Dismissed

Jafar Sharief @ Abbu v. the State

Karnataka HC5 Dec 2022CRL.A/1866/2016

Case brief

AI extract

What is this about?

Appeal by a husband convicted under Section 302 IPC for killing his wife with a sickle on a public road, motivated by suspicion of her fidelity and their childlessness. The court reappreciated the evidence, found the prosecution case proved, drew an adverse inference from the accused's unexplained silence and failed plea of alibi, and confirmed the conviction and life sentence.

What the court decided

AI extract

Jafar Sharief @ Abbu Vs the State — Murder and Culpable Homicide | Karnataka HC (2022)

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1 - CRL.A No. 1866 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B.VEERAPPA

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AND

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THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA

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CRIMINAL APPEAL NO.1866 OF 2016

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BETWEEN:

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JAFAR SHARIEF @ ABBU, S/O DASTAGIR SAB, AGED ABOUT 27 YEARS, R/O MAVINAHALLA, ARSHINAGUPPE, MALLENAHALLI POST, CHIKKAMAGALURU TALUK - 577139.

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…APPELLANT

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(BY SRI N.R. KRISHNAPPA, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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THE STATE, REPRESENTED BY CHIKKAMAGALURU RURAL POLICE, THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560001.

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…RESPONDENT

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(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE

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DATED 5.10.2016/6.10.2016 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN S.C.NO.81/2015, CONVICTING AND SENTENCING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present criminal appeal is filed by the accused against the impugned judgment of conviction and order of sentence dated 5/6th October 2016 made in S.C. NO.81/2015 on the file of the Prl. District & Sessions Judge, Chikkamagaluru convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life with fine and default clause.

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It is the case of the prosecution that the complaint was lodged by PW.1/brother of the deceased that about eight years prior to the incident, the marriage between his sister - deceased Asma @ Zareena and the accused was solemnized and they lead happy married life for only some time. Thereafter, the accused started to ill-treat the deceased on the pretext that she did not give birth to a

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child and her behaviour was not proper. The accused also addicted to the alcohol and under the influence of alcohol, he used to abuse and assault the deceased. On 28.4.2015, at about 10.00 a.m. in the morning, under the influence of alcohol, the accused picked up quarrel with the deceased and abused her stating that he wants to marry another girl as she did not give birth to child and threatened to kill her. On the same day, at about 7.00 p.m., complainant received call from one Mr. Rihan of Mavinahalla informing that the accused has killed the deceased Asma on the road, in front of the house of Tailor Vijay by assaulting with sickle. After receipt of the information, complainant along with his relatives, had been to Mavinahalla village and found the body of the deceased in the pond with blood.

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Accordingly, a complaint came to be lodged before the jurisdictional police on 29.04.2015 and the same was registered in Crime No.155/2015 under the provisions of Section 302 of IPC. After investigation, P.W.13/Circle

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Inspector of Police after following due procedure has filed charge-sheet against the accused.

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The jurisdictional Court after taking cognizance of the offence committed the case to the Sessions Court, Chikkamagaluru. The learned Sessions Judge secured the presence of the accused and framed charges on 09.06.2016 for the offence punishable under Section 302 of IPC and the charges were read over and explained to the accused in the language known to him, who pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution examined thirteen witnesses as P.W.1 to P.W.13, got marked twenty-two documents as Ex.P.1 to Ex.P.22 and marked twelve material objects as M.O.1 to M.O.12. After conclusion of the prosecution evidence, the statement of accused as contemplated under Section 313 of the Code of Criminal Procedure, 1973, has been recorded. The accused denied all the incriminating evidence adduced against him and answered question No.44 that two days prior to the

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incident, he went to Shivamogga and thereafter, next day when he came to the vilage, police have arrested. To substantiate the same, the accused examined One Armugam as D.W.1 under whom the accused was working as cook.

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Based on the aforesaid pleadings, the learned

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Sessions Judge framed the following:

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“(1) Whether prosecution proves beyond all reasonable doubt that accused being the husband of victim Asma @ Zareena, on 29.4.2015 at about 7.00 p.m., picked up quarrel with his wife in their house situated at Arishinaguppe Village by suspecting her fidelity and she did not give birth to child and I committed her murder on the road in front of the house of Tailor Vijay ?”

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Considering the oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that accused being husband of the deceased Asma @ Zareena on 28.04.2015 at 10.00 a.m., under the influence of alcohol, accused picked up quarrel with the deceased in the house

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situated at Arshinaguppe, Mavinahalli by futility she did not give birth to child and murdered in the road, i.e., in front of the house of Tailor Vijay, by assaulting with a sickle. Accordingly, the learned Sessions Judge convicted the accused by impugned judgment of conviction convicting the accused to undergo imprisonment for life with fine of Rs.5,000/- for the offence punishable under Section 302 of the IPC. Hence, the present appeal.

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We have heard Sri. N.R. Krishnappa, learned counsel appearing for the accused and Sri. Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent-State.

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Sri. N.R. Krishnappa, learned counsel appearing

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for the accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the Sessions Court convicting the accused for the offence punishable under Section 302 of the IPC is erroneous and contrary to the material on record and same cannot be sustained. He further contended that P.W.16, who is brother

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of the deceased, lodged a complaint after due deliberations and manipulations from the time of incident and the delay is not properly explained by the prosecution. Uncorroborated testimony of the prosecution witnesses is unworthy of acceptance in view of the intrinsic improbabilities and inconsistence and same is not at all acceptable that the appellant has committed the offence. He further contended that the evidence of the prosecution witnesses bristles with infirmities, contradictions and improvements and the entire case of the prosecution is based on the assumptions and presumptions and there are no eye witnesses, thereby the very conviction by the learned Sessions Judge cannot be sustained. He further contended that the learned Sessions Judge proceeded to convict the accused mainly on the basis of the alleged eye witnesses P.W.7, 8, 9 and 10, who have not supported the case of the prosecution.

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He further contended that P.W.1-the complainant is a hear say witness and admittedly, informer Rihana, who informed about the incident to P.W.1, has not been

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examined nor examined the owner of the Vijay Tailor Shop. Thereby, the prosecution has not proved the case beyond all reasonable doubt and alternatively, submits that on the day of the incident, there was a quarrel between the accused and the deceased. Thereby, it was in a fit of rage that he assaulted with M.O.7 as could be seen from the voluntary statement of the accused at Ex.P.20. Thereby, it is not a case to punish the accused under Section 302 of IPC and falls under Section 304 Part –II of IPC. Therefore, sought to allow the appeal.

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Per contra , Sri Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the judgment of conviction and order of sentence passed by the learned Sessions Judge would contend that the marriage between the accused and the deceased is not in dispute and it is also not in dispute that they have no issues. The accused used to suspect his wife whenever he went to work even though the accused's father, mother and wife were residing together. Thereby, on suspicion, on the unfortunate

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day, the accused picked up a quarrel with his wife, assaulted her inside the house on 28.04.2015 at 10.00 a.m. and when she went away outside, he chased her and killed her in the public road in front of the house of Tailor Vijay. He further contended the presence of the accused on day of the incident was spoken to by P.W.8, who is none other than the mother of the accused and assault by the accused with M.O.7 on the deceased. Nothing has been elicited in the crossexamination to disprove the case of prosecution. He further contended that though the presence of the accused was proved by the prosecution witnesses, the accused has taken the plea of alibi in the statement recorded under Section 313 of the Cr.P.C. and got examined one witness as D.W.1, under whom the accused was working as a cook, who stated that the accused came to work at Shivamogga on 28.04.2015 at about 3.00 p.m. and the incident took place at 10.00 a.m. on the public road. Thereby, the prosecution proved beyond all reasonable doubt that the homicidal death of the deceased and involvement of the accused.

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He further contended that Doctor-P.W.11, who

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stated about the death of the deceased and death caused due to injuries sustained with M.O.7. Ex.P.15-Postmortem report and Ex.P.17-FSL report and opined that Item Nos.3 to 9 are stained with blood and Ex.P.18-Serology report is marked by consent, which depicts that item Nos.1, 3, 5, 6, 7, 8, 9a, 9b, 9c, 9d and 9e are stained with ‘B’ blood group. He further contended that P.W.13–Investigating Officer, who recorded voluntary statement of the accused and other statement of the prosecution witnesses, recovered blood stained clothes of the accused. He apprehended the accused and seized M.O.7, Ex.P.7-cloth seizure mahazar, Ex.P.8-kathi seizure mahazar. Thereby, the prosecution has proved beyond all reasonable doubt about the involvement of the accused in the homicidal death of the deceased. Therefore, he prays to dismiss the appeal.

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In view of the aforesaid rival contentions urged by the learned counsel for the appellant and the learned

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Additional State Public Prosecutor, the only point that arises for our consideration is:

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“Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge sentencing him to undergo imprisonment for life with fine of Rs.5,000/- for the offence punishable under Section 302 of the IPC?”

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We have given our anxious consideration to the arguments advanced by the learned counsel for the appellant as well the learned Additional State Public Prosecutor and perused the entire material including the original record carefully.

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In order to re-appreciate the evidence of the prosecution witnesses, it is relevant to consider the evidence of the prosecution witnesses and the materials on record relied upon:

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(a) P.W.1-Raheem, who is none other than the brother of the deceased, deposed that marriage of his elder

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sister and the accused was solemnized about eight years back and the deceased was residing along with the accused, and her in laws. The deceased has no issues and the accused used to take alcohol and quarrel with his sister. On the date of the lodging the complaint, he came to know from Rihana that the accused assaulted the deceased on the public road with M.O.7 near the house of Tailor Vijay shop. Thereafter, he came to the village of the accused and the deceased and found the body of his sister in the pond of blood. Thereafter, he lodged a complaint as Ex.P.1 and witness to Ex.P.2-Spot Mahazar and supported the case of the prosecution.

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(b) P.W.2-Jiauddin, auto driver deposed that he know P.W.1, C.W.2 and C.W.7 and deceased Zareena and the accused. He is a witness to Ex.P.2-Spot Mahazar. He deposed that P.W.1 shown the place of dead body of Zareena, who was lying in a pool of blood. He identified M.O.1 to M.O.3-Thali, Bangle and blood stained cotton respectively and further deposed that there was a injuries on

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the head, neck and the fingers of the deceased was cut. In the cross-examination, he deposed that when he went to the spot, there were villagers and denied that he has not signed Ex.P.2-Spot Mahazar and supported the case of the prosecution.

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(c) P.W.3-Khatheeja of Kalludoddi Village deposed that she was doing coolie. She knows the deceased, P.W.1 and C.W.7. She deposed that about two years back, the deceased died. After she came to know the information, she went to the Government Hospital and where inquest mahazar was conducted as per Ex.P.4 and she is a witness to Ex.P.4-Inquest Mahazar. She deposed in the crossexamination that she has not seen personally the accused killing the deceased. She came to know from one Ghouse, who telephoned him and accused accepted the involvement in the murder of his wife in TV-9 and she denied in the crossexamination that the accused has not given statement and nothing has been elicited to disprove the evidence and supported the case of the prosecution.

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(d) P.W.4-Khamrun, mother of the deceased, deposed that the accused is her son-in-law. P.W.1 and C.W.8 are sons and the deceased her daughter. Prior to the incident, the accused killed his daughter. She further deposed that about eight years back, the marriage of the deceased and accused was performed and both were residing together along with his parents at Mavinahalli. The deceased and the accused were happy at the beginning. Deceased has no issues and one year prior to the incident, the accused wanted to marry some one else, he used to suspect the deceased that she had illicit relationship with others and the same was informed by the deceased to her mother. After she came to know about the incident, she went along with relatives in a auto to the spot, at that time, P.W.9 was on the spot and as soon as she saw the dead body of her daughter she fell unconscious and thereafter, she went to Government Hospital, Chickmagalur and she is a witness to Ex.P.4-Inquest Mahazar. She admitted in the crossexamination that accused was a cook by profession and used

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to go to work in different villages. She further stated that the accused, parents of the accused were residing together and her daughter had no illicit relationship with anybody but the accused used to suspect her fidelity. She denied in the cross-examination that when the deceased died on 28.04.2015, the accused was not in the village and she denied that the accused has no role in the homicidal death of the deceased. Nothing has been elicited in the crossexamination to disprove the evidence of the witness and supported the case of the prosecution.

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(e) P.W.5-Rahesh, Police Inspector, who registered a case on 29.04.2015 at about 11.00 a.m. on the basis of the complaint lodged by P.W.1 as per complaint at Ex.P.1 in Crime No.155/2015 and accordingly entrusted the matter to P.W.13. He denied that P.W.1 not at all lodged a complaint as per Ex.P.1 and supported the case of the prosecution.

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(f) P.W.6-Ghouse Mohiddin, who was doing coolie residing at Lingadahalli deposed that he know C.W.11 and C.W.12 and the accused, who is brother of his wife. C.W.19

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is mother-in-law and the accused wife name is Zareena @ Asma. He deposed that about one year back, accused killed Zareena. Accordingly, the Urban Police called him to the police station along with C.W.11. He is a witness to Ex.P.7Cloth Seizure Mahazar and Ex.P.8-Khathi Seizure Mahazar and identified M.O.4 to M.O.6. He denied in the crossexamination that he was not witness to Exs.P.7 and P.8. He further denied that M.O.7-sickle was not used by the accused to kill the deceased and stated that M.O.7 was in the kitchen of the accused. Thereby, supported the case of the prosecution.

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(g) P.W.7-Yesu, Timber, resident of Mavinhalli, Arasinaguppe deposed that he knows accused, deceased, C.W.14. He was residing in the line of C.W.14, C.W.16, C.W.17 and accused house. About four to five years back, the accused and the deceased marriage might have solemnized and about one year back, the accused has killed the deceased and he does not know P.W.1. About one year back when he came back from the city at about 7.00 to 7.30

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p.m., the dead body of the deceased was lying in the cement road with blood stains. When he enquired the villagers, he came to know about the quarrel between the accused and the deceased. He stated that deceased and accused were very cordial when she was alive and he has not seen the accused assaulting the deceased with M.O.7. He further stated that he has not seen the incident. He came to know from the villagers and he has not seen M.O.7 used by the accused to assault the deceased. Thereby, the witness turned partly hostile.

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(h) P.W.8-Jarina, who is mother of the accused deposed that deceased is her daughter-in-law. About eight years back, the marriage of the accused and the deceased was solemnized and both were residing along with her. About one and half years, her daughter-in-law was killed and prior to the incident. On the date of the incident, her husband, accused and deceased were in the house and the deceased has no issues(children). About 5.30 to 6.00 p.m. when she came back from the coolie work, the deceased was

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killed and she saw her son boarding the bus along with sickle. As soon as she entered, the boys informed that the accused has killed the deceased and when she went to see near the tank the dead body of her daughter-in-law was found and at that time, the accused was boarding the bus. She stated in the cross-examination that the accused was in the house, he used to take alcohol and he used to quarrel with the deceased on the ground that she has no children. The accused used to suspect the fidelity of her daughter-inlaw and she used to advice him not to quarrel with the deceased. She denied that the accused started quarrel with the deceased. When he started to assault the deceased, deceased went outside and accused along with the sickle chased her and she further stated that C.W.16, C.W.17 and P.W.7 came to the spot. When she went near Vijaya Tailor Shop, by that time, the accused assaulted to the hand, neck and head of the deceased and cut the fingers of the deceased and after killing the deceased, the accused went along with sickle. In the cross-examination, she denied that she has not seen the accused when he was running away

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from the spot, assaulted the deceased and boarded the bus. She further deposed in the cross-examination that the accused holding M.O.7-Kathi and boarded the bus and suggestion that she has not seen is denied and she has seen from ten feet when the accused boarded the bus and further deposed that the accused was wearing red color night pant, nashe color T-shirt and one jerkin and denied that the accused was in Shivamogga on the date of the incident. She denied that she made a false statement that the accused boarded the bus with M.O.7 and thereby supported the case of the prosecution.

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(i) P.W.9-Sharavana, who is a hearsay witness deposed about the presence of P.W.8-mother of the accused on the date of the incident and further deposed in the crossexamination that the accused, mother and father of the accused and deceased were residing in the house as on the date of the incident and turned hostile

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(j) P.W.10-Devraja, who is a hear say witness came

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to know from the villager about the incident. He deposed

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that he has not seen the accused on the date of the incident and turned hostile.

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(k) P.W.11-Dr. Nagaraj, Senior Specialist, M.G. Hospital, Chikmagalur deposed that he was working since last three years in M.G. Hospital, Chikmagalur. He deposed that on 30.04.2015 in between 10.55 a.m. and 12.05 p.m. On requisition of Rural Police Station, Chikkamagalur, he conducted post mortem of Asma @ Jairna, 25 years old female dead body. On the clinical examination, he found the following injuries:

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“1. Chopped wound in left side of the neck measuring 7x3x3 cms, major blood vessels are cut.

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Chopped wound in right parietal region of scalp measuring 9x1.5x1 cms.

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Chopped wounds in back of the neck a) 5x2x2 cms, b) 7x3x3 cms, c) 6x2x2 cms

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Chopped wound in left scapular region measuring 4x105x1 cms.

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Chopped wounds in right suprascapular region measuring a) 5x2x1.5 cms, b) 6x0.5x0.5 cms.

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Chopped wounds in left dorsum of hand measuring 4x1x1 cms, in left palm 3x3x3 cms, left little finger is cut.

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Chopped right thumb measuring 6x2 cms.

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Chopped wound in left battock measuring 5x1x1 cms.

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Abrasion in left knee measuring 3x3 cms.

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All the above said injuries are antimortem in nature.”

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Accordingly, he has issued Postmortem report as per Ex.P.15 and opined that death was due to shock and hemorrhage as a result of injury to major blood vessels of the neck, spinal cord injury and head injury and the time since death 16 to 20 hours from the examination. He opined that as per Ex.P.16, there is possibility of death from the injuries sustained with M.O.7. Thereby, supported the case of the prosecution.

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(l) P.W.12-Vinod Bhatt, Investigating Officer,

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deposed that he took the charge of investigation on 11.05.2015 from C.W.25. On 25.06.2015 he sent seized items for examination through C.W.21 and as per Ex.P.17FSL report and Ex.P.18-Serology report were sent to the Court on 04.09.2015. In the cross-examination, he deposed that at the time of enquiry, M.O.7 was not cleaned and supported the case of the prosecution.

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(m) P.W.13-G. Krishna Raju, CPI deposed that on 29.04.2015 he took charge of further investigation from P.W.5 and inspected the spot along with P.W.2 and drawn mahazar as per Ex.P.2 on the basis of the complaint at Ex.P.1. He recovered M.O.7-sickle, M.O.2-bangle piece and took photographs as per Ex.P.3. Accordingly, Ex.P.19-rough sketch was prepared and recorded the voluntary statement of the accused as per Ex.P.20 and drawn Ex.P.4-inquest mahazar in the presence of P.W.3, C.W.5 and C.W.6 and after investigation, filed charge-sheet against the accused and supported the case of the prosecution.

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(n) DW.1-Armugam, deposed that he was doing cooking work and he knows the accused from 5 to 6 years and the accused used to go with him for cooking work. He was given job work in the house of Babajan and he accepted and he took two cooks for his assistance. Accused came before one day on 28.04.2015 at 3.30 p.m. to Shivamogga and he admitted in the cross-examination that he has not maintain any record to show that when and where they went to work and not aware the case registered against the accused. When the accused requested to give evidence, he came to the Court.

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Based on the aforesaid material documents, the learned Sessions Judge convicted the accused for the offence punishable under the provisions of Section 302 of the IPC.

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A careful reading of Ex.P.1-Complaint lodged by P.W.1, it is not in dispute that the marriage between the accused and the deceased was performed and they have no children. At the beginning, they were very cordial, thereafter,

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the accused was suspecting his wife. On 28.04.2015 at about 10.00 a.m., he came to know from Rihan that the accused assaulted the deceased with M.O.7, she went outside of the house and on the road, the accused holding sickle in his hand, assaulted the deceased in front of the house of Tailor Vijay and one Yesu and others, who were eye witnesses to the incident was informed the same. Accordingly, the jurisdictional police registered the case on 29.04.2015 at about 6.30 p.m. in Crime No.155/2015 for the offence punishable under Section 302 of the IPC.

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The fact remains that the marriage between the accused and the deceased is not in dispute and after the marriage, the accused, father and mother of the accused and deceased were residing together at Arshinaguppe, Mavinahalli. It is the specific case of the prosecution witnesses that the accused used to suspect the deceased whenever he went outside for his work. P.W.7 though is eye a witness, has not supported the case of the prosecution.

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P.Ws.1, 2, 3, 4, 5 and 6 have supported the case

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of the prosecution and the involvement of the accused in the homicidal death of the deceased. Nothing has been elicited to disbelieve the case of the prosecution.

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P.W.8 who is none other than the mother of the accused and mother-in-law of the deceased, who stated in the cross-examination that after the incident she saw the accused boarded the bus along with the sickle from ten feet. She further stated in the cross-examination that the accused used to suspect her daughter-in-law and on the assault by the accused, the deceased had sustained injuries on hand, head and neck and fingers were cut. She denied in the crossexamination that she has not seen the accused holding sickle and boarding the bus.

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The presence of the accused on the date of the incident is proved by the evidence of P.W.8, who is none other than the mother of the accused. None of the prosecution witnesses including D.W.1, who want to support the accused did not whisper any word about the character of

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the deceased. Moreover, P.W.8-mother of the accused and mother-in-law of the deceased, supported the case of the prosecution and her son used to suspect the deceased.

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P.W.11, doctor who conducted postmortem of the deceased Zareena issued postmortem report as per Ex.P.15 stating that the deceased sustained eight chopped injuries and abrasion in left knee and all the injuries are antimortem in nature. The opinion of the doctor, the cause of death is shock and haemmorrhage as a result of injury to major blood vessels of the neck, spinal cord injury and head injury. Doctor opined in Ex.P.16 that by using of M.O.7 there is possibility of injuries mentioned in the post mortem report and also possibility of death. Thereby, the prosecution has proved the homicidal death of the deceased and the involvement of the accused.

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It is also not in dispute that P.W.13, Circle Inspector of Police and Investigating Officer recorded the voluntary statement of the accused as per Ex.P.20. The accused admitted in the voluntary statement that he

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assaulted his wife with M.O.7. Though based on the voluntary statement, accused cannot be convicted, the said voluntary statement is corroborated with the evidence of the prosecution witnesses, in particular, the evidence of P.W.8mother of the accused, which clearly depicts the involvement of the accused in the homicidal death of the accused.

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P.W.13-Investigating Officer recovered the blood stained clothes worn by the accused at the time of apprehension as per Ex.P.7 and recovered M.O.7-sickle from the house of the accused.

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Though FSL Officer was not examined, Ex.P.17FSL report was marked by consent. Out of item Nos.1 to 9e, except item No.2, all items were stained with blood.

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Ex.P.18-Serology report, which was marked by consent depicts that item Nos.1, 3, 4, 5, 6, 7, 8, 9a, 9b, 9c, 9d, and 9e were stained with ‘B’ group of human blood.

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25. The presence of the accused was proved by the

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prosecution witnesses including P.W.8-mother of the accused as the accused, deceased, father and mother of the accused were residing together at Mavinahalli village. The same is supported by the other prosecution witnesses. Once the presence of the accused is proved i.e., initial burden is proved by the prosecution, accused has to explain how his wife died when he was in the house. Very strangely, while recording the statement under Section 313 of Cr.P.C, he has denied all the questions put forth by the prosecution and accused has taken plea of alibi at question No.44 and stated that two days prior to the incident, he went to Shivamogga. In support of his contention, he got examined D.W.1, who deposed that the accused came to work on 28.04.2015 at 3.30 p.m. Admittedly, the incident took place on 28.04.2015 at 10.00 a.m. and after the incident, the accused boarded the bus as stated by P.W.8-mother of the accused and thereby, he might have gone to work at 3.30 p.m. i.e., after the incident. The evidence of D.W.1 did not support the case of the defence.

¶157

29 -

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CRL.A No. 1866 of 2016

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Once the presence of the accused was proved on

¶160

the date of the incident, he has to give explanation how his wife died in view of provisions of Section 106 of the Evidence Act and the accused has failed to offer any explanation. Thereby, an adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon’ble Apex Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438] wherein at paragraph No.11, it has been as under:

¶161

“11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.”

¶162

It is also relevant to state that once the accused

¶163

taken plea of alibi and examined D.W.1, the same was not proved. The Hon’ble Supreme Court in the case of State of

¶164

30 -

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CRL.A No. 1866 of 2016

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Haryana vs. Sher Singh [AIR 1981 SC 1021] at

¶167

paragraph No.4, it is held as under:

¶168

“4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

¶169

"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

¶170

28. On reconsideration of both oral and documentary

¶171

evidence, it is clear that the marriage of the deceased and the accused took place about eight years back prior to the date of the incident, the accused was suspecting the character of his wife as stated by the prosecution witnesses including P.W.8-mother of the accused. Thereby, “suspicious became a disease to the accused, which is more dangerous than cancer thereby”, the accused involved in the homicidal death of the accused assaulting the deceased and unfortunate incident took place. Thereby, he mercilessly assaulted his wife on the public road as can been seen from

¶172

31 -

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CRL.A No. 1866 of 2016

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the evidence of P.W.11 and Ex.P.15-postmortem report. Thereby, the prosecution has proved beyond all reasonable doubt the accused has involved in the homicidal death of the deceased, which attracts the provisions of Section 302 of the IPC.

¶175

For the reasons stated above, the point raised in the present appeal is answered in the Negative holding that the accused has not made out any ground to interfere with the impugned judgment of conviction, convicting the accused for the offence punishable under Section 302 of IPC convicting and sentencing him to undergo imprisonment for life with fine of Rs.5,000/- and the same is in accordance with law.

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In view of the above, we pass the following:

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ORDER

¶178

i. The appeal filed by the appellant is hereby dismissed as devoid of merits .

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ii. The impugned judgment of conviction dated 05.10.2016 and order of Sentence dated

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32 -

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CRL.A No. 1866 of 2016

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06.10.2016 made in S.C. No.81/2015 on the file

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of the Principal District and Sessions Judge, Chikkamagaluru, convicting the accused for the offence punishable under Section 302 of IPC convicting the accused and sentencing him to undergo imprisonment for life with fine of

¶184

Rs.5,000/- is hereby confirmed.

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Sd/JUDGE

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Sd/JUDGE

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Paragraph…. 1 and 2 Gss*

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3 to end MBM

Jafar Sharief @ Abbu v. the State

Case brief

What is this about?

What the court decided

Jafar Sharief @ Abbu v. the State

Case brief

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