Karnataka High Court
Nayaz Pasha vs State Of Karnataka By Sidlaghatta Ps on 17 October, 2012
Bench: D.V.Shylendra Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE H S KEMPANNA
Criminal Appeal No 1924 of 2007 (DB-C)
BETWEEN:
NAYAZ PASHA
S/O LATE ABDUL SATHAR
AGED ABOUT 30 YEARS,
R/AT NO.25,
RAJIVGANDHI LAYOUT,
SIDLAGHATTA TOWN,
NOW CHIKKABALLAPUR DISTRICT ... APPELLANT
[By Sri. Hashmath Pasha, Adv.]
AND:
STATE OF KARNATAKA
BY SIDLAGHATTA POLICE STATION
CHIKKABALLAPURA DISTRICT
(REP. BY LEARNED STATE
PUBLIC PROSECUTOR) ... RESPONDENT
[By Sri P M Nawaz, Addl. SPP]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGMENT DATED 29.09.2007 PASSED BY THE ADDL. SESSIONS
JUDGE AND P.O., FAST TRACK COURT-II, KOLAR IN S.C.NO.24/2006
AND 263/2006 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 R/W SECTION 34 OF
IPC AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE
AND HE IS FURTHER SENTENCED TO PAY A FINE OF RS.1,000/-
AND I.D. TO PAY THE FINE, TO UNDERGO R.I. FOR ONE YEAR FOR
2
THE OFFENCE PUNISHABLE UNDER SECTION 302 R/W SEC. 34 OF
IPC AND ETC.,
THIS CRL. APPEAL COMING ON FOR HEARING, THIS DAY, H S
KEMPANNA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by Accused No.1 is directed against the Judgment and Order dated 29.09.2007 passed in SC No.24/2006 c/w SC No.263/2006 by the Presiding Officer of Fast Track Court No.II, Kolar, convicting him for the offence punishable under section 302 read with section 34 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a period of one year.
2. The brief facts of the case are:-
The appellant/accused No.1 along with two others, namely Accused Nos. 2 and 3, were tried on the charge for the offences punishable under sections 302, 114 read with section 34 of IPC. It is alleged that the appellant along with Accused Nos.2 and 3 and the absconding Accused No.4, on 17.07.2005, at about 10.30 am in the open ground situated 3 at Slum Board Colony in Sidlaghatta Town, in furtherance of their common intention did commit murder of Hameed Hussain viz., Accused No.1 held the deceased Hameed Hussain and Accused No.2 assaulted him with a long and caused his death at the instance of Accused Nos.3 and 4 and thereby they have committed the aforesaid offences.
3. It is the case of the prosecution that deceased Hameed Hussain is son of PW.14 - Nazeer Unnissa and brother of PW.1, PW.15 and PW.16. PW.24 - Shahin is the wife of PW.1. They are all residents of Slum Board Colony in Sidlaghatta Town.
4. It is the case of the prosecution that deceased Hameed Hussain was carrying on chit business. He had not cleared the chit amount that had been paid by the accused in the case. They were demanding from the deceased the chit amount that had been paid by them. The deceased was putting off their claims. In that connection, frequent 4 quarrels were taking place between the deceased on the one hand and accused on the other hand.
5. Such being the case, on the night of 16.07.2005, accused Nos. 3 and 4 went near the house of the deceased and demanded from him the amount that they had paid towards the chit run by him. In that connection, a quarrel took place between the accused on the one hand and deceased on the other hand. The same was reported to PW.3 on that very night both by PW1 and the deceased. PW.3 sent them saying that as it is late in the night, the same could be sorted out the next morning. Accordingly, they returned to their house i.e., PW.1 and the deceased.
6. It is further the case of the prosecution that on the morning of 17.07.2005, the deceased accompanied by Accused Nos. 1 and 2 went to the tea shop run by the father of PW.8 and while taking tea, a quarrel took place with regard to payment of chit amount due to the accused. Thereafter, it is the case of prosecution that at about 10.30 5 am, Accused Nos.1 and 2 accompanied by the deceased came to the open ground situated in the Slum Board Colony at Sidlaghatta Town. There they picked up quarrel with the deceased stating as to why he has not returned the chit amount. In the said quarrel, it is alleged that the deceased abused accused Nos. 1 and 2 in filthy language. At that juncture, it is alleged that Accused Nos. 3 and 4 came to the said place. On their arrival, when they were informed of what the deceased had told them, Accused Nos. 3 and 4 instigated Accused Nos. 1 and 2 to assault him as he has refused to pay the legitimate amount that was due to them paid towards the chit amount. In response to the same, it is the case of the prosecution that Accused No.2 held the deceased and Accused No.1 assaulted him with the long - MO.4 on his head due to which the deceased sustained severe injuries on the head and face and succumbed to the same at the spot.
7. It is the case of the prosecution that in the meantime, PW.24 on hearing the galata taking place between the 6 accused and the deceased while she was washing clothes in front of her house, went and informed to her husband PW.1 after seeing the said quarrel. Thereafter, both PW.1 and PW.24 came to the spot where the quarrel was taking place in the open field. At that time, they saw the deceased lying dead with injuries and Accused No.1 running away armed with weapon which was blood stained, Accused No.2 following him and PW.1 seeing him attempted to catch hold of him, but he escaped from his clutches after scratching on his beard. Accused Nos. 3 and 4 took to their heels in a different direction than that of Accused Nos. 1 and 2.
8. It is further the case of prosecution that thereafter PW.1 went to Sidlaghatta Town Police Station and there he lodged his complaint as per Exhibit.P1 before PW.22 - Police Sub-Inspector. PW.22 on receipt of Exhibit.P1 registered a case in Crime No.70/2005 for the offences under sections 302, 114 read with section 34 of IPC against the accused, and issued first information report as per Exhibit.P18 to the jurisdictional Magistrate. Thereafter, PW.22 proceeded to 7 the scene of occurrence, made arrangements to shift the body to Sidlaghatta Hospital. Thereafter, he drew up the spot panchanama as per Exhibit.P2 in the presence of the Panchas PWs.10 and 11. Thereafter, he handed over further investigation to PW.25 - CPI. PW.25 on taking over the investigation, proceeded to the Hospital and there he held inquest over the body of the deceased and drew up inquest panchanama as per Exhibit.P3 in the presence of Panchas - PWs.6, 13, 21 and 23. After completing the inquest, he got the body subjected to post mortem examination in pursuance of which PW.17 - Medical Officer conducted autopsy over the body of the deceased and issued post mortem report as per Exhibit.P11. Thereafter, PW.25 continuing the investigation, recorded statement of the witnesses which comprised of eye witnesses PWs.4, 5, 6 and 20 apart from PWs.8, 9 and 24. He also sent a requisition to PWD authorities to prepare the sketch of the scene of occurrence in response to which PW.18 - Junior Engineer prepared the sketch as per Exhibit.P13. Thereafter, PW.25 8 continuing the investigation, recorded the statement of the witnesses, obtained the requisite documents from the authorities, namely, post mortem report, the sketch and on completion of the investigation, submitted final report against the accused before the jurisdictional Magistrate showing Accused Nos. 3 and 4 as absconding in the case.
9. The learned Magistrate thereafter split up the case of Accused Nos. 3 and 4 who had been shown as absconding and committed the case of Accused Nos. 1 and 2 initially to the Court of Sessions which came to be numbered as SC No.24/2006. When the said case was pending before the Sessions Court, Accused No.3 came to be arrested and his case was also committed to the court of Sessions and the same came to be numbered as SC No.205/2006. As Accused No.4 was not traced, his case was split up and separate charge sheet was filed before the jurisdictional Magistrate. After the case of Accused Nos.1, 2 and 3 came to be committed to the court of Sessions, the learned trial Judge framed separate charges against accused Nos.1, 2 and 3 9 respectively. Insofar as Accused Nos. 1 and 2 are concerned, the charge for the offence under section 302 read with section 34 of IPC came to be framed. Insofar as Accused No.3 is concerned as his case was committed subsequent to the case of Accused Nos. 1 and 2, charge for the offence under sections 302, 114 read with section 34 of IPC came to be framed against him. The accused pleaded not guilty to the said charges, but claimed to be tried.
10. The prosecution, in support of its case, in all examined PWs 1 to 25. They got marked Exhibits.P1 to P19 and MOs 1 to 11. The Accused during the course of examination of the prosecution witnesses got marked Exhibits.D1 and D2.
11. After closure of the prosecution evidence, the accused were examined under section 313 of the Criminal Procedure Code. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and to lead any evidence that they may have in 10 support of their case. The accused submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the Accused.
12. The learned trial Judge on considering the oral and documentary evidence on record, held that the prosecution has failed to establish charge levelled against Accused Nos.2 and 3, but however, it held insofar as Accused No.1 - appellant is concerned, prosecution has established the charge for the offence under section 302 read with section 34 of IPC and accordingly by his Judgment and Order dated 29.09.2007 acquitted Accused Nos. 2 and 3, but convicted appellant - Accused No.1 for the offence under section 302 read with section 34 of IPC and sentenced him to undergo imprisonment for life and to pay fine Rs.1,000/- in default to undergo rigorous imprisonment for one year.
13. Appellant/Accused No.1 being aggrieved by the said Judgment and order of conviction and sentence is in appeal before this court.
11
14. Learned counsel for the appellant, assailing the impugned judgment and order, firstly contended that the conviction of the appellant for the offence punishable under Section 302 read with Section 34 IPC cannot be sustained, in view of the fact that the other accused namely accused No.2, who had been charged for the very offence punishable under Section 302 read with Section 34 IPC, has been acquitted. Elaborating his submission, he contended that the charge levelled against the appellant-accused was that he had held the deceased and the second accused inflicted the fatal blow with a 'long' on the head of the deceased, which has resulted in his death. Having regard to the act attributed to him as disclosed in the charge, when second accused has been acquitted of the charge, the present accused-appellant who had been charged for the same offence could not have been convicted and therefore the order of conviction and sentence cannot be sustained. In support of his submission, learned counsel has placed reliance on the decision of the Apex Court in the case of 12 KRISHNA vs STATE OF MAHARASHTRA [AIR 1963 SC 1413]. He further contended that in view of the defective charge that has been framed and for which the appellant- accused has been convicted, it has resulted in failure of justice and therefore the impugned judgment and order of conviction cannot be sustained and the matter deserves to be remanded to the trial court for fresh disposal in accordance with law.
15. Nevertheless, learned counsel for the appellant has also pressed into service the proviso to sub-section (2) of Section 464 CrPC and urged that the conviction recorded against the appellant-accused deserves to be quashed, as the charge framed against him has not been made good for the offence for which now he has been convicted.
16. Learned counsel for the appellant nextly contended on merits also the impugned Judgment and order of conviction and sentence cannot be sustained as the evidence of PWs 6 and 20 - alleged eyewitnesses to the occurrence - is not 13 trustworthy and no reliance can be placed on the same. He also contended that in so far as the evidence of PW1 is concerned, who is also the first informant, no reliance can be placed on his testimony, in view of the material omissions elicited from the evidence of his wife (PW24), which has been proved through the evidence of PW25 - IO. It is brought on record that whatever that has been stated by PW24 in her evidence is an improvement, which is not found in her earlier statement. If the evidence of PW24 is severed off, no reliance can be placed on the testimony of PW1 to hold that he had gone to the spot of occurrence and had seen what had transpired there, as claimed by him.
17. The learned counsel further contended that Ex.P1 cannot be treated as first information in the case in view of the fact that the investigation has already commenced by the time Ex.P1 came into existence. This is fortified in view of the evidence of PW1 and other witnesses viz. PW6, 20 and 24 which discloses that the police were at the spot immediately after the occurrence and they shifted the body 14 immediately to the hospital and also recorded the statement of PW1 as admitted by him in his cross examination. Therefore, Ex.P1 is not the first information and the earliest version of PW1 has been suppressed and Ex.P1 has come into existence after due deliberation on which more reliance can be placed. He further contended that in so far as the eyewitnesses to the occurrence are concerned, PWs 4 and 5 have turned hostile. PW6 is a friend of the deceased and PW20 is none other than the sister's son of the deceased. PWs 6 and 20 claim that they had witnessed the occurrence. They were present at the time when the police came to the spot, drew up spot panchanama, but they have not come out with the version of having seen the occurrence. Their statements came to be recorded subsequent to the date of occurrence and that is fortified from the fact that their names having not been indicated in the case dairy that has been produced before the jurisdictional magistrate to show that their statements had been recorded on the very day. Having regard to the delay in these two witnesses coming 15 out with the version that they have seen the occurrence and coupled with the fact of their interestedness inasmuch as PW6 being a friend and PW20 being sister's son of the deceased, no reliance can be placed on their testimonies. Apart from this, the name of PW6 does not figure in the first information report. Therefore he contended that the possibility of these witnesses having been planted cannot be ruled out and as such no reliance can be placed on their testimonies. Apart from this first information report, according to the prosecution has reached the police station at about 11.45 am and the FIR in the case has been dispatched from the police station to the jurisdictional magistrate at 12.45 pm and it has reached the hands of the magistrate on the same day at 3.55 pm, whose office is in the same headquarters viz., Siddlaghatta town, where the occurrence has taken place. In view of the fact that the police were present immediately after the occurrence before ExP1 came into existence and the statement of PW1 was recorded immediately by none other than PW22-PSI, whose 16 name has been taken out by PW1, no reliance can be placed either on the contents of ExP1 or on the testimony of these witnesses. Further he also contended that PW1 nowhere in his evidence claims that PWs6 and 20 were present at the time when he went to the spot. If according to PWs6 and 20, they had witnessed the occurrence, PW1 would not have failed to take out their names in his evidence. In the light of these facts, the testimony of these witnesses is not trust worthy and the learned trial judge without appreciating this material on record, has erroneously come to the conclusion that the prosecution has established its case as against this appellant, which cannot be sustained.
18. Learned counsel for the appellant further contended that in so far as recovery of MO4, weapon which is alleged to have been seized at the instance of appellant-accused under ExP6, in the presence of PW7 panch witness and PW25 investigating officer, in the light of what has been brought out in the cross-examination of the alleged eyewitnesses, recovery of MO4 cannot also be relied upon, as the 17 prosecution has not placed any material to show that MO4 had been subjected to chemical examination and report has been placed before the court. In this connection, submission of the learned counsel for the appellant is that when direct evidence is rendered suspicious, recovery by itself may not be sufficient to hold that the accused is guilty of the offence. Therefore, he submitted that the impugned judgment and order cannot be sustained, it be set aside and the appellant/accused be acquitted.
19. Per contra, Sri P M Nawaz, learned Addl SPP, supporting the impugned judgment and order, submitted that in so far as the defective charge is concerned, the same has not resulted in failure of justice calling for interference. In this connection, he submitted as the appellant-accused has understood the case of the prosecution and the overt act that has been attributed to him and as he has faced the trail fully understanding the act attributed to him, though the charge is defective, what is to be seen is whether it has resulted in failure of justice calling for interference. As in 18 this case, the appellant-accused has understood the case of the prosecution and the overt act attributed to him, it cannot be said that it has resulted in failure of justice and therefore on the ground of charge being defective, the impugned judgment and order does not call for interference.
20. On merits, learned Addl SPP contended that though PW1 is not an eyewitness, a reading of his evidence discloses that he is a natural witness and if, according to the defence he had any idea of implicating any of the accused, he would have made good the same at the time when he filed the complaint stating that he had seen the actual occurrence. Having not done so, as he has narrated what he had actually seen, absolutely there is no reason to discard his evidence. In so far as PWs 6 and 20 are concerned, he submitted that merely because they did not come out with the version of having seen the occurrence before the police on the very same day of the occurrence, their evidence cannot be brushed aside for the reason that the investigating officer was busy in taking steps to conduct inquest, draw up spot 19 mahazar and getting the body subjected to post mortem examination. As the statement of PW20 was recorded the very next day of the occurrence in the morning his evidence cannot be brushed aside. Mere delay in recording the statements of these two witnesses is not sufficient to throw away their testimony, which is consistent and corroborated through the evidence of PWs 1 and 24.
21. Learned Addl SPP also contended that in so far as the recovery is concerned, as the panch witness PW7 has clearly stated that MO4 came to be seized under panchanama ExP6 on being produced by the accused No 1, which is supported by the evidence of PW25, would lend support to the case of the prosecution in finding him guilty of the offence for which he has been convicted.
22. In so far as the delay in filing the FIR and issuance of FIR ExP18 is concerned, he contended that it is not fatal to the prosecution case, as even assuming that there is a slight delay in ExP1 and 18 coming into existence, it does not go to 20 the root of the prosecution case, as the prosecution has established its case by adducing cogent evidence through witnesses. In support of his submission, learned Addl SPP has relied upon two judgments of the Supreme Court in the case of KAMMARI BRAHMAIAH vs PUBLIC PROSECUTOR, HIGH COURT OF AP [AIR 1999 SC 775] and TOSESWAR CHUTTA vs STATE OF ASSAM [2002 CRL LJ 1465].
23. Therefore, taking from any angle, the impugned judgment and order does not call for any interference and hence the appeal be dismissed.
24. In the light of the aforesaid facts, rival contentions, evidence and the documents on record, the points that arise for our consideration in this appeal are as under:
i) Whether the charge levelled against the appellant-accused is defective, and if so, whether it has resulted in failure of justice?
ii) Whether the prosecution has established that deceased Hameed Hussain has died an homicidal death?21
iii) If so, whether the accused are responsible for the homicidal death of deceased Hameed Hussain?
iv) Whether the impugned judgment and order calls for any interference?
Re: Point (i):
25. In so far as the submission of the learned counsel for the appellant relating to the defective charge is concerned, there is no doubt that the charge as framed by the learned judge of the trial court vis-à-vis the appellant-first accused is defective. The charge, which reads as under:
CHARGE I, B. SHIVALINGE GOWDA, B.Sc., M.A., L.L.B., Addl. Dist. & Sessions Judge, P.O., Fast Track Court-II, Kolar, do hereby charge you the Accused as follows;
That you the accused Nos. 1 & 2 in furtherance of common intention to commit murder of one Hameed Hussain consequent to the abetment by absconding accused No.3 Nasir @ Nasir Khan and accused No.4 Sumir, on 17/07/2005 at about 10.30 a.m. at slum board colony ground in Sidlaghatta town, you the accused No.1 - Nayaz Pasha when held the said Hameed Hussain, you the accused No.2 caused his death by inflicting injuries with a long on his body and thus you the accused intentionally committed his murder and thereby committed an 22 offence punishable under section 302 IPC r/w Sec. 34 thereof and within my cognizance.
And I hereby direct that you be tried by me, for the said offences.
Dated this the 19th day of March 2006. is, in fact, on a mere reading, is one that has confused between the accused No 1 and the accused No 2 in the respective roles attributed to them. As per the prosecution case, the role attributed to the appellant-first accused was that he assaulted the deceased with a 'long' which was fatal in nature and resulted in the death of the deceased, while the second accused held the deceased by hands and facilitated the assault. But in the charge as framed by the learned judge of the trial court, the roles have been interchanged and the act of assault is attributable to the second accused while the appellant-first accused is sought to be charged holding the accused person and facilitated the assault on him.
26. A defective charge of this nature would lead to several possibilities. The statutory provisions in the code of 23 criminal procedure relating to framing of charge and the impact of defective charge on the outcome of the prosecution case are found in the provisions of Sections 215 and 464 CrPC, reading as under:
215. Effect of errors -
No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
464. Effect of omission to frame, or absence of, or error in, charge -
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended 24 from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. Both statutory provisions indicate that an error in stating the offence or particulars required to be stated in the charge or even not framing relevant charge or irregularity in the charge including misjoinder of charges etc., shall not affect the validity of the sentence or order passed by a court of competent jurisdiction, unless in the opinion of the court of appeal, a failure of justice has in fact been occasioned thereby.
27. The proviso to sub-section (2) of Section 464 also indicates that a charge of the nature should not have been attributed to the accused person having regard to the facts 25 proved even in a situation of this nature, the conviction has to be quashed.
28. Learned counsel for the appellant being aware of these possibilities, has firstly contended that the charge in the present case being defective, the judgment and conviction and sentence are liable to be set aside. This can happen if the effect or result of the defective charge is one resulting in failure of justice. On a perusal of the evidence on record and the way the prosecution has placed its case before the court and the way defence has responded, though the charge is defective, the appellant-accused has very much understood not only the prosecution case but also what was the evidence led against him and it was only indicative of the fact that he is a person who has committed the assault and therefore was very much aware of the possibility.
29. However, learned counsel for the appellant has contended that in so far as the charge is concerned, there is another aspect viz., that the charge is one of Section 302 26 read with Section 34 IPC and as there is no individual charge against any of the accused, much less the appellant herein, and with the acquittal of the other accused persons and the appellant being the only person who is convicted of the offence, the conviction is not sustainable for the reason that there is no independent charge under Section 302 IPC and unless Section 34 is not roped in, particularly having regard to the charge that has been framed against the accused has been charged with Section 34 IPC also, conviction cannot be sustained.
30. We have bestowed our attention to this aspect. In this regard, learned counsel for the appellant has placed reliance on a judgment of the Supreme Court in the case of KRISHNA [supra]. Though this argument is countered by the learned Addl SPP while contending that at the point of time when the appellant accused was convicted, the result of charge on other accused viz., fourth accused, whose case has been split up, and therefore should not be taken to be a case where Section 34 was never possible and this is 27 countered by the learned counsel for the appellant by submitting that subsequently fourth accused had also been tried and he has also been acquitted and therefore the appellant-accused is the only person who is convicted and in such circumstance, the conviction cannot be sustained etc., in the wake of the statutory provisions with a non-obstante clause that a finding, sentence or order by a court of competent jurisdiction shall not be deemed invalid merely on the ground that no charge was framed or on the ground that it was defective etc., not much significance can be attributed to quoting of particular provisions of and the precise language of the charge. At the best, in the instant case, it can be taken to be an omission to frame a charge independently under Section 302 IPC. When an omission itself could not be of much significance, whether Section 302 or Section 34 or otherwise it will not be of any significance for setting aside the order of conviction. For the purpose of testing this proposition we are not examining the merits of the matter, but our finding to the examination relating to the 28 framing of charge and vis-à-vis conviction as has been recorded by the trial court. Unless it has resulted in failure of justice, it does not vitiate the sentence or order.
31. When the appellant was very much aware that the case against him notwithstanding the charge was one on behalf of the prosecution to place material and evidence to make home that the appellant had committed the act of assaulting the deceased and causing his death and when the learned judge of the trial court has recorded a finding to be so, it cannot be said that defective framing of charge has resulted in any failure or miscarriage of justice. The concept of miscarriage of justice can be illustrated in the very case and it would have been so if second accused who has been attributed the role of assaulting the deceased and causing his death as per the charge should have been convicted of the charge and found guilty and sentenced. As this could have been so, as the evidence on record was not one to substantiate a charge of this nature that he committed the act of assault, but on the other hand it was the first accused 29 who had committed the act of assault etc. It is for this reason, we are of the view that defective framing of charge has not resulted or occasioned in failure of justice in so far as the appellant is concerned and therefore we do not find any occasion to set aside the conviction and sentence on this ground and for remanding the matter to the trial court for framing a correct charge and proceed further, as urged by the learned counsel for the appellant. We reject the same and proceed to examine the matter on merits, as is pressed into service by the learned counsel for the appellant.
Accordingly, we answer the point (i) against the appellant- accused.
RE: POINT (ii):
32. The prosecution in order to establish that the deceased Hameed Hussain died an homicidal death has placed reliance on the testimony of PW7 the Medical Officer, who has conducted the autopsy and has issued post mortem report ExP11. Apart from the same, they have also relied upon the testimony of PWs 1, 6, 20 and 24. PW17 medical 30 officer in his evidence has claimed that he conducted autopsy on the body of deceased on 17-7-2005 and noticed the following ante mortem injuries:
1. Chop wound of 20 cm horizontally over the right side of the face. It extends from angle of the mouth on right side to posterior part of ear lobe auricle and mastoid process.
2. Dimensions 20 cm horizontally.
3. 10 cm vertically at ear auricle, which was cut.
4. 8 cm depth.
Margins were sharp, fresh and bruised, bleeding on manipulation.
Chap wound cuts the mastoid process on the right side with fracture of skull.
Wound was deep enough to cause avulsion of the brain over mastoid and upto bone depth horizontally.
2. Chop wound of 5 x 3 cm over the right side of the chin upto to bone depth. Margins are sharp, injury fresh.
3. Chop wound of 11 cm x 7 cm x 6 cm over thyroid and cricoid cartilage's. The wound has damaged thyroid cartilage, cricoid are hyoid bone (multiple fracture of cartilage's). 31
4. Chop wound of 11 x 6 x 5 cm, 3 cm below the wound No.3, this wound has damaged the tracheal rings and right and left sternocleido mastoid muscles. External jugular vein on right and left has also been cut, the depth extends upto internal jugular vein on the right side.
5. Laceration of 10 x 0.5 cm right shoulder on the deltoid.
All chop wounds are fresh in nature.
Rigor mortis were present all over the body. On dissection I found the following internal injuries.
Head - fracture of the right side of mastoid process due to wound. Avulsion of brain matter in the occipital lobe.
On opening the skull, coverings and the brain were normal on al the other side.
Thorax - Ribs were all normal.
Chap wound (2) has injured thyroid and cricoid cartilage.
Right and the left lungs were normal. Both the ventricles were empty.
Veins were damaged.
Stomach - normal, empty.
Intestine normal, genitals were normal.
32He has stated that all the wounds he noticed on the body were ante mortem in nature and he is of the opinion that the death is due to damage to vital organs and heamorrhage due to chop wounds. In the cross-examination of this witness, nothing has been elicited to discredit his testimony.
33. The evidence of PWs 1, 6, 20 and 24 reveals that the deceased has died on account of sustaining injuries. Further, the evidence of PW 25 - IO - discloses that he held inquest on the body of the deceased and at that time he and the panchas viz., PWs 6, 13, 21 and 23 noticed injuries on the body of the deceased. In the cross-examination of these witnesses also, nothing has been elicited to discredit their testimonies in so far as the injuries found on the body of the deceased. The deceased having died an homicidal death is also not disputed by the counsel for the accused. In that view of the matter, we hold that the prosecution has established that the deceased Hameed Hussain has died an homicidal death.
33RE: POINT (iii) & (iv):
34. The prosecution, in order to establish that the accused are responsible for the homicidal death of the deceased, has placed reliance on the testimonies of PWs 1, 4, 5, 6, 20 and 24 and that of recovery of MO4 at the instance of the appellant under ExP6 made by PW25 in the presence of panch witness PW7.
In so far as the evidence of PW1, he is none other than the elder brother of the deceased. He claims in his evidence that on the date of occurrence, his wife PW24 came and informed him that a quarrel was taking place between the accused on the one hand and the deceased on the other hand. Immediately he rushed to the place where the quarrel was taking place, along with his wife PW24. There, according to him, he saw the deceased lying dead with injuries, accused 1 and 2 taking to their heels from the spot in one direction and accused 3 and 4 in the other direction. Accused No 1 was holding the long in his hands, which was stained with blood. He made attempt to catch hold of 34 second accused, but he escaped after scratching his beard and thereafter he proceeded to the police station and filed the first information as per ExP1.
35. Here itself, we may advert to the evidence of PW24 - wife of PW1, who according to him informed about the quarrel taking place between accused and the deceased and whereafter both went to the scene of occurrence. PW24 claims that on the date of the occurrence in the morning, she was washing clothes in front of her house. At that time, she heard galata taking place between the accused on the one hand and the deceased on the other hand. She went to the said place where the galata was taking place and after seeing the same, she came and informed her husband, who thereafter went to the spot accompanied by PW24.
36. Though PW24 claims that she had seen the quarrel, she had informed her husband and thereafter she had accompanied him to the spot, this version of PW24, which she has made before the court, is a complete improvement, 35 which has been brought out as material omission and proved through the evidence of PW25 - investigating officer. This piece of evidence tendered by PW24 being a material omission would go to show that PW1 was not informed and he has not gone to the spot and he has not seen any thing as claimed by him.
37. In this connection, learned counsel for the appellant also brought to our notice that PW1 has admitted in his cross-examination that his wife PW24 was carrying by eight months. If according to him, his wife was carrying by eight months, then, it is too much to believe that she had ran to the spot where the quarrel was taking place, which was at a quite distance from her house and after seeing the quarrel, she came back to her husband, informed him and thereafter went back to the spot along with her husband. In the light of omissions that have been brought and the material omissions in respect of PW24 either seeing the quarrel or informing her husband and accompanying her husband to the spot and taking into consideration that she was in 36 advance stage of pregnancy, her testimony does not inspire any confidence in us to place any reliance in turn on the evidence of PW1. Apart from this, the evidence of PW1 also cannot be believed for the reason that he claims that immediately after the occurrence, the police came to the spot and body was immediately shifted to hospital. That is also the evidence of PWs 6, 20 and 24. He has further stated that police on coming to the spot, recorded his statement at the spot and that the police official who came to the spot is none other than PW22-PSI, whose name he has taken out in the cross-examination. If according to PW1 his earliest version was recorded by PW22 at the spot, then that version having been suppressed, we are of the view that no reliance can be placed on the contents of ExP1 for the reason that it is hit by Section 161 of CrPC, as investigation had already commenced by that time. Apart from this, though PW1 claims that he went to the spot and at that time he saw accused Nos 1 and 2 taking to their heels towards one direction and accused Nos 3 and 4 in the other direction, he 37 does not refer to presence of PW 6 or 20 at the spot. Version of PW1 that he went to the spot on being informed by PW24
- his wife - is itself suspicious, having regard to the improvements made by PW24 in her evidence, which is proved by the evidence of PW25. Under the circumstances, we find it difficult to rely on the testimony of PW1.
38. Now, coming to the evidence of PWs 6 and 20, who are eyewitnesses according to the prosecution. They claim that on the date of occurrence, both were present near the spot of occurrence. They also claim that accused Nos 1 and 2 accompanied by deceased came to the open field i.e. an open ground situated in slum board colony at Siddlaghatta town. After accused Nos1 and 2 accompanied by the deceased came to the spot, they picked up quarrel with the deceased asking him to return the chit amount which they had paid to him. The deceased expressed his inability to pay the amount and abused them in filthy language and a quarrel was taking place in this connection. At that juncture, accused Nos 3 and 4 came to the spot of occurrence. 38 Accused Nos 1 and 2 told them about the acts of deceased inasmuch as abusing accused No1 and also in not returning the chit amount. Immediately, accused Nos 3 and 4 instigated accused Nos 1 and 2 to assault the deceased, as he was refusing to pay the amount which is legitimately due to them. In response to the same accused No.2 held the deceased, accused No 1 assaulted the deceased on his head with a 'long' - MO4 - which has been identified by both these witnesses. On account of the assault, the deceased sustained bleeding injuries and succumbed to the injuries at the spot. These witnesses further claim that immediately thereafter, people gathered, which comprised of PW1 amongst others and police also came to the spot. Police immediately made arrangements for shifting the body to hospital. They claim that they accompanied the body to the hospital. PW6 specifically claims that he was present in the hospital at the time inquest was held. PW20 also claims that he went to the hospital. Further, PW6 claims that he was present at the spot of occurrence when the investigating 39 officer drew up the spot panchanama as per ExP2, which was drawn on the very day of the occurrence i.e. on 17-7- 2005. But either of these two witnesses does not reveal to the police that they have seen the occurrence which had taken place in their presence on that day. On the other hand, evidence on record reveals that statement of PW6 has been recorded about two days after the occurrence i.e. on 19-7-2005 and that of PW20 was recorded a day after the incident i.e. on 18-5-2005. In view of the fact that these two witnesses have not come out with the version that they have seen the occurrence, though they were in the company of the police on the date of the occurrence itself and as PW6 is a friend of the deceased and PW20 is none other than sister's son of the deceased, in the facts and circumstances, we find it difficult to accept the testimonies of these witnesses and to place any reliance on them.
39. Further, we have taken this view having regard to the delay in filing the first information before the police and the first information report reaching the jurisdictional 40 magistrate on the very day, which is located in the same place. We are of the clear view that in view of the admission of PW1 that his statement was recorded at the spot, which has been suppressed by the police, coupled with the fact that PWs 6 and 20 have not come out with the version that they have seen the occurrence on the very day at the earliest point of time, we are of the clear view that no reliance can be placed on their testimonies and in turn the prosecution has not made good the case against the charge that it is the appellant-accused who is responsible for the murder of Hameed Hussain.
40. Apart from this the prosecution has also placed reliance on the evidence of PWs 4, 5, 8 and 9. The evidence of PWs 8 and 9 discloses that prior to the occurrence, a quarrel had taken place between the deceased on the one hand and accused 1 and 2 on the other hand near the tea shop in connection with payment of chit amount to the accused by the deceased. As all these witnesses have turned hostile to the prosecution, their evidence in our view is of no 41 avail in any manner to establish the charge levelled against the accused.
41. In so far as recovery of MO4 at the instance of first accused is concerned, the prosecution has pressed into service the evidence of PW7 - panch witnesses - and that of the investigating officer - PW25. Their evidence discloses that MO4 weapon allegedly used in the commission of offence has been seized at the instance of first accused pursuant to his statement made before the investigating officer under panchanama ExP6 in the presence of PW7. We have to mention here that the investigating officer, after having seized MO4, has not forwarded the same for subjecting it to chemical examination to find out whether it contained any bloodstain, as claimed by PW1, who says that at that time he saw first accused running with the weapon, it was stained with blood.
42. At this stage, though Sri P M Nawaz, learned Addl SPP, by drawing our attention to the evidence of PW25 - 42 investigating officer - submits the investigating officer has sent the seized articles to forensic science laboratory for examination and a report has been produced before the court below, but the learned judge of the trial court has observed that no such report has been produced before the court. In view of the same, we have to hold that there is no FSL report connected to this case. In the absence of the same and in the light of the evidence on record, we are of the view that the evidence of PWs 6 and 20 being untrustworthy, seizure of MO4 at the instance of the appellant-accused also is of no consequence to hold him guilty of the offence. The learned trial Judge without appreciating these materials on record in right perspective, has committed an error in holding that the prosecution has established that the appellant/accused is responsible for the homicidal death of Hameed Hussain. In that view of the matter we are of the view that the impugned judgment and order being based not on cogent and reliable evidence cannot be sustained. Apart from this, the prosecution has not preferred any appeal as 43 against the order of acquittal of accused 2 and 3. That further goes to show that the State is acquiesced of the acquittal of accused 2 and 3 who have been charged for the similar offence.
43. In the light of aforesaid discussion which we have made on the merits of the case, we do not find it necessary to what extent the proviso to sub-section (2) of Section 464 CrPC comes into play. Accordingly, we are of the view that the prosecution has not established its case as against the appellant-accused also.
44. In the result, we proceed to pass the following:
ORDER
a) Appeal is allowed.
b) Judgment and order dated 29-9-2007 passed in SC Nos 24 and 263 of 2006, on the file of Fast Track Court-II Kolar, convicting the appellant-accused No 1 for the offence punishable under Section 302 read with Section 34 IPC and sentencing him to undergo 44 imprisonment for life and also to pay a fine of Rs 1,000/- and in default to pay the fine to undergo rigorous imprisonment for one year, is hereby set aside and the appellant-accused No 1 is acquitted of the offence charged against him.
c) The appellant is in custody. It is, therefore, directed that he shall be set at liberty forthwith, if he is not required in any other case.
Registry is directed to communicate the operative portion of this judgment forthwith to the superintendent of jail concerned where the appellant is presently undergoing imprisonment.
Sd/-
JUDGE Sd/-
JUDGE AN/-, *pjk