Karnataka High Court
State By Police Of Gandhi Gunj Police ... vs Abdul Aziz Miyan And Another on 8 February, 2000
Equivalent citations: ILR2000KAR3787, 2000(5)KARLJ314
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
JUDGMENT
1. The State of Karnataka has assailed the acquittal of respondents 1 and 2 who stood charged with having committed the murder of one Mohamed Khaleel at Badrodi Colony, Bidar, on 14-9-1991 at ahout 6 p.m. It was alleged that Khaleel though a close relative of the accused had a rather colourful background and that on the previous day he is alleged to have caught the hand of Khubra Bi with some ulterior motive. As a result of this, a minor skirmish took place on the afternoon of 14-9-1991 at about noon time but it appears that nothing of real conse-quence by way of injuries occuired. At about 6 p.m. however, the wife of the deceased P.W. 14-Zaheeda Bee and the father Mohamed Khasim Sab as also the brother Mohamed Basheer were in the house when A-l and A-2 who are father and son are alleged to have come there and asked for Khaleel. Khaleel was a fruit vendor who used to normally stay out the whole day and return only at night and the Bazaar where he was to normally go was known to the accused. We need to mention here that A-2 is the brother and A-l is his father. Apart from this, the witnesses and the deeeased all belong to one extended family. The two accused are supposed to have stated that they will nnd out where Khaleel was and that they will finish him off, and they went towards the Bazaar. Accord-ing to P.W. 1-Basheer, he followed them at some distance. When thc accused found Khaleel, A-l is alleged to have caught hold of him by his shirt and A-2 stabbed Khaleel with a knife on the lower portion of his stomach i.e., pubic supra region and thereafter, inflicted another tab injury on the back, apart from four other injuries which are not of much consequence, on the limbs. Seeing Basheer approaching, the accused are alleged to have run away. In the meanwhile, the Police arrived on the scene and after making enquiries from Basheer as to what had hap-pened, his statement which was treated as an F.I.R. was recorded on the spot. Khaleel had died in the meanwhile and the Police commenced their investigations in the course pf which they arrested A-l and A-2 on the next day i.e., 15-9-1991. It is alleged that pursuant to a voluntary statement, A-2 produced a knife which is M.O. l which the Police seized under a Mahazar and it is alleged to have been bloodstained. A-2 is alleged to have produced this knife from his residence. On completion of the investigation, the two accused were charge-sheeted for offences pun-ishable under Section 302 read with 304 of the Indian Penal Code. The learned Trial Judge after analysing the evidence of the sole eye-witness Mohamed Basheer, who is the brother of the deceased, as also the evidence of the wife Zaheeda Bee and the father Mohamed Khasim Sab, recorded a finding that the evidence suffers from several infirmities, that it was unsafe to rely on such evidence and consequently acquitted the accused. It is against this order that the present appeal has been directed.
2. At the hearing of the appeal, the learned Additional State Public Prosecutor Sri Koti and the respondents' learned Counsel Sri R.B. Desh-pande have taken us extensively through the entire record and we have also heard their submissions both on factual aspects as also on points of law. Mr. Koti's principal submission is that the evidence of P.W. 1-Mo-hamed Basheer who is the brother, fully and conclusively establishes the fact that on the evening of 14-9-1991 that he had followed the two accused at some distance after they had come to the house and asked for Khaleel and according to him, he has personally witnessed the assault and it is his case that A-l was holding the deceased in order to prevent him from escaping and in order to facilitate A-2 stabbing him and that the only reason why the two accused ran a\vay from that place is be-cause they saw him approaching. Mr. Koti points out that the evidence of the Police Officers P.W. 19-P.S.I. Shankar, s/o Rudrappa and PAV. 12-Namdev, s/o Vithal Rao, Police Constable, conclusively establishes that the Police arrived at the scene of the incident virtually within minutes after its taking place and they have stated unequivocally that the brother-P.W. l was at the spot. It is also their evidence that PAV. l informed them immediately as to who the two assailants were and that P.W. 19-the P.S.I. took down his statement on the spot. Mr. Koti relies on the F.I.R. which sets out the names of the assailants and which in turn has reached the Court within hardly one hour and he submits that there could not have been a clearer and quicker recording of the facts than what has happened in this case. His submission is that the Trial Court was totally in error in having rejected the evidence of P.W. 1-Basheer on the ground that the wife P.W. 14-Zaheeda Bee and the father P.W. 20-Mohamed Khasim Sab have not referred to the presence of P.W. 1-Basheer in the house. Whereas it is the express case of PAV. l that he was in the house when the accused came and searched for Khaleel and that he followed them at a distance, the learned Judge holds that the non-mention of Basheer in the house by P.Ws. 14 and 20 would in terms indicate that he was not there and if this was the posi-tion, then the rest of his contention beconies doubtful. Mr. Koti submit-ted before us that the non-mention of PAV. l in the house by P.Ws. 14 and 20 is of absolutely no consequence because those witnesses have referred to the incident vis-a-vis the accused and it is obviously by over-sight that they have not mentioned the name of P.W. 1. He has also taken us through the evidence P.Ws. 14 and 20 and pointed out that the learned Trial Judge has been not only strict but extra rigorous while scrutinising this evidence and has virtually rejected it because of minor and insignificant infirmities. Learned Counsel submitted that the evidence of P.W. l which finds support from the F.I.R. and the evidence of the Police Officer-P.W. 19 and the Police Constable-P.W. 12 and again, from the medical evidence because the injuries on deceased Khaleel correspond to exactly the injuries which P.W. l states were inflicted on him, that the prosecution must be held to have established its case and that consequently, the order of acquittal ought to be set aside.
3. On the other hand, Mr. Deshpande vehemently submitted that it is not one or two minor infirmities which have tainted the evidence of P.W. l but that there is a whole string of omissions which have been duly proved through P.W. 15-the C.P.I. and he points out to us that all these omissions taken together cast very serious doubt as to whether the P.W. l was in the house when the accused are alleged to have gone there and more importantly on the question of his having witnessed the incident. Mr. Deshpande explains the presence of P.W. l when the Police arrived by pointing out that the incident must have caused a commotion or must bave spread like wild fire and that P.W. l who may have been in the vicinity must have rushed to the spot and having found his brother stabbed to death, that he continued to remain there until the Police came. Mr. Deshpande submits that it is important for the Court to take note of the fact of the so-called motive which is pleaded namely that Khaleel had caught the hand of the sister of A-2. Even assuming this was true, it is not an incident of such seriousness as to provoke a mur-derous assault in retaliation. His submission is that the defence has brought out the fact that deceased Khaleel had a rather dubious record even as far as women are concerned and that if he had misconducted himself with one of the ladies from the family, that he would undoubt-edly have provoked an admonition. What he submits essentially is that this was not a case where the lady has been molested or raped in which case, a violent reappraisal could have been triggered off but that the so-called motive itself is extremely weak and could hardly constitute any background for the murder. Also, he points out to us that even as far as the eartier incident is concerned that the versions of P.W. l, P.VV. 14-Za-heeda Bee and P.W. 20-the father do not tally with each other. His submission is that the deceased Khaleel had misconducted himself and that there was every reason to believe that one or more of the persons whom he had infuriated had attacked him. Learned Counsel points out to us that even the Serologist report does not establish any bloodstains on the clothes of the accused and furthermore that the recovery panchas-P.Ws. 5 and 6 have also turned hostile. In totality therefore, his submission is that the conclusions arrived at by the Trial Court are neither wrong nor are they perverse. He submits that it is a perfectly plausible point of view and that in an appeal against acquittal, this Court must refuse interference.
4. We are conscious of the scope of an appeal against acquittal and also the fact that if the Trial Court has arrived at a plausible and sustainable conclusion that even if another view is possible on better reasoning, that the Appellate Court will not interfere in such circum-stances. This however does not mean that if on a clear and correct appraisal of the evidence the High Court finds that the order of acquittal is unsustainable, that the High Court still should not interfere. While we do concede that the High Court will be slow in interfering, it is equally the duty of the High Court where the order of acquittal is wrong, to ensure that there is no miscarriage of justice by taking corrective action.
5. There are certain salient features which turned out in this case, the first of them is the fact that even though P.W. 1-Basheer is closely related to the deceased, he is also related to the accused and what we need to take cognisance of is that even though he would be distressed at the death of his brother, that it would be difficult to accept the position that he would give a go-by to the real assailants and falsely implicate some other family members. This is not a case where there is any dis-pute or bitter hostility between the two branches of the family. The evidence of P.W. 1-Basheer who would normally have been in his house at 6 p.m. in the evening appcars natural and credible. It is fully corrobo-rated by the irnmediate statement or F.I.R. and his presence is estab-lished through the evidence of the independent Police Officers. It is true that there are a string of omissions but these are not of any deep signifi-cance and in our considered view are not only explainable but are under-standahle having regard to the status of the person, his mental condition when his statement was recorded irnmediately after the murder of his brother and the same applies to the statements of the wife-P.W. 14 and the father-P.W. 20 both of whom are faulted for the non-mention of certain insignificant details. There is also another aspect \vhich the Court needs to take note of namely the fact that P.W. l has given a description of the assault and this fully and completely tallies with the medical evidence injury for injury. In this background, the real test that the Court would apply is as to whether despite the omissions and infir-mities, whether the evidence suffers from a lack of credibility and truth-fulness and in our considered view, the answer to that question is in the negative. We also take note of another corroborative piece of evidence which is the recovery of the kmfe-M.O. l at the instance ot A-2 and tnat the Serologist report indieates that it was stained with human blood. Taken cumulatively therefore, this evidence conclusively establishes that Khaleel died a homicidal death on the evening of 14-9-1991 as a result of stab injuries which were inflicted on him by A-2. Though there are passing references to the presence and participation of the father of A-l and even though the learned Additional State Public Prosecutor submitted that but for A-l holding on to Khaleel that A-2 could never have inflicted successive stab injuries on him, we need to also consider the submission of Sri Deshpande that in a situation such as this, the mere presence of A-l would not be sufficient to implicate him in a mur-der charge unless actual participation in the Act is demonstrated. A careful appraisal of the evidence would indicate that even though there is a reference to the presence of A-l, having regard to his age and the fact that the evidence does not attribute any specific overt act uis-a-vis the murder except a passing reference that he is supposed to have as-sisted A-2, in our considered view he would be entitled to the benefit of doubt. As far as A-l is concerned therefore, the order of acquittal re-corded in his favour by the Trial Court stands confirmed.
6. Coming to the case of A-2, Mr. Deshpande adduced a number of circumstances starting with the background of Khaleel to the fact that he had misbehaved with the sister of A-2 and, the added fact that an altercation had taken place with regard to the said incident and he also demonstrates to us that the weapon used was a pen-knife which could hardly be categorised as a deadly weapon or one that would be used if the intention is to kili. He has also alluded to the parts of the evidence which suggest that there was some talk between the deceased and A-2 prior to the incident and he submits that in totality, the offence at the highest would be categorised under Section 304 Part II of the Indian Penal Code. Mr. Koti has submitted that the doctor has opined that injuries Nos. l to 4 are fatal and he further submits that Khaleel died on the spot and that consequently, in the absence of any extenuating circumstances the conviction must be under Section 302 of the Indian Penal Code.
7. We need to record one important facet of the law relating to cases of this type. For purposes of categorising the offence, the Court will have to infer from a number of factors as to whether the accused intended to commit murder or whether the accused had reason to believe that the assault would result in death or whether the intention was to inflict an injury which unfortunately resulted in death. Merely because a death has taken place, a Court ought not to jump to the conclusion that Section 302 would apply ipso facto and we need to lay down that even on the aspect of sentence, the Trial Courts must apply their minds to the finer points of law. One aspect that stands out in the present cae is the fact that the weapon used was a small knife or rather a pen knife and it is even the suggestion of the defence that this was the knife which deceased Khaleel used to keep on his cart for purposes of cutting and peeling fruits. Where an accused goes armed with a dagger or a sword or some other lethal weapon, it may be difficult to argue that the intention was to cause injury but not to kili but in a case where the weapon used is a small pen knife, such as in the present case, it would be difficult to draw the conclusion that the intention was to kill. Next, we take note of the type of injuries inflicted and again this Court needs to sound a word of caution because an injury inflicted with a deadly weapon on a vital part of the body would most certainly have the consequence of killing, whereas if a lesser weapon is used and the injuries are aimed at essen-tially non-vital parts of the body, the defence would be justified in plead-ing that even if a death has occurred, that this was really not the objective of the accused. This is an important distinction which arises out of an analysis of the law relating to Sections 299, 302 and 304 of the Indian Penal Code, and what emerges is that the two injuries which are described by the doctor as both serious and fatal were aimed at the supra pubic area i.e., lower most portion of the abdomen and the back. Unfortunately, and possibly because of the position in which the de-ceased was, there has been a small puncture of the intestine and the lung which resulted in death. These are aspects of the case which impel us to categorise the offence as one under Section 304 Part II of the Indian Penal Code and not Section 302 ofthe Indian Penal Code.
8. On the question of sentence, Sri Deshpande, learned Counsel who appears on behalf of A-2 points out that the earlier incident took place in the house of A-l, that the accused at the relevant time was working as the Carpenter, that he was also doing some extra jobs and supporting hi s family which consists of a wife and four young children and he makes a strong plea that since the accused has undergone a relatively long period in custody upto the end of the trial, that this Court should not direct that he be reconfined to prison after a lapse of a long period of time. We do find in similar cases where there has not been any strict mottvation nor is the crime of a gruesome nature that the Supreme Court has accepted such a plea and has confined the jail sentence to the period undergone by the accused. On a parity with those decisions, we accept the plea put fonvard by the learned Counsel as far as the jail sentence is concerned. However, we are of the view that having regard to the age of the deceased Khaleel and the fact that he has left behind an young widow, that this is a fit case in which a reasonable fine be imposed on A-2 so that the amount can be paid over to Zaheeda Bee, the widow of the deceased Khaleel who is P.W. 14.
9. In the result, the appeal partially succeeds. While this Court con-firms the order of acquittal recorded by the Trial Court in favour of A-l, the acquittal order recorded in favour of A-2 is set aside. A-2 is convicted of the offence punishable under Section 304, Part II of the Indian Penal Code and it is directed that he shall undergo R.I. for the period already undergone and that he pay a fine quantified at Rs. 10,000/-. No in-de-fault sentence is awarded and it is directed that A-2 shall deposit the fine amount in the Trial Court within an outer limit of four months from today failing which, the Trial Court to recover the amount from him. On recovery of the amount, the Trial Court to issue notice to P.W. 14-Za-heeda Bee and to pay over the amount of Rs. 10,000/- as compensation to her. The bail bonds of the accused Nos. l and 2 to stand cancelled. The appeal to stand disposed of.
10. It is clarified, that the Court having ascertained the period of custody undergone by A-2 and having considered it adequate, has di-rected that the sentence is confined to the period already undergone and that A-2 will therefore not be required to undergo any further imprison-rnent.