Karnataka High Court
Sri Mubharak Khan vs State Of Karnataka on 9 February, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9th DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRL.A. NO.181/2010
Between:
1. Sri. Mubharak Khan,
S/o Nazir Khan,
Aged about 28 years,
R/at: near auto stand,
Shanimahathma Temple Road,
Upparahalli,
Tumkur Town,
Tumkur District.
2. Smt. Zarina
W/o. Late Asif Sab,
Aged about 50 years,
R/at: near auto stand,
Shanimahathma Temple Road,
Upparahalli,
Tumkur Town,
Tumkur District. ... Appellants
(By Sri. H.P. Leeladhar, Advocate)
And:
State of Karnataka by
New Extension police Station,
Tumkur,
Crl.A. No.181/2010
2
Tumkur District. ...Respondent
(By Sri. S. Vishwamurthy, HCGP)
This Criminal Appeal is filed under section 374(2) of
Cr.P.C. praying to reverse and set aside the judgment,
conviction and sentence dated:30.01.2010 passed by the P.O.,
FTC-II, Tumkur in S.C.No.41/2009 - Convicting the
appellants/accused for the offence P/U/S. 307 of IPC R/w Sec.34
of IPC. The Appellants/Accused sentenced to undergo R.I. for 10
years to pay fine of Rs.10,000/- in default of pay the fine they
shall undergo R.I for 6 months for the offence P/U/S 307 R/w
Sec.34 of IPC.
This Criminal Appeal having been heard and reserved for
judgment on 02.02.2018 this day Dr. H B PRABHAKARA SASTRY,
J., delivered the following :-
JUDGMENT
Being aggrieved by the judgment of conviction and order on sentence dated 30.01.2010 in S.C. No.41/2009 passed by the P.O., FTC-II, Tumkur, (hence forth for brevity referred to as the 'Sessions Court') the appellant has preferred this appeal.
2. The respondent is being represented by the High Court Government Pleader.
Crl.A. No.181/20103
3. Lower court records were called for and the same are placed before this Court.
4. Heard arguments from both side and perused the materials placed before this Court.
5. The summary of the case of the prosecution is that on 21.07.2008 at about 11.00 p.m. complainant Smt. Rihana Banu w/o Syed Shafi appeared before the complainant police station and lodged a written complaint. The summary of the complaint was that accused No.2 Smt. Zarina had availed a hand loan of a sum of Rs.10,000/- about a year back from Syed Shafi, husband of the complainant on the pretext of her necessity to pay advance to a rented house. Though she had promised to return the said amount within a near future she did not return the loan amount. Several requests were made from the complainant and her husband asking for return of the loan amount, still they could not get the money back. However, the accused Crl.A. No.181/2010 4 No.2 had promised that she would return the hand loan on 16.07.2008. Since she did not repay the amount even on the said date, both the complainant and her husband went to the house of accused No.2 Zarina at 7.30 p.m. on 21.07.2008 asking for the repayment of the loan amount. However, Zarina refused to return the loan amount, on the contrary abused the complainant and her husband scolding them in filthy language. The local residents including Chand Pasha and Smt. Shamshunnisa advised the parties and decided that the accused should return the loan amount on 16.08.2008. Complainant and her husband returned home. Thereafter on the same night at about 8.30 p.m. accused No.2 Zarina accompanied by her son accused No.1 Mubharak Khan went to the house of the complainant and by knocking the door called the husband of the complainant. When they opened the door while the complainant was seeing, accused No.2 Zarina instigated her son accused No.1 Mubharak Khan to finish of Syed Shafi, Crl.A. No.181/2010 5 the husband of the complainant, at which Mubharak Khan took out a knife which he had brought along with him and stabbed on the chest of Syed Shafi causing bleeding injuries to him. At the yelling of the injured as well as the complainant, the neighbors gathered and sent the accused from the place. Later, the injured was shifted to hospital and was admitted for treatment. The said complaint was registered in complainant station Crime No.137/2008 against the present appellants/accused Nos.1 and 2 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The police after claiming to have conducting the investigation filed charge sheet against both the accused for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
The accused pleaded not guilty, as such, the trial was held against them. In order to prove its case prosecution examined 11 witnesses from PW.1 to PW.1 and got marked documents from exhibits P1 to P10 and material objects at Crl.A. No.181/2010 6 MO.1 to MO.6. Neither any witnesses were examined from the accused side nor any documents were marked as exhibits. After hearing both sides and appreciating the materials placed before it, the Sessions Court by its judgment of conviction dated 31.01.2010 and order on sentence dated 01.02.2010 convicted both the accused for the offence punishable under Section 307 read with Section 34 of the Indian penal Code and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months. It is against the said judgment of conviction and order on sentence the accused have preferred this appeal.
6. Learned counsel for the accused in his argument reiterated the contention taken on by the appellants in the memorandum of appeal and submitted that the evidence of alleged eye witnesses is full of improvement and omissions, as such, they are not believable. There is no consistency Crl.A. No.181/2010 7 between the evidence of PWs.1, 2 and 5. According to complainant accused NO.1 assaulted the injured only once. However, five injuries were noticed by the doctor at the examination of the injured. As such, there is discrepancy in the evidence and the material placed by the prosecution. Learned counsel further submitted that there is no allegation against accused No.2. No witnesses have attributed any overtact against accused No.2, as such, she deserves to be acquitted. He further submitted that even if the case of the prosecution is accepted on its facial value, still the alleged overt acts could only attract Section 324 of the Indian Penal Code, but not Section 307 of the Indian Penal Code. With this he submitted that the judgment under appeal deserves to be set aside and the appellants deserve to be acquitted from the alleged charges.
7. Learned High Court Government Pleader in his argument vehemently submitted that evidence of PWs.1, 2, 3 and 5 who are the eye witnesses have come in uniformity Crl.A. No.181/2010 8 and as such they are trustworthy. The motive behind the commission of the crime which is the money transaction is not in dispute. The accused going to the house of the injured and assaulting him has been admitted in the form of suggestions made to prosecution witnesses from the accused in its cross examination. As such, the alleged incident and the overtact by the accused has been proved by the prosecution beyond reasonable doubt. He further submitted that use of a deadly weapon like knife by accused No.1 itself clearly go to show that he had an intention to kill PW.2 and which act was instigated by accused No.2. As such, the prosecution has proved its case beyond reasonable doubt and the judgment under appeal does not warrant any interference at the hands of this Court.
8. Among the 11 witnesses examined by the prosecution, PWs.1, 2, 3 and 5 are shown to be eye witnesses to the alleged incident. among them PW.2 is Crl.A. No.181/2010 9 shown to be the victim of the incident and PW.1 is the wife of PW.2.
PW.1 (CW.1) in her evidence has stated that accused No.1 and 2 had borrowed a sum of Rs.10,000/- from her and her husband i.e., PW.2, which they were not repaying promptly. However, they had promised to repay the loan amount on 16.07.2008. Accordingly, on the said day when she along with her husband approached the accused they did not repay the loan amount. On 21.07.2008 between 6.30 to 7.30 p.m. she once again went to the house of the accused asking for repayment of the loan amount, at which accused refused to repay the loan amount. On the other hand quarreled with these people and abused them. PW.4 Chand Pasha pacified them and assured that the accused would repay the loan amount in monthly installments.
She has further stated that on the same night at about 8.30 p.m. after having their dinner when herself Crl.A. No.181/2010 10 along with her husband were sleeping in their house, the accused went there and knocked the door. When her husband i.e., Pw.2 opened the door accused No.1 started abusing her husband and stabbed him on his chest with the knife he had in his hand. She saw the incident and raised alarm, at which CW.4 to CW.6 came and rescued her husband. Later her husband was shifted to hospital. She has further stated that accused with an intention to kill her husband have assaulted him. She has identified the complaint lodged by her at EX.P1. She has also stated that after registration of the crime the police have drawn scene of offence panchanama as per EX.P2 in her presence and also seized clothes worn by her husband at the time of incident under a panchanama at EX.P3. She has also identified a knife at MO.4 stating that it was that the same knife accused No.1 assaulted her husband. She was subjected to a detailed cross examination wherein she adhered to her original version.
Crl.A. No.181/201011
9. PW.2 (CW.2) Syed Shafi, husband of PW.1 who in his evidence has sated that he had given a hand loan of a sum of Rs.10,000/- to the accused to put up their house. The accused did not repay the loan amount in time, but went on giving excuses. On 16.07.2008 he went to the house of the accused and asked them to repay the loan for which they refused, but initiated quarrel. One Chand Pasha held a panchayath and decided that accused should repay the loan amount on monthly installment. On the date of incident in the night at about 8.30 when he was sleeping with his wife accused came to his house and knocked the door, when he opened the door they abused him in filthy language. Accused No.1 Mubharak Khan assaulted him on his chest, hand and neck with the knife. He fell unconscious and he was shifted to hospital. The accused attempted to kill him. he was subjected to a detailed cross examination from the accused side. However, he adhered to his original version.
Crl.A. No.181/201012
10. PW.3 (CW.7) Shamshunnisa in her evidence has stated that she knows accused and PWs.1 and 2 who resides in the same locality where she is residing. The accused had availed a loan of Rs.10,000/- from PW.2. There was a quarrel between them with respect to repayment of the said loan amount. On the date of incident on hearing the yelling noise of PW.1 Rihana Banu for help, she rushed to the spot. Even PW.5 Jainulla and some more persons by name Noorulla, Ugrappa, Vasanthanna also came there. Accused had assaulted PW.2 Shafi with a knife on the chest, right hand and neck. Along with accused Mubharak, his mother accused No.2 was also present there. The injured Syed Shafi fell unconscious and he was shifted to hospital. The incident has taken place in connection with repayment of a hand loan. She was also subjected to a searching cross examination from the accused wherein she adhered to her original version. Crl.A. No.181/2010 13
11. PW.4 (CW.3) Chand Pasha though was projected as an eye witness to the incident, as well, the person having the knowledge of the previous money transaction between the accused and the injured, the witness has supported the case of prosecution only to the extent of the accused availing hand loan of a sum of Rs.10,000/- from PW.2 but he stated that he was not an eye witness to the alleged incident. Even after treating him as hostile, prosecution could not get any support from him.
12. PW.5 (CW.5) Syed Jainulla Abdin has supported the case of the prosecution. He claims to be an eye witness to the incident. He has stated that accused were residing in the same locality where his house is and he knew about the money transaction between the accused and PW.2. The accused had availed a hand loan of a sum of Rs.10,000/- from PW.2 and there was a quarrel between them with respect to the non repayment of the loan by the accused. In that connection initiating a quarrel accused No.1 Crl.A. No.181/2010 14 Mubharak had stabbed PW.2 Shafi on his chest with a knife. He also assaulted PW.2 with the same knife on his right hand. The witness has stated that he has seen the incident and he can identify the knife. The witness has identified the knife at MO.4. He has also stated that after the incident they shifted the injured to the hospital. He has given his statement to the police. He was also subjected to a detailed cross examination from the accused side wherein he adhered to his original version.
13. PW.6 (CW.8) Srinivasa has stated that scene of offence panchanama at EX.P2 bears his signature. He denied a suggestion made to him in his cross examination that the said panchanama was prepared before the police, took his signature on the spot which the witness has denied.
14. PW.7 (CW.19) G R Manjunath Gupta, a medical officer, District Hospital, Tumakuru has stated that on Crl.A. No.181/2010 15 21.07.2008 at 9.05 p.m. he had medically examined Syed Shafi who was brought to him with the history of assault and noticed the following injuries upon him.
1. An incised wound measuring 4 cms x 1 cm over upper 1/3 of right forearm; inner aspect, muscle deep oozing of blood present from wound.
2. An incised wound measuring 5 cms x 1 cm over flexor aspect of left forearm over its middle 1/3 muscle deep, oozing of blood present from wound;
3. An incised wound measuring 4 cms x 1 cm over back of left forearm over its lower 1/3; oozing of blood present from wound;
4. A stab wound measuring 5 cms x 1½ cms over left side of chest near left nipple; vertically placed; depth not probed, oozing of blood present, Crl.A. No.181/2010 16
5. A stab wound measuring 4 cms x 1½ cm over left side of chest near midline nearer to wound No.4; oozing of blood present from wound; depth not probed;
He has stated that according to him all those injuries were simple in nature. The injured told him that injuries were caused by assault by one Sri Mubharak on the same night at 8.30 p.m. stating that he had issued a wound certificate in this regard the witness has identified the same at EX.P5. He adhered to his version even in his cross examination also.
15. PW.8 (CW.15) Vasantha has stated that cloth seizure panchanama as per EX.P3 was drawn in his presence and under the said panchanama a pant and shirt at MO.5 and MO.6 were seized.
16. PW.9 (CW.20) Satya Narayan Singh, then police sub inspector of complainant police station has stated about Crl.A. No.181/2010 17 he receiving the complaint lodged before him by PW.1 on 21.07.2008 and registering the same in their station Crime No.137/2008 against the accused for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. He has also stated about he submitting a FIR to the court as per EX.P6, recording statement of injured Syed Shafi on 27.02.2008 through head constable 312. He has also stated about he visiting the scene of offence and drawing a panchanama as per EX.P2 and collecting materials under the said panchanama including the blood stained soil, sample soil and the blood found in the spot as per MO.1 to MO.3. He has further stated that accused No.1 was produced before him by his staff and he recorded his voluntary statement as per EX.P8. Thereafter following the accused who led them to the place where the knife was produced by him drew a panchanama in the presence of panchas as per EX.P9 and seized the knife produced by the accused at MO.4. He has also stated about recording Crl.A. No.181/2010 18 statement of witnesses in this case and seizing the clothes of injured at Mo.5 and MO.6 as per seizure panchanama at EX.P3. After sending the seized articles to the Forensic Science laboratory. He has filed charge sheet against the accused. The denial suggestions made to him in his cross examination were not admitted as true by him.
17. PW.10 (CW.11) Umesh and PW.11 (CW.12) Anand though were projected as the witnesses for recovery panchanama at EX.P9 but neither of them have supported the case of the prosecution.
18. PWs.1, 3 and 5 have supported the case of prosecution regarding the occurrence of the incident. According to all these three witnesses on the date of incident i.e., on 21.07.2008 at about 8.30 p.m. accused No.1 Mubharak going to the house of PW.2 Syed Shafi assaulted him with a knife on his chest, neck and arm. PW.1 being the wife of injured PW.2 her presence in the Crl.A. No.181/2010 19 place of incident which is their house is not disputed. She has given a detailed account as to how the incident has occurred. She has specifically stated that she was also present and has seen accused No.1 Mubharak stabbing her husband with the knife. She has categorically stated in her evidence that she switched on the light when the accused went to their house and has seen the incident. Her evidence in examination in chief could not be shaken in her cross examination. Though learned counsel for the appellant drew the attention of this Court to a stray sentence in her cross examination which shows that the witness admitted a suggestion as true that the lane did not have electricity, but the very previous sentence makes it clear that the said lane was not the place of incident, but it was adjacent to the house of the accused. As such by that it cannot be inferred that house of the accused did not have electricity facility. Further in her cross examination the witness has given some more details as to how the incident Crl.A. No.181/2010 20 has occurred. She has clearly stated that when the accused Mubharak went to their house she put on the light and that her husband opened the door. It was at that time the accused assaulted her husband with the knife he was holding. She also stated that the accused assaulted twice with the knife. Thus, her cross examination has further strengthen the case of prosecution by adding some more details to the alleged incident.
19. Interestingly in her cross examination a suggestion was made from the accused side to the effect that in that incident except herself her mother in law and neighbors none else came to their rescue. The witness admitted the said suggestion as true. By making the said suggestion the accused has admitted the occurrence of the incident. However it has to be noticed that nowhere in her evidence she has alleged any overtact against accused No.2. Though she was shown to have stated in her complaint at EX.P1 that accused No.2 instigated her son Crl.A. No.181/2010 21 i.e., accused No.1 to finish off PW.2 Syed Shafi, but the very same complainant (PW.1) in her evidence has not stated anything about either the presence of accused No.2 in the spot or her alleged instigation for the commission of the crime.
20. The evidence of PW.2 is nothing but the evidence of the victim in the incident. He has very precisely narrated about the incident and has categorically stated that in the incident accused No.1 Mubharak assaulted him on his chest, arm and neck with the knife. Though he has stated that when the door was knocked on that night, accused No.1 and 2 were present, but he has not stated anything about the overtact said to have been committed by accused No.2 in the incident. This witness in his evidence has stated that at the assault made by accused Mubharak he fell unconscious and was shifted to hospital where he regained conscious.
Crl.A. No.181/201022
21. PW.7, the doctor in his evidence has stated that injured himself has told him that one Mubharak has assaulted him with a knife on that night at 8.30 p.m. The doctor has also stated that the injured was conscious and able to speak. Relating these two statements of injured as well as the doctor, learned counsel for the appellant in his argument submitted that when the injured himself has stated that he fell unconscious it was impossible for him to give any statement before the doctor. No doubt PW.2 has stated in his evidence that he fell unconscious at the assault committed by accused No.1 Mubharak. However, the very same witness in his very same evidence at a later stage has stated that he regained his conscious in the hospital. Thus when he has regained his conscious in the hospital, it can be believed that he has given the history of the incident to the doctor i.e., before PW.7. Further regarding the conscious of a person it is the doctor who can say more authoritatively than other persons. As such, the evidence Crl.A. No.181/2010 23 of PW.7 that patient himself told that it was accused Mubharak caused injuries to him by assaulting with a knife, cannot be ignored. Thus evidence of PW.2 being the evidence of injured person has come out in a trust worthy and reliable manner. It cannot be lost sight of the fact that nowhere in the cross examination of either PW.1 or PW.2 any suggestion was made to the effect that accused No.1 and accused No.2 had not been to the house of PWs.1 and 2 on the date and time of the alleged offence.
22. The evidence of PWs.3 and 5 also supports the case of prosecution. Their evidence also has come in an uniformity about the incident and they being present at the time of incident. Their evidence that they are the neighbors and residing in the same vicinity and that their house is only at a distance of about 10 steps is not disputed. It is also not in dispute that both the accused and PW.2 were known persons to these two witnesses. Among them PW.3 is a social worker who has also stated that she had advised Crl.A. No.181/2010 24 the parties earlier with respect to the dispute in the repayment of the money. Therefore she is not only an eye witness to the incident, but also is aware of the previous monetary prosecution which has led to the incident.
23. In her cross examination PW.3 has further made it clear that she has seen the incident from the beginning i.e., at the time when the accused were knocking the door of house of PW.2. That is believable for the reason that incident has taken place not at late night, but at about 8.30 p.m. As such, the neighbors being awake and present in their house at that time is generally expected. A suggestion was made to PW.3 in her cross examination to the effect that by the time she went to the house the incident had already over. The witness did not admit the said suggestion as true. By making that suggestion the accused admitted that even PW.3 was also there in the place of incident and that the incident has occurred. Even though PW.3 has stated that the injured was shifted to the Crl.A. No.181/2010 25 hospital in an ambulance whereas PW.1 the wife of the injured has stated that the injured was shifted in an auto rickshaw, by that itself evidence of PW.3 cannot be taken as not reliable.
24. PW.5 also has supported the case of prosecution and has precisely narrated the incident, but has categorically stated that he was an eye witness to the incident. In his cross examination he has given some more details about the incident. He has stated that at the time of incident some more people gathered and that there was source of light at that place. However, he has stated in his cross examination that accused No.1 alone was there holding a knife in his hand. Thereafter his mother came in an auto rickshaw and took him from the said place. In this way though PWs.3 and 5 have categorically stated that they were the eye witnesses to the incident and have seen accused No.1 assaulting PW.,2, but it is noteworthy that neither of them have made any accusation or alleged any Crl.A. No.181/2010 26 overtact as against accused No.2. Thus from the evidence of PWs.1, 2, 3 and 5 it is clearly established that on the night of 21.07.2008 at about 8.30 p.m. accused No.1 Mubharak having gone to the house of PW.2 Syed Shafi assaulted him with a knife causing him injuries. Evidence of PW.7 the doctor further corroborates the same since the said witness also has stated that he heard about the incident from the mouth of injured himself. As such, the incident and the overtact of accused No.1 is established beyond reasonable doubt.
25. About the role of accused No.2 except say of PW.2 that she was also present no other material witness have spoken about her presence and involvement in the commission of crime. Had really the accused No.2 was also present at the place of incident and had instigated her son i.e., accused No.1 to finish off PW.2, then at first PW.1 who is wife of the injured and PW.3 the neighbor who has seen the incident, should have specifically stated about the Crl.A. No.181/2010 27 presence as well as overtact of accused No.2. Therefore the evidence of prosecution does not make out a case as against accused No.2. It is also because the another eye witness i.e., PW.5, as observed above, has stated that accused No.2 came to that spot later and took her son i.e., accused No.1 from the place in an auto rickshaw.
26. Regarding the motive behind the commission of crime, PWs.1 to 5 have uniformly stated about the monetary transaction between accused and PWs.1 and 2. All of them have stated that accused No.2 Zarina had availed a hand loan of Rs.10,000/- from PW.2 and that she refused to repay the loan amount. It is in that connection the incident has occurred. Among them PW.3 has stated that she had advised the parties regarding monetary transaction. PW.4 has stated that he knows the loan transaction and had held a panchayath also. Therefore, the incident has occurred on the very same day i.e., on 21.07.2008 within few hours after PWs.1 and 2 approached Crl.A. No.181/2010 28 the accused asking them for repayment of the loan which the accused refused to pay. Thus the motive behind the commission of crime is also clearly established by the prosecution. However, whether such a motive was sufficient to treat the act of the accused as an offence to commit murder of PW.2 is the point to be considered.
27. Even according to prosecution accused No.1 assaulted PW.2 on his chest, neck and arm by stabbing him with a knife. Though PWs.10 and 11 the alleged panchas to the recovery panchanama, have not supported the case of the prosecution, but the evidence of PW.9 the Investigating Officer about recovery of the weapon and identification of the said weapon by PW.1 has not been seriously disputed in the cross examination of those witnesses. Thus, when a knife is said to have been used by the accused in the commission of crime, had he really decided to take away the life of PW.2 it was not impossible for him to take his life. The evidence of the doctor as well the wound Crl.A. No.181/2010 29 certificate at EX.P5 go to show that all the five injuries said to have been found on the body of the injured were all simple in nature. The said doctor also nowhere in his evidence has stated that any of the injuries found on the body of the injured was sufficient to cause the death of the injured in ordinary course. On the contrary, in his cross examination he has admitted a suggestion that none of the injuries mentioned in EX.P5 would lead to death of a person. It is noteworthy that PW.2 the injured who has revealed the history of the incident before the doctor by specially naming the assailant has not stated that assailant assaulted him with an intention to kill him. Therefore, merely because PWs.1 and 2 have stated that accused No.1 Mubharak assaulted PW.2 with a knife with an intention to kill him, by itself cannot be taken that accused No.1 intended to cause murder of PW.2. The Sessions Court merely relying upon the statement of PWs.1 and 2 that accused No.1 assaulted PW.2 to kill him, proceeded further Crl.A. No.181/2010 30 to hold that accused had intention to cause the death of PW.2 in which process it ignored to weigh the entire circumstances of the case including the evidence of PWs.3, 5 and 7. Therefore, it lacks an essential ingredient of Section 307 of the Indian Penal Code of intention on the part of the accused to cause the death of the assault. That being the case Section 307 of Indian Penal code is not attracted in the instant case. Since none of the injuries sustained by the injured in the incident are grievous in nature, though a weapon like knife was used in the commission of crime, still the offence punishable under Section 325 and 326 of Indian penal Code are also not attracted in the case. However, it is proved beyond reasonable doubt that accused No.1 Mubharak has voluntarily caused hurt in the form of five simple injuries upon PW.2 by making use of knife which is an instrument for stabbing or cutting and it can cause the death when used as a weapon of offence. As such, the act of accused Crl.A. No.181/2010 31 No.1 is proved to be an act of voluntarily causing hurt by dangerous weapons and means and thereby is an offence punishable under Section 324 of the Indian Penal Code.
28. The defence of the accused was various. In the cross examination of PW.1 at one stretch they have taken a defence that at the instance of one Sri Rehman said to be a police personnel, a false complaint has been lodged by PW.1 against the accused. In another stretch in the cross examination of very same PW.1 a suggestion was made that because of the mental cruelty meted to him, PW.2 inflicted injury upon himself. A similar suggestion of self- infliction of the injury was made in the cross examination of PWs.2 and 5 also, but none of these witnesses have admitted any of those suggestions as true, as such the defence of the accused was confined only to a mere suggestion, but without any corroboration or proof. On the other hand, as already observed above the evidence of PW.1 to 5 and 7 clearly establishes that it was the accused Crl.A. No.181/2010 32 who has committed assault of PW.2. As such, the defence taken by the accused will not sustain.
29. From the analysis of the above evidence it is clear that on the alleged date, time and place the accused No.1 Mubharak has voluntarily assaulted PW.2 Syed Shafi with knife causing him injuries on his body. However, the prosecution has failed to prove that accused No.1 had any intention to cause the death of PW.2. The presence of accused No.2 at the time of incident remains doubtful. As such, she is entitled for the benefit of doubt. The Sessions Court while appreciating the evidence failed to notice the lack of evidence with regard to the presence and participation of accused NO.2 in the commission of crime and also the lack of motive to cause the death of PW.2 by accused No.1. The same has led the Sessions Court in passing an erroneous judgment holding both the accused guilty for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. In the absence of Crl.A. No.181/2010 33 any proof of commission, intention and absence of proof of presence and participation of accused No.2 Smt. Zarina the judgment of conviction as against her deserves to be set aside. Simultaneously since it is proved that the act of accused No.1 Mubharak would not attract Section 307 of the Indian Penal Code, but could only attract Section 324 of Indian penal Code, the judgment of conviction and order on sentence under appeal deserves to be interfered by this Court.
30. Learned counsel for the appellant while concluding his argument also made submission regarding the sentence and submitted that very lenient view be taken by this Court if at all it comes to the opinion of sentencing the accused NO.1 for the offence punishable under Section 324 of the Indian Penal Code. Considering all the aspects including the age, position and commitments of accused No.1 and other circumstances shown by learned counsel for the appellant for reduction of sentence and also considering Crl.A. No.181/2010 34 the aspect of proportionality while imposing sentence I proceed to pass the following order.
ORDER The appeal is allowed in part.
The judgment of conviction and order on sentence dated 30.01.2010 passed by Fast Track Court - II at Tumkur in S.C. No.41/2009 is modified with respect to accused No.1/appellant No.1 Sri Mubharak Khan, S/o Nazir Khan, aged about 28 years, residing at near auto stand, Shanimahathma Temple Road, Upparahalli, Tumkur Town, Tumkur District, and is set aside against accused No.2/appellant No.2 Smt. Zarina, w/o Late Asif Sab, Aged about 50 years, residing at near auto stand, Shanimahathma Temple Road, Upparahalli, Tumkur Town, Tumkur district.
The conviction of accused No.1 and 2 and sentencing them for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code is set aside. Crl.A. No.181/2010 35
However, accused No.1 Mubharak is convicted for the offence punishable under Section 324 of the Indian Penal Code and for the said offence he is sentenced to undergo a simple imprisonment for a period of 18 months and to pay a fine of Rs.5,000/- and in default of payment of fine he shall undergo a further simple imprisonment of two months. In case of the payment of fine amount by accused No.1 Mubharak the same shall be paid to the victim PW.2 Syed Shafi as compensation.
The accused No.2 Smt. Zarina is acquitted of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
Bail bonds executed by the accused and their sureties stands cancelled. Accused No.2 is set at liberty. Accused No.1 Mubharak to surrender forthwith before the Sessions Court to serve the remaining period of imprisonment/sentence. The registry to transmit a copy of Crl.A. No.181/2010 36 this judgment along with the lower court record to the court below forthwith to enable it to proceed further in the matter.
Sd/-
JUDGE ykl