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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 14TH DAY OF JUNE 2018
PRESENT
THE HON’BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.3636/2013 AND
CRIMINAL REFERENCE CASE NO.200002/2017
IN CRIMINAL APPEAL NO.3636/2013
Between:
Mohammed Sultan
S/o Mohammed Jafar Ali,
Age: about 33 years, Occ: Auto driver,
R/o Mannaekheli, Dist: Bidar.
…Appellant
(By Sri, Liyaqat Fareed Ustad, Advocate)
And:
The State of Karnataka through the Police Mannaekhelli,
Rep. By Public Prosecutor
…Respondent
(By Sri, Prakash Yeli, Addl. SPP)
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This Criminal Appeal is filed under Section 374 of the
Code of Criminal Procedure, praying to set-aside the judgment
and order of Sentence dated 23rd day of October 2013 passed
by the Principal District Sessions Judge, at Bidar in SC
No.82/2012.
IN CRIMINAL REFERENCE CASE NO.200002/2017
Between:
The State of Karnataka, through the Police,
Mannaekhelli, represented by Public Prosecutor Bidar.
…Appellant
(By Sri, Prakash Yeli, Addl. SPP)
And:
1. Mohamed Sultan S/o Mohd. Jafar Ali,
Age: 33 years, Caste: Muslim, Occupation: Auto driver,
R/o Mannaekhelli.
…Respondent
(By Sri, Liyaqat Fareed Ustad, Advocate)
This Criminal Reference Case is filed under Section 366(1)
Cr.P.C, by the Principal District Sessions Judge, Bidar for
confirming the death sentence imposed on accused No.1 by her
judgment dated 23.10.2013 in S.C.No.82/2012 for the offence
under Section 302 of IPC.
These Criminal Reference Case and Criminal Appeal being
heard together and reserved for judgment on 30.05.2018 and
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coming on for pronouncement of Judgment this day, Sreenivas
Harish Kumar J, delivered the following:
JUDGMENT
The Principal District Sessions Judge, Bidar, in
S.C.No.82/2012, by her judgment dated 23.10.2013, held
accused No.1 guilty of offences punishable under Section
302, 394 and 201 IPC while acquitting him of offence
punishable under Section 376 IPC; and also acquitted
accused No.2 and accused No.3 of the offences punishable
under Section 376, 302, 394 and 201 R/w Section 34 IPC.
The learned Principal District Sessions Judge (referred to
as Sessions Judge hereafter) sentenced the first accused
to death in connection with offence punishable under
Section 302 IPC besides imposing fine of Rs.10,000/- with
a default sentence of two years and further sentenced him
to rigorous imprisonment for 6 years and 3 years
respectively for the offences punishable under Section 394
and 201 IPC besides imposing fine of Rs.10,000/- for each
of the offences with default sentence of simple
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imprisonment for one year each. Having imposed death
sentence for the offence under Section 302 IPC, the
Sessions Judge submitted the proceedings to this Court
under Section 366 of Criminal Procedure Code for
confirmation. The first accused has also preferred an
appeal challenging the judgment of conviction for the
offences as mentioned above.
2. Precisely stated, the prosecution case is as
follows:
On 15.08.2011 at about 11.00 AM, when
PW.5-Prabhu was standing near B.S.S.K. Office at Mangali
village, PW.11 Tajoddin came running towards him and
told him of having seen a dead body of a woman near a
cenotaph in his agricultural land when he went there for
bringing grass. Thereafter Prabhu went to that place with
Tajoddin and two others viz, Vaijinath and Jagannath and
saw a dead body of an unknown woman aged around 35 to
38 years and whose face had been covered with the saree
she was wearing. He suspected murder and made a report
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to police who registered an FIR against unknown persons.
On 30.08.2011, the first accused was produced before
PW.21, Basaveshwar, a Police Inspector, in connection
with another crime registered in Crime No.94/2012. It is
stated that the first accused gave a confession statement
disclosing his involvement in the death of the deceased of
this case and also revealed the involvement of accused
No.2 and 3. This confession statement led to seizure of
some jewellary said to be belonging to the deceased and
thus all the three accused stood charge sheeted.
3. The Sessions Judge, for convicting the first
accused has mainly relied on the oral testimonies of PW4,
PW10 and PW14 and recovery of jewellary based on the
confession statement of first accused. The main findings
given by the Sessions Judge are as below:
“The case is based on circumstantial evidence.
PW.13 who was examined to prove last seen theory has
not supported the prosecution. The deceased was an
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unknown woman, her identity was not traced and it is
immaterial also. Inspite of last seen theory being
unproved, the recovery of jewellery of the deceased from
accused No.1 based on his confession statement is enough
to connect him with crime. His failure to explain as to how
he could possess the jewellery of the deceased, when he
was examined under Section 313 of CrPC, provides a
missing link. Further, the recovery is also proved by PW4
and PW14 and there is no reason to disbelieve them. The
evidence of PW.7, the doctor establishes that the death
was due to strangulation, and MO.5 – a rope seized from
the possession of first accused further strengthens the
prosecution case. There were series of murders of women
mysteriously and the cases were being investigated by one
police officer before whom accused made a disclosure by
giving a confession statement. It was not just a narration,
but it led to recovery for which there is corroborative
evidence of PW.4 and PW.14 and the narration made by
the first accused before police finds corroboration from
PW10. The argument of defence counsel that the
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confession of first accused is hit by Section 25 of the
Indian Evidence Act is not acceptable, as Ex.P25, a part of
confession statement led to discovery of incriminating
materials and therefore that portion is admissible
according to Section 27 of the Indian Evidence Act.
Recovery shows special knowledge of the accused and
Doctrine of confirmation as held by the Supreme Court in
Harivadan Babubhai Patel V/s State of Gujarath
(2013) 17 SCC 45 can be applied to hold that the
circumstances are proved against first accused”.
4. For sentencing the first accused to death
punishment, the Sessions Judge has held that rarest of
rare case should not be examined only on the footing of
overt act attributable to an accused or how the crime is
committed, but it should also be examined by taking
totality of circumstances in a given case. It is held further
that the first accused committed murder of three women
within a short span of time without any remorse and he is
a danger to entire women folk in the society. The first
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accused is a stranger to the deceased; he is an
autorikshaw driver also. The fiduciary relationship exists
between a driver and a passenger and if such a situation,
especially when a woman travels in a autorikshaw, is
exploited, it can not be excused. It is held further that the
acquittal of first accused in another case is no ground, as
in that case he was acquitted not for the reason that he
was innocent, but the case was not proved. Therefore a
rarest of rare case is made out”.
5. The learned Additional State Public Prosecutor
argued in support of reference. His submission is that the
Sessions Judge has arrived at right conclusions based on
testimonies of PW4, PW10, PW14. The hostility of PW13,
who was examined to prove last seen theory, has no
adverse impact as the other three witnesses, PW.4, 10 and
14 have clearly established the prosecution case with
regard to seizure of incriminating materials. The appellant
did not give explanation as to how he could possess the
jewellery of the deceased; and his conduct of denying the
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incriminating materials, goes against him besides providing
a missing link. Therefore it was his argument that the
Sessions Judge has thoroughly appreciated the evidence to
find accused guilty of the offences. He further argued that
the conclusion of the Sessions Judge that a rarest of rare
case has been made out for imposition of death sentence
is well reasoned and therefore death sentence should be
confirmed.
6. The learned counsel for the first accused
argued that the Sessions Judge has grossly erred in
placing reliance on seizure of jewellery from the possession
of the accused. Recovery was based on confession
statement said to have been given by the first accused;
mere seizure of jewellery and some other material objects
does not lead to involvement of first accused, there is no
proof that the seized jewellery belonged to the deceased.
The last seen theory has failed. The Sessions Judge has
relied upon entire confession statement which can not be
proved against the accused. Prosecution has failed to
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establish its case. There is no evidence at all for
convicting the accused. It was his further argument that
the Sessions Judge has been swayed away by extraneous
reasons for holding that a rarest of the rare case has been
made out for sentencing the accused to death. Therefore
he argued for rejecting the reference under Section 366
Cr.PC, allowing the appeal and acquitting the accused.
7. From the above arguments, the following
points do arise for discussion:
(i) Has the Sessions Judge rightly based
conviction relying upon evidence of PW4,
PW.10 and PW13?
(ii) Is the seizure of jewellery and other articles
at the instance of accused enough when last
seen theory fails, to hold that the
circumstances are proved?
(iii) It this a rarest of rare case?
(iv) What order?
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Points (i) and (ii)
8. These two points can be discussed together.
Before that, if the evidence brought on record by the
prosecution is perused, it appears apparently that the case
rests on circumstantial evidence. The identity of the
deceased is not established; it is not always relevant also
as has been held by the Sessions Judge. The prosecution
seeks to prove its case on two circumstances – (1)
Accused seen lastly with the deceased and (2) Seizure of
jewellery and other incriminating articles at the instance of
the first accused. If the oral evidence of the witnesses is
perused, the picture that is obtained is as follows.
9. PW5 is the first informant, Ex.P6 is the
complaint made by him. He has stated that PW.11-
Tajoddin told him about seeing a dead body in the
agricultural land, and coming to know this, he went there
with PW.11, PW8 – Vaijinath and PW.9-Jagannath Reddy.
They all saw the dead body and he then gave a complaint
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to police, as he suspected murder. He also speaks about
panchanama conducted by police as per Ex.P5, seizing
thereunder a steel box and a bag marked MO.3 and MO.4
respectively. PW.11 – Tajoddin corroborates the
testimony of PW.5 to the extent of telling him about seeing
dead body and going again with him and Vaijinath and
Jagannath to the place where the dead body was lying.
PW.8 – Vaijinath and PW.9-Jagannath Reddy also state
that they went and saw the dead body, but they do not
say that they went to that place with PW.5 and PW.9.
What they have stated is that all the villagers were talking
about a murder and therefore they went to see the dead
body.
10. PW.20 Srikanth testifies the fact of receiving
the complaint Ex.P6 from PW.5. PW.21 is the FIR
registered by him.
11. The first accused was arrested on 30.10.2011,
and this is evidenced by PW.20. Before the arrest of the
first accused, PW.21, the police inspector, having taken
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over investigation from PW.20, conducted inquest as per
Ex.P1. He has deposed that on 16.08.2011, he conducted
spot panchanama as Ex.P2 and at that time, he seized
some bangle pieces, which belonged to the deceased.
These bangle pieces are marked as MO.1. PW1 is
examined to establish the inquest panchanama and the
spot panchanama besides seizure of bangle pieces. He has
supported the prosecution. PW.21 has stated that he
seized the clothes of the deceased and also some jewellery
found on the dead body. They are MO.7 to MO.12. But the
witnesses PW3 and PW6, examined to prove the seizure of
these articles by drawing a panchanama as per Ex.P3,
have turned hostile. There is another panchanama marked
Ex.P4, about which PW.21 speaks. This was in connection
with burying the dead body as no body claimed it. PW.3
speaks about Ex.P4.
12. After the arrest of the accused, PW.21
recovered some gold and silver items said to be belonging
to the deceased and also a rope said to have been used for
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strangulating the deceased. PW.21 has stated that this
recovery was pursuant to disclosure made by the first
accused while giving confession statement before him.
Ex.P25 is the portion of the confession statement. PW4
and PW14 are the independent witnesses to prove this
recovery. Though PW4 turned hostile to some extent; he
admitted all the suggestions given to him when he was
subjected to cross examination by public prosecutor and
thereby supported the prosecution case. PW.14, has
supported the prosecution case in this regard.
13. PW.12 is examined for the purpose of proving
that his elder brother, i.e, the first accused and two other
accused took his autoriksha bearing No.KA-39-2193 on the
night of 14.08.2011 and thereafter when the police seized
the said autoricksha, he got it released. He has not
supported the prosecution.
14. PW.13 is an important witness. According to
the prosecution, he saw all the accused firstly speaking
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with the deceased at about 9 PM on 14.08.2011 when she
was alighting from a lorry and then following her in an
autoricksha when she got into another lorry to go towards
a place called ‘Nirna Cross’. Prosecution also sought to
establish through this witness that all the accused came to
know that the deceased was a free woman (Awara), and
they followed her to have sex with her. But PW.13 turned
hostile to prosecution and the public prosecutor’s efforts to
discredit her went in vain.
15. Another important witness is PW.7. He was
the doctor who conducted post mortem. Ex.P7 is the post
mortem report given by him. He is of the opinion that
death was due to strangulation. Ex.P8 is another report
given by him and another doctor after seeing the ligature,
MO.5. He has stated that ligature mark was antemortem
and the ligature shown to him might have been used for
strangulating the deceased.
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16. PW.10 has deposed that he went to the land of
one Gosayi and saw the dead body of a woman. He came
to know that some autoricksha driver of Mannaekheli village
had committed murder. He identified the accused in the
Court and very importantly, he stated he heard accused
narrating the manner in which he killed the deceased after
raping her.
17. It is not necessary to refer to the oral
testimonies of other witness.
18. On reassessment of evidence, it can be said by
concurring with the findings of the Sessions Judge that the
death of the deceased woman was a clear case of culpable
homicide amounting to murder, as in case of strangulation,
what is apparently noticeable is intention to cause death
falling within the meaning of firstly of S.300 IPC. Having
regard to the circumstances such as place and time of
death and traces of semen being detected on the clothes
of the deceased, it is possible to conclude that it was a
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murder. But the question is whether the first accused can
be connected with it, that too when the other accused are
acquitted by the Trial Court. The Sessions Judge has held
that the last seen theory has failed as PW.13 turned
hostile. This finding of the Sessions Judge needs to be
upheld. If the cross examination of PW.13 is perused, it
appears that the public prosecutor did nothing but giving
suggestions which were all denied by the witness. The
other circumstance that the Sessions Judge has held
proved is recovery of MO.5 to MO.10 at the instance of the
first accused based on his confession statement. Ex.P25 is
that portion of confession statement that led to recovery;
and the testimonies of PW4 and PW14 to the extent of
recovery in their presence cannot be disbelieved. The
finding of the Sessions Judge on this aspect needs to be
concurred with, but there are certain other findings which
are not convincing. The Sessions Judge holds that
confession statement of first accused is hit by S.25 of the
Evidence Act and what can be considered is only that part
leading to discovery; but at the same time it is held that
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the testimony of PW10 that he saw the accused narrating
the incident provides corroboration. It is held that
recovery can be believed by applying the doctrine of
confirmation by subsequent events. We are afraid that
these findings are acceptable. Though recovery can be
held to have been proved, the same still suffers from
infirmity. It is not proved that those jewellery belonged to
the deceased. The Sessions Judge has made an attempt
to draw an inference that the jewellery belonged to the
deceased by picking a few sentences found in the inquest
panchanama as per Ex.P1 and juxtaposing them with what
is written in page No.4 of Ex.P.25, the voluntary or
confession statement. This is not permitted as nothing
other than a statement leading to discovery of fact is
relevant according to Sec.27 of Evidence Act. Therefore in
the absence of independent proof that the seized jewellery
belonged to the deceased, the recovery under Ex.P5 based
on Ex.P25 cannot be considered as a proof. The Sessions
Judge has placed reliance on the judgment of Supreme
Court in the case of Harivadan Babubhai Patel V/s
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State of Gujarath [(2013) 17 SCC 45] to arrive at a
conclusion that seizure of jewellery is a circumstance that
can be believed in the background of special knowledge
attributable to accused and therefore doctrine of
confirmation is attracted. There cannot be a second word
with regard to the principles laid down in this decision. In
this case, apart from recovery of incriminating articles, last
seen theory was also one of the circumstances and the
Hon’ble Supreme Court came to conclusion that the last
seen theory deserved acceptance and therefore held that
all the circumstances, including recovery, were proved.
Same is not the position in the case before us. Last theory
has failed, and therefore recovery alone does not prove the
prosecution case.
19. Now with regard to testimony of PW.10 lending
corroboration to narration of incident by the accused, what
requires to be stated is that the Sessions Judge should not
have accepted that part evidence of PW10 in as much as it
amounts to proving the confession against the accused.
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The clear evidence of PW.21 is that the first accused gave
voluntary statement before him and Ex.P.25 is a part of
that statement that led to discovery. As has been
observed already, except Ex.P25, no other part of
voluntary or confession statement of accused can be made
use of against the accused. Sec.25 and Sec.26 of the
Evidence prohibit such proof. If Sec.25 states that no
confession of an offence made to a police officer can be
proved against an accused, Sec.26 further prohibits proof
of such confession made before others also if at the time
of making such statement accused is in police custody, and
only exception to this Section is confession made before
Magistrate. The evidence of PW.10 shows that in his
presence, the accused stated as to how they committed
murder of a woman. This statement of PW10, if
considered, is nothing but an attempt to proving a
confession against accused while he was in police custody
and therefore inadmissible. It is held by the Sessions
Judge that a missing link in the circumstance is provided
when the first accused failed to account for the jewellery of
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the deceased being in his possession. It is here that the
Sessions Judge has erred. Though jewellery was
recovered from the first accused, it is not proved that they
belonged to her. A missing link still exists. Therefore we
come to conclusion that the Sessions Judge has erred in
convicting accused and answer points (i) and (ii) raised for
discussion in negative.
20. Point No.(iii) – This point does not require
discussion in view of points (i) and (ii) being answered in
negative.
21. Point No.(iv) – In view of the above
discussion, the criminal reference under Section 366 Cr.PC
has to be rejected as the accused No.1 is entitled to be
acquitted. The appeal preferred by the first accused
requires to be allowed and judgment of the Sessions Judge
set aside. Hence the following..
ORDER
(i) Criminal Reference Case No.200002/2017
under Section 366 Cr.PC is rejected.
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(ii) Criminal Appeal No.3636/2013 is allowed.
The judgement dated 23.10.2013 passed by
Principal District Sessions Judge, Bidar in SC
No.82/2012 convicting the first accused for the
offence punishable under Sections 302, 394
and 201 IPC is set aside. The first accused,
Mohamed Sultan S/o Syed Mahamood Ali is
acquitted of the offences punishable under
Sections 302, 394 and 201 IPC. He shall be
released from imprisonment forthwith if his
presence is not necessary in any other case.
The registry of this Court is directed to
communicate this judgment to the Jail
Superintendent.
Sd/-
JUDGE
Sd/-
JUDGE
SMP