Ruhid Jamal vs State of Karnataka

Mohan M. Shantana Goudar, J.—Criminal Appeal No. 38/2011 is filed by accused No. 2 wherein Criminal Appeal No. 46/2012 is filed by accused No. 1.

The judgment and order of conviction passed by the Fast Track Court-II, Mysore in S.C. No. 235/2008 dated 7th December 2010 is called in question in these appeals by the convicted accused.

Both the accused were tried and convicted for the offence punishable under Section 302 read with Section 34 of IPC.

The case of the prosecution in brief is that accused No. 2 - Smt. Ruhid Jamal is the wife of deceased Mohamed Suhebulla (hereinafter called as deceased No. 1); she is also the daughter-in-law of another deceased namely Smt. Pyarejan (hereinafter called as deceased No. 2). Both the deceased are son and mother of accused No. 2 respectively. Out of the wedlock between accused No. 2 and deceased No. 1, two sons have born viz., one Shahanulla, aged about 13-14 years and another Zeeyaulla, aged about 11-12 years during the relevant point of time. Deceased No. 1 was working in a mutton shop. It appears, he was also in the business of real estate to a smaller extent. Accused No. 1 viz., Syed Asif is the sister''s son of deceased No. 1. It is the further case of the prosecution that accused No. 1 had got illicit relationship with accused No. 2 and panchayats were held prior to the incident on number of occasions. Despite the same, both the accused did not mend their conduct. The first son of accused No. 2 and deceased No. 1 viz., Shahanulla was studying in Mandya in his grand parents'' house. However, the second son of the couple was living with the deceased No. 1 and accused No. 2 in the same house.

On the date of the incident i.e., during the night intervening between 14th and 15th of June, 2008, the deceased No. 1, deceased No. 2, accused No. 2 and the son Zeeyaulla (CW-25) slept in the house; in the early hours of 15.06.2008, two dead bodies of both the deceased were found in the open space of the house of the deceased; the first information came to be lodged by accused No. 2 as per Ex. P. 21 at 11.00 a.m. on 15.06.2008 before the PSI of Mandi Police Station (PW-20) which came to be registered in Crime No. 154/2008. The spot panchanama as well as inquest panchanama was held. After investigation of the crime to certain extent, PW-20 gave a report to JMFC as per Ex. P23 intimating therein he is suspecting both the accused and therefore, investigation would be proceeded against them. After completion of investigation, PW-21 laid the charge sheet.

In order to prove its case, prosecution in all examined 21 witnesses and got marked 36 exhibits and 9 material objects. On behalf of defence, one witness was examined as DW-1 and 4 documents were marked. The trial Court as aforementioned convicted the accused for the offence punishable under Section 302 read with Section 34 of IPC and sentenced them to undergo rigorous imprisonment for life.

Learned Advocate appearing on behalf of the appellants have taken us through the entire judgment and order of conviction. He submitted that the prosecution has not proved its case beyond reasonable doubts. The circumstances relating to extra judicial confession allegedly made by the accused; the accused and the deceased were last seen together prior to the incident; the recovery of M.Os. 1 and 2 allegedly used for commission of offence; the opinion of finger print expert, etc., are not proved by the prosecution in as much as either prosecution witnesses have turned hostile or the evidence let in by the prosecution is unbelievable. He further submits that the motive as put forth by the prosecution is also not proved beyond reasonable doubt. According to the defence, both the accused are falsely implicated in the crime in collusion with the PWs. 2 and 14 who want to knock of all the property left behind by the deceased.

Sri. Venkatesh, learned Additional SPP per contra argued in support of the judgment of the trial Court.

In the matter on hand, the time of incident and the place of incident are not in dispute. It is also not in dispute that both the deceased, accused No. 2 and CW-25 only were in the house during the night intervening between 14th and 15th of June 2008. Out of four inmates of the house, two are murdered. It is also relevant to note that both the deceased met with homicidal death. As aforementioned out of the 4 inmates of the house, two has suffered homicidal death. Out of the two, remaining one is accused No. 2 and another one is CW-25 viz., Zeeyaulla, aged about 11-12 years during the relevant point of time. The best possible evidence in the matter would have been of CW-25 - Zeeyaulla, who is the son of deceased No. 1 and accused No. 2 (grand son of deceased No. 2). Unfortunately, the prosecution has failed to examine him for the best reasons known to them. The prosecution ought to have been fair enough to examine him for assisting the Court to arrive at just conclusion. Absolutely no reasons are assigned as to why CW-25 was given up from being examined before the Court.

In the absence of eye witness version, the prosecution has proceeded to rely upon five circumstances; viz.,

(a) motive;

(b) the accused and the deceased last seen together prior to the incident;

(c) extra judicial confession allegedly made by accused No. 1 in front of PW-5

(d) finger print expert opinion to the effect that the chance finger prints lifted from the tiles of the house tally with the admitted finger prints of accused No. 1.

(e) recovery of wire and vale (M.Os. 1 and 2 respectively) under panchanama Ex. P2 based on the voluntary statement of accused No. 1 (Ex. P22).

The prosecution has led the evidence in support of the said circumstances. Out of them, PW-6 is examined to depose about last seen circumstance whereas PW-5 is examined to depose regarding extra judicial confession allegedly made by accused. Both of them have turned hostile to the case of the prosecution. Despite their cross-examination by the prosecution, nothing is elicited.

So far as finger print expert opinion is concerned, PW-11 is examined. He has given a report as per Exs. P12-P16 which clarify that the chance finger print found on the tiles of the house wherein the incident has taken place tally with the finger prints of accused No. 1. However, in the cross-examination, he has admitted that while lifting the chance prints, no panchanama was made and he did not ask any person who was present at the scene to act as panchas for certifying the lifting of chance prints. He has further admitted that number of persons were present outside the house; however, only few persons were present inside the house. He did not ask any one of them to verify as to whether they have touched the tiles or not. He further admits that the police ought to have safeguarded the place before they took the finger print expert for lifting the chance prints. He further admits that in his report he has not stated that the police did follow the procedure of safeguarding the place, more particularly, while lifting the chance prints of tiles of the place of incident in question.

The Investigating Officer - PW-21 in his cross-examination has admitted that he has taken the finger print of accused No. 1 after 16.6.2008. PW-21 has further admitted that the finger print of accused No. 1 was sent to him by investigating officer on 22.8.2008 (with the delay of two months) though the accused was arrested on 16.6.2008.

In this regard, it is important to note the evidence of PW-21 - Investigating Officer. He has admitted in Para 29 of his evidence that he did not take the admitted finger prints in the presence of panchas and that he has not sent the finger prints of accused No. 1, so taken, to the Court. These admissions of PW-21 make it amply clear that panchanama was neither drawn at the time of lifting the chance prints nor at the time of taking admitted finger prints of accused No. 1; the finger prints so taken either by the expert or by the investigating officer were not sent to Court at all. In this view of the matter, the defence is justified in submitting that the prosecution has not proved its case beyond reasonable doubt in respect of lifting finger prints from the spot in question as well as from taking the admitted finger prints of accused No. 1.

In so far as circumstance relating to recovery of wire and vale is concerned (M.Os. 1 & 2 respectively), the prosecution has relied upon the evidence of PW-1 and recovery panchanama Ex. P2. Such recoveries are based on the voluntary statement of accused No. 1 as per Ex. P22. The evidence of PW-1 fully supports the case of the prosecution as found in Ex. P2 - recovery panchanama. His evidence coupled with the recovery panchanama would clearly reveal that the wire and the vale were tied in a bag and such bag was hidden in a dust bin situated outside the house of the deceased. It is the case of the prosecution that the accused have used the wire and vale for strangulating deceased No. 1 and for pushing the head of deceased No. 2 but the evidence of PW-21 needs to be tested along with other evidence on record.

PW-2 who has fully supported the case of the prosecution with regard to aspect of motive has admitted in paragraph 7 of her cross-examination that the police came to the house wherein the incident has taken place at 11.00 a.m. with the dog squad. A police dog went to the terrace of the house wherein it found the vale M.O. 2. This portion of evidence of PW-2 has remained uncontroverted. She is not treated hostile. The prosecution so far as this portion of evidence is concerned, the prosecution has accepted the same. Thus, it is clear that M.O. 2 was found on the terrace of the house wherein the incident has taken place.

Per contra, it is the evidence of PW-1 and the panchanama Ex. P2 that the vale was found in a dust bin situated outside the house. Evidence of both these witnesses run contrary to each other and they are mutually destructive. One version cannot be preferred to that of other. Even otherwise, the defence has got right to take advantage of one of such contrary versions of the prosecution witnesses, which is favorable to it.

Since the wire and the vale [M.Os. 1 and 2 respectively] were found together tied in a bag, it is not open for the prosecution now to contend before the Court that wire only was found in the dust bin.

Be that as it may. Since the evidence of PW-1 mahazar witness of recovery panchanama runs contrary to the evidence of PW-2, the aspect of recovery of wire and vale becomes doubtful.

What remains is circumstance relating to motive.

The said circumstance is supported by the evidence of PWs. 2 and 14 who are the aunts of accused No. 1. Both these witnesses have deposed that there was illicit relationship between both the accused; though accused No. 1 was younger in age than accused No. 2, they continued illicit relationship despite number of warnings by the elders in the family. Repeated panchayats were held. Despite the same, their conduct did not change. We find that the evidence of PWs. 2 and 14 is consistent, cogent and reliable. However, suggestions are made by the defence that PWs. 2 and 14 want to knock of all the property left behind the deceased. Such defence cannot be accepted having regard to the facts and circumstances of the case. The deceased No. 1 was only a worker in a mutton stall and he was in the real estate business to a smaller extent. No reliable material is found to show that of the deceased had left behind any of the movable or immovable properties. DW-1 has deposed that all the left over properties of deceased are handed over to the parents of the accused No. 2 and not to PWs. 2 or 14. In this view of the matter, we are of the opinion that the prosecution is able to prove the circumstance relating to motive in as much as the material on record amply reveals that the accused had illicit relationship between themselves.

However, on going through the entire material, we find that the prosecution is not justified in not examining the very vital and important witness that too an eye witness in the matter. CW-25 is none other than the son of deceased No. 1 and accused No. 2. Admittedly, he was present in the house. He was aged about 11-12 years at the time of the incident. He may be able to throw light on the case of the prosecution. No justification is found on the part of the prosecution to omit his examination before the Court.

We have perused the order sheet maintained by the trial Court. Though it is found from the order sheet that notices were issued to CW-25 at an earlier point of time, the police were unable to secure his presence for examination before the Court. However on 24.4.2010, CW-25 is given up. Absolutely no reasons are assigned to give up CW-25 who is the vital witness in the matter on hand. Therefore, in our considered opinion, interest of justice will be met if CW-25 is examined before the Court.

At this stage, Sri. Venkatesh, learned Additional SPP submits that if the matter is remitted to the trial Court, the prosecution will examine CW-25.

Since we find that the evidence of CW-25 would be necessary for coming to a correct conclusion, we deem it proper to remit the matter to the trial Court with a direction to the trial Court to examine CW-25 before the Court. It is needless to observe that the prosecution will tender the evidence of CW-25 before the Court. Accordingly, we pass the following:

The appeal is allowed. The judgment and order of conviction passed by the Fast Track Court-II, Mysore in S.C. No. 235/2008 dated 7th December 2010 stands set aside. The matter is remitted to the trial Court. S.C. No. 235/2008 is restored to its file of the trial Court. Evidence of CW-25 shall be recorded before the trial Court and thereafter, decision may be taken keeping in mind the observations made supra. Entire exercise shall be completed by the trial Court by the end of July, 2015. If not, it is open for the appellants to file an application for bail which shall be decided on merits.

Having regard to the assistance rendered by Sri. Mohan Kumar, learned advocate appearing for the appellants, he would be paid Rs. 8,000/- treating him as amicus curiae for assisting the Court.