Karnataka High Court
Irfan vs The State Of Karnataka on 2 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.195/2011
BETWEEN:
1. IRFAN
S/O. MANSOOR
AGED ABOUT 31 YEARS
OCC: COOLIE WORK
2. MANSOOR
S/O. JAYAUDDINSAB
AGED ABOUT 60 YEARS
OCC: AGRICULTURAL
3. NAZEER AHAMMED
S/O. JAHASHUDDIN
AGED ABOUT 62 YEARS
OCC: COOLIE WORK
ALL ARE RESIDENTS OF BOMMANAKATTE
BHADRAVATHI TALUKA
DISTRICT SHIMOGA. ... APPELLANTS
(BY SRI. UMESH P.B., ADVOCATE FOR
SRI. R.B. DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
PAPER TOWN POLICE STATION
BHADRAVATHI. ... RESPONDENT
(BY SRI. DIWAKAR MADDUR, HCGP)
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THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING THIS COURT BE PLEASED TO SET ASIDE THE
ORDER DATED 14.02.2011 PASSED BY THE P.O., FTC,
BHADRAVATHI IN S.C.NO.148/2006 - CONVICTING THE
APPELANT No.1/ ACCUSED No.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 504 AND 307 OF IPC AND THE APPELLANT
NO.2/ ACCUSED No.2 FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 504 AND 324 OF IPC AND THE APPELLANT NO.3/
ACCUSED No.3 FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 323 AND 504 OF IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:
Judgment
Heard the learned counsel for the appellants and learned
High Court Government Pleader for the respondent-State.
2. This appeal is filed challenging the judgment of
conviction and sentence passed in S.C.No.148/2006 dated
14.02.2011 on the file of the Fast Track Court, Bhadravathi.
3. The parties are referred to as per their original
rankings before the Trial Court as complainant and accused to
avoid the confusion and for the convenience of the Court.
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4. The factual matrix of the case is that based on the
complaint-Ex.P1, the police have registered the case against
three accused persons and the allegation in the complaint is,
that due to enmity in connection with the cattle business these
accused persons have assaulted the complainant. As a result,
he sustained grievous injuries and took treatment as inpatient.
The police, after the investigation filed charge sheet against the
accused for the offence punishable under Sections 504 and 307
read with 34 of IPC. The accused persons were secured and
placed before the Fast Track Court and they did not plead guilty
and claimed for trial. Hence, the prosecution examined in all
nine witnesses PWs.1 to 9 and got marked documents Exs.P1 to
P7. The prosecution relied upon MOs.1 and 2 - knives, MO.3-
Blood stained soil and MO.4-non-blood stained soil to 4 and the
same were got marked. The accused were subjected to 313
statement. However, they did not choose to lead any defence
evidence. The trial Judge, after considering both oral and
documentary evidence, convicted accused No.1 for the offence
punishable under Sections 504 and 307 of IPC, accused No2 was
convicted for the offence punishable under Sections 504 and 324
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of IPC and accused No.3 was convicted for the offence
punishable under Sections 323 and 504 of IPC. The case against
accused no.3 was abated during the pendency of this appeal.
5. Though all the three accused persons have filed this
appeal on account of death of accused no.3, this court has to
reappreciate the material against accused nos.1 and 2. The
grounds urged in this appeal is that the prosecution has
suppressed the material evidence and has not come forward with
true version of the incident and the trial Judge also committed
an error relying upon the testimony of accused no.2, when his
evidence was not corroborated by an independent evidence. The
trial Judge ought to have acquitted the accused persons since
there was a case and counter case. PW2 who is alleged to be an
eyewitness to the incident and his evidence is full of material
omissions and contradictions and the evidence of PW1 is
contradictory to the medical evidence. The recovery of MOs. 1
and 2 is also not established by the prosecution. The trial Judge
has committed an error in convicting accused No.1 for the
offence Punishable under section 307 of IPC as there was no
intention to take away the life of the complainant. The counsel
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appearing for the appellant reiterating the grounds urged in the
appeal would submit that this case does not come within the
penal provisions of Section 307 of IPC. At the most, it attracts
under section 335 of IPC since the complainant himself is the
aggressor and none of the witnesses have stated that the
accused persons assaulted PW1 with an intention to take away
his life and hence prayed this court to set aside conviction and
sentence passed by the trial court.
6. Per Contra, learned High Court Government Pleader
appearing for the State would submit that PW1 is the injured and
PWs.2 and 5 are the eye witnesses. PW6 is the Doctor and his
evidence corroborates with the evidence of PW1. PW7 is the
panch witness and PW8 is the ASI, who received the complaint
and registered the case and recorded the voluntary statement of
the accused and conducted spot mahazar and seizure mahazar.
PW9 has conducted further investigation and apprehended
accused No.3. and thereafter he collected the wound certificate
and filed the charge sheet. Accused No.2 was released on
anticipatory bail. The trial Judge, after appreciating oral and
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documentary evidence and also the evidence of PW1 injured,
which corroborates the medical evidence of the Doctor-PW6, has
rightly come to the conclusion that the accused persons have
committed offence and prosecution has proved the charges and
hence there are no grounds to interfere with the judgment of the
Trial court.
7. Having heard the arguments of the respective
counsels and also on perusal of the grounds urged in this appeal
and the material available on record, the points that would arise
for consideration for this court is:
"Whether the trial Court has committed error
in convicting accused Nos.1 and 2 for the offences
punishable under sections 504, 307, 324 read with
34 of IPC?"
8. Having heard the respective counsels and the
grounds urged in the appeal, this Court has to reappreciate the
material available on record both oral and documentary
evidence. Before considering the oral evidence, this court has to
take note of the contents of Ex.P1-statement of the injured. The
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statement of the injured was recorded at Mc.Gann Hospital from
00.45 hours to 1.30 a.m. The complainant in his statement has
stated that he was doing cattle business at Rangenahalli village
and about 2-3 days back, accused No.3-Nazeer Ahmed, who was
residing near his house had visited Rangenahalli village and
asked the people why they are giving cattle on credit basis to
the complainant and gave false information to the villagers.
That on 23.06.2005, at around 10.15 pm when he met accused
No.3-Nazeer Ahmed, PW1 asked why he gave false information
to the villagers that they should not give him cattle on credit
basis, accused No.3 accepted the fact and asked him what he
will do saying so, he abused him in filthy language and started
assaulting him with his hands; while PW1 was asking why he
was assaulting, at that time accused Nos.1 and 2 rushed to the
spot and all the three accused abruptly assaulted the
complainant abusing in filthy language. Accused No.2-Mansoor
assaulted with knife on left side ribs and left side neck of the
complainant and accused No.1-Irfan assaulted on the stomach of
the complainant. The incident was witnessed by Krupananda,
Keshavamurthy and Sheik Ahmed and others pacified the
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galatta. He lost his conscious and thereafter he regained his
conscious in the Mecgon Hospital, Shivamogga and he requested
to take action against the accused persons since they wanted to
take away his life.
9. PW1 who has been examined before the trial court
reiterates the averments made in the complaint and also has
identified the signature available in Ex.P1(a). It is his specific
evidence that accused No.2 assaulted him with knife on the left
side of his neck and also near the ribs and accused No.1
assaulted him with knife on his stomach and he also identifies
MOs.I and 2. He was subjected to cross-examination. In the
cross- examination, he admits that they are the relatives and all
of them are doing cattle business. He also admits that near the
house of accused No.3 there is a Masjid. It is also elicited that
on the same day this issue was raised with the accused persons
and at that time no incident took place but while he was
returning from his mother's house, at around 10.45 p.m. He
also admits if anything mentioned in the complaint that the
accused persons assaulted him with Macchu and the same is
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wrong. He admits in the cross-examination by the time
Krupananda, Keshavamurthy and Kamarunnisa came to the spot
he had already sustained injuries. PW2-Kamarunnisa, in her
evidence states that she witnessed the incident which took place
at 10.15 p.m. and accused No.1 assaulted with macchu on his
left neck and also to his stomach. Nazeer Ahmed assaulted near
the neck with macchu. He was subjected to cross-examination.
In the cross-examination he admits that he is the tenant of
PW1's mother. He also admits that on that day he went to the
house of PW1 and he did not notice any injuries suffered by the
complainant. He admits in the cross-examination that he did not
make statement before the police that Sheikh Ahmed came and
pacified the galatta. PW3 is the spot mahazar witness and he
identifies the signature and he speaks with regard to collection of
stained mud, unstained mud and also unstained leaves at the
spot. In the cross examination, he admits that the house of
accused No.3- Nazeer Ahmed is at the distance of 300 - 400 feet
and the incident spot is at the distance of 100 feet from the
Masjid and he cannot tell the bloodstains belongs to whom. PW4
is also a mahazar witness and police have obtained his signature
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but have not seized any weapons in his presence and he was
treated as hostile and he was cross examined by the public
prosecutor and in the cross- examination nothing is elicited.
PW5 is also another eye witness and in his evidence he states
that someone have assaulted PW1 and PW1 was lying at the
spot with injuries and thereafter he was shifted to the hospital in
an auto rickshaw and he assisted in lifting PW1 to auto rickshaw.
This witness is also treated as hostile and when cross examined
by the public prosecutor, nothing is elicited only suggestions are
made. PW6 is the doctor and in her evidence she says that at
10.45 p.m. she examined the injured and he had sustained three
injuries and also mentioned the name of the assailants and they
have assaulted with knife and issued the wound certificate. In
terms of Ex.P5, PW1 had sustained fractures to 9th and 10th ribs.
In the cross-examination, she admits that injured did not
mention about pain on his left side of the chest and she noticed
the injuries and no fractures in respect of injury No.2 and found
cut injuries and the same is mentioned in Ex.P5. PW7 is the
mahazar witness and police have obtained his signature at
Ex.P3. He also did not support the case of the prosecution and
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hence he was treated as hostile. A suggestion was made that in
his presence the accused produced the knives i.e., MOs.1 and 2
and the same was denied. PW8 is the ASI, who recorded the
statement of the complainant and registered the FIR and
thereafter conducted investigation by drawing the mahazar in
terms of Ex.P2 and also he recorded voluntary statement and
recovery were made at the instance of accused in terms of
Ex.P3. He was subjected to cross- examination. In the cross
examination, he admits that the Head Constable went and
recorded the statement of the injured and produced the
statement before him and also he admits that based on the
complaint of accused No.3, he also registered one more case. It
is suggested that no recovery was made at his instance and the
same was denied. PW9 conducted further investigation and in
his evidence he states that accused No.3 was apprehended and
produced before him and he did the formalities and accused No.2
was released on bail based on the anticipatory bail. It is also
his evidence that he collected the wound certificate and on
completion of the investigation, he filed charge sheet. In the
cross-examination he admits that he has verified the
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investigation done by the ASI and also the statement given by
the eye witnesses. He also admits registration of the counter
case against PW1 and other three persons. He also admits that
in that case he has filed charge sheet.
10. Having perused both oral and documentary evidence
and also the contents of Ex.P1-complaint, PW1 in his evidence
reiterates that in connection with the cattle business when he
questioned accused No.3, he replied what he is going to do even
if he complains to the residents of Rangenahalli Village. In the
meanwhile, accused Nos.1 and 2 came to the spot with knives
and abruptly assaulted the complainant. It is to be noted that
the incident had taken place at 10.15 p.m. and immediately the
injured was taken to the hospital at 10.45 p.m. and the doctor
who is examined as PW6 who treated the injured in the hospital
states that the history was given as assault was made with the
knives particularly by accused Nos2 and 3.
11. There is no delay in going to the hospital. However,
the statement of the injured was recorded by the police on the
same day night from 00.45 hours till 1.30 a.m. Mc.Gann Hospital
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and the case was registered. The injuries sustained by PW1 is
corroborated by the medical evidence of PW6. In the cross
examination of the prosecution witnesses, nothing is elicited to
disbelieve the evidence of PW1 except stating that they are his
relatives and they are doing the cattle business. No doubt, it is
elicited from the mouth of PW1 that no such incident had taken
place when the matter was brought to the notice of the accused
earlier and only when PW1 one was returning from his mother's
house, the said incident had taken place. In the cross
examination of PW6-Doctor, nothing is elicited with regard to the
corroboration of the nature of injuries sustained by PW1 and it is
elicited only with regard to accused No.3 taking treatment. PW2-
Kamarunnisa supported the case of the prosecution though she
claims that assault was made with machete, there is discrepancy
with regard to the weapon. But, in the cross-examination, she
admits that she was a tenant in the house of the mother of PW1.
She is the interested witness but nothing is elicited in the cross
examination of PW2 with regard to the incident his concerned.
PW3-Anjanappa supported the case of the prosecution but he is
the spot mahazar witness and with regard to the recovery is
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concerned, PW4-Somashekara did not support the case of the
prosecution. PW5-Krupananda also states that someone had
already assaulted PW1 but he assisted to lift him to the auto
rickshaw to take him to the hospital.
12. Having perused the evidence of PW1 and PW2 so
also the evidence of PW6, it is clear that accused Nos.1 to 3
have inflicted injuries on PW1 that too with the help of knives
and the same were also recovered and the medical evidence
corroborates that those injuries could be caused by using the
knife only. When such being the case and having taken note of
the motive in committing the offence is with regard to the
business rivalry and the reason is also assigned in the complaint
about the accused persons have assaulted him. Having taken
note both oral and documentary evidence, I do not find any error
committed by the trial court invoking sections 307 and 504 IPC
against accused No.1 so also the trial Judge taking note of the
simple injuries sustained by accused No.2, convicted him for the
offence punishable under sections 504 and 324 of IPC. Though
it is contended that section 335 attracts as PW1 one is the
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aggressor, I do not find any force in the contention of the
learned counsel for the appellants. The fact remains in the
complaint as well as in the oral evidence that accused No.3 went
and told in the village about the integrity of the complainant and
when the complainant questioned the same he reacted and
assaulted the complainant and hence, it cannot be contended
that he is the aggressor and also it is elicited in the evidence of
PW1 that the incident took place in the night when he was
returning from his mother's house though the issue was raised in
the evening no incident took place in the first instance and the
incident has taken place at 10.15 p.m. The accused Nos.2 and
3 rushed to the spot with the deadly weapons and assaulted PW1
on the vital part of the stomach and as a result he sustained
grievous injuries and the injured was immediately taken to the
government hospital and thereafter to the Mec gann Hospital
and the records would also disclose that there is no delay in
shifting the injured i.e., within half an hour to the hospital and
the injured himself has mentioned the name of the assailants
within half an hour before the Doctor. The wound certificate also
discloses the names of the assailants and when such being the
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case, I do not find any grounds to interfere with the order of the
trial court.
13. However, the learned counsel appearing for the
appellants would submit when PW1 himself has categorically
admitted that they are relatives and they were doing cattle
business and there was no intention to take away his life and in
a sudden provocation, the incident took place. This Court has to
take note of the facts and circumstances of the incident and the
said contention also cannot be accepted for the reason that
accused Nos.1 and 2 have rushed to the spot with deadly
weapons and inflicted the injured. However, having taken note
of the fact that the incident has taken place in the year 2006,
the accused persons are the relatives of the complainant and
they are doing very same business, enmity developed between
the parties in connection with the business, this court would
reduce sentence of accused Nos.1 and 2 by passing an order
that the said accused persons have to compensate the injured
under Section 357A of Cr.P.C.
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14. It is settled law, the court has to take note of the
facts and the nature of injuries, treatment taken for the injuries
sustained by the injured and compensate the injured. Hence, it
is proper to show some leniency in favour of the accused
persons taking note that they are the relatives and they are
doing common business of cattle and hence, this court can take
note of the said fact while considering the sentence is concerned.
15. In view of the discussions made above, I pass the
following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and conviction of the trial Court for the offences punishable under sections 307, 324, 504 read with Section 34 of IPC are confirmed. However, the sentence is reduced.
iii) In respect of accused No.1 is concerned, sentence of rigorous imprisonment imposed by the trial Court is reduced to two years 18 from five years and he is directed to deposit a fine of Rs.1,50,000/- for the offence punishable under Section 307 of IPC. In default of payment of fine amount, he shall undergo further simple imprisonment for a period of one year. Further, the simple imprisonment imposed by the trial Court is reduced to three months from six months for the offence punishable under Section 504 of IPC.
iv) In respect of accused No.2 is concerned, he is sentenced to undergo simple imprisonment for three months and to deposit a fine amount of Rs.25,000/- for the offence punishable under Section 324 of IPC. In default of payment of fine amount, he shall undergo further simple imprisonment for a period of one month. He is also sentenced to undergo simple imprisonment for a period of 19 one month for the offence punishable under Section 504 of IPC.
v) Both the sentences of the accused persons shall run concurrently.
vi) On deposit, the Trial Court is directed to pay an amount of Rs.1,50,000/- to PW1- complainant on proper identification and the remaining amount of Rs.25,000/- shall vest with the Government.
vii) The Registry is directed to transmit the records to the Trial Court forthwith.
Sd/-
JUDGE TL