Karnataka High Court
Mohammed @ Mohammed Sab vs State Of Karnataka on 19 July, 1990
Equivalent citations: ILR1990KAR3433, 1990(3)KARLJ58
JUDGMENT D.P. Hiremath, J.
1. The appellant challenges his conviction by the Sessions Court for the offence under Section 302 I.P.C. and sentence passed thereon to death and that he shall be hanged by his neck till he is dead. He was also convicted under Sections 307 and 333 I.P.C. and sentenced to rigorous imprisonment for 7 years and 3 years respectively and also to pay a fine of Rs. 5,000/-for each of the offences with default sentence.
2. The facts of the case briefly stated are that the accused-appellant is a slaughterer and does slaughtering work in his house at Dadamaghatta within the jurisdiction of Bhadravathi Rural Police Station. P.W.3 -Malleshappa, resident of Baballi village in the same taluk, owned a few cattle and was tethering them in a shed behind his house. On 5-1-1989 he tethered his cattle as usual in the shed and at about 5.30 a.m. the following morning he went to the shed and saw that two of his cows were missing. Out of them, one was pregnant and another was a milking cow. As the same could not be traced near about, he sent his younger brother Amrutheshwar and another Rasul Khan in different directions in search of them. At about 3.30 a.m. Amrutheshwar took a phone call to Narayanagiri, a neighbour of the complainant, and informed that he had traced the person who had stolen the cattle and having killed them, hide and face portion and horns with him were available. He also sent words to Narayanagiri that he should immediately proceed to that spot with police. Narayanagiri then asked P.W.3 to go to the Police Station and report the matter and that he would follow. Accordingly, P.W.3 went to Bhadravathi Police Station in the autorickshaw of one Basavanthagiri and filed complaint at the Bhadravathi Police Station. On this complaint, P.W.9-H.C. of the Rural Police Station, registered a case In Crime No. 9/1989 under Section 379 I.P.C., made entry in the Station House Diary and then sent Constable Chikkanarayana - P.W.4 along with him as a part of investigation. Accordingly, P.W.4, P.W.3, and the autorikshaw driver Basavanthagiri went to Dadamaghatta, Rasul Khan and Amrutheshwar were near a Mosque in that village and on the arrival of P.Ws. 3 and 4, they entered into the house of the accused and in the meanwhile, deceased Narayanagiri also arrived there, Basavaraj and Shankaragiri had accompanied him. In the house of the accused, they saw that he was cutting meat and they asked to produce the hide and faces of the cows and even the constable asked if there was a licence for him to slaughter cows. The accused got enraged and assaulted the constable with a "kathi" that was in his hand. Then, Narayanagiri asked him why he was assaulting the constable and intervened. He was also stabbed on his chest. When Basavaraj intervened, he was also assaulted on the back with the same kathi, Narayanagiri collapsed and the constable and Basavaraj had received stab wounds. Shankaragiri and P.W.3 came out and P.W.3 went to the Police Station and filed his complaint.
3. P.W.12, the P.S.I. of the. Bhadravathi Police Station received a message on 6-1-1989 at about 9.20 a.m from the Deputy Superintendent of Police, Bhadravathi, on which he contacted the Police Station and informed the S.H.O. - P.W.9 to go to the spot at Dadamaghatta along with the constable. Accordingly, P.W.9 had made entry of this message received from P.W.12 in the Station House Diary, went to the spot and on reaching Oadamaghatta, found that the three were injured. In the meanwhile, P.W.12-P.S.I. and P.W.14-C.P.I. also arrived. According to P.W.14-C.P.I., the information received by him was that the accused was selling beef after committing theft of cows from 3aballi village. He reached Dadamaghatta at about 9.45 a.m. and found 4 injured persons lying in front of the house of the accused. Immediately, they were shifted to Shimoga Hospital and admitted there. On the complaint filed by P.W.3, P.W.12-P.S.I. registered a case in Crime No. 10/1989 at 10.30 a.m. and sent F.I.R. The spot mahazar was drawn, inquest was held over the dead body of the deceased in the hospital, blood-stained articles were seized and later witnesses were examined and on the completion of investigation, charge-sheet came to be filed. It was the accused, according to the prosecution, who produced the knife used in the commission of the offence on giving information to the police under Section 27 of the Evidence Act.
4. The charges against the accused were under Section 333 I.P.C. for having caused grievous hurt to P.W.4-Constable while he was discharging his duties as a public servant, under Section 302 I.P.C. for having; committed the murder of Narayanagiri and under Section 307 I.P.C. for attempting to commit the murder of Basavaraj. The Sessions Court having considered evidence adduced in support of the charges found the accused guilty of the charges and sentenced as aforesaid.
5. In this appeal, the learned Counsel for the appellant has urged that the prosecution has not placed the whole truth before the Court inasmuch as the other witnesses who were said to have been present at the time of the incident were not examined. Secondly, exhibit P-3 cannot be considered as a F.I.R. in view of there being reasons to believe that information regarding cognizable offence had reached the Police Station much earlier before exhibit P-3 came to be filed, at any rate, on the arrival of police at the spot, they came to know of the Incident and, therefore, exhibit P-3 is hit by Section 161 Cr.P.C. Nextly, even though a clear case of the accused acting in the exercise of the right of private defence has not been pleaded or stated, sufficient ground has been paved in the cross-examination of the witnesses to come to this conclusion and, therefore, at the most if the Court were to believe the evidence of the witnesses, the offence would fall under Section 304-II I.P.C. It is also urged that when the accused was sitting in his house cutting meat with the chopper, it is not shown how the knife, M.O.1, alleged to have been used in the commission of the offence came with him.
6. The learned Additional State Public Prosecutor, however, in meeting these points has urged that there was no prior information to the police as required under Section 164 Cr.P.C. and, therefore, exhibit P-3 is not hit by Section 161 Cr.P.C. There is no question of the accused exercising the right of private defence as the deceased and others had gone there unarmed and the constable questioned the accused about the licence to do slaughtering he was engaged in and committed these offences. There is absolutely no circumstance to come to the conclusion that there was any such right available to the accused. Regarding the witnesses not examined, it is urged that the entire case has been unfolded in the complaint, exhibit P-3. The injured witnesses as well as the complainant have given evidence in support of the charges and, therefore, the other witnesses were wholly unnecessary and could not have in any way thrown better light on the prosecution case. As far as the delay in examining the witnesses is concerned, that also, according to him does not affect the merits of the prosecution case as the case has unfolded at the earliest and there is no question of embellishment or improving the prosecution case.
7. It is not disputed that the accused is a slaughterer by profession. When a complaint of theft of the cows was lodged at the Bhadravathi Police Station, a case in Crime No. 9/1989 was registered and the contents thereof have been reduced in the Station House Diary, exhibit P-7(1). That discloses that in addition to Section 379 I.P.C. a case under Section 3 and 5 of the Karnataka Prevention of Cows Slaughter and Cattle Prevention Act, 1964, was also registered. Section 5 of the Act requires that no person shall slaughter or cause to be slaughtered any animal other than a cow or she-buffaloe unless he has obtained in respect of such animal a certificate in writing by the competent authority appointed for the area that the animal is fit for slaughter. However, there is no clear provision about there being any licence to do this profession, but it might be under some other local Act the provisions of which are not referred. However, Section 5 requires a certificate as aforesaid and when P.W.4 required the accused to produce licence, perhaps he meant such a certificate. At any rate, it is necessary to note that the case of P.W.3 making a complaint of theft of his two cows has not been challenged or controverted. When that case was registered, it was P.W.9 who sent the constable along with P.W.3 to Dadamaghatta perhaps in the first stage of investigation. It has also come in evidence that Narayanagiri, who is a neighbour of the complaint, received the phone call in the first instance that Amrutheshwar had traced what had happened to these cows. Shankaragiri and Basavaraj had accompanied Narayanagiri. Thus, it is apparently clear that the constable and P.W.3 had gone to the house of the accused and others had also followed them when there was a complaint against none-else than the accused about he committing the theft and slaughtering the cows. Thus, it is clear that their entry in the house of the accused was quite lawful which was for the purpose of investigating into the allegations in the complaint.
8. The fact that deceased Narayanagiri died a homicidal death and that P.Ws.4 and 5 had received injuries in the house of the accused does not admit of any challenge. On the other hand, it was suggested to the prosecution witnesses that either they had pounced on the accused or had surrounded him on quarrelling with him. The consistent evidence of P.Ws.3 to 5 is that when they entered into the house of the accused, P.W.4-constable informed the accused that some cows were stolen and for that reason he wanted to see the hides of the cows slaughtered. The accused replied that he would not show them as the cows slaughtered belonged to him, thereafter, the constable asked him to show the licence to deal in mutton. When P.W.4 so demanded, the accused challenged how he dare ask him licence and stood up with a kaththi in his hand. First, the constable was assaulted twice on his back and when Narayanagiri arrived there, he asked the accused why he was assaulting the constable. But, the accused became annoyed and told Narayanagiri that he would stab everyone who questioned his authority. So saying, he stabbed Narayanagiri as well on the chest and later P.W.5-Basavaraj was also stabbed. A suggestion made to P.W.3 is that all of them pounced on the accused; that Narayanagiri was holding the hands of the accused when the kaththi with which flesh was being cut was in his hands; and that all of them had also surrounded the accused. These suggestions are denied. It was further suggested to P.W.3 that when the accused was extricating his hands from the grip of Narayanagiri, his fingers came in contact with the weapon and that caused injuries on the fingers of Narayanagiri. The suggestion made to P.W.4-Head Constable was that Narayanagiri had held the hands of the accused, and after he talked to the accused, there was no further exchange of words between them. He denied that Narayanagiri had held the hands of the accused. His attention to exhibit D-3, a portion of the statement made before the police, was drawn wherein he stated that Narayanagiri had held his hands. However, he denied that he had gone there to do something and had surrounded the accused and in that process they sustained injuries in the quarrel that ensued. This was also denied. A similar suggestion was made to P.W.5-Basavaraj. It was also denied.
9. It thus follows that the presence of these injured persons at the spot and the incident in which P.Ws.4 and 5 were injured and Narayanagirl sustained fatal injuries is not in challenge. The whole question is whether there is possibility of the accused acting in the exercise of his right of private defence.
10. It is urged that because the prosecution has not placed the whole truth before the Court, this probability cannot be totally brushed aside. The reason assigned is that the other witnesses have not been examined. It has no doubt come in evidence that Rasul Khan, Basavanthagiri and Shankaragiri were also present at that time as also Amrutheshwar, the brother of P.W.3. It cannot be said that the witnesses who had accompanied P.W.3 and who were not examined could have thrown better light. In our view if the evidence given by these witnesses is believed, then the mere fact that the other witnesses are not examined should not go to the root of the case to discard the prosecution story. What is necessary to state is that P.Ws.4 and 5 were Injured and the deceased sustained fatal injuries in the incident and that does not find disputed anywhere.
11. The next material point is one of there being no F.I.R. and if Ex.P-3 is not the F.I.R. In this behalf it is necessary to see if there was any information received by the Station House Officer of the commission of the cognizable offence as required under Section 154 Cr.P.C. It is no doubt true that it was P.W.14 who first received the information when he was in office on 3-1-1989 that the accused was selling beef after committing theft of cows from Baballi village. It is in pursuance of this information that he went to Dadamaghatta at 9.45 a.m. and found four injured persons lying there. P.W.9 the Station House Officer who is the Head Constable of the Rural Police Station, Bhadravathi, has deposed that at 9.10 a.m. he directed the constable Chikkanarayana to accompany Malleshappa to Dadamaghatta after he registered the case in Cr.No. 9/39. At 9.25 a.m. he received phone call from the P.S.I. directing him to go to Dadamaghatta with staff. He made entry of the information so received in the Station House Diary, left the Police Station and reached Dadamaghatta at 9.45 a.m. Similarly, P.W.12-the P.S.I. swears that on 6-1-1989 at 9.20 a.m. he received a message when he was in D.A.R. Head quarters, Bhadravathi, from the Deputy Superintendent of Police and accordingly he contacted the Police Station and informed the Station House Officer about it and directed him to visit the spot along with constable Chandrappa. He further informed him that he would go directly to Dadamaghatta. Accordingly, at 9.45 a.m. he reached Dadamaghatta village and P.W.9 was already there. P.W.14-C.P.I. also arrived simultaneously. It was he who went to the Police Station along with P.W.3, recorded the statement at 10.30 a.m. and registered a case in Crime - No. 10/1989. Though the entry made by P.W.9 was not referred to by any of the witnesses of the prosecution or during the cross-examination during trial, we perused the same in this Court from the records and found that the information that was received by P.W.9 was that he should go to Dadamaghatta immediately. The reason for proceeding to Dadamaghatta is not stated therein. The same, however, could be made out from the evidence of P.W.12. The charge is that at about 9.30 sum, this incident occurred. It is as though when the complaint was given at the Police Station about the theft of these cows, there was also information to the police including the Deputy Superintendent of Police about it. But, at any rate, there is nothing to indicate that the information was received by any of these Police Officers regarding the commission of the cognizable offences involved in this case viz., the murder of the deceased and two persons having received injuries at Dadamaghatta. Even in the cross-examination, no such information having been received by these witnesses was elicited. Therefore, it cannot be said that before these Police Officers reached the spot they had already information about the commission of these offences.
12. The next point urged in this behalf is that at least when the Police Officers reached the spot, they came to know about what had happened and, therefore, exhibit P-3 cannot be considered as a F.I.R. Even this argument urged on behalf of the appellant cannot be accepted for the reason that no information had reached the Station House Officer regarding the commission of the cognizable offences. If a Police Officer comes to know about an incident on reaching the spot, that itself cannot become a first information as contemplated under Section 154 Cr.P.C. If he comes to know it, he is required to go to the Police Station and record it so as to enable the registering of the case. Unless the information is lodged in the Police Station before the Station House Officer as required under Section 154 Cr.P.C., the mere knowledge that a Police Officer may derive on going to the spot does not make that information the "First Information Report." In our view, therefore, that P.W.3 went to the Police Station and filed his complaint as per exhibit P-3 is amply proved by his evidence and that of P.W.12. We are of the view that exhibit P-3 is not hit by Section 161 Cr.P.C.
13. Considering the other argument that there has been delay in examining the two witnesses, while we deprecate the delay in recording the same, it is necessary to see if such a delay has in any way affected the merits of the prosecution case or casts doubt on the prosecution story. P.W.3 is also one of the witnesses being the complainant and he has revealed in the complaint about all what had happened. These witnesses have not in any way improved the prosecution story from what P.W.3 stated, in our view, therefore, this lapse on the part of the Investigating Officer to immediately record the statements of these witnesses does not in any way affect the credibility of these witnesses if their evidence is otherwise reliable and dependable.
14. As we have already pointed out, it has been the defence that when the constable and other witnesses were enquiring with the accused about the licence, they surrounded him and even held his hands and in other words, were aggressive. The injuries sustained by deceased Narayanagiri were four incised wounds out of which three were on the left palm fingers and one on right fore-finger. The transverse incised wound over the palmar aspect of middle phalanx of the left index finger, transverse incised wound over palmar aspect of the left middle finger and transverse incised wound over the left ring finger could have been caused when a sharp weapon came in contact with these parts. The medical evidence is that even M.O.1 could cause them. While it is urged for the defence that these injuries could have been caused when Narayanagiri had held the hands of the accused and also when he attempted to snatch it from the accused, it is urged for the prosecution that they could be caused as defence wounds. There was a deep cut punctured wound measuring 1.1/4"x1/2" with 3" in depth which caused severe internal injury. On dissection, P.W.10 found wound between 2nd and 3rd rib of 1/2"x1/2" corresponding to wound No. 1 and pleural cavity was filled with blood. There was also a through and through wound of 3/4"x3/4" starting from the upper lobe of lung to the lower lobe, and other internal organs were pale though intact. The deceased died due to haemorrhage and shock as a result of injury to vital organ like lung.
15. P.W.11, who examined P.W.5, noticed a wound of the size of 1/3"x1.1/2" with clear cut margins which were sharp in nature in the intercostal space on the right side over the back in between 9th and 10th ribs. Similarly, P.W.4-constable had sustained wound of the size of 1.1/2"x1/3" with clean cut sharp margins over right-side of the back. This injured was referred to Manipal Hospital though injury was simple in nature. It could thus be seen that the prosecution evidence that when the accused inflicted injury on P.W.4, the deceased intervened and he was stabbed as aforesaid and thereafter P.W.5 was inflicted the injury sustained by him finds support in the evidence of these three witnesses. Though suggestions were made either about the prosecution witnesses pouncing on the accused or surrounding him, no such defence was pleaded in his statement under Section 313 Cr.P.C. by the accused. The learned Counsel for the appellant has urged that the circumstances would indicate the probability suggested during cross-examination. In our view, in the face of direct evidence of these witnesses and there being no circumstance of they being aggressive for no reason whatsoever, there was no right of private defence that the accused was exercising when he inflicted these injuries on the deceased and other witnesses. It is also necessary to note that all of them had gone unarmed and for lawful purpose only to enquire about the allegation of the accused committing the theft of cows belonging to P.W.3 If the accused gets enraged by the very fact that P.W.4 had asked him about his licence and then first proceeded to assault him with the knife, then it cannot be said that there was any right of private defence available to him. In our view, this defence urged on behalf of the appellant cannot be considered in the face of the clear evidence discussed above. We are, therefore, satisfied from the evidence on record that the accused did inflict the injuries on deceased Narayanagiri which resuled in his death and also inflicted injuries on the two prosecution witnesses.
16. We consider here the alternate argument of defence that the offence at the most would fall under Section 304-II I.P.C. It is for the reason that there was an altercation and quarrel and, therefore, the accused could not have intended to inflict the injuries with an intention to cause the death. The Additional State Public Prosecutor, however, disputed this proposition and has urged that when the witnesses had gone unarmed and for the purpose of enquiring Into the allegations of theft, the accused who became enraged on being questioned about the licence in the first instance assaulted the constable and then assaulted the deceased and other witnesses successively. We are of the view that there was no quarrel and muchless sudden quarrel which warranted inflicting of injuries over the deceased or the injured persons. Even though he was provoked by the question asked by the constable about he possessing a licence, it is apparently clear that he inflicted the wounds on the deceased which he intended to cause and which ultimately caused the death of the deceased. In that view of the matter, this is not a case wherein we can find that the offence falls under Section 304-II I.P.C.
17. This takes us to the quantum of sentence in challenge. The Sessions Court has imposed death sentence on the accused. We are of the view that it was only improper for the Sessions Court to have imposed extreme penalty when it is sufficiently laid down that in rarest of rare cases only death penalty should be imposed as an exception and not as a Rule. This is not a case which falls in the description of such cases which require extreme penalty provided by law. It was also urged that the Sessions Court violated the mandatory provision of Section 235(2) Cr.P.C. in not giving opportunity to the accused to plead on the sentence. That apart, we are satisfied, the circumstances of the case do not warrant inflicting of the death penalty.
18. Accordingly, while confirming the conviction of the accused for the offence under Section 302 I.P.C., we set aside the sentence of death penalty imposed by the Sessions Court and in its place sentence him to suffer imprisonment for life. Reference is rejected in this behalf.
The accused has been convicted under Section 333 I.P.C. for having caused grievous hurt to P.W.4 and under Section 307 I.P.C. for attempting to commit the murder of P.W.5-Basavaraj. We are not able to find that P.W.4 had sustained grievous injuries. The medical evidence is that there was simple injury on his back. Accordingly, we find the accused guilty under Section 332 I.P.C. for having caused injury to P.W.4-constable with a knife and sentence him to suffer rigorous imprisonment for one year. Similarly, the injury caused to P.W.5 cannot be said to be one caused in an attempt to cause his murder. As the same is caused with a sharp weapon like the knife, we convict him under Section 324 I.P.C. and sentence him to suffer rigorous imprisonment for six months. The substantive sentences shall run concurrently. The accused is also entitled to set off of the period of detention from the date of his arrest till this sentence is passed under Section 428 Cr.P.C.