Karnataka High Court
Sri Mohammed Anwar Uruf Anwar vs Sri Mansoor Ahmed @ Mansoor S/O Yusuf ... on 6 September, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL APPEAL NO.413/2015
C/W
CRIMINAL APPEAL NOS.373/2015 & 372/2015
IN CRL.A NO.413/2015
BETWEEN:
SRI MOHAMMED ANWAR URUF ANWAR
T. HAMMABBA
AGED ABOUT 40 YEARS,
CABLE NETWORK WORK
HIREKOLALE ROAD, UPPALLI,
CHIKMAGALUR.
<<,
... APPELLANT
(BY SRI. ASHOK NAIK, ADVOCATE)
AND:
1. SRI MANSOOR AHMED
@ MANSOOR
S/O YUSUF HAJJ
R/O UPPALLI,
CHIKMAGALUR.
2. SRI. HUSSAIN
S/O USMAN HAJI,
AGED ABOUT 49 YEARS,
2
LORRY DRIVER,
R/O MASJID ROAD,
UPPALLI, CHIKMAGALUR.
3. SRI. BHADRU @ NOOR AHMED
S/O HAMMABBA,
AGED ABOUT 48 YEARS,
R/O UPPALLI, CHIKMAGALUR.
4. SRI. FAROOQ
S/O BHADRU @ NOOR AHMED
AGED ABOUT 22 YEARS,
R/O UPPALLAI,
CHIKMAGALUR.
5. STATE
BY BASAVANAHALLI POLICE,
CHIKMAGALUR
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA.
BANGALORE.
... RESPONDENTS
(BY SRI.PAVAN FOR SRI. S. SHANKARAPPA,
ADVOCATES FOR R1- R4;
SRI. K. NAGESHWARAPPA, HCGP FOR R-5)
THIS CRIMINAL APPEAL IS FILED U/S.372 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
THE ACQUITTAL DATED 11.2.2015 IN S.C.NO.144/09,
PASSED BY THE II ADDL. SESSIONS JUDGE,
CHIKMAGALUR FOR THE OFFENCES P/U/S 114 AND 307
R/W 149 OF IPC, AGAINST ACCUSED NO.1 TO 4 AND TO
CONVICT THEM UNDER THE SAME SECTIONS.
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CRL.A NO.373/ 2015
BETWEEN:
1. MANSOOR AHAMED
S/O YUSUF HAJI,
AGED ABOUT 24 YEARS,
R/A UPPALLI,
CHIKKAMGALUR -577101
2. HUSSAIN
S/O USMAN HAJI,
AGED ABOUT 49 YEARS,
WORKING AS DRIVER,
R/A MASJID ROAD,
UPPALLI
CHIKKAMGALURU-577101
... APPELLANTS
(BY SRI.PAVAN FOR SRI. S. SHANKARAPPA,
ADVOCATES)
AND:
STATE OF KARNATAKA
BY BASAVANAHALLI P S
REPRESENTED BY S P P
HIGH COURT OF COMPLEX,
BANGALORE-560001
... RESPONDENT
(BY SRI.K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:11.2.2015,
PASSED BY THE II ADDL. SESSIONS JUDGE,
CHIKKAMAGALUR, IN S.C.NO.144/09 - CONVICTING THE
APPELLANT/ACCUSED NO.1 & 2 FOR THE OFFENCES
P/U/S 143,147, 326 & 504 OF IPC.
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CRL.A NO 372/ 2015
BETWEEN:
1. BHADRU @ NOOR AHAMED
S/O HAMMABBA
AGED ABOUT 48 YEARS
R/AT UPPALLI
CHIKKAMAGALURU-577101.
2. FAROOQ
S/O NOOR AHAMED
AGED ABOUT 22 YEARS
R/AT UPPALLI
CHIKKAMAGALUR-577101
... APPELLANTS
(BY SRI.PAVAN FOR SRI. S. SHANKARAPPA,
ADVOCATES)
AND:
STATE OF KARNATAKA
BY BASAVANAHALLI P.S.
REP BY S.P.P,
HIGH COURT COMPLEX,
BANGALORE-01.
... RESPONDENT
(BY SRI.K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:11.2.2015,
PASSED BY THE II ADDL.SESSIONS JUDGE,
CHIKKAMAGALUR, IN S.C.NO.144/09 - CONVICTING THE
APPELLANT/ACCUSED NO.3 & 4 FOR THE OFFENCES
P/U/S 143,147, 323 & 504 OF IPC.
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THESE CRIMINAL APPEALS ARE COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These three (3) appeals are directed against judgment of sentence dated 11.02.2015 passed by II Addl. Sessions Judge, Chikkamagalur, in S.C.No.144/2009 whereunder accused 1 to 4 were charged for the offences punishable under Sections 143, 144, 148, 307, 323, 326, 504, 114 r/w Section 149 of IPC and after trial are convicted for the offences punishable under Sections 143, 147 and 504 of IPC and accused 1 and 2 are also convicted for the offence punishable under Section 326 IPC and accused No.4 has also been convicted for the offence punishable under Section 323 of IPC and all the accused were acquitted of the offences punishable under Sections 114 and 307 r/w Section 149 of IPC.
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Following tabular column would suffice for the limited purpose of ready reference:
Status of the parties Sl. Crl. Appeal No. Number Before Sessions Before High Court Court 1 413/2015 Victim - P.W.2 Appellant 2 372/2015 Accused Nos.3 and 4 Appellants 1 and 2 3 373/2015 Accused Nos.1 and 2 Appellants 1 and 2
2. State being aggrieved by the order acquitting the accused for the offences punishable under Sections 307 of IPC had preferred Crl.A.No.610/2014. Division Bench by judgment dated 12.04.2016 has dismissed the State appeal and confirmed the judgment of the trial Court acquitting accused 1 to 4 for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC.
3. Victim has filed Crl.A.No.413/2015 for setting aside the order of acquittal of accused 1 to 4 for 7 the offences punishable under Sections 114 and 307 r/w Section 149 of IPC. Accused 1 and 2 have preferred Crl.A.No.373/2015 against the order of conviction passed against them by convicting them for the offences punishable under Sections 143, 147, 326, 504 IPC by sentencing them to pay a fine of ` 5,000/- cash with default sentence of three (3) months simple imprisonment and further sentencing them to two (2) months rigorous imprisonment with fine of ` 25,000/-. Accused 3 and 4 have filed Crl.A.No.372/2015, insofar as, convicting them for the offences punishable under Sections 143, 147 and 504 of IPC and sentencing them to pay a fine of ` 5,000/- cash for each offence with default sentence of three (3) months simple imprisonment and imposing fine of `1,000/- on accused No.4 for the offences punishable under Section 323 IPC. Though appeals are listed for Admission, by consent of learned Advocates appearing for parties they are taken 8 up together for consideration. Records from the jurisdictional Sessions Court, which has been secured is also perused. Since, these three appeals arise out of common judgment they are taken up together and disposed of by this common order.
4. The gist of these appeals are that; on 22.12.2008 at about 6.30 p.m. while complainant Sri.Mohammed Anwar @ Anwar (P.W.2) was talking with C.W.7-Mr. Ali (P.W.7) and Mr.Iliyas-C.W.8 (P.W.3) near Uppalli Circle in front of water tank, accused 1 and 4 came there on a motorcycle and at the same time, accused 2, 3 and 5 also came there and together all the accused abused the complainant in filthy and foul language by abusing him that he has become a hero in the locality and as such, accused 1 and 2 assaulted him with iron rods on his head and when complainant tried to escape, one such blow fell on his left hand and he fell down, at which point of time, accused 1 and 2 assaulted 9 him with iron rods and caused grievous injuries to him. It is also alleged that accused No.3 instigated accused 1 and 2 not to spare him (P.W.2) and to kill him. It was alleged that accused 4 and 5 assaulted him (P.W.2) with their hands with an intention to murder him. On these allegations, charge sheet came to be filed by the jurisdictional police after investigation.
5. After trial, as already noticed hereinabove, accused 1 to 4 came to be convicted for the offences punishable under Sections 143, 147 and 504 of IPC, accused 1 and 2 were also convicted for the offence punishable under Sections 326 IPC and accused No.4 was also convicted for the offence punishable under Section 323 of IPC.
6. Complainant - Mohammad Anwar is not only seeking for enhancement of punishment imposed on accused 1 to 4 contending interalia that though there 10 are cogent evidence tendered by prosecution by examining P.W.2 to P.W.4 to prove the incident that occurred and also establish their common intention and it is further contended that evidence on record has not been properly appreciated by the learned Sessions Judge. Hence, it is contended by Sri.Ashok Naik, learned counsel appearing for appellant (complainant- victim) that judgment of trial Court passed against accused 1 to 4 by not convicting them for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC is based on erroneous appreciation of facts and evidence and their conviction for lesser period and awarding inadequate compensation to the victim (P.W.2) by the Sessions Judge is contrary to evidence on record. He would elaborate his submission by contending that learned Sessions Judge has not properly appreciated the evidence insofar as offence tendered by prosecution to prove the guilt of accused 1 to 4 for the offences 11 punishable under Section 307 r/w 149 of IPC and on the ground that there is improper marshaling of evidence by the trial Court though it establishes and discloses the common intention of accused persons in participating in the incident in question and yet arriving at a conclusion to acquit accused 1 to 4 for the offences punishable under Section 307 IPC is erroneous and prays for setting aside the same. Hence, he seeks for setting aside the judgment of trial Court and prays for enhancement of same and also seeks for convicting the accused 1 to 4 for the offences punishable under Sections 307 r/w Section 149 and 114 of IPC.
7. Per contra, Sri.Pavan, learned counsel appearing on behalf of Sri.S.Shankarappa for appellants/accused would submit that trial Court having arrived at a conclusion that there was no common intention on the part of accused 1 to 4, yet erroneously convicted them for the offences punishable 12 under Sections 143, 147 and 504 of IPC and he submits that evidence of the doctor, who came to be examined on behalf of prosecution as P.W.5 had categorically stated in his examination-in-chief the names of five (5) persons whom the complainant/victim had disclosed at the time when he was being treated and names so reflected in his deposition are not that of accused 1 to 4 and this itself would indicate that accused 1 to 4 have been falsely implicated and as such, he prays for acquitting accused 1 to 4 for the offences to which they came to be charged.
8. He would also contend that Crl.A.No.610/2015 filed by the State though came to be dismissed on 12.04.2016, it should be construed or understood as having been limited to the appeal of State, insofar as, it relates to acquitting the accused 1 to 4 for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC and said judgment would 13 not prohibit present appellants namely, accused 1 to 4 to challenge the judgment of conviction and order of sentence passed by trial Court. He would further elaborate his submission by contending that evidence of eye witness - P.W.2, would not disclose about alleged overt-acts against these appellants except making a omnibus statement and contends accused 1 and 2 have been falsely implicated. Hence, he submits that judgment of trial Court convicting the appellants/accused 1 to 4 is based on improper appreciation of evidence and there has been non- consideration of vital evidence in proper perspective. He would also submit that all the injuries sustained by the complainant are not to the vital parts of the body. Even otherwise, alleged weapons that were used by the accused would only result in causing contusions and as such, history of assault as propounded by the prosecution has to fail. He would submit that 14 prosecution have falsely implicated first accused, since his cousin sister had got married to P.W.2's brother, who is abroad and from there he had sent Talaqnama and as such, P.W.2 and their family members have falsely implicated appellants namely accused 1 to 4 to settle scores with accused No.1.
9. He would further contend that convicting the appellants and two others by partially accepting evidence of P.Ws.2, 3 & 8 is erroneous, since on the basis of very same evidence, they have been acquitted for the offence punishable under Sections 114, 307 r/w Section 149 IPC. He would draw the attention of the Court to the evidence of Doctor - P.W.5, which does not disclose about any overt-acts committed by the appellants and as such, the learned Sessions Judge could not have relied upon Ex.P-21 - MLC Register. He would submit that the evidence of P.W.15 ought not to have been believed since his statement would indicate 15 that he has improved his version step by step. He would also contend that the evidence of P.W.2 namely, injured witness does not match with the M.Os.4 & 5 vis- à-vis the overt-acts attributed against the appellants and the fact that said articles were sent to FSL after two months.
10. It is also contended that the evidence of Doctor - P.W.10 is also not appreciated in proper perspective and there has been non-appreciation of evidence by taking into consideration motive, manner of assault, utterances of accused during assault, sequence of events, role of each accused in participation and Doctors' opinion of likelihood of consequences by using the weapons seized. He would also submit that there has been non-appreciation of evidence from the point of 'common object' and 'common intention'. On these grounds, he seeks for allowing the appeals filed by accused 1 to 4.
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11. Having heard the learned Advocates appearing for parties and on perusal of judgment of trial Court as well as judgment dated 12.04.2016 passed by Division Bench in Crl.A.No.610/2015, which was filed against judgment and order of acquittal of accused persons for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC, it would disclose that Division Bench having appreciated the entire evidence available on record found that case of prosecution completely rests on evidence of P.W.2, P.W.3 and P.W.7 namely, P.W.2 being the injured and P.W.3 and P.W.7 being the eye witnesses and held that P.W.2 had deposed that while he was talking with P.W.3 and P.W.7 accused 1 and 2 came there and assaulted P.W.2 with iron rods and accused No.3 was instigating accused 1 and 2 not to spare him. Having analyzed the entire evidence that was available on record, Division Bench noticed that injuries sustained by P.W.2 are grievous in 17 nature namely, two (2) fractures on his right leg. It is in this background, on appreciation of material available on record it came to be held that said evidence was not sufficient to bring home the guilt of accused 3, 4 and 5 for the offences punishable under Section 307 or Section 326 of IPC.
12. It has been further held that if the intention of accused persons was to kill or murder P.W.2- complainant, they would have assaulted him on vital parts of the body. It was also noticed by Division Bench that evidence of P.W.2 did not disclose that accused persons had attempted to assault P.W.2 on any vital parts of his body and he had been assaulted on his right leg, which resulted in P.W.2 sustaining two (2) fractures. Thus, it was clear case of the prosecution that accused 1 and 2 had assaulted or wielded blows on P.W.2 on his right leg, as a result of which he had sustained two (2) fractures. As such taking note of the 18 fact that situs of the injuries also plays a vital and important role while examining the material on record for arriving at the guilt of accused, Division Bench held that conclusion arrived at by the trial Court for acquittal of accused 1 to 4 for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC was justified.
13. The judgment of Division Bench would clearly disclose that entire evidence has been taken into consideration and it has been clearly held that prosecution had failed in its attempt to drive home the guilt of accused 1 to 4 for the offences punishable under Section 114 and Section 307 r/w Section 149 of IPC and as such, this Court is of the considered view that victim cannot be now heard to contend that said finding which had reached finality would still be amenable to scrutiny by this Court. Said contention suffers from lack of logic. Hence, appeal filed by victim insofar as, 19 acquitting accused 1 to 4 for the offences punishable under Sections 114 and 307 r/w Section 149 of IPC would not be sustainable and it is liable to be rejected.
14. Division Bench as noticed hereinabove had examined entire evidence available on record. Said evidence is also perused by this Court. It is no doubt true that P.W.5 - Dr.Nagesh S. Adiga in his evidence had stated that when P.W.2-complainant came to him for treatment he had stated names of four persons and their names also finds a place in his deposition. However, in cross-examination it has also been elicited that there was no impediment for him to have produced either MLC Register or case sheet of the hospital, in which he was working at the relevant point of time when he recorded the statement of P.W.2. Though, Sri.Pavan, learned counsel is justified in contending that subsequently said document had been produced i.e., after a period of two (2) years by way of leading further 20 evidence by prosecution, Division Bench also had occasion to examine said document which had been marked as Ex.P-15 before trial Court and it came to be noticed that handwriting differed in the said case sheet. To put it differently, it came to be held that reading of the entire case sheet (Ex.P-15) would disclose that except the names of four (4) persons, which has been referred to by P.W.5 in his deposition is one handwriting and the rest of material is in another handwriting. It is because of this precise reason Division Bench had held to the following effect:
"However, in the further evidence before Trial Court recorded on 18.11.2013, he has deposed that the original entries in respect of history of assault in the MLC have been altered to certain extent."
15. In the light of said finding recorded by the Division Bench and this Court also having perused the said document namely, Ex.P-15 - case sheet history, 21 this Court is of the considered view that contention of learned counsel appearing for accused 1 to 4 cannot be accepted. Further contents of the wound certificate - Ex.P-7 would clearly disclose that P.W.2 had sustained two (2) fractures to his right leg and this fact is also evident from inpatient admission record issued by M.G.Hospital, Chikamagalur, marked as Ex.P-15.
16. That apart, it is also noticed that victim- P.W.2 has clearly and categorically stated that after accused 1 and 2 had assaulted him with iron rods they also assaulted him by their hands and he states or admits that they did not wield any blow to any vital parts of his body. Thus, it would clearly emerge that intention of accused 1 to 4 was not to kill or murder P.W.2 but on the other hand, evidence available on record would disclose their intention was to cause grievous injury or hurt to P.W.2. It is because of this precise reason, trial Court has rightly arrived at a 22 conclusion that accused 1 to 4 are liable to be convicted for the offences punishable under Sections 143, 147 and 504 of IPC and accused 1 for the offence punishable under Section 326 IPC also and further has held that accused No.4 is also to be convicted for offence punishable under Section 323 IPC.
17. Material on record would disclose that accused 1 to 4 along with absconding accused No.5 had assembled at the scene of occurrence with an intent to commit assault on P.W.2 and thereby they had formed an unlawful assembly. The evidence on record would also disclose that in the complaint P.W.2 has clearly alleged that accused 4 and 5 had assaulted him with hands when he fell down and nothing worthwhile has been elicited in the cross-examination of P.W.2 to disbelieve his version. In fact, allegation made in the complaint/statement recorded by the jurisdictional police and his testimony before Court are in-tandem. 23 The version of prosecution and evidence of P.W.2 disclosing that accused 1 and 2 had initially arrived at the spot with iron rods in their hands and had assaulted P.W.2 all of a sudden causing grievous injuries to him, has been rightly held by the trial Court that accused 3 and 4 cannot be held as liable for the offences punishable under Sections 326 of IPC, since there was no common object between them (accused 3 and 4) with accused 1 and 2 to commit such act. In conclusion, it has to be held that Division Bench had also examined this evidence as noticed hereinabove and had held:
"6. The ocular testimony of PWs.2, 3 and 7 is supported by the evidence of PW.5 Dr.Nagesh Adiga. He has deposed that the injured came to the hospital with a history that accused Nos.1 and 2 assaulted PW.2. However, in the further evidence before the Trial Court recorded on
18.11.2013, he has deposed that the original entries in respect of history of assault in the MLC have been altered to certain extent. The wound 24 certificate issued by the Doctor however discloses that the victim has suffered the fracture of both bones of right leg. Thus, we find that the evidence of PW.5 - Doctor fully supports the ocular testimony of PWs.2, 3 and 7.
In view of the above, in our considered opinion the Trial Court is justified in convicting only accused Nos.1 and 2 for the offence punishable under Section 326 of IPC in the absence of any material to show that the other accused had also got intention (along with accused Nos.1 and 2) to commit the offence punishable under Section 326 of IPC.
So also, we find that there is no material to show that any of the accused had got common intention/motive to commit the offence of murder. Hence, the Trial Court in our considered opinion is justified in acquitting the accused Nos.1 to 4 of the offences punishable under Sections 114 and 307 of IPC.
In view of the same, having gone through the material on record, we find that the Trial Court is justified in convicting accused Nos.1 and 2 for the offence punishable under Section 326 of IPC."
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18. In the light of aforestated discussion, this Court is of the considered view that order of sentence passed by the trial Court acquitting accused 1 to 3 for the offences punishable under Sections 114 and 307 r/w section 149 IPC, deserves to be affirmed and as such appeal filed by complainant deserves to be dismissed as already noticed hereinabove.
Hence, I proceed to pass the following:
JUDGMENT
(i) Appeals are hereby dismissed.
(ii) Judgment of conviction and order of sentence imposed on accused 1 to 4 for the offences punishable under Sections 143, 147, 504 IPC is hereby affirmed.
(iii) The judgment of conviction and order of sentence imposed on 26 accused 1 and 2 for the offence punishable under Section 326 and for the offence punishable under Section 323 IPC against accused No.4, are hereby affirmed.
(iv) Judgment of trial Court in all other aspects stands affirmed. It is made clear that order of sentence extending the benefit of set-off for the period of sentence already undergone by accused 1 and 2 while in the judicial custody, shall be read as set-off under Section 428 Cr.P.C as ordered by Sessions Court.
SD/-
JUDGE DR