Karnataka High Court
Mohammed Musheer vs State Of Karnataka on 22 April, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC:16107
CRL.A No. 845 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 845 OF 2012
BETWEEN:
MOHAMMED MUSHEER,
AGED ABOUT 28 YEARS,
S/O MOHAMMED HAFEEZ,
R/O NERALAKERE,
RAMANAGARA TOWN,
RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI. S.G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE OF KARNATAKA
BY RAMANAGARA TOWN POLICE,
Digitally BY STATE PUBLIC PROSECUTOR,
signed by HIGH COURT BUILDINGS,
LAKSHMI T AT BANGALORE.
Location: ...RESPONDENT
High Court
of (BY SRI. HARISH GANAPATHY, HCGP)
Karnataka
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET-ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED AGAINST HIM DATED 07/09.07.2012 PASSED BY THE
DISTRICT AND SESSIONS COURT AT RAMANAGARA IN SPL.
CASE NO.228/2007 - ACQUITTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 307 R/W 34 OF IPC.
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CRL.A No. 845 of 2012
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the convict against the judgment and order passed by the Trial Court convicting and sentencing him for the offence punishable under Section 307 read with 34 of IPC.
2. The learned Sessions Judge has sentenced the accused to undergo Simple Imprisonment for a period of five years and to pay a fine of Rs.25,000/- (Rupees Twenty-five Thousand only), and in default, to undergo imprisonment for a period of one year.
3. Heard the learned counsel for the appellant, the learned High Court Government Pleader for the State and perused the evidence and material on record.
4. Briefly stated, case of the prosecution is that on 14.11.2002 at about 10.30 p.m., the appellant/accused No.1 and accused No.2 picked up a quarrel with the victim/PW3 belonging to Scheduled Caste, in connection with stealing of pigeons. Accused No.2 assaulted him with hands and -3- NC: 2024:KHC:16107 CRL.A No. 845 of 2012 accused No.1 stabbed him with a knife on his abdomen and left thigh. It is the further case of the prosecution that they abused him in filthy language referring to his caste as "ಏ ೂೕ ೂ ಯ ನನ ಮಗ , ನ ಷು ೂಬು ".
5. Charge-sheet was filed against accused Nos.1 and 2, showing accused No.2 as absconding. Charges were framed for the offences punishable under Section 307, 506 read with Section 34 of IPC, Section 3 (1) (10) and 3(2) (5) of SC/ST (POA) Act, 1989 read with Section 34 of IPC.
6. In order to establish its case, the prosecution in all examined PWs1 to 11 and got marked Exs.P1 to P7 and M.Os 1 to 3. The learned Sessions Judge vide impugned judgment, convicted the appellant/accused No.1 for the offence punishable under Section 307 read with Section 34 of IPC, however, acquitted him of the offences punishable under Section 3 (i) (x) and 3 (2) (5) of SC/ST (Prevention of Atrocity) Act, 1989.
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7. The complaint is lodged by PW2. Complaint is marked as Ex.P2. The complaint averments would disclose that the complainant (PW2), one Kulla (PW4) and Kumar (Victim/PW3) were working in the filature factory of one Hasmath. About three days prior, the accused had stolen the pigeons belonging to their owner's son by name Mouli. The victim/PW3 along with Mouli went and asked the accused to return the pigeon. The accused quarreled with them and refused to give back the pigeons. On 14.11.2002 at about 9.00 p.m., accused No.1 and accused No.2 quarreled with PW3 near one Manjunatha Fair Price Shop. PW2 and PW4 intervened and pacified the quarrel. Thereafter, both accused Nos.1 and 2 took PW3 near the railway gate. They once again quarrelled with PW3 and abused him in filthy language. Accused No.2 held his collar and assaulted him with hands. Accused No.1 stabbed him on his abdomen and thigh with a knife and caused bleeding injuries to him and then threw the knife and both the accused fled away threatening him with dire consequences. Injured was shifted to Ramanagara Government Hospital for treatment.
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012
8. PW9 - ASI of Ramanagara Town Police Station, on receiving the complaint lodged by PW2, registered a case against accused Nos.1 and 2 and issued FIR (Ex.P6) to the Jurisdiction police.
9. PW8 - PSI of Ramanagara Town Police Station, took over the investigation from PW9 on 15.11.2002. He visited the spot and prepared the spot mahazar (Ex.P3). Knife was recovered from the spot. He recorded the statement of the victim on 24.11.2002. In his evidence, he has stated that the blood stained clothes of the injured victim was handed over to him by victim's father and he seized the same under Ex.P4. He handed over the investigation to Dy.S.P (PW10), who concluded the investigation and filed the charge-sheet.
10. PW11 is the Medical Officer at Government Hospital, Ramanagara, who examined the victim/PW3 on 14.11.2002 at about 10.00 p.m., victim was accompanied by his brother Ramesh, with a history of assault with a knife by the accused(appellant) on 14.11.2002 at 9.30 pm near the -6- NC: 2024:KHC:16107 CRL.A No. 845 of 2012 Railway gate. On examination of the victim, PW11 found the following injuries:
1. An Incised injury over the lateral aspect of left thigh, measuring 1 inch X 1 inch.
2. Perforating injury over the mid axillary region at the level of 12 inch, measuring 3 cm X 3 cm with omentum prolapsed.
11. The wound certificate is marked as Ex.P7. In the cross-examination, PW11 has stated that Injury No.2 could be possible due to assault with weapon like knife.
However, he has admitted in the cross-examination that the weapon was not produced for his examination and the injury could also be possible, if the injured falls on any sharp object.
12. PW7 is the Casualty Medical Officer at Victoria Hospital, Bangalore. She examined the victim on 15.11.2002 at about 12.45 am, who was accompanied by his brother Ramesh with a history of assault by Musheer i.e., the -7- NC: 2024:KHC:16107 CRL.A No. 845 of 2012 appellant on 14.11.2002 at 9.30 p.m., with a knife, referred from Government Hospital, Ramanagara. On examination of the injured, she has found the following injuries:
1. Stab wound over the left lower rib region of abdomen, measuring 3 X 0.5 cm, omentum prolapsed.
2. Lacerated wound over the left thigh, measuring 6 X 1 cm, muscle deep, fresh bleeding present.
13. The wound certificate issued by PW7 is marked as Ex.P5. In the cross-examination, PW7 has stated that Injury No.2 mentioned in Ex.P5 may be possible due to fall on sharp edged object, but injury No.1 is not possible due to fall. She has further stated that since she has not treated the injured she has not given any opinion as to the nature of the injuries.
14. The material on record shows that, immediately after the incident, the injured was shifted to Ramanagara Government Hospital. According to the first informant/PW2, he along with one Kulla (PW4) shifted the injured to the hospital. Case was registered at about -8- NC: 2024:KHC:16107 CRL.A No. 845 of 2012 10.30 p.m., on 14.11.2002 on the basis of the complaint lodged by PW2.
15. The learned counsel for the appellant has vehemently contended drawing the attention of the Court to the cross-examination of PW2 and PW4, that according to them they have gone to the spot after the incident was over and therefore, they could not be termed as the eye- witnesses. He has further contended that PW4, according to the prosecution was along with PW2 and PW3, but he has not deposed about the quarrel which took place near Manjunatha Fair Price Shop. He further contended that according to PW7 and PW11 the Medical Officers, the injured was brought to the hospital by victim's brother by name Ramesh and not by PWs.2 and 4. It is therefore contended that the presence of PWs.2 and 4 at the scene of occurrence was doubtful. The learned counsel contended that Ramesh i.e., victim's brother is not at all examined in this case and therefore, the prosecution has not established beyond all reasonable doubt that the victim/PW3 was stabbed by the accused/appellant.
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16. The learned counsel for the appellant would also contend that according to the prosecution, the incident took place at about 9.00 pm on 14.11.2002, whereas PW2 has stated that the incident was at about 6.30 pm. It is his contention that the witnesses have admitted that the incident took place in the dark and therefore, contended that the victim and alleged eye-witnesses could not have identified the persons who stabbed.
17. The learned High Court Government Pleader on the other-hand has contended that the victim as well as PW2 and PW4 have categorically stated that it was the appellant, who stabbed with a knife and their evidence is corroborated by the Medical evidence. He contended that the appellant has stabbed on the vital part of the body of the victim with an intention to commit his murder and therefore, the learned Sessions Judge has rightly convicted the appellant/accused No.1 for the offences punishable under Section 307 read with 34 of IPC.
18. The Trial Court has convicted the appellant for the offence punishable under Section 307 read with 34 of IPC
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012 and acquitted him of other charged offences. In so far as acquittal of the accused is concerned, the same has become final as there is no appeal preferred.
19. The motive for committing the offence is that the accused had stolen the pigeons belonging to one Mouli. Therefore, the said Mouli and the victim/PW3 were asking the accused to return the pigeons. The accused quarreled with them and refused to return the pigeons. In this background, on 14.11.2002 at about 9.00 pm he once again quarreled with the victim. PW2 and PW4 are said to have intervened and pacified the quarrel. Thereafter, accused Nos.1 and 2 took the victim near the Railway gate, wherein, they once again quarreled with him and accused No.2 assaulted him with hands, accused No.1 i.e., appellant stabbed him on his abdomen and thigh with a knife and caused bleeding injuries.
20. While conducting the spot mahazar on 15.11.2002, the knife was recovered from the spot. The blood stained pant and shirt of the injured were handed over to the police by the victim's father, which was seized under a
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012 mahazar (Ex.P4). PW2 in his cross-examination has admitted that by the time he went near the Railway gate the quarrel was over. He has stated that when the accused was stabbing the victim, it was dark. He has stated that he has seen the incident from a distance of 50 feet and he could not see who assaulted whom. Similarly PW4 in his cross-examination has stated that it was dark at the time of incident and by the time he reached the spot, the accused had stabbed the victim. He has admitted that he has not seen the accused stabbing the victim.
21. A careful perusal of the evidence of PW2 and PW4 goes to show that there was a quarrel between the appellant/accused No.1 and PW3 with regard to stealing of pigeons and on the date of incident, appellant took PW3 near the Railway gate. The incident took place near the Railway gate where according to the prosecution accused No.1 stabbed the victim/PW3 on his abdomen and thigh with a knife. If the evidence of PW2 and PW4 is perused, by the time they reached the spot, PW3 was already stabbed. Since it was dark, they could not see as to who stabbed PW3.
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22. PW3 being the injured in this case, his evidence assumes importance. If his evidence is trustworthy, no corroboration is required. In the case on hand, PW3 has stated that, accused had stolen the pigeons and when he had asked him to return it, accused abused and threatened him. On the date of incident, at about 8.00 p.m., when he was standing near the depot, the accused took him near the Railway gate. Accused No.2 assaulted him with hands and accused No.1 stabbed with a knife on the left side of abdomen and thigh and caused bleeding injuries. He has stated that he was taken to Ramanagara Government Hospital and when he gained consciousness, he was being taken to Victoria Hospital, wherein, he took treatment for about one month.
23. Even though the witnesses have admitted that it was dark when the incident took place, it is relevant to see that prior to the incident of stabbing, the accused quarreled with PW3 and then they took him near the Railway gate. Therefore, the identity of the accused cannot be doubted. PW3 has specifically stated in his evidence that he was
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012 stabbed by accused No.1/appellant herein on the left side of abdomen and thigh. His evidence is corroborated by PW7 and PW11, Medical Officers. The discrepancy in timing cannot be a ground to disbelieve the evidence of PW3.
24. In so far as the injuries mentioned in Ex.P7 issued by PW11 and Ex.P5 issued by PW7, there are some variations. As per PW11, injury No.1 is an incised injury over the lateral aspect of left thigh measuring 1 X 1 inch, whereas according to Ex.P5 the said injury is lacerated wound over the left thigh measuring 6 X 1 cm, muscle deep. The injury sustained to the abdomen is concerned, as per Ex.P7, it is perforate injury over the left mid axillary region at the level of 12 inch measuring 3 X 3 cm with omentum prolapsed and as per Ex.P5 it is a stab wound over the left lower rib region of abdomen measuring 3 X 0.5 cm omentum prolapsed. However, a careful examination of both the wound certificates and the evidence of PW7 and PW11 would indicate that the injuries caused to the left thigh is a simple injury and injury caused to the abdomen is a grievous injury. Even though there is only one injury to the abdomen caused
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012 by accused No.1, the said injury is on the vital part of the body, inflicted by knife. Even if the accused had no intention, he was having the knowledge that by causing such injury and by his act, he would have caused the death of PW3. Hence, the conviction of the appellant/accused No.1 by the learned Sessions Judge for the offence punishable under Section 307 read with 34 of IPC cannot be interfered with.
25. It is contended by the learned counsel for the appellant that, the incident was an account of a petty quarrel wherein the accused was provoked by PW3 and even according to the prosecution, there was one injury caused to the abdomen. It is contended that if the accused had an intention to take away the life of PW3, he would have inflicted more injuries. There is some force in the submission advanced by the learned counsel for the appellant. The incident is on account of stealing of pigeons by the accused. In Ex.P2 it is stated that the said pigeons belongs to one Mouli. PW3 along with Mouli went and asked the accused to return the pigeons. There is nothing on record to show that there was any other motive for the accused to commit the
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NC: 2024:KHC:16107 CRL.A No. 845 of 2012 offence. Two injuries were caused to the victim. One of the injury is simple injury. The incident has occurred in the year 2002. 21 years have been lapsed. Considering the facts and circumstances of the case, sentence of imprisonment imposed against the accused can be reduced. Accordingly the following:
ORDER
i) Appeal is Allowed- in- part.
ii) The judgment and order dated 07.07.2012 and 09.07.2012 passed by the Court of the District and Sessions Court at Ramanagara in Special Case No.228/2007 convicting the appellant/accused No.1 for the offence punishable under Section 307 read with 34 of IPC is hereby confirmed.
iii) The sentence of imprisonment is modified as under:
The appellant is sentenced to undergo Simple Imprisonment for a period of one year.
iv) The fine amount and default sentence for non-
payment of fine imposed by the Trial Court is unaltered.
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v) The accused is entitled for set off under Section 428 of Cr.P.C for the period of sentence already undergone by him.
SD/-
JUDGE KBM List No.: 1 Sl No.: 30