legal Services Authority.
Sd/-
JUDGE
Sd/-
JUDGE
JM
