Karnataka High Court
Naddu @ Nadeem @ Nadeem Pasha vs The State Of Karnataka on 27 March, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1142 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 1142 OF 2019
BETWEEN:
1. NADDU @ NADEEM @ NADEEM PASHA,
S/O ANSAR KHAN,
AGED ABOUT 28 YEARS,
RESIDING AT NO.1562,
NIJAMI CHOWK,
CHANNAPATNA TOWN-562160.
...APPELLANT
(BY SRI. B.VISWESWARAIAH, ADVOCATE)
Digitally signed AND:
by MALATESH K
C
1. THE STATE OF KARNATAKA,
Location: High
Court of BY CHANNAPATNA EAST POLICE STATION,
Karnataka RAMANAGARA-562160.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP2)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C BY THE APPELLANT PRAYING TO SET ASIDE
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CRL.A No. 1142 of 2019
THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE, DATED 24.04.2019 PASSED BY THE LEARNED III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
IN S.C.NO.58/2018 - CONVICTING HIM FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC AND SENTENCING
HIM TO UNDERGO RIGOROUS IMPRISONMENT FOR LIFE AND
TO PAY FINE OF RS.1,00,000/- AND IN DEFAULT OF PAYMENT
OF FINE TO UNDERGO FURTHER SIMPLE IMPRISONMENT FOR A
PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused No.1 - Naddu @ Nadeem @ Nadeem Pasha has filed the present criminal appeal against the impugned judgment of conviction and order of sentence, dated 24th April, 2019 passed in S.C.No.58/2018 by the III Additional District and Sessions Judge, Ramanagara convicting him (accused No.1) for the offence punishable under Section 302 of IPC., and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.1,00,000/- and in default to payment of fine to undergo simple imprisonment for a terms of one year.
2. It is the case of prosecution that as per the complaint dated 21.9.2017 lodged by P.W.1 - Jabiulla Khan, who is none other than the father of the deceased, that his elder son - Faizal Khan, was studying in B.Com., and was doing business. -3- CRL.A No. 1142 of 2019 His daughter was married, but was deserted by her husband on the ground of dowry, with regard to which, a case was lodged. His son was having four friends viz., Saddam, Nazeeb, Vaseem and Abbu and all were in good terms. There were four cases against Saddam and earlier he had taken his son to the spot where he was murdered. On 20.9.2017 there was a quarrel between his son/Faizal, Naddu @ Nadeem Pasha, Muzamil, Nazeem and hence, he had kept his son in a separate house. Saddam and others had come to his house and were searching his son and on 21.9.2017 at 12.30 noon when he had been to the police station to give complaint against Saddam (accused No.3), Naddu (accused No.1), Muzamil (accused No.2) and Nabeel that they were disturbing, by that time, his brother Nayeemulla Khan (P.W.2) called him over phone and told that Faizal, Saddam Naddu @ Nadeem Khan, Muzamil Pasha, Nazeeb were quarrelling with his son. Out of them, Naddu (accused No.1) stabbed Faizal (son of the P.W.1-complainant) on his chest with a deadly weapon and Muzamil assaulted with a deadly weapon on his hand and fled away. So immediately, he went to the spot and saw that the blood was oozing from the chest of his son Faizal as there were stab injuries. He, his -4- CRL.A No. 1142 of 2019 brother Nayeemulla Khan (P.W.2) and Nizaar Abbu @ Basheer (P.W.7), who had witnessed the incident, took his son to the Channapattana Government Hospital for first aid treatment where on the advise of the doctor, the deceased was taken to Mandya Hospital, but on the way, he succumbed to the injuries. Therefore, he lodged a complaint (Ex.P.1) alleging that due to the dispute between Saddam Naddu @ Nadeem Pasha, Muzamil, Nazeem on 20.9.2017, there arose an ill will or animosity against his son and with criminal intimidation, on that day at 12.30 noon, in front of old Daira School, all these persons attacked his son and committed the murder. Accordingly, the Channapatna East Police on 21.9.2017 at 2.30 p.m. visited the mortuary at Mandya Government Hospital, and at 3.30 p.m. a case in Crime No.127/17 was registered as per Ex.P.28 (FIR) against the accused for the offences punishable under the provisions of Sections 302 and 120B r/w 34 of IPC.
3. After committal of the case from the learned JMFC, Channapatna, the learned Sessions Court secured the presence of the accused persons and framed the charges for the offences punishable under the provisions of Sections 120B, 302 -5- CRL.A No. 1142 of 2019 r/w 34 of IPC., read over the same to the accused in the language known to them , who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution in all examined 24 witnesses - P.Ws.1 to 24, got marked the material documents Exs.P.1 to 49 and material objects M.Os.1 to 11. After completion of recording of the statement of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 Cr.P.C., was recorded. Though the accused denied the case of the prosecution in toto, did not lead any evidence.
5. Based on the aforesaid pleadings, the learned Sessions Judge framed following points for consideration:
"1. Whether the prosecution has proved that the death of Faizal Khan is homicidal?
2. Whether the prosecution has further proved beyond reasonable doubt that accused Nos.1 to 3 with an intention to eliminate Faizal Khan as he has helped the wife of CW.7 have conspired together in front of Godown at R.M.C.Yard, Channapatna and thereby, they -6- CRL.A No. 1142 of 2019 have committed the offence punishable u/s 120(B) of IPC?
3. Whether the prosecution has further proved beyond reasonable doubt that on 21.09.2017 at 12 O'clock in the afternoon, at the edge of Bengaluru-Mysuru Road, in front of Government Urdu School, near Old Daira, Channapatna Town, accused No.1 has stabbed Faizal Khan on his left chest by a button knife, accused No.2 has assaulted on his right elbow by a long knife and accused No.3 has assaulted on his left hand by a deadly weapon and caused grievous injuries and thereafter, he shifted to Channapatna Government Hospital for first aid and on the way to Mandya District Hospital for further treatment and he succumbed to the injuries sustained thereby, they have committed the offence punishable u/s 302 r/w Sec.34 of IPC?"
6. Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution proved its case beyond all reasonable doubt that the death of deceased- Faizal Khan is a homicidal death and all the accused persons, with a common intention, committed -7- CRL.A No. 1142 of 2019 murder of deceased- Faizal Khan on the background of old enmity by picking up quarrel on 21.9.2017 at 12 O'Clock in the afternoon, at the edge of Bengaluru-Mysuru Road, in front of the Government Urdu School, near Old Daira School, Channapatna Town, accused No.1 stabbed Faizal Khan on his left chest by a button knife, accused No.2 assaulted on his right elbow by a long knife and accused No.3 assaulted on his left hand by a deadly weapon and caused the grievous injuries. as a result of which, the deceased succumbed on the way to the hospital and thereby convicted the accused for having committed the murder of the deceased which is an offence punishable under the provisions of Section 302 read with Section 34 of Indian Penal Code. The learned Sessions Judge further holding that the prosecution has failed to prove beyond reasonable doubt that accused Nos.1 to 3 with an intention to eliminate Faizal Khan, as he had helped the wife of C.W.7, had conspired together in front of Godown at R.M.C. Yard, Channapatna came to the conclusion that accused have not committed the offence punishable under Section 120B of IPC. Accordingly, by the impugned judgment of conviction and order of sentence holding accused No.1 guilty of the offence -8- CRL.A No. 1142 of 2019 punishable under Section 302 of IPC sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- with default clause and accused No.2 guilty of the offence punishable under Section 324 of IPC., and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- with default clause and acquitted accused No.3 for the offence punishable under Section 302 r/w 34 of IPC. Hence, the present appeal is filed by accused No.1 against his conviction under the provisions of Section 302 read with Section 34 of the Indian Penal Code.
7. The respondent-State has not filed any appeal against acquittal of accused No.1 for the offence punishable under Section 120-B of IPC and accused Nos.2 and 3 for the offences punishable under Sections 120 and 302 r/w 34 of IPC. So also for enhancement of sentence against accused No.2, who has been convicted for the offence punishable under the provisions of Section 324 of IPC and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- with default clause.
8. We have heard learned counsel for the parties. -9- CRL.A No. 1142 of 2019
9. Sri. B. Visweswara, learned Counsel for accused No.1 would contend that the impugned judgment of conviction and order of sentence convicting accused No.1 for the offence punishable under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rupees One Lakh is erroneous, contrary to the material on record and cannot be sustained and as such, is liable to be set aside. He would further contend that the material on record clearly depicts that no reasonable person could ever have come to the conclusion that accused No.1 had committed the offence punishable under Section 302 of IPC. Though the learned Sessions Judge framed common charge against accused Nos.1 to 3 for the offences punishable under the provisions of Sections 120B r/w 34 of IPC and 302 r/w 34 of IPC., but convicted only accused No.1 for the offence punishable under Section 302 of IPC which is not just and proper. When the case of the prosecution is that, P.W.2 is the eye witness to the incident, but it is his version that when he entered into the place where a group of people were standing, he found the bleeding injury on the chest of Faizal Khan, which clearly demonstrates that, he is not an eye witness to the incident and
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CRL.A No. 1142 of 2019by the time, P.W.2 reached the spot, the deceased had already sustained injury to his chest and though the learned Sessions Judge in paragraph-33 of the impugned judgment has observed the said fact, still committed a serious error in convicting accused No.1 ignoring the vital part of the evidence in cross- examination of P.W.2.
10. The learned Counsel for the appellant would further contend that the learned Sessions Judge failed to prove the motive for commission of the alleged offence in view of the fact that P.W.10 Azam Khan has turned hostile, whose evidence is that he and his wife mehraj were in cordial terms and he does not know the accused and he had called upon the panchas as observed in paragraph-22 of the impugned judgment, but still proceeded to convict accused No.1. He would further contend that though the learned Sessions Judge framed common charge for the offences punishable under the provisions of Sections 120B and 302 R/W 34 of IPC., against all the accused persons, but acquitted accused No.3 for the said offences. Further convicted accused No.2 for the offence punishable under Section 324 of IPC and accused No.1 for the offence punishable under Section 302 of IPC. Accused No.1 was
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CRL.A No. 1142 of 2019acquitted for the ffence punishable under Section 324 of IPC., as the conspiracy was not proved. In the absence of proving any conspiracy, the learned Sessions Judge was not justified in convicting accused No.1 with regard to homicidal death of the deceased. He would further contend that in the complaint, P.W.1 has mentioned the names of four accused persons, but while recording his evidence, P.W.1 has mentioned the names of the above three persons that they were involved in the homicidal death of the deceased. Very curiously, P.W.2 has stated about the three persons. Thereby, there are inconsistencies in the averments made in the complaint and the evidence of P.Ws.1 and 2 who are none other than the father and uncle of the deceased, which aspects have not been considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence and as such, the same cannot be sustained and therefore, he sought to allow the criminal appeal.
11. Per contra, Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor appearing for the respondent-State, while justifying the impugned judgment of conviction and order of sentence, would contend that the eye-
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CRL.A No. 1142 of 2019witness P.W.2 in categorical terms has deposed about the involvement of accused Nos.1 to 3 in the homicidal death of the deceased. He has admitted that at about 12.30 noon, when the accused persons stabbed the deceased, there were so many persons present at the spot and they were not able to identify the knife. When the eye witness to the incident, P.W.2 stood in the cross-examination, the motive is immaterial. He would further contend that P.W.2 in paragraphs-5, 12, 13, 29, 30 and 31 in categorical terms has deposed about the involvement of accused Nos.1 to 3 and thereby, the learned Sessions Judge was justified in convicting the accused. He would further contend that apart from P.W.2 the eye witness, P.W.1 - father of the deceased/complainant has also supported the corroborative evidence of P.W.2 and the prosecution witnesses viz., Police Officers and doctor who examined the deceased - P.W.20-Dr. Puttaswamy, who has deposed about the homicidal death of the deceased and issued the postmortem report Ex.P.30 clearly depicts that the death of the deceased was as a result of hemorrhage and shock as a result of stab injuries on the chest wall and lung (left). He would further contend postmortem reports depicts that there were
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CRL.A No. 1142 of 2019four injuries sustained by the deceased. The accused in their statement recorded under Section 313 Cr.P.C., have neither denied nor have offered any explanation as to how the deceased died and as such, in the absence of any explanation, an adverse inference has to be drawn against accused No.1.
12. The learned Additional SPP further contended that on the basis of the voluntary statement of accused No.1, the investigating officer - P.W.24 seized material objects M.Os.1 to 11 and thereby the prosecution has proved its case beyond reasonable doubt that accused No.1 is responsible for the homicidal death of the deceased and thereby sought to dismiss the criminal appeal filed by accused No.1.
13. In support of his contentions, the learned Additional SPP relied upon the decision of the Hon'ble Supreme Court in the case of Surinder Singh -vs- State (Union Territory of Chandigarh) reported in 2021 SCC OnLine SC 1135 wherein it is held as under:
"22. It is significant to note that 'motive' is distinct from 'object and means' which innervates or provokes an action. Unlike
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'intention', 'motive' is not the yardstick of a crime. A lawful act with an ill motive would not constitute an offence but it may not be true when an unlawful act is committed with best of the motive. Unearthing 'motive' is akin to an exercise of manual brain-mapping. At times, it becomes herculean task to ascertain the traces of a 'motive'."
He would further contend that, in case, the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But it does not mean that, if motive is not established, the evidence of an eyewitness is rendered untrustworthy.
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CRL.A No. 1142 of 2019
14. In view of the aforesaid rival contentions of the learned counsel appearing for the parties, the only point that would arise for consideration in present appeal is:
"Whether accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life and fine of Rs.1,00,000/- with default clause in the peculiar facts and circumstances of the case?"
15. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and carefully perused the entire material on record including the original records.
16. This Court being the Appellate Court, in order to re- appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon.
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CRL.A No. 1142 of 2019
i) P.W.1 - Sri Jabiulla Khan, who is none other than the father of the deceased, complainant who lodge the complaint-Ex.P.1 and witness to the spot mahazar Ex.P.3 has deposed that he had been to the police station to lodge a complaint that the accused had assaulted his son on 20.9.2017 and at that time, his brother P.W.2-Naheem Khan called him over the phone and informed that the accused had stabbed his son Faizal Khan. Immediately, he went to the Diara School where the accused were standing. Naddu was holding a knife and his brother Naheem Khan was holding his son Faizal Khan, who was stabbed on the left chest and to both hands. Thereafter, he, his brother Naheem Khan and Khaleem Ulla shifted his son to the Channapattana Government Hospital in an Ambulance, where they were informed to take him to the Mandya Hospital and on the way to Mandya, his son succumbed to the injuries. He is panch witness to seizure Mahazar Ex.P.2 and his signature is marked as Ex.P.2(a). He has admitted in his
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cross-examination that there was a case pending before the Court with regard to the matrimonial dispute between his daughter and son-in-law and he lodged a complaint and gave a statement before the Channapattana East Police Station;
ii) P.W.2 - Sri Naheem Khan, who is the uncle of the deceased has deposed that on 20.9.2017, he had been to his brother Jabiulla Khan's house as he had called him and at that time, his brother Jabiulla Khan was nervous as there was a quarrel between the Saddam, Naddu and Muzamil and Faizal in relation to the wife of Ajam Kahn. Thereafter, he went to his house. On the next day morning at about 11.00 a.m. when he was having tea in the Share Hotel, his brother Jabiulla Khan did not come, but he had been to the police station. By that time, Saddam and Nissar and Faizal his brother's son, Naddu and Mizamil also had come to the hotel. Thereafter Faizal, Saddam, Naddu and Muzamil were talking together. Owner of the hotel Nissar also came out. Then Faizal went to his house and
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CRL.A No. 1142 of 2019when he was near Diara School, Saddam came and by that time, he also came there by a two wheeler, Nissar along with Nadeem, Muzamil also came and they started quarrelling. In the meanwhile, Naddu took the knife and stabbed on the left side of the chest of Faizal, Muzamil took the said knife and stabbed on the left hand, Saddam came running and stabbed on the right hand. Immediately, he informed his brother Jabiulla over phone about stabbing of the deceased. He, his brother's son, Nissar and Abu caught hold of Faizal. In the meanwhile, his brother Jabiulla came and then they took the deceased to the Chennapattana Hospital and on the advice of the doctor, the deceased was shifted to Mandya Hospital, but on the way, the deceased succumbed to the injuries. Hence, he has supported the case of the prosecution;
iii) P.W.3 - Hussain Khan is a mahazar witness to Exs.P.15, 16, 17, 18 and his signatures are marked as Exs.P.15(a), 16(a), 17(a) and he has turned hostile to the case of the prosecution;
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CRL.A No. 1142 of 2019
iv) P.W.4 - Sri Dilavar Mehadi, who alleged to be an eye witness to the incident and panch witness to Ex.P.19 has been treated as hostile witness;
v) P.W.5 - Sri Imran Khan, who claimed to be an eye witness and panch witness to Ex.P.20 has turned hostile to the case of the prosecution;
vi) P.W.6 - Sri Nisar who has narrated the entire incident has not supported the case of the prosecution;
vii) P.W.7 - Sri Abu @ Basheer, who alleged to be an eye witness to the case of the prosecution and doing business has deposed that he knew the three accused and deceased Faizal as they belonged to same place. Infact the deceased died about one year back, but he does not how and why he died. He admitted that he has not given any statement before the police and thereby he has been treated as hostile to the case of the prosecution;
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CRL.A No. 1142 of 2019
viii) P.W.8 - Sri Ashim Khan, has deposed that he knew Azam Khan, all the three accused as well as Mehraj and his wife, who is his sister as they all are from the same place. There was no dispute between Azam Khan and his wife. He does not know how and why Faizal Khan died and who committed the murder and he has not given any statement before the police that the accused have committed the murder of the deceased and thereby, he has been treated as hostile to the case of the prosecution;
ix) P.W.9 - Sri Mamthaz Khan has deposed that the deceased Faizal was his friend and he died about 14 months back. He knows all the three accused persons. He further deposed that he does not know where the deceased Faizal had been one day before the death. He had been to the Nissar Hotel at 10.00 a.m. to have a tea, but no one was present there and as such, he drank tea and went home. At 3.30 p.m. some one called and informed that Failzal has been murdered and he has not given any statement before the police about the death of the
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CRL.A No. 1142 of 2019deceased Faizal. He has been treated as hostile witness.
x) P.W.10 - Sri Syed Azam has given his evidence on par with P.W.9. Though he has deposed that he knew all the three accused persons and the deceased, there used to be small differences between himself and his wife and in that regard, he had not arranged any panchyath on that issue. He does not know for what reason Faizal was murdered and has not given any statement about the said fact before the Police. Thereby, he has been treated as hostile to the case of the prosecution;
xi) P.W.11 - Sri Mohammed Ajeem and P.W.12 - Sri Mohammed Wasim, who are panch witnesses to seizure mahazar Ex.P.2 for seizure of blood stained mud and P.W.13 - Sri Jasan Khan, who is a witness to seizure mahazar Ex.P.15 for seizure of his blood stained clothes while shifting Faizal to the hospital have deposed that they have neither given any statement before the police nor know what is
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CRL.A No. 1142 of 2019written in the respective exhibits marked and as such, they have been treated as hostile to the case of the prosecution;
xii) P.W.14 - Sri Syed Khazim, has deposed that when he saw the deceased Faizal in the mortuary and he noticed one injury on his chest and presence of police. He is the panch witness to Ex.P.26 inquest panchanama and his signature is marked as Ex.P.26(a). He does not know how many injuries the deceased sustained, but the clothes of the deceased was stained with blood. He is treated as hostile witness to the case of the prosecution;
xiii) P.W.15 Faizal Khan has deposed that the complainant P.W.1 is his uncle and the deceased Faizal is the son of P.W.1. He saw the dead body of the deceased at Mandya Government Hospital and he found only one injury on the chest. He has not given any statement before the police and thereby, he has been treated as hostile witness to the case of the prosecution;
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xiv) P.W.16 - Sri Chaithanya K.M., PSI of Channapatna East Police Station has deposed that on the complaint -Ex.P.1 lodged on 21.9.2017 by the complainant Jabiulla Khan, the PSI of Crimes Department i.e., Sri Mariswamy received the said complaint from the Government Hospital, Mandya and handed over the same to him and on that basis, he registered a case in Crime No.127/2017 for the offences punishable under Section 302, 120B r/w 34 of IPC. He filed the FIR marked as Ex.P.28 and his signature is marked as Ex.P.28(a);
xv) P.W.17 - Sri Suhel has deposed that does not know the accused persons, who were present before the Court. The police took him to the Sathanur Circle and asked him to sign Ex.P.29 - the seizure mahazar. He does not know what the police had written in that mahazar and thereby, he has been treated as hostile to the case of the prosecution; xvi) P.W.18 - Sri Narayanaswamy V., Circle Police Inspector of Channapattana City Police and
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CRL.A No. 1142 of 2019Investigating Officer has deposed that he has worked there since 16.9.2015 to 19.12.2017. On the information received at 12.30 noon on 21.9.2017 from Nissar that in front of Channapatna Urdu School, Faizal has been stabbed, who has been shifted to Channapatna Government Hospital. He immediately went there and found Faizal with stab injury to his left chest and loss of more blood. In order to give further treatment, he was shifted to Mandya Government Hospital, where at about 2 to 2.15 p.m., he succumbed to the injuries. He and one Mariswamy, PSI of Crimes Department along with Head Constable No. 13 visited the hospital. Father of the deceased Jabiulla Khan, who was present there, lodged the complaint at 2.30 p.m.and on receipt of the same, he registered a case and forwarded the same to P.S.I. -
Mariswamy, Crimes Department. At 3.30 p.m., he registered a case in Crime No.127/2017 and took up the investigation. He conducted the inquest panchanama Ex.P.23 between 2.30 to 4.30 p.m. in
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CRL.A No. 1142 of 2019the Mortuary of Mandya Government Hospital. Postmortem was conducted and obtained the report as per Ex.P.30 and handed over the dead body to the family of the deceased. After conducting detailed investigation, he filed the charge sheet; xvii) P.W.19 - Sri C. Satish, CPI of Channapatna City Police Station, took charge of the investigation on 18.12.2017. Since accused No.3 was in judicial custody in another crime, he filed necessary application on 8.6.2018, and took his custody and on the same day, recorded his voluntary statement and seized the material objects;
xviii) P.W.20 - Dr. Puttaswamy, Medical Officer at VIMS Hospital, Mandya, who conducted the postmortem examination on the dead body of the deceased Faizal Khan has deposed that he found four external injuries and they were fresh and antemortem in nature, time since death was about less than 6 to 8 hours prior to the autopsy and issued the postmortem report Ex.P.30 opining that the death
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CRL.A No. 1142 of 2019was due to hemorrhagic shock as a result of stab injury to the chest wall and lung (left);
xix) P.W.21 - Dr. Chandrashekar, Deputy Director of Regional Forensic Science Laboratory, Mysuru City, has deposed that on receipt of the sealed articles and on examination of the material objects, M.Os.1 to 10 issued the FSL report Ex.P.42 opining that blood stains were detected in Article Nos.1 to 10, and were of human blood with 'A' group blood; xx) P.W.22 - Sri Parasuddin, a cobbler has deposed that he does not know accused No.3-Saddam. Police have taken his signature in Ex.P.44 and he identified his signature marked as Ex.P.44(a), but does not known what is written in that exhibit. He has denied the suggestion of police seizing the knife from the shrub as per Ex.P.44 and obtaining his signature as per Ex.P.44(c). As such, he has been treated as hostile witness;
xxi) P.W.23 - Sri Saleem and P.W.24 - Sri Arshad have also deposed on par with P.W.22 and have not
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CRL.A No. 1142 of 2019supported the case of the prosecution. Therefore, they were treated as hostile witnesses.
Based on the aforesaid material evidence on record especially the evidence of P.Ws.1 and 2, the learned Sessions Judge convicted accused No.1 for having committed the offence of homicidal death of the deceased under provisions of Section 302 of Indian Penal Code.
17. The gist of complaint, as per the complaint Exhibit P1 lodged by P.W.1 - Jabiulla Khan, who is none other than the father of the deceased is that, his elder son - Faizal Khan, was studying in B.Com., and he was doing business. He got his daughter married, who was deserted by her husband with regard to dowry, against which, a complaint has been lodged. His son was having four friends viz., Saddam, Nazeeb, Vaseem and Abbu and all were in good terms. There were four cases against Saddam and earlier he had taken his son to the spot. On 20.9.2017 there was a quarrel between his son/ Naddu, Muzamil, Nazeem and hence, he had kept his son in a separate house. At that time, Saddam and others had come to his house and were searching his son and on 21.9.2017 at 12.30
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CRL.A No. 1142 of 2019noon when he had been to the police station to lodge a complaint against Saddam, Naddu, Muzamil and Nabeel that they were disturbing and by that time, his brother Nayeemulla Khan called him over phone and told that Faizal, Saddam Naddu @ Nadeem Khan, Muzamil Pasha, Nazeeb are scolding his son and out of them, Naddu stabbed Faizal on his chest with a deadly weapon and Muzamil assaulted with a deadly weapon on his hand and fled away. So immediately, he went to the spot and saw his son Faizal with stab injuries and the blood was oozing out from his chest. He, his brother Nayeemulla Khan and Nizaar Abbu @ Basheer, who were witnesses to the incident took his son to the Channapattana Government Hospital for first aid treatment and on the advise of the doctor, he was taken to Mandya Hospital, but on the way, he succumbed to the injuries. Therefore, he lodged a complaint alleging that due to the dispute between Saddam Naddu @ Nadeem Pasha, Muzamil, Nazeem on 20.9.2017, there arose an ill will or animosity between his son and accused persons and with criminal intimidation, on that day, at 12.30 noon, in front of old Dira School, all these accused persons attacked his son
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CRL.A No. 1142 of 2019and committed the murder. Accordingly, a case was registered by the jurisdictional police.
18. A careful perusal of the averments made in the complaint, it clearly depicts that it was lodged against four accused persons viz., accused No.3 - Saddam, accused No.4 Nazeeb, accused No.1- Naddu @ Nadeem @ Nadeem Pasha, accused No.2 - Mujamil @ Mujamil Paasha, accused No.3 - Saddam. It is further stated that the unfortunate incident happened due to previous enmity between the accused persons and the deceased. As per the version of P.W.1, accused Nos.1 to 3 have killed his son on 21.9.2017 . As there was some quarrel between P.W.10 Azzam Khan and his wife P.W.9, in order to dissolve the dispute, his son/Faizal had been to the place of incident, but again when he was called, he did not go. Hence, in this back ground, the accused have murdered his son. Very interestingly, P.Ws.9 and 10 have deposed that there was no quarrel between them and even no panchayath was held with regard to the said fact. Thereby the very reason given by P.W.1 in his evidence is inconsistent with the contents of the complaint Ex.P.1 and the evidence of P.Ws.9 and 10 which creates doubt in the veracity of P.W.1 as this witness is
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CRL.A No. 1142 of 2019none other than the father of the deceased and an interesting witness and hence, it cannot be believed.
19. P.W.2 Naheem Khan, brother of P.W.1 and uncle of the deceased has deposed that, when he went to his brother's house on the phone call, his brother was upset and frightened. When he asked him, he told that there was some internal dispute between P.Ws.9 and 10 and a panchayath was convened. On the request made by accused Nos.1 to 3, Faizal Khan did not go to the panchayath, thereby the accused persons got enraged with the deceased and assaulted the deceased. He has further deposed that when he went to the spot, by that time, accused No.1 Naddu had stabbed the deceased on his left chest and accused No.2 Muzamil stabbed on the left hand and accused No.3 - Saddam stabbed on the right hand of the deceased Faizal. He has further deposed that when the accused persons stabbed the deceased, there were so many persons present at that time, but he could not remember their names and the time was about 12.30 noon. It is his specific evidence that the accused persons had stabbed the deceased in presence of so many persons and he is unable to identify the knife. Thereafter the accused persons, fled away
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CRL.A No. 1142 of 2019from the place of offence. He caught hold of the deceased before he could fall on the ground. There were grievous injuries on his chest and both hands were stained with blood. The clothes of deceased both jeans pant and shirt were also stained with blood. He identified material objects - M.Os.1 and
2. When he went to the Sheru Hotel to have tea, at that time, the deceased Faizal and his friends were discussing. In the meanwhile, there was an accident to a girl and he was in urgent to go to the shop. People were trying to pacify the girl and he was in the midst of the people. There was another group of 10 to 15 persons away from the accident . As he was in the middle of the group, where the accident had taken place, he was not able to see what was happening in the other group. When he started his bike in order to go, he came to know that Faizal had sustained injuries and blood was oozing from the body of Faizal. Immediately, he caught hold of Faizal, ambulance came, he and Nissar shifted the injured Faizal Khan to the ambulance and then he called his brother Jabiulla over phone. He has admitted that he had seen the accused persons for the first time in the police station. Earlier, he had also seen them while he was driving the autorickshaw. They took him to
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CRL.A No. 1142 of 2019Channapattana Government Hospital where they were advised to shift him to Mandya Government Hospital and on the way to Mandya, the deceased succumbed to the injuries.
20. It is also not in dispute that though P.Ws.1 and 2 have supported the case of the prosecution, P.W.1 is not an eye witness and P.W.2 though eye witness, has not even witnessed the minor assault; The panch witnesses to spot and seizure mahazars and P.Ws.3 to 13 have turned hostile to the case of the prosecution; P.W.14 and 15 witnesses to inquest mahazar have not given their versions with regard to the injuries sustained by the deceased Faizal; P.W.16-Chaithanya K.M., PSI, who registered the case has supported the case of the prosecution and P.W.18 - Sri Narayanaswamy V., the Investigating Officer, after conducting the investigation has filed the charge sheet against the accused; and the other witnesses P.Ws.22, 23 and 24, who are panch witnesses to seizure mahazar Ex.P.44, have also turned hostile to the case of the prosecution.
21. The evidence of the P.W.20 - Dr. Puttaswamy clearly depicts that the deceased sustained four injuries which read as under:
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"External injuries:
1) A stab injury 3.5 cms, 3 one cavity depth is present obliquely on the left front upper chest wall 2.5 cms above & outer to left Nipple.
Depth of the (torn) 5 cms. The wound is fish tail in appearance with Fish tail, being situated near the left nipple. The margins are clean cut, and well defined. Fat is coming out through the gaping stab wound. The wound is directed inwards and upwards.
2) Abrasion, Horizontal, 5 cm x 2 cm is present on the outer aspect of right fore arm, just below the right elbow joint wound is reddish in colour.
3) A horizontal, linear abrasion 5 cm x 0.2 cm is present on the inner aspect of lower third of right fore arm.
4) Incised injury superficial in nature is present on the left hand thumb proximal phalanx inner aspect, left hand index finger middle Palmar aspect, and middle phalanx of let hand middle finger palmar aspect it is placed horizontally. The margins were clean cut and well defined.
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CRL.A No. 1142 of 2019The postmortem report Ex.P.30 is issued by him opining that the injuries sustained by the deceased were ante-mortem and fresh in nature and his death was due to hemorrhage shock as a result of stab injury to the chest wall and lung (left).
22. Though the learned Additional SPP would contend that when the evidence of P.W.2 - eye witness depicts that the accused persons were involved in the homicidal death of the deceased, even if the motive is not established, the evidence of eye witnesses i.e., P.Ws.1 and 2 is rendered untrustworthy. As such, the learned Sessions Judge was justified in convicting accused No.1 under the provisions of Section 302 of IPC.
23. On careful reading of the averments made in the complainat-Ex.P.1, the spot mahazar Ex.P.2, the evidence of the complainant-P.W.1 and P.W.2 uncle of the deceased, who is alleged to be an eye witness to the incident clearly depicts that there are inconsistencies in mentioning the names of the accused persons since according to P.W.1 there are four accused persons but according to P.W.2, there are only three accused persons. Admittedly, charge sheet was filed against all the four persons and as the name of one accused person was
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CRL.A No. 1142 of 2019left out while conducting the investigation, the learned Sessions Judge framed common charges against all the three persons for the offences punishable under the provisions of Sections 120B and 302 r/w 34 of IPC. The learned Sessions Judge considering both oral and documentary evidence on record held that the prosecution has failed to prove beyond reasonable doubt the guilt of accused No.1 for an offence punishable under Section 120B of IPC and accused Nos.2 and 3 were found guilty of offences punishable under the provisions of Section 120B and 302 r/w 34 of IPC. Accordingly, accused No.3 was acquitted of the common charges framed for the offences punishable under Sections 120B and 302 r/w 34 of IPC and convicted accused No.2 only for the offence punishable under Section 324 of IPC and accused No.1 for the offence punishable under Section 302 of IPC for rigorous imprisonment for life and to pay a fine of Rupees One lakh.
24. Admittedly, the State Government has not challenged the judgment of acquittal passed by the learned Sessions holding that the prosecution has failed to prove beyond reasonable doubt that accused Nos.1 to 3, with an intention to eliminate Faizal Khan as he had helped the wife of
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CRL.A No. 1142 of 2019C.W.7 had conspired together and have committed an offence punishable under Section 120B of IPC. So also acquittal of accused No.2 for the offence punishable under Section 302 of IPC though he is convicted for an offence punishable under Section 324 of IPC. When common charges are framed against all the accused and P.Ws.1 and 2 have in categorical terms have spoken that all the accused persons had assaulted the deceased with M.Os.9 to 11, the doctor, who conducted the postmortem, issued the report that the deceased sustained four injuries, which is corroborated by the evidence of P.W.2 that accused No.1 stabbed the deceased on his left chest with a button knife, accused No.2 assaulted right elbow by long knife and accused No.3 assaulted on the right hand of the deceased with deadly weapon and caused the grievous injuries. When all the three persons, who were holding the material objects M.Os.9 to 11, have stabbed the deceased is corroborated by the evidence of the doctor P.W.20, who issued the postmortem report Ex.P.48 stating that there were four injuries and the evidence of P.Ws.1 and 2, father and uncle of the deceased, who are highly interested witnesses, that all the three accused persons with common intention assaulted the deceased with
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CRL.A No. 1142 of 2019M.Os.9 to 11, but very strangely, when common charges are framed against all the accused persons, the learned Sessions Judge acquitted accused No.2 as he was not found guilty of the offence punishable under Section 302 of IPC., but as he had assaulted the deceased with M.O.10 knife and caused simple injuries, he was convicted holding him guilty for an offence punishable under Section 324 of IPC; In so far as accused No.3, it was held that the prosecution has failed to prove the guilt of accused No.3 for the offences punishable under the provisions of Sections 120B and 302 r/w 34 of IPC., and as such acquitted him for the said offences; and only accused No.1 was convicted for the offence punishable under Section 302 of IPC. Absolutely, there is no motive for the accused persons to cause the death. The only statement made by P.Ws.1 and 2 is that there was some matrimonial dispute between P.Ws.9 and 10, with regard to which, earlier Faizal Khan had gone to their house for settlement and thereafter, it is for the second time, the accused called him, but the deceased had refused to go there. Thereby, there arose animosity between the accused persons and the deceased. When the version of P.Ws.9 and 10
- husband and wife is that there was no such family dispute
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CRL.A No. 1142 of 2019between them and no panchyath was convened, the very cause shown by P.W.1 in Ex.P.1 - the complaint and the evidence of P.Ws.1 and 2 cannot be accepted.
25. It has to be noted that homicidal death of the deceased, the presence of accused Nos.1 to 3 along with the deceased and the four injuries sustained by the deceased are not in dispute. When common charges are framed against the accused persons, the learned Sessions Judge has held only accused No.2 guilty of offence punishable under Section 324 of IPC, accused No.1 for the offence punishable under Section 302 of IPC and acquitted accused No.3 for the offences punishable under Sections 324 and 302 of IPC. In all fairness, the learned Sessions Judge ought to have considered the evidence of P.Ws.1 and 2 and other prosecution witnesses that there was quarrel between accused and the deceased. Even on the basis of the voluntary statement made by the accused specifically stating that as the deceased was using filthy language against the accused persons, accused No.1 tried to assault the deceased and in the scuffle between the accused persons and deceased, both the accused persons assaulted the deceased with M.Os.9 to 11 due to provocation by the deceased and
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CRL.A No. 1142 of 2019consequently the deceased sustained stab injuries resulting in homicidal death of the deceased. As such, the case clearly falls under the provisions of Exception I of Section 300 of IPC., but under Section 302 of IPC, and the learned Sessions Judge without considering the said aspect has erroneously proceeded to convict the accused
26. Exception I of Section 300 of the Indian Penal Code, which reads as under:
"Section 300- Murder:
xxx xxx xxx Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
On careful reading of the said provision makes it clear that culpable homicide is not murder, if the offender, whilst deprived
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CRL.A No. 1142 of 2019of the power of self control by grave and sudden provocation, causes the death of the person, who gave the provocation or causes the death of any other person by mistake or accident. In the present case, as stated supra, there were quarrels between the accused persons and the deceased. As per the voluntary statement made by accused No.1, that the deceased Faizal Khan was using filthy language and trying to assault one of the accused persons, the accused persons were provoked by said words and act and they suddenly attacked the deceased which has resulted in the homicidal death without any premeditation and in the heat of passion, the unfortunate incident happened. The said act is nothing but an offence of culpable homicide not amounting to murder and it clearly falls under Exception 1 to Section 300 I.P.C. Consequently, accused No.1 has to be convicted for the offence punishable under Section 304 Part-I of IPC., and not under Section 302 of IPC., and accordingly, the conviction of accused No.1 for the offence punishable under Section 302 of IPC., has to be altered to one under the provisions of Section 304 Part I of IPC.
27. Our view is fortified by the decision of the Hon'ble Supreme Court in the case of Dauram Nirmalkar -vs- State
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CRL.A No. 1142 of 2019of Chattisgarh reported in Criminal Appeal No.1124/2022 reported in AIR 1022 SC 3620 at paragraphs-12, 13, 15 and 16 has held as under:
"12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self- control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.12 The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-
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control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which
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would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused' reaction, should be identified to show that there was temporary loss of self- control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in 1975 Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law' Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law' Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 13 of 16 in the following words:
"The significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents
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which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the accused - and indeed the relation of the retaliation to that act
- can be neither understood nor evaluated without reference to previous dealings between the parties."
Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of
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CRL.A No. 1142 of 2019reflection or planning as they mirror exercise of calculation and premeditation.
15. For clarity, it must be stated that the prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context we would refer to the case of the prosecution, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires.
Therefore, we hold that the acts of
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CRL.A No. 1142 of 2019
provocation on the basis of which the
appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control.
16. Applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of the IPC."
28. On careful perusal of the prosecution witness i.e., Jabiulla Khan father of the deceased - P.W.1 and Naheem Khan uncle of the deceased P.W.2 who are interested witnesses, no other independent witnesses have supported the case of the prosecution except the recovery alleged to have been made by the Police Officers, Doctors and RFSL Officers. So also no sufficient material is produced to prove that knowing fully well or with an intention or motive, accused No.1 had assaulted the deceased with M.O.9 with a button knife and stabbed the deceased on the chest which was due to sudden provocation in a scuffle between the accused and the deceased due to accusation of accused by the deceased in filthy language and trying to assault one of the accused by the deceased, which aspect has not been considered by the learned Sessions Judge
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CRL.A No. 1142 of 2019while passing the impugned judgment of conviction, convicting the accused for the offence punishable under the Section 302 of IPC., and sentencing him to undergo rigorous imprisonment for life with fine stated supra.
29. In so far as the judgment relied upon by the learned Additional SPP in the case of Surinder Singh -vs- State (Union Territory of Chandigarh) reported in 2021 SCC OnLine SC 1135, we have no quarrel with the law laid down by the Hon'ble Supreme Court. In the present case, except the interested witnesses i.e., P.Ws.1 and 2, there are no other independent eye witnesses and all the witnesses examined by the prosecution have turned hostile to the case of the prosecution including P.Ws.9 and 10, at whose instance, the quarrel took place and hence, the said judgment has no application to the facts and circumstances of the present case.
30. In view of the above, considering the peculiar facts and circumstances of the present case and on re-appreciation of the entire material and documentary evidence on record and in the light of the principles enunciated by the Hon'ble Supreme Court in the judgments stated supra, we answer point No.1
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CRL.A No. 1142 of 2019raised in the present criminal appeal partly in the affirmative holding that accused No. 1 has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under the provisions of Section 302 of the IPC., and sentencing him to undergo rigorous imprisonment for life with a fine of Rs.1,00,000/- (Rupees One Lakh only) with default clause, requires modification and the said conviction is altered to one under Section 304 Part-I of IPC., and is sentenced to undergo rigorous imprisonment for a period of Ten years with fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) and in default of payment of fine, he is liable to undergo further two years simple imprisonment.
31. In view of the above, we pass the following:
ORDER
i) Criminal Appeal is allowed in part;
ii) The impugned judgment of conviction and order of sentence, dated 24th April, 2019 passed in S.C.No.58/2018 passed by the learned III Additional District and Sessions Judge, Ramanagara convicting accused No.1
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for the offence punishable under Section 302 of IPC., and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.1,00,000/- and in default to payment of fine to undergo simple imprisonment for a terms of one year is hereby modified;
iii) Accused No. 1 is hereby convicted for the offence punishable under the provisions of Section 304 Part I of IPC and sentenced to undergo rigorous imprisonment for a period of Ten years and to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) and in default of payment of fine, to undergo simple imprisonment for a further period of Two years;
iv) On such deposit of fine amount of
Rs.1,50,000/- (Rupees One Lakh Fifty
Thousand only) by the accused, in view of the provisions of Section 357(3) of the Code of Criminal Procedure, an amount of Rs.1,45,000/- (Rupees One Lakh Forty Five Thousand only) shall be paid to P.W.1- SriJabiulla Khan, father of the deceased-
Faizal Khan. The remaining amount of Rs.5,000/- (Rupees Five Thousand only) shall
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CRL.A No. 1142 of 2019
vest with the State towards defraying
expenses;
v) The learned Sessions Judge shall ensure
prompt payment of the compensation
amount to the father of the deceased, on proper identification;
vi) The appellant/accused No.1 is entitled to the benefit of set off under the provisions of Section 428 of the Code of Criminal Procedure;
vii) Since the main matter is disposed off,
I.A.1/2023 would not survive for
consideration and accordingly, it is rejected.
viii) Registry is directed to return the Trial Court Records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-