IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.769 OF 2013 C/w.
CRIMINAL APPEAL NO.516 OF 2013 IN CRIMINAL APPEAL NO.769 OF 2013 BETWEEN:
STATE OF KARNATAKA BY ALDUR POLICE CHICKMAGALUR. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) AND:
S.Y. MUKTIYAR AHAMED SON OF S.M. YUSUF AGED 52 YEARS TIMBER CONTRACTOR RESIDENT OF HOUSING BOARD CHICKMGALUR-577 101. ... RESPONDENT (BY SRI. S. SHANKARAPPA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25/26.02.2013 PASSED BY THE ADDITIONAL DISTRICT AND SPECIAL JUDGE, CHIKMAGALUR IN SESSIONS CASE NO.52 OF 2007 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341, 307 AND 109 READ WITH SECTION 34 OF INDIAN PENAL CODE.
IN CRIMINAL APPEAL NO.516 OF 2013 BETWEEN:
SIRAJ @ SIRAJUDDIN SON OF SHEREEFUDDIN AGED ABOUT 33 YEARS RESIDING AT NEAR NOORANI MASJID GOWRI KALUVE CHIKMAGALUR TALUK. ... APPELLANT (BY SRI. S. SHANKARAPPA, ADVOCATE) AND:
STATE BY ALDUR P.S.
REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU. ... RESPONDENT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 25.02.2013 PASSED BY THE ADDITIONAL SINGLE JUDGE, CHIKMAGALUR IN SESSIONS CASE NO.52/2007 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 341 AND 307 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.08.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT These two appeals are filed by the State as well as the accused respectively challenging the judgment of conviction and sentence dated 25.02.2013 passed in Sessions Case No.52 of 2007 on the file of the Additional Sessions Judge, Chikmagalur.
2. Criminal Appeal No.769 of 2013 is filed by the State aggrieved by the judgment and order dated 25.02.2013 passed in Sessions Case No.52 of 2007 insofar as acquitting accused No.3 for the offences punishable under Sections 307, 341 and 109 read with Section 34 of Indian Penal Code.
3. Criminal Appeal No.516 of 2013 is filed by the accused No.1 questioning the judgment of conviction passed against him in Sessions Case No.52 of 2007 for the offences punishable under Sections 307 and 341 read with Section 34 of Indian Penal Code.
4. The brief facts of the prosecution case are as under:
That on 30.05.2005 at 7-00 AM on the road of Medara Beedhi, Aldur Town, accused Nos.1 and 2 with common intention to commit murder attacked P.W.1 Vishwanath at the instigation of accused No.3-Muktiyar Ahamad. When PW-1 Vishwanath was proceeding on a road towards Medara Beedhi, accused No.1-Sirajuddin and accused No.2-P.Seetharama came in a motor cycle, wrongfully restrained P.W.1 Vishwanath from proceeding further. At that time, accused No.1-Sirajuddin abused PW-1 Vishwanath in a filthy language saying that, why you have published the matter pertaining to accused No.3- Muktiyar Ahamad in the newspaper and questioned his acts. Accused No.1-Sirajuddin attacked P.W.1 Vishwanath with an intention to commit murder, assaulted on his head and right cheek with the Chopper and caused grievous injuries. Accused No.2-P.Seetharama brought iron pipe from the bag which was kept in the motor cycle and voluntarily caused hurt to PW-1 Vishwanath and caused grievous injuries and all the accused attempted to commit murder of PW.1. Thereafter, PW-1 Vishwanath lodged the First Information Report with the Police Station.
5. The Police have registered the case against accused Nos.1 to 3 and investigated the case. After completion of the investigation have filed the charge sheet against the accused persons for the offences punishable under Sections 307, 341 and 109 read with Section 34 of Indian Penal Code. The accused No.2 was not secured, hence the case against accused No.2 was split up. Accused Nos.1 and 3 were secured before the Court below. Both of them did not plead guilty and claim to be tried.
6. The prosecution, in order to prove the case, examined PWs-1 to 16 and marked Exs.P1 to P19, so also M.Os.1 to 3. On the other hand, the accused got marked Exs.D.1 to D4 during the course of cross-examination but, they did not choose to lead any evidence. On the basis of the evidence of prosecution witnesses, the statement of the accused persons was recorded under Section 313 of the Code of Criminal Procedure. Thereafter, heard the arguments of both the prosecution and learned counsel for the accused. The Court below having considered the material on record, convicted the accused No.1 for the offence punishable under Sections 307 and 341 of Indian Penal Code and acquitted Accused No.3. Aggrieved by the same, both the State as well as accused have preferred these two appeals.
7. Learned counsel appearing for the accused No.1 in Criminal Appeal No.516 of 2013 would contend that the Court below has committed an error in convicting the accused for the offence punishable under Sections 341 and 307 of Indian Penal Code and directing him to pay a fine of Rs.75,000/-. It is his contention that the Court below has failed to take note of the fact that there was a dispute between P.W.1 and accused No.3 and this accused has no motive against P.W.1., in spite of the same, the Court below convicted this accused. It is his further contention that the Court below has erred in considering the fact that even the evidence of P.W.1, sole witness did not inspire the confidence of the Court. P.Ws.2 and 3 are not eye witness to the incident, since they were not present at the time of the incident. Unknown persons have assaulted P.W.1. Till today, the accused No.2 has not been traced and erroneously convicted the accused No.1. The injured P.W.1 was brought to Hospital at 8.05 a.m. and Ex.P1 was recorded by P.W.15 in the presence of the Doctor, P.W.11. But, P.W.11, did not whisper about Ex.P1 said to have been recorded in the Hospital in his presence. In spite of it, the Court below has committed an error. The sentence of the trial Court is not based on the sentencing policy. The Doctor, who has been examined as P.W.11 clearly admits that a blunt weapon could cause injury Nos.1 and 2.and if M.Os.1 and 2 are used for assault, it could have caused incised wound. The medical evidence also did not support the case of the prosecution.
Hence, the trial Court ought to have considered the fact that the prosecution has failed to prove the case. The Court below has committed an error by accepting Ex.P1 as admissible. The earliest history furnished by P.W.1 in terms of Ex.P9 is contrary to the evidence of P.W.8, who took the injured to the Hospital. His statement is contrary to Exs.D1, D2 and D3 and the same is inconsistent with the evidence of P.W.1. Hence, prayed this Court to set aside the judgment of conviction.
8. Per contra, learned State Public Prosecutor appearing for the State in Crl.A.No.769 of 2013 would contend that the Court below has committed an error in acquitting accused No.3. It is the case of the prosecution that accused Nos.1 and 2 assaulted P.W.1 at the instigation of accused No.3 since, P.W.1 published an article against accused No.3. The prosecution witnesses have spoken about the assailants, who inflicted the injuries. The evidence of P.Ws.2 and 3 corroborates with the evidence of P.W.1 and in spite of the same, the Court below committed an error in acquitting accused No.3. Hence, prayed the Court to convict the accused No.3 also.
9. Learned counsel appearing for accused No.1 in his argument reiterates the grounds urged in the appeal and would further contend that there are material contradictions in the evidence of P.Ws.1 to 3 and 8 and the medical evidence also does not support the case of the prosecution. Hence, the Court below has committed an error in convicting accused No.1. Learned State Public Prosecutor appearing for the State would contend that the very case of the prosecution is that accused Nos.1 and 2 at the instigation of accused No.3 with an intention to take away the life of P.W.1 inflicted injuries on the head of P.W.1. The very uttering of the words clearly discloses that accused Nos.1 and 2 at the instance of accused No.3 inflicted the injuries on P.W.1, since there was enmity between P.W.1 and accused No.3.
10. Having heard the arguments of learned counsel appearing for the accused and learned State Public Prosecutor appearing for the State, the points that arise for our consideration are:
“1. Whether the Court below has committed an error in convicting the accused No.1 for the offence punishable under Sections 341 and 307 of Indian Penal Code?
2. Whether the Court below has committed an error in acquitting accused No.3 for the offence punishable under Section 109 read with Section 34 of Indian Penal Code?”
Point Nos.1 and 2 are taken up together for consideration since, they are interconnected to each other. The case of the prosecution is that, accused Nos.1 and 2 at the instigation of accused No.3 tried to take away the life of the injured, P.W.1 and all of them shared their common intention for committing the offence.
11. The prosecution mainly relies upon the evidence of P.Ws.1 to 16. P.W.1 is the injured witness. According to the prosecution, P.Ws.2 and 3 are eye witnesses. P.W.2, in his chief evidence did not support the case of the prosecution and is treated as hostile. Whereas in the cross-examination, he has supported the case of prosecution. P.W.3, an eye witness to the incident did not support the case of the prosecution and has turned hostile. P.W.4, who is also an eye witness has completely turned hostile. P.W.5 is the mahazar witness and did not support the case of the prosecution. P.W.6 is also an eye witness according to the prosecution. He states that he saw some persons running and stating that some persons are assaulting P.W.1 and he immediately rushed to the spot and came to know that P.W.1 was assaulted. He also did not support the case of the prosecution. P.W.7 is the mahazar witness, who did not support the case of the prosecution. P.W.8, an Agriculturist supported the case of the prosecution with regard to the incident is concerned.
P.W.9 is the mahazar witness for recovery of the weapons from accused No.1, who has supported the case of the prosecution. P.W.10 is the witness for seizure of stained clothes of P.W.1, the injured. P.W.11 is the Doctor, who treated the injured and has spoken with regard to the nature of injuries. P.W.12 is the Circle Inspector, who conducted further investigation of the case. P.W.13 is also a witness for seizure of stained clothes of P.W.1, the injured. P.W.14 is the person, who took the First Information Report to the Court. P.W.15 is the Inspector of Police, who recorded the statement of the injured, P.W.1, registered the case and conducted investigation.
P.W.16 is a retired Deputy Superintendent of Police, who took up further investigation, conducted spot inspection and thereafter, collected the wound certificate. After completion of the investigation, he has filed the charge sheet.
12. Keeping in view the contentions urged by both the learned counsel appearing for the accused as well as the learned State Public Prosecutor for the State, this Court has to re-appreciate the evidence available on record. The evidence of P.W.1 is clear that accused Nos.1 and 2 came in a motor cycle and wrongly restrained him.
Accused No.1 assaulted with chopper, as a result of which, he sustained injuries to his right chin. Accused No.2 assaulted with iron pipe uttering the words that how much guts he has got to publish an article against accused No.3 and they are going to take away his life. The incident was witnessed by Sri Prabhakara, who has been examined as P.W.3, who did not support the case of the prosecution.
13. In the cross-examination of P.W.1, an attempt is made to state that there are number of cases against him in the Court and the same was denied. It is elicited that accused No.3 is the resident of Sangameshwarapete. It is elicited that P.W.3 only shifted him to Aldur Hospital in his motor cycle. Further, nothing is elicited with regard to assault made by accused No.1. It is suggested that accused No.1 did not assault him and the same was denied. However, he states that due to the injuries sustained to his head, he has forgotten some aspects and he cannot tell as to what happened after he sustained the injuries. It is suggested that he did not mention in the complaint that accused No.1 came and assaulted with chopper and the same was denied. The witness volunteers to state that he has stated the same said fact both in his complaint as well as in the statement.
14. The other eye witness to the incident is P.W.2.
Though, P.W.2 in his evidence states that accused No.3 was also present at the time of the incident, he has turned hostile to the case of the prosecution. In the cross- examination, he admits that along with accused No.1, another person was also present. He further admits that accused No.3 was not present at the time of the incident. He states that he was under the confusion and hence, he has stated that accused No.3 was present. He also admits that he does not know who assaulted P.W.1 and states that he did not make any statement before the Investigating Officer as to who assaulted P.W.1. The evidence of P.W.3 is not helpful to the prosecution.
15. The other main witness is P.W.8, who in his evidence states that he witnessed the incident that took place at around 7.30 a.m on 30.05.2005. He states that accused Nos.1 and 2 came in the motor cycle and accused No.1 assaulted P.W.1 with chopper and accused No.2 assaulted with iron pipe, uttering the word that how much guts he has got to publish an article against accused No.3. In the cross-examination, it is elicited that P.W.1 and himself are friends and he gave the details of the place of incident. Nothing is elicited in the evidence of P.W.8 to disbelieve the case of the prosecution. But, he admits that the injured was taken to the Hospital immediately in the motor cycle. It is suggested that, he did not make any statement that he witnessed the incident and the same was denied. In the cross-examination of this witness also, suggestion was made that there were number of cases filed by him against P.W.1 and the same was denied.
16. The other main witness is P.W.9, who is the attesting witness to mahazar for recovery of chopper and iron pipe which was recovered at the instance of accused No.1. In the cross-examination, he admits that Police have not given any notice to come as pancha and the same was denied. He admits his signature available on Ex.P7. It is suggested that he has signed the same in the Police Station and he replies that he does not remember. The evidence of P.W.9 is not controverted regarding recovery of weapons at the instance of accused No.1. The evidence of the Doctor, who has been examined as P.W.11 is important since, he has treated the injured P.W.1 in the Hospital at 8.05 a.m. and noticed two injuries on the head as well as on the right cheek. He has also opined that injury No.1 is grievous in nature and injury No.2 is simple in nature. In the cross-examination, it is elicited that in the Medico Legal Cases Extract, it is mentioned that accused No.1-Sirajuddin, accused No.2-P. Seetharam and Ravi assaulted the injured P.W.1. It is elicited that, if the hard object is used to assault, there are chances of sustaining injury Nos.1 and 2. It is also elicited that injury Nos.1 and 2 could not be caused if M.Os.1 and 2 are used and the witness states he cannot state accurately. The other witnesses are Investigating Officer and formal witnesses.
17. Having considered the evidence of P.Ws.1, 2 and 8, it is evident that accused Nos.1 and 2 came in a motor cycle and wrongly restrained P.W.1 and assaulted him with chopper and iron pipe and immediately injured was taken to the Hospital at 8.05 a.m. The Doctor, who has been examined as P.W.11 reiterates that the injured has made a statement that accused No.1 assaulted him along with two other persons. It is also elicited that in the Medico Legal Cases Extract, names of accused Nos.1 and 2 is specifically mentioned along with another name Ravi. The Court below has convicted the accused No.1 since, there is no dispute with regard to the immediate disclosure of name of accused No.1. The medical evidence of the Doctor, who has been examined as P.W.11 corresponds with the evidence of P.Ws.1, 2 and 8, who have categorically stated that accused No.1 inflicted the injury with chopper. The evidence of P.W.8 is clear that when the accused No.1 aimed at the neck of P.W.1, he tried to ward off the said blow and at that time, he has sustained injury on the right cheek. The wound certificate which is marked as Ex.P9 is clear that P.W.1 sustained lacerated wound measuring 12 c.m. x 1 c.m. and 10 c.m. x 1 c.m. over right parietal region and right cheek respectively and there was profuse bleeding from the wound. The injury No.1 is clear that there was a large Linear comminuted fracture of right parietal bone involving the outer table. Hence, it is clear that the injury sustained by P.W.1 is a fatal injury.
18. When there is a direct evidence coupled with medical evidence, both the injured as well P.W.8 have categorically deposed with regard to inflicting of injury by accused No.1. No doubt in the cross-examination of P.W.8, it is elicited that both P.Ws.1 and 8 are friends. But nothing is elicited in the cross-examination of P.W.8 to disbelieve the evidence particularly, the evidence of P.Ws.1 and 8. Though P.W.2 has turned hostile to certain extent, in the cross-examination, he has admitted with regard to the nature of injuries.
19. Having considered the evidence of P.Ws.1, 2 and 8 and also the medical evidence of the Doctor, who is examined as P.W.11 and also the recovery made at the instance of the accused persons i.e., chopper and iron pipe, which has been supported by independent witness P.W.9, we are of the opinion that the Court below has not committed an error in convicting the accused for the offence punishable under Sections 341 and 307 of Indian Penal Code. There is no dispute with regard to the fact that the accused No.1 came along with accused No.2 in a motor cycle and wrongfully restrained P.W.1 and assaulted him with deadly weapons like chopper and iron pipe and the same shows that these accused persons were having premeditation to commit the offence and aimed to inflict injuries on P.W.1. Hence, it is clear that there was an intention on the part of the accused to take away the life of P.W.1. Hence, the contention of the learned counsel for the accused that ingredients of Section 307 of Indian Penal Code has not been proved cannot be accepted. Accordingly, we answer the point No1 as ‘affirmative’.
20. The appeal filed by the State that the Court below has committed an error in acquitting the accused No.3 cannot be accepted for the reason that the prosecution did not place any material before the Court that there was enmity between P.W.1 and accused No.3. Mere uttering the word at the time of incident is not sufficient to bring the accused No.3 within the purview of Section 109 read with Section 34 of Indian Penal Code. It is also pertinent to note that none of the witnesses have spoken with regard to the same except P.Ws.1 and 8 regarding uttering the word of ill will between P.W.1 and accused No.3. Mere uttering the name of accused No.3 itself is not sufficient to convict the accused No.3. Hence, we do not find any reason to allow the appeal filed by the State. Therefore, in the absence of cogent evidence before the Court, we do not find any reason to interfere with the order of the trial Court to reverse the findings to convict the accused No.3. Hence, we answer point No.2 as ‘negative’.
21. In view of the discussions made above, we pass the following:
ORDER (i) Both the appeals in Criminal Appeal Nos. 769 of 2013 and 516 of 2013 are dismissed.
Sd/- Sd/-
JUDGE JUDGE ST