Karnataka High Court
Nissar S/O Samiulla @ B S Basha vs The State Of Karnataka By Chikkajala ... on 17 September, 2010
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17"' DAY OF SEPTEMBER 2010
BEFORE I I
THE HONBLE MRJUSTICE N. ANA1_\r;3:)A' .. A
CRIMINAL APPEAL No..1.841/2O0u3f.VV '
Nissar S/0 Sarniulla @ B.S.Basha
Aged 23 Years, Occ: Sericuliure ._
Resident of Rajaksabpalya, Ja_la=.H0bli" ._ '
Bangalore North Taluk, Bangalore. _ * ;'..Ap§pellant
{By Sri.Shan1s AhmedDP'a.tha'n,
The State of Karliatalga
By Chikkaj aia Police S~_tat€io"r'1
Represen__ted"b'y State' Pii_bli,c P--r'os'ecui0HrI
Bangalore ' ...Respondent
{By SriIyfijayal:~:nn;'ar_Ilviaifage; HCGP]
ThisI4"appca*1 is filed under section 374(2) Cr.P.C.,
ag2:p:ins1~ the judgment dated l8.l0.2003 passed by the
Pr--incipal ..Sessions' Judge, Bangalore Rural district,
: Bangalore. _ in S.C.No.65/2001, convicting the
"appcllaf1t;' accigsed for an offence punishable under section
~.32_6 IPC '_'and,sentencing him to undergo R.I. for a period of 2
years and'-'spay a fine of Rs.10,000/-, in default to undergo
S.l". fora "period of six months.
This appeal coming on for final hearing this day, the
delivered the following:
J U D G M E N T
The appellant / accused {hereinafter referred to as accused) was tried for an offence punishable under:.'sec-tion 307 IPC. The learned Sessions Judge convicted for an offence punishable under._secti_o.n"'39fi TPC. ands sentenced him to undergo rigorous' foi".'a period of two years and pay'*l1ne _.ir1 rclefaullih to undergo simple imprison.rnen:'t.. months.
Therefore, accused is tzelore l * .
2. I have heard S-ri:._}3l1arr1s 'lPathan., learned counsel..c.for'.,a"ccu;sed 8111...}/ijlaykumar Majage, learned Hood: for 'state -. " ll
3. Inhrieif, the lcaseiofgljrosecution is as fol1ows:-
Pwgfl ¥Mohamr11ed was running a tea stall in a shop belonging Vf ra;;1j:e;+._vof accused namely Sarniulla @ Pasha. About 20 aaya Jag--'15.10.1999, accused had threatened PW1 to Vaeate_"the«lshop or face dire consequences. On 15.10.1999 at .9 'Z,30.p;r1f1.., accused assaulted PW1 with a dagger and caused (I; \_,'\__ _, multiple injuries. with such intention and knowledge by such acts if he had caused death of PW1. he would have been held guilty of an offence punishable under IPC. The first information was lodged by [wife of PW1}. The occurrence.is.__statedll'lto'fV witnessed by PW3~Chand Pasha.:":PW;'l'iv;?asll'trea_ted:l Dr.Purushotham in Bo\Nring"'--~& Lady: Curé§on'V«:._Hvosp--ital at Bangalore. The Investigating__Qlfflcer._» recorded statements of Witnesses and accused.was'--ar12:§ste'd}fat'his instance a knife was recovered- After.-c*orr:1pletio'n of investigation, charge sheet was4_fi.lVed:?}againlst offence punishable under l '
4. 'in 'order 'ts?'1§:ing__:iim=1e guilt of accused, prosecution has _eXamined 13 and documents produced were EX.P.8 and material objects were to M03. The contradictory portion in the "s:at§m§n{r?'o_r. is marked as E)x.D. 1. JV" <"<£*~--0m(ét,
5. The learned Sessions Judge on appreciation of evidence has held that on }_5.10..1999 at 7.30 p.m.,V.accused assaulted PW1~Mohammed with a knife (dangerous xveiapon) and caused grievous injuries and comniitted V's-o'fi"ence'»'_ punishable under section 326 IPCT; ~
6. Therefore, the following arislewfor determination: -
{1} Whether the prosccutior;-.i_has pro-ved§that on 15.10.1999 it 7530" front of tea stall of l-l""alya, Jala ; . ~Moh ammed Wi_tl1Q_..';a " dagger and caused grievous and thereby committed an " p"u..ni'sh'able under section 326 it ., IPC?
9 [2']gWhethe'rllthe learned Sessions Judge has properly appreciated the evidence on 'record?
(3) Whether the impugned judgment calls for interference'? _, "
igxi. 5»: '--x L fit L"-ti -IA. , [4] What order?"
7. From the evidence of PW6-Moharnmed Samiulla It is proved that PW] was running a tea stall in the sho;'.3f"'«\,§}l'1i'ch PW1 had taken on lease from the father of accusedl,.: is
8. PW1-Mohammed has deposed.;_e_1t the"re'le;ia;nt"tirne,=-he ~ was running a tea stall in the shop?
the father of accused on re1eit;tor1 the"dateV of at "
p.m., accused came to the lanldidernfanded him to close the shop ._to him; PW1 told accused to go and tell.Vh--i.s :par'en%;s laabhovutfthe same; accused assaulltedlloxltthe PW1 lxlzlxlith a knife, so also on right side and left PW1 as a result three of his teeth were _Sh8_l{l'I'1g:.V Awaslsshifted to Bowring 81 Lady Curzon Hos:pi'i;a.1 at Bafigaloae. The wife of PW1 [PW8~Gulab Jaan] cross~examinat1on, PW}. has admitted that he Aehaus not produced agreement of lease for having taken shop l '_lfro:£1 the father of accused on rent. PW1 has deposed; at the W. time of occurrence, lights were burning in front of his shop and street lanippost. PWl has denied suggestion thai_,.._lf_1e was frequently assaulting his wife; in a scramble he-«jfell"'--iri'to a gutter and suffered injuries. PW} has denied he had suffered injuries by falling. irito shop. PW} has denied suggestion tha't'tV shop on rent from the fati1_er~~.of accused andfl_he...was not.' running a tea stall.
9. PW2»«Syed Jalal*fl'has-- relatirlg to inspection of place of 'Jpolice. PW2 has deposed: and prepared a as attested the same.
PW2 has denied suggestion hehas stigriedspot mahazar in the police station. ' ;.l(}.._ Pasha has not supported the case of "p14oseCutiVor).r.l1'E5W3 was declared as a hostile witness for resiligngfrom his previous statement recorded under section it it i6«3._ Cr.P.C. PW3 appears to be a post~--occurrence witness. .(;\£_.r ,n/Lcwgé, However, his evidence to the extent that PW] had suffered injuries at the time and place suggested by prosectltion and the Wife of PW1 {PW8} lodged first information is with the case of prosecution.
11. PW4--Haider Ali, who clothes of PW1 were seized_.has isupported prosecution. K V. V' it
12. PW5--Mou1a1i ar;§i'~~pW9:i$§fagt§i.phavttieett examined to prove recovery of knjie accused.
At this 'ji.;.1%.ctui--e. is" to state that the Investigating (V)'ii"i'c-erihas..pn"ct'recorded voluntary statement of accused "1e_ading' toV;re"c.o'very of knife. if accused had given infc;%rrx1a~tion relating to weapon of assault and consequent . 's«eizur_e wofirnife, there was no impediment for the police to R .rec_o«rd"vo1'uI1~taiy statement of accused. Therefore, evidence adduced prosecution in proof of recovery of a knife at the ~in.stanVVc'e of accused has to be eschewed from consideration. PU. .::.C.t -
13. PW6--Mohammed Sainiulla has not supported the Case of prosecution. However, during cross--examination_.-by the learned Public Prosecutor, PW6 has admitted that the son of Samiulla @ Pasha and PWI was stall in a shop belonging to thriwfather evidence of PW6 has not been co'i1tro{Ierted cross--examined by learned co.tU:1.sel for aficcu_seld!_A V
14. At the relevant umVe,...l:u:PiN72i)r.rfirarshqtham was working as a Casualtj'/*lllldedicedlébllicerkiiia Bowring 8: Lady Curzon Hospital at deposed; on 1 5. 1 0. 1 --l\/loharnmed and found',follo'wi.n§' iri} ---- l l. ll"I1jlx_4cisVe 4" X 1" over right cheek it temtnjorall region.
ll. _' v_Inc'i--se wound measuring 1" X 1" over left corner of it " "V"_f31'O't1;3C'1'1v..
"Ell. v--..lHI'n"cise wound measuring 2 crns X 1 cm over left IV. Laoerated wound measuring 2 ems X 2 ems over left parietal region.
V. Loosening of upper two incisors.
VI. Contusion measuring 1" over rightrthiegh' 1/3rd. -
PW'? referred PW1 to orthop'aed.ie'.,and"
' surgeon. PW1 was an inp,a'ti.eent the from"
16.10.1999 to 22.10.1999. Ex~.f§;'5_ i's._the woL1.ndv'§oertificate given by PW7. PW'? A.i:nju_ries 1 82: 3 were grievous in nature and 1:.1y.j.'r'1g§s were simpie in nature.
f'f)u'ri'ng PW'? has deposed; history of assau1'i';.._4od1;.vPW14d'was:_".given by PW1; when he examined P\l51'.§i%., there wasabieeding from injuries, therefore PW7 has » ireooided.eth.Vat.injuries were fresh. PW? has denied suggestion was stabbed with 1VI.O..1--knife, depth of ~1n;.11r1éé; 4, 5 & 6 Cannot be caused with a knife [M.O.1). inJ"1'1rie's:&. would be uniform. PW7has denied suggestion fly? \,..--E'1'"' J 10
15. PW8--Gulab Jaan is the wife of PW1. PW8 had lodged first information. PW8 has deposed: PW} was running a tea stall in Razakpalya; on the date of occurrence a1'..«j7.eor_d7,V3O p.rn., when she was in the house, she saw:---- gathered and found PW} had fal_l_le.n,_d'oWr_1 his head, face. hand and leg; wl;ex11'lF'W'V8 PW} told her that he was as_s'au1ted"vb$z acclulsiexd:«-vtheiieafteriW' PW1 was shifted in a station:
PW8 lodged first inforinatioiflg after admitting PW1 to hospitah PW8 PVb$),a';as for resiling from first her. PW8 appears to be a post-
occurren'ce her evidence to the effect that P\.?'»/Till was running a tea stall in the shop belonging to the .A ifatherli oi'-accused and immediately after occurrence, PW} hleledingihinjuries. PW8 had lodged first. information and admit'tingv""lF'W} in Bowring 8: Lady Curzon Hospital is it it ' V' is consistent with the case of prosecution. is 11
16. PWIO-Rafiq, who is alleged to have witnessed the incident, has not supported the case of prosecutiongi~»_l"._
17. At the relevant time, PWl1«P.T.Sub*fainanl§:rVall working as the Sub-Inspector of Police. .l{i{oli'ce Station. PW11 has deposed; that".he'--A.A_felceit%eol' case from one Chandrashekar;.._j"PSl .V'and' the"?
investigation.
18. At the relevant_ :PW~i2?Slji?fabeerappa was working as a C:onsta'ole."of Chiklcajala Police Station. PW12 has. information lodged by PW8 of coinplaint. PW12 has deposed that he had sent' -~.to~Bowring 8: Lady Curzon Hospital _a mé"rm§'. PW deposed that PW} had suffered 'P V' . on this head',"cheek and left side of mouth. lVAtll_"theirelevant time, PW13-Chandrashekar S.T. was Wo'1"ki11g.as"l the Sub-Inspector of Police in Chikkajala Police it tSi:ation§.. PWIS has given evidence relating to part of 7_investigation of case. fig; V/;I,»,.,V. 12
20. Sri Shams Ahmed Pathan, learned counsel for accused has made following submissionsh I. The learned Sessions Judge has relied.-flonf"p-«lstitay evidence given by the hostile independent witnesses _~are_ ' prosecution. V l l V V l II. The evidence of III. The €Vid€'I1C'3~._'Of l(E)'ff1C'€l""V§ regarding seizure of l<nife_"ati-the __instance of accused is inc redi]oi'e_.
-r1"he'lnot produced lease agreement "to prone father of accused had let out shop 1' to PW1.t.V::
V V. Jaan, wife of PW} has not supported . thecase of prosecution.
Vin". PW} has given improvised version relating to 13
21. The learned HCGP for State would justify the impugned judgment by submitting that PW1 was 'dlinjdured and he would be least disposed to falsely irnplic:a__te.j' the accused, sparing real assailant. The accused. had' ,1fnoti;ré"tq assault PW}. The accused hadilhassauited dispossess PW} from occup_3.tion fofshop {tea .s:t'al'l),v the father of accused had letlouitlto PWVi'.._VThe.V-leaijnefd HCGPVV would submit that mere~..fact_«'that isorrie-.of the witnesses have turned hostile cannot be at the evidence of injured (PW 1;} V.ritrjess.:g
22. 'carefuluficon.siderationffflof evidence of prosecution with r"e_ference_ to:subrnis.si'ons of learned counsel for parties. I find apartrfrona the fact ppytliat PW] was a tenant of the shop belonging thetfhathe-r accused and there were differences a.rcct1se'd'a-nd PW], I do not find that PW]. had any » linotive=to,Tfalsely implicate the accused. The version of ._p-rosfecviitiontiiat accused in a bid to forcibly dispossess PW] from the had assaulted PWl with a knife appears to be f\'}V x--f/1,-my 1' ' 14 probable. PW} has given consistent evidence about assault made by accused on him with a knife. The evide1ic.eQfPaW1 finds substantial corroboration from the evidefiice-«l.Qf..:l§'IJ_%7'»_ Dr.Purushotham.
At this juncture, it is relevant.
took place at 7.30 pm. on lllplayafll Jala Hobli and PWl was shifted.' Curzon Hospital at Bangalore at 9.30 pm. on the same There was spontaneity i'11__ first information was lodgecfby at 9 pm. It is true that somepof thenlprosecutitfiih'witnesses have not supported the case of' true that both PW3 and PW8 are};post~occurrence witnesses, yet the evidence of PW3 8:
had suffered injuries at the time and place of forth by prosecution does not suffer from di'screpancies. From the evidence of PW7-Dr.Pu1'ushothaIn A. and contents of wound certificate (Ex.P.5}, it is clear that V 'v'f'l had suffered three cut injuries and a lacerated injury. 7\;' (_ «zf'>L-'vs (lg, 15 Therefore, theory of learned counsel for accused that PWl had suffered injuries by falling into a gutter cannot be accepted. PW1 was examined in Bowring & LadyV_C__t1rzon Hospital at Bangalore at 9.30 pm. on the had narrated history of assault. The first lodged by PW8 at 9 p.In. on the.date'of was no delay in lodging first inforinatioriir Officer haqinspected spot _o'ceu1'renee tea stair' of PW} on 'the same day. T'h_e.re"fo.re;.._psubrnissionvvéof learned counsel for accusedthat.iridevpe'nder1t'p«'witnesses were not examined and le--arnedASe'ss.i'onsJudge. hasrelied on sporadic evi dence i cannot accepted.
23. 'AI'he'law'iS_ 'faiirEyV_'Vi.zell« settled that there must be strong reaS.;;ns to '"re;,¢c~r the 'evidence of injured witness. th"e__case on hand, PW} has deposed; at the time of . oecnrrence electric lamps were burning in front of his tea stall an'd.Vsti'eet lamppost was burning and there was no AA identification crisis. PW] and accused were known to each JV' fx \/"gt 16 other for several years before the date of occurrence. There is no consistent evidence relating to seizure of bloodstained clothes of PW1, yet fact remains there were bleeding on the face, head, cheek and leg of circumstances, it looks natural clothes' of with blood. Therefore, absence of to seizure of bloodstained ol;dietraQ.t:l' credibility of evidence of ' A V
24. From the evidenced' 'Officer, we find he has failed to 'V record accused, which would only" of Investigating Officer. '-[liedVno1i--:seizure**--0r' non--production of weapon of assaultis not 'fatal-flto th--euca'se of prosecution as the evidence of PW1 that he w_asA*«,ass--aulted with a knife by the accused finds 'substariti.al corroboration from medical evidence. ¢Th'erei*ore,l'i'IAdo notmiind any reasons to discredit evidence of x K e'\>i 0» for. interference. """
17
The learned Sessions Judge on proper appreciation of evidence has held the accused guilty of an._:iofi'e.nce punishable under section 326 iPC. Therefore, _ any reasons to interfere with the impugned Regarding Sentence:~
25. The acts of accused accused had come to place of dangerous weapon). Therefore, There was no provocatioinfrolrln. of 1'~..'.ron1 the description of injuries and found in the wound certificateilli.<(f;x_.lP;.5), injuries were inflicted on vital parts of oPWl. "ITlier;efor'e_._Alseiltence of rigorous imprisonment of tWO years and finelirnposed by the trial Court do)' not call VV'inl'_tvhe'~ifes.u1t, I pass the following:~ ORDER The appeal is dismissed. The impugned judgment of coniriction is confirmed. The learned Sessions Judge shall l.,-'\.. 5}' 'V}V'£\.-' _ 'f\7.<'>»-
18 secure the accused to impiement sentence. Office is directed to send back records along with 3. copy of this judgment. Sd/-3..
SNN