Khan Vs. State of Karnataka  Insc 35 (20 January 2004)
Raju & S.B. Sinha S.B. Sinha, J :
appellant before us was convicted under Section 302 and Section 498-A of the
Indian Penal Code. He was sentenced to rigorous imprisonment for life for
commission of an alleged offence under Section 302 IPC as also a fine of
Rs.1,000/- and to one year's rigorous imprisonment under Section 498-A in
respect whereof a fine of Rs.500/- was also imposed upon him.
appeal preferred by the appellant herein, the High Court, however, while
maintaining the judgment of conviction passed by the learned Sessions Judge,
issued a notice upon the appellant as to why the maximum capital sentence
should not be imposed on him. Upon giving an opportunity of hearing to the
appellant, the High Court having arrived at a finding that the case is one of
the rarest of rare one, imposed death penalty upon him.
aggrieved, the appellant is in appeal before us.
deceased was the appellant's wife. They were staying at House No.41, Hall's
Road, Sagayipuram, K.G. Halli, Bangalore in a
rented house belonging to PW 3, Noor. At the time of marriage, allegedly the
deceased's parents gave gold ornaments as dowry.
accused at that time was working as a Carpenter. As he was not doing his work
properly, he being in dire financial need, started selling away the jewellery
of the deceased. The father of deceased, PW 1 gave some money to the appellant
to start his own business, which was also spent out. Allegedly, three months
prior to the incident, the deceased was kicked on her stomach when she was
pregnant as a result whereof an abortion took place whereafter her father
brought her to his own house. However, allegedly on mediation by elderly
persons including PW 5, Syed Arif, the deceased was sent back to her
the same, the deceased allegedly used to complain to her parents about
harassments meted out to her by the appellant accused persons i.e. his brother Irshad
Ahmed Khan and sister Smt. Bhalkeez Begum.
night of 14/15.4.1997 at about 1' O clock, one Belal Sheriff son of Noor (PW 3)
came to the house of Yusuf Khan (PW 1) and informed him that fire was seen in
the house of the deceased and the accused; whereupon he, his wife Smt. Asmathunnisa
(PW 6), and his son, Saleem Khan (PW 2) went there and found that neighbours
had been trying to put out the same. The door of the house was open and upon
going inside the room, they found the deceased lying dead on a cot with her
neck cut. She was also found to have been gagged with a cloth. Allegedly, an
attempt had been made to burn her body.
first information report about the commission of offence was lodged at about 2 A.M. on the same night. The accused who was absconding was
arrested on 22.4.1997 and allegedly on a statement made by him, the weapon in
question being 'chopper' (marked as MO 11), his clothing, as well as some
ornaments of the deceased pledged with pawn broker were recovered.
prosecution with a view to establish the guilt of the appellant examined 21
witnesses. The learned Sessions Judge convicted the appellant but acquitted the
other two accused. The High Court, as noticed hereinbefore, upheld the said
judgment of conviction.
Sadasiva Reddy, learned counsel appearing on behalf of the appellant, would
submit that the courts below committed a serious error in passing the impugned
judgment of conviction and sentence inasmuch as there was no eye-witness to the
occurrence and the entire case was based upon the circumstantial evidence.
regard to the fact that the accused was also not last seen with the deceased
and the recovery of the 'chopper', according to the learned counsel being
doubtful, the impugned judgment should be set aside. It was pointed out that
the report of the serologist was also not produced. As regard the order of
sentence passed by the High Court, the learned counsel would submit that this
case cannot be said to be one of the rarest of rare cases warranting death
complainant Yusuf Khan, PW 1, is the father of the deceased. He in his evidence
not only furnished the details about the manner in which the deceased had been
dealt with by the appellant prior to the occurrence. He was supported by the
death of Smt. Shamim Unnisa was homicidal in nature is admitted.
report of Dr. Nissar Ahmed (PW 12) in no unmistakable term shows that the
deceased was brutally murdered.
autopsy report was proved by the said witness which was marked as Ex.P-7. In
the said report it was stated that both the hands of the deceased had been tied
at the back; the mouth and neck were tied with the cloth; the wounds were found
on the neck of the deceased. The said wounds were said to have been caused with
a spear. The said witness examined the spear produced by the police before him
and he stated that the injury in question could be caused by a spear like that.
the evidence of PW 1, PW 2, PW 3 and PW 6, it has further been proved that an
attempt was made to destroy the evidence by putting the dead body on fire by
pouring kerosene and the same had to be put out. The appellant had been
absconding from the night of 14/15.4.1997 till 22.4.1997 and no explanation therefor
had been furnished. Immediately after his arrest, he made voluntary statement
on the basis whereof the incriminating articles including 'chopper' as also his
clothes and gold jewelleries belonging to the deceased which were marked as Mos
11, 12, and 13, were recovered.
statement before the police, the appellant disclosed that if he is taken to the
house in question, he would show the spear, the golden ornaments and blood
stained clothes. In view of the same, he was taken to the house in question
where he had been residing. The spear in question which was kept in a cardboard
box on the 'chajja' was shown to the accompanying police personnel by him
whereupon it was seized. On 23.4.1997, furthermore, the appellant took the
police to a shop belonging to Goutham Chand, a pawn broker to whom he pledged
the gold ornaments. The said gold ornaments were seized. On the same day at his
instance, the police took him to the Shop No.109, Arunachalam Road, Bharathi Nagar and on his pointing
out to the witness through Anand, the blood-stained clothes were seized.
aforementioned Goutham Chand was examined as PW 10. He categorically stated
that on 21.4.1997, the appellant pledged with him one golden finger ring and a
head ornament for Rs.1,200/-. As regard the recovery of the clothes, PW 11, Anand
in his deposition stated that he knew him and about two years prior to his
deposition, the appellant had come to his saloon for shaving whereafter he left
a cloth bag there. The aforementioned clothes were recovered by the police from
the saloon at the instance of the appellant.
courts below had also proceeded on the basis that the ill-treatment meted out
to the deceased by the appellant had not only been proved by PW 1, PW 2 and PW
6 but also PW 5 and PW 3 who were independent witnesses.
indicated hereinbefore, the fact that the deceased and the appellant were
living together in a tenanted premises belonging to PW 3 is not in dispute.
further been brought on records that the said rented premises were also taken
by PW 1 for his daughter on a monthly rent of Rs.500/- wherefor he had paid a
sum of Rs.8,000/- as advance.
systematic manner in which the deceased was subjected to ill-treatment and
torture as also assault when she was pregnant resulting in her abortion proves
motive on the part of the appellant to cause murder of the deceased. Thus, the
weapon of attack being 'chopper' as also clothes and jewelleries were recovered
on the statement made by the accused.
the learned Sessions Judge, several photographs marked as Ex.P-12 to P-14 were
produced. The prosecution examined PW-20, David, who had taken the said
photographs and on perusal thereof, the learned Sessions Judge opined :
the photographs of the deceased are seen it becomes clear that a heinous act
has taken place. It appears in the photos also the mouth and the neck of the
deceased are tied.
stains and burnt and scattered clothes are also found clearly in the
photograph." There cannot be any doubt whatsoever that with a view to
satisfactorily prove the commission of a crime on the basis of circumstantial
evidence, the prosecution must satisfy :
circumstances from which an inference of guilt is to be drawn must be cogently
and firmly established;
circumstances should have a tendency to unerringly point to the guilt towards
the accused; and
circumstances taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probabilities the crime is
committed by the accused and none else. One of the factors which had been taken
into consideration by both the courts below is that the appellant was
absconding since the date of incident and he had to be arrested.
not in doubt or dispute that there was no eye-witness to the occurrence. It is,
however, not in dispute that the deceased and the accused were living in the
house of Noor who examined himself as PW 3. His evidence remains unchallenged.
ill-treatment meted out by the appellant has not only been proved by the father
and brother of the deceased, Yusuf Khand (PW 1) and Saleem Khan (PW 2) as also Smt.
Asmathunnisa (PW 6), the mother of the deceased but also stands corroborated by
the evidence of Syed Arif (PW 5) who mediated between the appellant and the
deceased. It has also been proved that the jewelleries belonging to the
deceased were pawned to one Goutham Chand (PW 10) by the appellant. The fact
that the deceased was kicked on her stomach while she was pregnant as a result
whereof, abortion was caused and she had to be hospitalized is also not in
is nothing on record to show that any outsider broke open the house and caused
the murder of the deceased. The aforementioned circumstances, in our opinion,
have rightly been accepted by the courts below as leading to proof of guilt of
the appellant. In a similar situation, in Jawahar Lal and Others vs. State of
M.P.[(2001) 5 SCC 300], this Court upheld the judgment of conviction and
be true that the learned Sessions Judge acquitted the brother and sister of the
appellant but the said finding was arrived at on the premise that they had not
been residing in the house in question and, thus, a benefit of doubt was given
to them but that by itself cannot be the basis to accept the innocence of the
appellant or extend a similar benefit of doubt to the appellant also, in spite
of materials starring against him.
in a case of this nature particularly when the marriage had taken place only
two years prior to the date of occurrence and the prosecution had been able to
show that a few months after the marriage, the deceased was subjected to
torture for obtaining financial benefits from her parents, the tests required
for arriving at the guilt of the accused on the basis of circumstantial
evidence must be held to have been satisfied.
not, therefore, find any infirmity in the impugned judgment.
question which, however, required to be addressed is as to whether imposition
of death penalty by the High Court was proper ? We think not. The learned
Sessions Judge having regard to the facts and circumstances of the case and
upon hearing the appellant thought it proper to impose a sentence of
imprisonment for life. The State did not prefer any appeal for enhancement of
the sentence. No argument also appears to have been advanced by the State in
this behalf before the High Court.
in taking away the life of the victim is only one of the factors which is
required to be taken into consideration for coming to the conclusion that the
case at hand is one of the rarest of rare ones warranting imposition death
of punishment for life, it is well-settled, is the rule. Awarding of death
sentence is an exception. [See Prem Sagar vs. Dharambir and Others (2004) 1
therefore, alter the sentence imposed by the High Court from death penalty to
one to imprisonment for life and further impose a fine of Rs.1,000/-; in
default whereof the appellant shall suffer a simple imprisonment for one month.
the aforementioned modification in sentence, this appeal is dismissed.