Karnataka High Court
Zakir @ Zakir Pasha S/O Munna vs State By on 29 January, 2018
Bench: Ravi Malimath, K.Somashekar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 29TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.1151 of 2012
BETWEEN:
ZAKIR @ ZAKIR PASHA
S/O MUNNA
AGED ABOUT 22 YEARS
R/AT OPP TO MUNESHWARA TEMPLE
SRINIVASA NAGARA
BENGALURU. ... APPELLANT
(By Sri: NARAYAN PERDALKAR, ADVOCATE)
AND:
STATE BY D.J. HALLI POLICE STATION
BENGALURU, REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(By Sri: VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 11.09.2012 PASSED BY THE
ADDITIONAL SESSIONS JUDGE AND PRESIDING
OFFICER, FAST TRACK COURT-III, MAYO HALL UNIT,
BENGALURU IN SESSIONS CASE.NO.91 OF 2008-
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO LIFE IMPRISONMENT AND PAY FINE OF
RS.20,000/- FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC. THE APPELLANT/ACCUSED
PRAYS THAT HE BE ACQUITTED.
*****
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED
THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 15.10.2007 at about 10.00 p.m., the younger brother of the complainant by name Bakhash was going in front of the house of accused Nos.1, 2 and 4 on his - two wheeler. At that time, the accused picked up a 3 quarrel with Bakhash by saying as to why he was showing off in front of their house. On the next day, on 16.10.2007 at about 11.00 a.m., the accused having an ill-will against the said Bakhash with respect to the said incident, when the said Bakhash was playing in front of the house of the complainant- PW-1, accused Nos.1, 2 and 4 came with an intention to commit the murder of Bakhash. They picked up a quarrel and with a common intention, accused No.1 stabbed on the right part of the stomach of Bakhash with a knife, accused No.2 stabbed on the back of Bakhash and accused No.4 instigated the accused Nos.1 and 2 to commit the murder of Bakhash. Due to the injuries sustained, he died on the way to the hospital. Based on these averments, a case was registered against five accused persons. Investigation 4 was taken up. A charge-sheet was filed against accused Nos.1, 2 and 4 under Section 302 read with Section 34 of Indian Penal Code. Accused Nos.3 and 5 were not set up for trial.
2. In order to prove its case, the prosecution examined 16 witnesses and marked 22 exhibits alongwith six material objects. The accused pleaded not guilty and claimed to be tried. By the impugned judgment, the accused No.2 was convicted and sentenced to pay a fine of Rs.3,000/- for the offence punishable under section 324 of The Indian Penal Code. Accused No.1 was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- for the offence punishable under section 302 of The Indian Penal Code. Accused No.4 was acquitted of all the charges levelled against him. 5 Aggrieved by the same, accused No.1 has filed the present appeal.
3. Sri. Narayan Perdalkar, the learned counsel appearing for the appellant/accused contends that the impugned judgment of the trial court is bad in law and liable to be set-aside. That the trial court has failed to consider the plea of the appellant. That the trial court has misread the evidence on record. That the specific case of the appellant was based on self- defence. Under these circumstances, the trial court has failed to understand the case made out against the appellant/accused No.1. Hence, he pleads that the appeal be allowed by acquitting accused No.1. On the other hand, the learned Additional State Public Prosecutor disputes the same. He contends that substantial material has been led in to prove the case 6 of the prosecution. That the case of self-defence set up by the appellant/accused No.1 was negated by the trial court. That there is no material to indicate that it was the witnesses, who were the aggressors. On the contrary, the entire evidence led in by the prosecution would indicate, that it was all the accused, who came near the house of the deceased, picked up a quarrel and brutally assaulted him. Hence, he pleads that there is no perversity committed by the trial court that calls for any interference.
4. Heard learned counsels and examined the records.
5.(a) PW-1 is the complainant. He is the eyewitness to the incident. He has stated that the deceased is his younger brother. That on 16.10.2007, 7 at about 11.00 a.m., when he was playing with the Bakhash(deceased), Zuber, Saddam and others, all the accused came to the said place and started abusing his younger brother-Bakhash. When he asked the accused as to why they are abusing the Bakhash (deceased), two more persons came to the said place in a two wheeler. At that time, accused No.4 caught hold of the shirt collar of his brother Bakhash and accused No.2 assaulted deceased Bakhash with a knife on his back. Accused No.1 stabbed with a knife on the right side stomach of the deceased. Thereafter, all the accused ran away from the place. Thereafter, he took his brother Bakhash to Santosh Hospital, where the Doctors declared him to be brought dead. Later on, he filed the complaint in terms of Ex-P1. It is further narrated that on the 8 previous day, the accused picked up a quarrel with the deceased when the deceased was going on his two wheeler speedily in front of the house of accused No.1. In view of the said incident that occurred on the previous day, the accused persons came near their house only with a sole intention to commit the murder of the deceased. It is further narrated that after they intimated the police, the police came to the scene of offence, conducted the spot mahazar and took up further investigation. In the cross-examination, it is suggested to the witness that the accused persons came there to settle the dispute between themselves. That it was PW-1 and others, who assaulted the accused with sickle and long and therefore in order to save themselves, they retaliated against his deceased brother and others. In the cross-examination, it is 9 elicited that there were criminal cases pending against him and against his elder brother as well as his mother under The Narcotic Drugs and Psychotropic Substances Act, 1985.
(b). PW-2 is the neighbour of PW-1. He is an eyewitness to the incident. He has stated that on 16.10.2007, in the afternoon, there was 'galata' near the house of PW-1. PW-1, his brother- Bakhash and others were playing. At that time, accused came to the spot. Accused No.2 assaulted with a knife on the backside of Bakhash and accused No.1 stabbed on the right part of his stomach. Accused No.4 caught hold of the shirt collar of the deceased and after committing the assault, they all ran away. He and PW-1 took the deceased to Santosh Hospital, where he was declared as brought dead. Thereafter, the police 10 came to the scene of offence and conducted the mahazar. He had identified M.O.1 to M.O.6.
(c). PW-3 is the panch for inquest. He is yet another eyewitness to the incident. However, in the cross-examination, it is elicited that the incident took place at about 2.00 p.m., Therefore, there is variance in timing of the incident, as narrated by PW-1. Only to the extent of time of narration of the incident, he has been treated as hostile.
(d). PW-4 is stated to be yet another eyewitness. He is the neighbour of PW-1. He has stated that on 16.10.2007, accused No.1 committed the murder of the deceased. On that day, he heard shouting of some persons and came outside and found accused No.2 assaulting the deceased with a knife on his backside 11 and accused No.1 assaulting the deceased on the right part of his stomach with a knife. That after the assault, the accused ran away.
(e). PW-5 is yet another eyewitness. He has turned hostile.
(f). PW-6 is a panch to inquest mahazar. He has turned hostile.
(g). PW-7 is a friend of PW-1. He has turned hostile.
(h). PW-8 is the police constable, who apprehended accused Nos.1 and 4.
(i). PW-9 is the head constable, who apprehended accused Nos.1 and 4 and submitted a report as per Ex-P6.
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(j). PW-10 is the police constable, who apprehended accused No.2.
(k). PW-11 is the police constable, who guarded the dead-body and thereafter collected the clothes of the deceased and carried the articles to forensic science laboratory for their examination.
(l). PW-12 is a panch to the recovery mahazar of the knife -M.O.6 in terms of Ex-P9, at the instance of accused No.1.
(m). PW-13 is a panch for recovery of knife-M.O.5 in terms of Ex-P11, at the instance of accused No.2.
(n). PW-14 is another eyewitness, who has stated that on 15.10.2007, at about 10.00 p.m., he had pacified the accused from quarreling with the 13 deceased and others. On the next day, at about 11.00 a.m., when he was going in front of the house of the complainant, he saw that the deceased was playing with a tennis ball. At that time, accused Nos.1, 2 and 4 came to the spot. Accused No.4 identified the deceased and showed him to accused Nos.1 and 2 saying that he was the person, who picked up the quarrel. At that time, accused No.1 took out a knife and stabbed on the right side stomach of the deceased. Accused No.2 assaulted the deceased with a knife on his back. When the deceased fell down, all the accused ran away. That the injured was taken to a hospital, wherein, he was declared as brought dead.
(o). PW-15 is the PSI, who conducted the spot mahazar in terms of Ex-P2.
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(p). PW-16 is the Investigating Officer. He received the complaint, conducted the investigation and filed the FIR.
6. All the three accused have furnished their statement under Section 313 of Cr.P.C. The present appeal is only in so far as accused No.1 is concerned. He has submitted an explanation also. We have considered the same. He has stated thereon that on 15.10.2007 at about 10.00 p.m., he, his mother, his uncle, his father and another uncle were standing outside in front of their house. At that time, the deceased was moving about in his motorcycle in front of their house and was teasing them. He and his family members asked him as to why he is showing off, for which the deceased quarreled with them. On the next day, at about 11.00 a.m., he, his mother, his 15 uncle and his father went near the house of the brother of the deceased to inform about the quarrel. At that time, they noticed that the deceased was playing. His father asked the deceased as to why he was teasing them. At that time, PW-1 came and threw a big knife towards him and others. As a result, his mother, accused No.4, sustained injury on her right hand. PW-1 shouted that all the accused will be killed. He has further stated that the brother of PW-1, Bakash assaulted accused No.1 with a knife on the right forearm, right hand, right knee and on the head. He has further stated that the uncle of accused No.1 who was behind the deceased was stopping and pulling the brother of PW-1 and preventing him from assaulting accused No.1. Accused No.1 also saw that PW-1 with a sword was charging towards them by 16 shouting that he will kill all of them. He has further stated that his uncle bent down and escaped the assault and the said assault fell on the back of the brother of PW-1, Bakash. To prevent being killed by PW-1, his gang and his brother Bakash, accused No.1 took the knife, which was on the ground near his feet and hit the deceased with the knife. He fell down and they all ran away from the place. In this regard, accused No.1 was treated at Dr.B.R.Ambedkar Medical College and Hospital and Nimhans Hospital.
7(a). On considering these evidences, the Trial Court was of the view that the prosecution has established its case in so far as accused No.1 and accused No.2 are concerned. They were convicted and sentenced as follows:
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(b). Accused Nos.2 and 4 were acquitted under Section 235(1) of Cr.P.C. for the offence punishable under Section 302 read with 34 of I.P.C.
(c). Accused No.2 was convicted and sentenced to pay a fine of Rs.3,000/- for the offence punishable under Section 324 of I.P.C.
(d). Accused No.1 was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/- for the offence punishable under Section 302 of I.P.C.
(e). The accused set up a plea of self-defence. The same was considered by the Trial Court. It was of the view that there was no material evidence by the accused to indicate that the first aggression was by the deceased and others. It was of the view that the statement made by accused No.1 under Section 313 of 18 Cr.P.C. is not sufficient to accept the case that the offence committed by the accused is as a result of a sudden and grave provocation and the act was intended as an act of self-defence.
8. During the pendency of these proceedings, the appellants have filed an application under Section 482 of Cr.P.C. seeking to produce six documents. It is their further case that the accused herein had since lodged a case in Cr.No.268 of 2007 before the D.J.Halli Police against PW-1 and the deceased. On trial, the accused therein were acquitted. These were the materials that were produced in that case. Therefore, he pleads that the same be considered by this Court. The learned S.P.P. disputes the same. However, the learned S.P.P. contends that the acquittal took place much earlier than the present 19 impugned order. Therefore, there was sufficient opportunity for the appellant to produce the same before the Trial Court in this case. He has deliberately not done so. Therefore, such an explanation cannot be considered.
9. We have considered the entire evidences and material available on record. The case of the prosecution is that the motive was to commit the offence. The accused came near the house of PW-1; the deceased picked up a quarrel and the deceased was assaulted. Therefore, the overt acts are attributed against accused No.1 as well as accused No.2. The present appeal is only in so far as accused No.1 is concerned. Therefore, we have considered the same with reference to accused No.1 alone. The eye witnesses PW-1, PW-2, PW-4 and PW-14 have 20 supported the case of the prosecution and they have clearly indicated the assault committed by the accused No.1 on the deceased. The medical report in terms of post-mortem report, Ex.P10 also supports the case of the prosecution. However, none of the facts are disputed by the appellant. The plea of accused No.1 is of self-defence. In his statement recorded under Section 313 of Cr.P.C. he contends that it was the deceased who first assaulted him and that as a result of the assault, he has sustained severe injuries, as could be made out from the discharge summary of Dr.Ambedkar Medical College and Hospital. Therefore, he pleads that the injuries sustained by him are sufficient proof that it was he who was assaulted by the deceased. On such an assault being committed, he reacted to the same only 21 to save his life. Therefore, the injuries caused by him is well within his right of private defence.
10. We are unable to accept the submission of the appellant. The case of the prosecution is well supported by the evidence of the eye witnesses PW-1, PW-2, PW-4 and PW-14. Their evidences are consistent and corroborative. They have clearly narrated that the accused had a motive to commit the offence. It is they who came to the house of PW-1 and deceased and picked up a quarrel. They had brought weapons along with them in terms of MO-5 and MO-6. On creating a situation, they have assaulted not only the deceased but also PW-1. Merely because, a plea has been taken in the 313 statement to the contrary, cannot persuade us to accept the act of the accused. There is no material to support the defence putforth 22 by the accused. The evidence of the prosecution being clear and cogent, we are unable to accept his self- defence as propagated by the accused. Even the case registered by the accused herein against the deceased and PW-1 has ended in an acquittal. The materials thereon would indicate that the allegation against PW- 1 and the deceased of having assaulted the accused herein, was negated and the accused were acquitted, in C.C.No.24610 of 2008 vide order dated 19.03.2012 by the 11th A.C.M.M., Mayo Hall, Bengaluru.
11. On re-considering the material evidence on record, we are of the considered view that the Trial Court committed an error in convicting accused No.1 for the offence punishable under Section 302 of I.P.C. Keeping in view the charges framed and the evidences led in by the prosecution, we are of the view that the 23 acts of PW-1 would clearly be attracted under the provisions of Section 304 Part I of I.P.C. We are fortified by the view, in view of the case of the prosecution itself that the motive, if any, was only against PW-1. Therefore, we find that the conviction of the accused under Section 302 of I.P.C. is inappropriate. We deem it just and appropriate to modify the conviction of the accused to one under Section 304 Part I of I.P.C.
12. For all the aforesaid reasons, we pass the following order:
i) The appeal is partly allowed.
ii) The judgment and order dated
11.09.2012 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court - III, Mayo Hall Unit, Bengaluru, in S.C.No.91 of 24 2008 in convicting the appellant/accused No.1 for the offence under Section 302 of I.P.C. is set aside.
iii) The conviction is modified. The accused/ appellant is convicted for the offences punishable under Section 304 Part I of I.P.C. He is sentenced to undergo rigorous imprisonment for a period of ten years and is also directed to pay a fine for a sum of Rs.20,000/- (Rupees Twenty Thousand only).
iv) Incase of default for payment of fine, the accused to undergo further imprisonment of two years.
v) The accused is entitled for the benefit of set off for the period of detention already undergone by him in this case.
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Ordered accordingly.
I.A.No.1 is disposed off accordingly.
Sd/- Sd/-
JUDGE JUDGE
mn/dh