Karnataka High Court
Munna @ Mehaboob Iqbal Bagwan vs The State Of Karnataka on 23 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2770/2013
CONNECTED WITH
CRIMINAL APPEAL NO.100050/2014
Criminal Appeal No.2770/2013:
Between
Munna @ Mehaboob Iqbal Bagwan
Age: 30 Years, Occ: Business,
R/O: Sayeed Galli, Chikodi
Dist: Belgaum
... Appellant
(By Shri S.B.Shaikh &
Shri Santosh B. Rawoot, Advocates)
And
The State of Karnataka
Through Kagawad Police,
Represented by SPP, High Court of
Karnataka, Dharwad
... Respondent
(By Shri V.M.Banakar, Additional State Public Prosecutor)
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This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure seeking to set aside the judgment
passed by the VII - Additional District and Sessions Judge,
Belgaum, at Chikodi, in Sessions Case No.440/2012 dated
22.08.2013 and acquit the appellant from the charges leveled
against them, by allowing this appeal.
Criminal Appeal No.100050/2014:
Between
State of Karnataka
Through Police Sub Inspector
Chikodi Police Station
Represented by Additional State Public
Prosecutor, Advocate General's Office
High Court Bench Unit, Dharwad
... Appellant
(By Shri V.M.Banakar, Additional
State Public Prosecutor)
And
Munna @ Mehaboob Iqbal Bagwan
Aged about 32 Years, R/o. Sayyad Galli,
Chikodi, Dist: Belgaum
... Respondent
(By Shri S.B.Shaikh, Advocate)
This Criminal Appeal is filed under Section 377 of the
Code of Criminal Procedure seeking to grant leave to appeal
against the judgment and order of acquittal dated 22.08.2013
passed by the VII-Additional District and Sessions Judge,
Belgaum, in Sessions Case No.440/2012 and be set aside the
judgment passed by the VII Additional District and Sessions
Judge, Belgaum at Chikodi in Sessions Case No.440/2012
insofar Sections 448, 452, 307 of the Indian Penal Code and
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convict the respondent/accused for the offences punishable
under Sections 448, 452, 307 of the Indian Penal Code.
These Criminal Appeals coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
These appeals are heard and disposed of together.
2. Criminal Appeal No.2770/2013 is filed by the accused, questioning the conviction and sentence imposed on him and the connected appeal in Criminal Appeal No.100050/2014 is filed by the State, questioning the acquittal of the accused for an offence punishable under Section 307 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity).
3. It was the case of the prosecution that the de facto complainant was a teacher in a Government Primary School in Hirekodi. She was travelling by bus to her place of work on every day. It is alleged that the present appellant, the accused was stalking her and she had learnt that he had made enquiries with her students, as to her name and occupation. In this regard, :4: she had accosted him and warned him that he shall not follow her along, as he was annoying her.
4. It transpires that on 07.07.2012, at about 09:00 p.m., the complainant had gone out for a walk along with the landlord and had returned home. Five minutes after she had returned, it is alleged that the accused had suddenly entered into the house armed with a knife and suddenly had stabbed at her abdomen and when she instinctively tried to block the knife with which he stabbed her, her right hand was injured and though the knife was deflected slightly, the accused is said to have stabbed her in the abdomen. When she raised a hue and cry, the accused is said to have thrown down the knife which he was carrying and had run away from there.
5. It transpires that the landlord of the complainant and other neighbourers who were alerted by her cries, had seen the accused run away. She was then admitted to the District Hospital, Belgaum and thereafter had lodged a complaint. On the basis of the said complaint, a case was registered against the :5: accused - appellant for offences punishable under Sections 452 and 307 of IPC. After further proceedings, he had pleaded not guilty and claimed to be tried. On the basis of the evidence tendered by the prosecution at the trial, the Court below had analyzed the said evidence and had come to the conclusion that the evidence on record clearly established the appellant having trespassed into the house of the complainant and having caused hurt which amounted to offences punishable under Sections 452 and 324 of IPC and has imposed punishment of imprisonment for three years and fine of Rs.10,000/- and a similar punishment for an offence punishable under Section 324 of IPC, while acquitting him for an offence punishable under Section 307 of IPC. It is that which is under challenge in these appeals.
6. The learned counsel for the appellant would seek to raise several contentions to urge that the prosecution had not established the case against the accused beyond all reasonable doubt and the gross infirmities have been completely overlooked in finding that the prosecution had established the charges as aforesaid. The learned counsel for the complainant :6: would point out that there is an inordinate delay in filing the complaint and that the incident is said to have taken place at 09:00 p.m. on 07.07.2012, but the complaint is lodged only on the next day, which creates a serious doubt as to the manner in which the alleged incident is said to have been taken place. The further claim of the complainant that the accused was stalking her for the past several years and was posing a nuisance to her, but that she had never complained of the same, at any point of time and therefore, the present complaint could not have been readily accepted without any background as to any such conduct on the part of the accused. In the complaint, she has further stated that immediately after the incident, since she had raised a hue and cry, a number of people had gathered, but she has failed to reveal the names of those persons, all of whom are said to be her neighbourers. This again casts a doubt as to the actual occurrence of the incident.
7. P.W.2, who was a panch witness was examined at the trial to identify the material objects that were produced which he had failed to do. Therefore, the panchanama itself was :7: not acceptable and would not establish the occurrence of the incident at the place as alleged.
8. It is further stated by P.W.3 that on 09.07.2012, blood stained clothes were seized at the District Hospital and that mahazar was drawn, as per Ex.P-3 which is contrary to the evidence of P.W.2, the Medical Practitioner, who has stated that there were no blood stained clothes involved, which is again a material inconsistency which was overlooked by the Trial Court.
9. P.Ws.6 to 10 have all stated in the cross-
examination that they had never seen the accused visit the house of the complainant and neither of the witnesses had seen the knife said to have been thrown at the spot, though about eight people are said to have visited the spot after the incident.
10. P.W.7 had stated before the Police that he had attempted to catch hold of the accused, when he was running away, but he had escaped. But in the cross-examination, he had admitted that he did not actually see the accused. Further :8: P.W.8, a shopkeeper on the ground floor of the house in which the complainant was staying, had a clear vision of the staircase leading to the first floor where the complainant was staying and he has not claimed to have seen the accused going up the staircase or coming down the staircase. If the complainant had raised a hue and cry and if the accused was rushing out of her house, he would have definitely been seen by the said witness, but the witness having deposed that he had not seen the accused come out of the house, would dilute the case of the prosecution, as to the accused having been seen at the place of the incident. There is also contradiction as to the number of people who were chasing the accused after he started running away from the scene of occurrence, but that is contradictory which is a circumstance to indicate that statements are made as an after thought. One other significant circumstance is the claim that the complainant had been brought to the Hospital by others on 07.07.2012 at about 10:00 p.m., as stated by the Medical Practitioner - P.W.11 and that she had examined the patient and found three injuries as per Ex.P-4. Whereas, it is seen from the :9: record that the brother of the complainant was not at all present in the hospital at the time of the admission of the complainant and that he had come there only later. This contradiction also would indicate that the entire complaint was a got-up document, merely to implicate the petitioner.
11. It is also found that PW-16 has spoken about the blood group of the complainant, whereas the Investigating Officer has not indicated that any blood was drawn from PW-1 to ascertain her blood group and therefore, the endeavour to claim that the blood stains at MO-1 to MO-6 are of the blood group of the complainant, is not sustainable, in the absence of proof that blood was drawn from the complainant to ascertain her blood group.
12. It is further pointed out that PW-15, the Police Sub-Inspector has stated that he received information of the incident at 10.00 a.m. on 7.7.2012, whereas the incident had taken place at 9.00 p.m. on that day and it is again a material contradiction which would completely dilute the case of the : 10 : prosecution. It is in this fashion that the learned counsel would seek to question the correctness of the judgment of the Trial court in having accepted the case of the prosecution.
13. On the other hand, the learned Additional State Public Prosecutor would urge that the appeal filed by the accused should be dismissed in limine, for the reason that the offence alleged against the appellant is a very serious offence. In that, the incident has taken place at 9.00 p.m. and the appellant has trespassed into the house of the complainant and has attacked her with a deadly weapon on a vital part of her body, whereby there was every chance of the appellant to have committed her murder, but for the act on the part of the complainant in seeking to deflect the knife with which she was sought to be stabbed in the abdomen by the accused and in the process, her hand being hurt and her stomach having been punctured only to a certain degree. If not for her quick reflex, the stab wound had gone deeper and would have resulted in a serious damage to her internal organs and possibly resulted in her death. Therefore, it can certainly be characterized as an : 11 : attempt to murder and the incident having taken place inside the house of the complainant at night, would assume a serious magnitude which ought to be visited with most stringent punishment. The fact that the accused was stalking the complainant for several years and the same sought to be negated by the counsel for the appellant - accused on the ground that the complainant had not made much of it and had not lodged a complaint in this regard, is not tenable, as it is on record that the complainant had warned him as to strict action being taken if he did not stop bothering her and since the Trial Court has proceeded on the basis that the injuries caused were simple in nature and that if the appellant wanted to commit the murder of the complainant, the injuries caused would have been grievous, is an unfair observation to the detriment of the complainant. The court having found that the injuries were in fact caused by the appellant with a deadly weapon, there was no scope for diluting the seriousness of the evidence merely because grievous injuries were not caused.
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14. The possibility of such grievous injuries was very much present and it was a close call for the complainant and it is her good fortune that she has escaped with her life. Therefore, the Trial Court having diluted the offence punishable under Section 307 IPC on that count, has resulted in a gross miscarriage of justice and there was no warrant to place a premium on the actions of the accused, given the degree of hurt caused. The claim that the accused was in love with the complainant and since it was one-sided and the complainant had rejected his overtures, he had attacked the complainant out of frustration, is also no excuse to condone such actions and therefore, the learned Additional State Public Prosecution would contend that the finding of the court below that no offence punishable under Section 307 had been made out be set aside and the accused be convicted for the offence punishable under Section 307 and also enhance the punishment for the offence punishable under Sections 324 to 307 IPC, for which the minimum punishment is 10 years.
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15. While the learned counsel for the accused would plead for mercy and would reiterate that the intention was never to murder the complainant and notwithstanding that the case of the prosecution had not been established, even if this court were to arrive at a finding that the prosecution has indeed proved the case, it would be required of this court to consider that the appellant - accused had no intention whatsoever to cause the death of the complainant and since he is the only son in the family and the sole bread-winner, this court ought to view the case of the accused with compassion and at least reduce the punishment imposed, while sustaining the judgment of the Trial Court as regards acquitting him for an offence punishable under Section 307 IPC.
16. In the light of the above contentions of the appellants and on a close examination of the record, the conduct of the appellant which has been established by the evidence of several witnesses, is of a deplorable nature. It would appear that he had followed the complainant on most days to her place of work and had tried to get her attention on the claim that he : 14 : was in love with her. She had thwarted any such attempts on his part and had refused to acknowledge his attention, at which it is claimed that out of sheer frustration, he had resorted to threatening her in order to respond to his affection and that the injuries caused were a mere accident which were not intentional. However, it is found that he had tresspassed into the house of the complainant at 9.00 p.m. and therefore, his actions take on a serious overtone which would visit the appellant with a very serious punishment, notwithstanding that only simple injuries had been caused by the attack. It is apparent that the complainant has deflected the knife with which she had sought to be stabbed by the accused, if not for which, it was possible that more serious injury would have been caused to the complainant even resulting in the same being fatal.
17. This aspect cannot be ruled out. The so-called infirmities as highlighted by the learned counsel for the appellant do not defeat the case of the prosecution. Though they had affected the accuracy of the evidence tendered by the : 15 : witness, the infirmities so highlighted however do not go to the root of the matter and the essential ingredients on the basis of which the charges were held to have been proved are very much present and therefore, there is no warrant for this court to hold that the offences punishable under Sections 324 and 452 had not been made out. Insofar as the allegation that the action of the accused could be characterized as an attempt to murder the complainant is concerned, though not for reasons assigned by the court below, given the facts and circumstances of the case, we are not convinced that the appellant had come with an intention to murder the complainant, as the motive to commit such murder was not present. The possible frustration at being rejected by the complainant would indicate that the accused was only seeking to hurt her and possibly seriously, without any intention to commit murder and therefore, the punishment imposed by the Trial court in the backdrop of the injuries being of a minor nature, notwithstanding the time of the incident, is appropriate having regard to the age of the accused and the fact that one of the object of punishment is to ensure reformation : 16 : and in the hope that the accused would yet mend his ways and prove to be a useful citizen and would not indulge in such acts in the future. We confirm the sentence imposed by the Trial court in the face of the serious grounds urged by the learned Additional State Public Prosecutor seeking imposition of a much stringent punishment and the offence being treated as one being punishable under Section 307 IPC.
Accordingly, both the appeals are dismissed. The bail bond executed by the appellant stands cancelled and the appellant, who is on interim bail, shall be taken into custody.
Sd/-
JUDGE Sd/-
JUDGE Rsh/KS