Dismissed

Mahaboobsab S/O Sannaharjarathsab Makandar, v. State of Karnataka

Karnataka HC6 Nov 2019CRL.A/100072/2015

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction and life sentence for murdering his wife under Sections 302/498A IPC. The court rejected the benefit of doubt claim due to Section 106 burden shifting where a death occurred in the accused's house and found evidence sufficient to prove murder.

What did the court decide?

The criminal appeal was dismissed and the judgment and order of conviction and sentence dated 17 July 2013 were upheld.

Mahaboobsab S/O Sannaharjarathsab Makandar… — Murder and Culpable Homicide | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF NOVEMBER 2019

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PRESENT

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THE HON’BLE MR.JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR.JUSTICE P.G.M. PATIL

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CRIMINAL APPEAL NO.100072/2015

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BETWEEN:

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MAHABOOBSAB S/O. SANNAHAJARATHSAB MAKANDAR, AGED ABOUT: 25 YEARS, OCC: DRIVER, R/O: BISARALLI VILLAGE, TQ: & DIST: KOPPAL.

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... APPELLANT.

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(BY SRI MAHESH WODEYAR, ADVOCATE.)

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AND:

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STATE OF KARNATAKA, R/BY ITS ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI V.M.BANAKAR, ADDL. SPP.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE

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THE JUDGMENT AND ORDER OF CONVICTION DATED 17.07.2013, PASSED BY THE PRL. DIST. & SESSIONS JUDGE, KOPPAL, IN S.C.NO.96/2012 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 498A, 302 OF IPC AND CONSEQUENTLY TO ACQUIT THE APPELLANT, ETC.,.

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RESERVED FOR JUDGMENT ON : 21.10.2019. JUDGMENT PRONOUNCED ON : 06.11.2019.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P.G.M.PATIL, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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The accused being aggrieved by the judgment of conviction dated 17.7.2013 and order of sentence dated 18.7.2013, passed in Sessions Case No.96/2012, by the Principal District and Sessions Judge, Koppal, has filed this appeal.

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It is the case of the prosecution before the trial Court that the accused got married to Mahimoodha Begum two years prior to 27.7.2012 i.e., the date of complaint. The accused was working as tractor driver in Krishna Crusher and

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Bricks Manufacturing Unit. It is also stated that in the said wedlock they have got a male child aged about 1½ years. It is alleged that the accused was a habitual drunkard and used to quarrel with his wife everyday. The relatives of the deceased had advised the accused not to quarrel with his wife and to look after her well. On 27.7.012 at about 1.00 a.m. in the early morning the complainant and his family members were sleeping at Hamals Colony. At that time the complainant heard the tractor sound and accused shouted and called the complainant, who came out of the house and enquired the accused. The accused told him that his wife was not keeping well and therefore brought her and took her inside the house. It is further alleged that the accused with the help of three other persons who were working with him, took Mahimoodha Begum in the tractor to the house of the complainant who is brother of the deceased. It is further stated that the accused

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informed them that she is not well. However on the early morning the complainant noticed that Mahimoodha Begum was dead. On enquiry, the accused told him that on the previous evening the deceased insisted him to observe roja and for that he objected and there was a quarrel between them. It is also stated that the accused caused the death of the deceased.

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On the said complaint, Koppal Rural Police registered crime No.147/2012 for the offences punishable under sections 498A and 302 of IPC. After completing the investigation, the said police filed the charge sheet before the JMFC, Koppal, for the aforesaid offences. The learned JMFC took cognizance of the alleged offences, registered the case, secured the presence of the accused and complied the provisions of section 207 of Cr.P.C. Thereafter he heard the learned APP and the counsel for the accused and committed

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the case to the Court of Sessions acting under section 209 of Cr.P.C.

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On receipt of the records, the case was registered in S.C.No.96/2012 on the file of Prl. Sessions Judge, Koppal. The presence of the accused was secured, who represented by his counsel. The Sessions Court, after hearing both the sides, framed the charges for the aforesaid offences. When the said charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried. Thereafter the case was posted for trial. In order to prove the alleged offences, the prosecution in all examined 10 witnesses as PW.1 to PW.10 and got marked 10 documents as Exs.P.1 to P.10 and M.O.1. Thereafter the statement of accused under section 313 of Cr.P.C. was recorded on explaining the incriminating evidence arising out of the prosecution witnesses. The case of the accused is

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of total denial. When the accused was called upon to lead defence evidence, the accused has not adduced any evidence in his defence.

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The learned Sessions Judge after hearing the learned counsel for the parties, convicted the accused for the offences punishable under sections 498A and 302 of IPC and sentenced the accused to undergo simple imprisonment for one year and to pay fine of `1,000/- for the offence punishable under section 498A of IPC and further he was sentenced to suffer imprisonment for life for the offence punishable under section 302 of IPC. The accused being aggrieved by the aforesaid judgment of conviction and order of sentence has filed this appeal.

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We have heard the learned counsel for the appellant and the learned Additional SPP for the respondent State.

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The learned counsel for the appellant

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submitted that there is uncertainty as to the case of death of the deceased and further that the alleged extra judicial confession before PW.8 is not proved. When there is no definite opinion as to the cause of death, the benefit of doubt should be extended to the accused. The learned counsel further submitted that the chain of circumstantial evidence is not complete.

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Per contra, the learned Addl. SPP supported the impugned judgment and further submitted that the prosecution has proved the offence alleged against the accused beyond reasonable doubt and that there are no grounds to interfere with the impugned judgment. The learned Addl. SPP further submitted that the burden was on the accused, to explain the unnatural death of his wife, which occurred in his house, as required under section 106 of the Indian Evidence Act and

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the accused has not discharged the said burden. Therefore the finding recorded by the trial Court is proper.

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On hearing the learned counsel for the appellant and learned Addl. SPP, the following point would arise for consideration before this Court.

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“Whether the prosecution has proved beyond reasonable doubt that the accused has committed the murder of his wife Mahimoodha Begum after subjecting her to cruelty?”

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The oral evidence of the prosecution at the outset reveals that PW.1 Kasimbaba S/o.Mahaboob Hussain Hallikeri is brother of the deceased and he set the law in motion by filing a complaint as per Ex.P.1. He is a material witness in the case. PW.2 Moula Hussain S/o.Mohammmed Hussain Mujawar is the witness to the inquest panchanama Ex.P.2. PW.3 Ibrahim Kalil S/o.Nannesab Sikkalgar is a witness to the spot

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panchanama Ex.P.3 and also Ex.P.5 seizure

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mahazar under which M.O.1 belt was seized at the instance of the accused.

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PW.4 Mahiboobsab Hussain

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S/o.Goususab Hallikeri is father of the deceased and PW.1. He speaks about the cruelty meted out to the deceased by the accused. PW.5 Manjunath S/o.Somappa Bisaralli is co-worker of the accused. He accompanied the accused while the deceased was taken in the tractor to the house of complainant. PW.6 Dr.Chandragandhibai is the medical officer who conducted postmortem examination on the body of the deceased and issued postmortem report as per Ex.P.8. She has also deposed about the cause of death. PW.7 Basappa Laxmappa Gothe is the Tahasildar, who conducted inquest panchanama on the body of the deceased in the hospital as per Ex.P.2.

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PW.8 Mustafa S/o.Madarsab Hurakadli is the neighbour of the accused. He also accompanied the accused when the body of the deceased was taken to the house of PW.4 and further that the accused has made extra judicial confession before him as to committing the murder of his wife.

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PW.9 Mahantesh S/o.Gundappa Sajjan was the PSI who received the complaint and registered the case and submitted FIR to the Court as per Ex.P.10. PW.10 Venkatappa S/o.Hanamantappa Naik, CPI, is the investigating officer in the case. He has deposed as to the arrest of the accused, recording voluntary statement of the accused, recovery of M.O.1 and also about the investigation done by him.

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It is necessary to refer the evidence of these witnesses in detail in order to appreciate their evidence. The prosecution mainly relies on

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the evidence of PW.1, PW.3, PW.4, PW.5 and PW.8 so far as the incident which occurred in the house of the accused and involvement of accused in the offence. PW.1 Kasimbaba being brother of the deceased, who set the law in motion by filing complaint as per Ex.P.1 has deposed with regard to the facts which occurred on 27.7.2012. It is not disputed that the accused married to the deceased and in the wedlock they had a male child. PW.1 has deposed about the ill-treatment meted out to the deceased by the accused. His evidence regarding the incident on 27.7.2012 is as stated in the complaint Ex.P.1. He has stated in clear terms that on the night of 27.7.2012 around 1.00 a.m. he heard the sound of tractor, he opened the door and found the accused and when he enquired as to what happened, the accused told him that his wife is not well and therefore he has brought her to his house. There were three other persons along with the accused. After the sun rise when he observed

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his sister, he noticed injuries on her neck and she was dead. When he enquired the accused, he told him that there was a quarrel between himself and his wife on the previous evening in respect of observing roja. Therefore he assaulted her. Accordingly he filed the complaint as per Ex.P.1. In his cross-examination only suggestions are made suggesting that the accused was not quarrelling with the deceased and that the deceased was suffering from stomach pain and therefore she committed suicide by hanging herself. He has denied the suggestions.

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PW.2 Moulasab is a witness to the inquest panchanama. He has deposed about the ligature mark found around the neck of the deceased. There is no much cross-examination to this witness. PW.3 Ibrahim is a witness to Ex.P.3 spot panchanama drawn in the house of accused and further he is also a witness to the seizure

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panchanama Ex.P.5 under which M.O.1 belt was seized at the instance of the accused in his house. He has supported the case of the prosecution. He has deposed that the accused produced the said belt M.O.1 in his presence which he has identified before the Court. He has also identified the photographs Exs.P.6 and P.7 which were taken at the time of seizure of M.O.1. In his cross examination he has stated that one Mainuddin was also present along with him at the time of panchanama. Even it is not suggested in his crossexamination that the accused has not produced the belt in his presence and that the police have not drawn panchanama Ex.P.3 and P.5 in the house of the accused, thereby his evidence is not at all disputed.

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PW.4 Mahiboobsab Hussain is none other

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than the father of deceased. He has deposed about the marriage of the accused with the deceased and

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that the accused was ill-treating his wife and he had advised the accused not to ill-treat her. He has also stated about the fact that on the early morning of 27.7.2012 the accused and three others brought the deceased to his house stating that she is not well and later in the morning they found that she was dead. He also noticed the ligature mark on the neck of the deceased and suspected that the accused has committed her murder. In his cross-examination he has admitted that till filing Ex.P.1 complaint, his daughter and son-in-law were staying together and they were happy. He has also admitted that his daughter was getting stomach pain, he has denied that because of that reason she might have committed suicide.

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PW.5 Manjunath is the co-worker of the accused. He has deposed that there used to quarrel between accused and his wife and he had advised the accused not to quarrel with his wife.

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So far as the incident is concerned, he has stated that about 7-8 months back in the early morning at 1.00 a.m. one Mutturaj came to his house and the accused was also present with him and told him that his wife is not keeping well and therefore she has to be taken to the hospital. He accompanied them in the tractor to take her to Government hospital, Koppal. He has further stated that when they were proceeding near Gavi Siddeshwar Math, the accused told them not to go to the hospital and that they would go to the house of his father-in-law. Thereafter wife of the accused was taken to the house of her father where the accused told his father-in-law that she is not well. She was left in the house and they returned. He has further stated that Mahimoodha Begum was not speaking when she was in the tractor. Later he came to know that she was dead. In his cross examination nothing is elicited to disbelieve his evidence. He has clearly stated that

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himself, Mutturaj and accused together went to the house of the accused from where the deceased was taken to the house of her father in the tractor. This itself is sufficient to prove that the incident had taken place in the house of the accused and the accused was present in the house at the time of incident.

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PW.6 Dr.Chandragandhibai is a Lady

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Medical Officer at PHC, Talakal, who has deposed about conducting of postmortem examination on the body of the deceased Mahimoodha Begum. She has noted the injuries found on the body of the deceased, in the postmortem report Ex.P.8 including the ligature mark; after conducting the postmortem examination, she has issued the report with her opinion that the cause of death is due to asphyxia as a result of hanging or strangulation. She has deposed the same in her examination-in-chief stating that the death of the

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deceased is due to hanging or strangulation, but she cannot give the definite opinion. She has further deposed that if the deceased was hanged with M.O.1 belt, the ligature marks found on the neck of the deceased are possible. In her cross examination she has admitted that if a person hangs himself or herself, there is a possibility of death due to asphyxia. Her testimony in respect of the injuries found on the deceased and ligature marks found on the neck of the deceased and that the death of the deceased may be due to hanging or strangulation is not at all denied.

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PW.7 B.L.Gothe, Tahasildar has

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conducted the inquest panchanama on the body of the deceased as per Ex.P.2 and he has deposed to the said effect. PW.8 Mustafa is neighbour of the accused. He has deposed about the frequent quarrels between the accused and the deceased. He has further deposed that on the night of the

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incident, he found the dead body of the deceased in the house of the accused and that there were injuries around the neck of the deceased. He has further deposed that the accused stated before him that there was a quarrel between himself and his wife in respect of observing roja and therefore he hanged her with some object. Therefore the accused has made an extra judicial confession before this witness. In his cross-examination he has stated that the accused was not looking after his wife properly. He has denied that the deceased committed suicide by hanging herself as she was suffering from stomach pain. He has also denied that he is deposing falsely stating that the dead body of the deceased was found in the house of the accused. Therefore the evidence of this witness corroborates the case of the prosecution that the accused was present in his house when the deceased died.

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PW.9 Mahantesh Sajjan, the then PSI of Koppal Rural P.S. has deposed about receiving the complaint as per Ex.P.1 and registering the case in Crime No.147/2012 and submitting FIR to the Court as per Ex.P.10.

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PW.10 Venkatappa Naik, CPI, Koppal Rural Circle being the investigating officer in the case has deposed about the investigation done by him. He has deposed about drawing of spot panchanama, arrest of accused, recording voluntary statement of accused as per Ex.P.4 and on his information he seized M.O.1 belt by drawing mahazar Ex.P.5. He has also deposed about requesting the Tahasildar to conduct inquest panchanama. He has recorded the statement of witnesses. He got prepared the sketch of the spot of the incident through the Assistant Engineer of PWD. He collected the documents namely postmortem report and further opinion of the

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doctor and thereafter filed the charge sheet. In his cross examination except some suggestions nothing is elicited.

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The evidence of the prosecution

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considered as a whole, is sufficient to prove that the death of deceased occurred in the house of the accused and the accused was all along present in the house. The statement made by the accused under section 313 of Cr.P.C. that he was not present in the house at the time of death of the deceased is improbable and cannot be accepted in view of the evidence of PW.5 and PW.8 who have seen the body of the deceased in the house of the accused and further they accompanied the accused when the deceased was taken to the house of PW.4. Therefore the burden shifts on the accused under section 106 of the Indian Evidence Act to explain about certainty as to the cause of

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unnatural death of the deceased in his house in his presence.

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The learned counsel for the appellant relying on the judgment in Anand Poojary vs. State of Karnataka, (2015) 1 SCC 235 submitted that, when there is no certainty as to the cause of death, benefit of doubt should be given to the accused. In paragraph No.21 the Apex Court has observed as follows:

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21. In the aforesaid scenario, it cannot be said with certainty as to whether Dorathi died of smothering or being a heart patient, the actual cause of death was cardiac arrest. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accused person.

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The learned counsel for the appellant has also relied on the judgment in Rupinder Singh Sandhu vs. State of Punjab and others,

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(2018) 16 SCC 475 . In that case also the Apex Court found on the facts that medical evidence was absolutely uncertain in recording cause of death of the deceased and therefore extended the benefit of doubt to the accused.

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Per contra, learned Addl. SPP has relied on the judgment in Trimukh Morati Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 . In paragraph Nos.14 and 15, the Apex Court has observed as follows:

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14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC

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– quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

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“(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”

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15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of

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the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

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Therefore where the offence like murder

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is committed inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. It is also further held that in view of section 106 of the Evidence Act, there will be a corresponding burden

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on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation

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on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation.

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In the present case, the prosecution has proved that the death of the deceased occurred in the house of the accused and the accused was all along present in the house. However he has failed to explain as to how the unnatural death of the deceased occurred in the house. Therefore the accused has failed to discharge his burden under section 106 of the Indian Evidence Act.

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The arguments advanced by the learned counsel for the appellant that there is no definite cause of death and therefore the benefit of doubt arises cannot be accepted. PW.6 Dr.Chandragandhibai, who conducted the

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postmortem on the body of the deceased has given final opinion as to the cause of death stating that

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“case of death is due to asphyxia as a result of hanging or strangulation”.

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In the present case, the extra judicial confession made by the accused in the presence of PW.8 Mustafa and also the evidence of PW.5 Manjunath, further the recovery of M.O.1 at the instance of the accused and the evidence of PW.6 Dr.Chandragandhibai together are sufficient to prove that death of the deceased is a homicidal death and the accused failed to discharge his burden under section 106 of the Indian Evidence Act.

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Under these circumstances, we hold that the trial Court after appreciating the entire evidence on record has come to the conclusion that the prosecution has proved the offence alleged against the accused beyond all reasonable doubt and therefore we hold that there are no grounds to interfere with the impugned judgment.

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Point for consideration is answered accordingly in the affirmative. Therefore the appeal being devoid of merit, the same is dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Mrk/-

Mahaboobsab S/O Sannaharjarathsab Makandar, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mahaboobsab S/O Sannaharjarathsab Makandar, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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