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Mohammed Sultan S/O Mohammed … vs The State Of Karnataka Through The … on 14 June, 2018

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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

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