Karnataka High Court
The State Of Karnataka vs Shiraj S/O Tajubuddin Hakeem Ors on 14 November, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.3519/2012
BETWEEN:
THE STATE OF KARNATAKA,
THROUGH ADDL. STATE PUBLIC PROSECUTOR.
... APPELLANT
(BY SRI MAQBOOL AHMED, ADVOCATE)
AND:
1. SHIRAJ
S/O TAJUBUDDIN HAKEEM,
AGE : 28 YEARS,
OCC : MECHANIC.
2. TAJUBUDDIN
S/O GUTAM HUSSAIN HAKEEM,
AGE : 52 YEARS,
OCC : MECHANIC.
3. INNUS S/O TAJUBUDDIN HAKEEM,
AGE : 26 YEARS,
OCC : MECHANIC.
2
4. JAVED S/O TAJUBUDDIN HAKEEM,
AGE : 22 YEARS,
OCC : MECHANIC.
5. LALBI S/O TAJUBUDDIN HAKEEM,
AGE : 44 YEARS,
OCC : HOUSEHOLD.
6. HAFIZA W/O INNUS HAKEEM,
AGE : 28 YEARS,
OCC : HOUSEHOLD.
7. AYUB S/O TAJUBUDDIN HAKEEM,
AGE : 24 YEARS,
OCC : MECHANIC.
ALL ARE R/AT PAILAWALAN GALLI, BIJAPUR.
... RESPONDENTS
(BY SRI R.S. LAGALI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 7.9.2011 PASSED BY THE III
ADDITIONAL SESSIONS JUDGE AT BIJAPUR, IN CRL.
APPEAL NO.28/2008 ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 148, 346, 324, 232 &
504 R/W SECTION 149 OF IPC. SET ASIDE THE
3
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL
DATED 7.9.2011 PASSED BY THE III ADDITIONAL
SESSIONS JUDGE AT BIJAPUR, IN CRL. APPEAL
NO.28/2008 SO FAR AS IT RELATES TO ACQUITTAL OF
ACCUSED 1 TO 7 UNDER SECTIONS 143, 148, 346, 324,
323 & 504 R/W SECTION 149 OF IPC, BY ALLOWING THIS
CRIMINAL APPEAL. CONVICT AND SENTENCE THE
RESPONDENTS/ACCUSED FOR THE OFFENCES UNDER
SECTIONS 143, 148, 346, 324, 323 & 504 R/W SECTION
149 OF IPC, WITH WHICH THEY HAVE BEEN CHARGED IN
ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State is on appeal against the judgment of acquittal passed by the III Additional Sessions Judge, Vijayapur, in Criminal Appeal No.28/2008 dated 07.09.2011, whereunder the judgment of conviction passed by the JMFC 3rd Court, Vijayapur, in CC No.2573/2007 dated 18.03.2008 is set aside and accused 4 Nos.1 to 7 are acquitted of the charges punishable under Sections 143, 148, 326, 324, 323 R/w 149 of IPC.
2. The prosecution case is that accused party and the complainant were on inimical terms on account of a previous quarrel. On 14.10.2007 at about 6 p.m., accused No.1 was found abusing Yasin Khan Hakim in front of his house and the same was questioned by Jafarbi-PW.3 and at that time, all the accused persons are alleged to have formed into an unlawful assembly with intention to assault PW.3-Jafarbi and PW.8-Afsarbi with iron rods and stones.
3. PW.2 lodged a complaint before the police vide Ex.P.2. Based on the said complaint, Crime No.202/2007 was registered against all the seven accused persons for the above offences.
4. On completing the investigation, charge sheet was laid under Section 143, 147, 148, 323, 324, 325 and 504 R/w Section 149 of IPC. The accused denied the 5 charges and claimed to be tried. The prosecution examined PWs.1 to 8 and got marked Exs.P.1 to P.7 and the material objects at MOs.1 and 2 in support of its case.
5. The accused in their examination under Section 313 of Cr.P.C., took up the defence of total denial and did not choose to examine any witness on their behalf. On considering the material and the evidence produced by the prosecution, by the judgment dated 18.03.2008, in CC No.2573/2007, all the accused were convicted by the trial Court. Accused Nos.1 to 7 carried the matter in appeal and by the impugned judgement dated 07.09.2011, in Criminal Appeal No.28/2008, the appellate Court reversed the findings and consequently, acquitted the accused of all the above charges.
6. The appellate Court was of the view that the testimony of the material witnesses namely, PWs.2, 3, 4 and 8 suffer from inherent contradictions. The oral testimony of these witnesses is inconsistent with the 6 medical evidence and hence, extending the benefit of doubt, the appellate Court found it proper to acquit all the accused of the above charges.
7. Sri Maqbool Ahmed, learned High Court Government Pleader appearing for the State contends that the first appellate Court has committed serious error in acquitting the accused of the above charges. It has misread the evidence. The evidence let in by the prosecution is consistent with the prosecution case and all the witnesses including the injured witnesses have narrated the overt acts committed by each of the accused. Their oral testimonies are in consonance with the medical evidence, which clinchingly establish that during the occurrence, PWs.3 and 8 sustained grievous injuries. The accused persons are duly identified. Their presence at the spot of occurrence was not challenged during the course of the examination and therefore, the first appellate Court was not justified in reversing the judgment passed by the 7 trial Court and hence, he pleads to set aside the impugned judgment and to affirm the judgment passed by the trial Court.
8. Refuting the submissions, learned counsel for the respondents/accused Nos.1 to 7 has taken me through the oral testimony of PWs.2, 3, 4 and 8 and would submit that the testimony of these witnesses suffer from contradictions and the same cannot be reconciled to the true facts. In view of these discrepancies, the entire incident is rendered doubtful. The first appellate Court has considered the evidence in its proper perspective and therefore, there is no reason to interfere with the impugned judgment passed by the first appellate Court.
9. Considered the submissions and perused the records. The case of the prosecution is that the alleged incident had taken place in front of the house of one Yasin Khan and during the occurrence, accused Nos.1 to 7 8 assaulted PWs.3 and 8 causing grievous and simple injuries to them.
10. In support of its case, the prosecution has mainly relied on the evidence of PWs.2, 3, 4 and 8. PW.2 is the complainant, PWs.3 and 8 are the injured witnesses. PW.4 is examined as an eyewitness to the incident. These witnesses have deposed as if they were the eyewitnesses to the incident and during the occurrence PWs.3 and 8 had suffered injuries, but the first appellate Court has enumerated various inconsistencies in the testimony of these witnesses. As the learned High Court Government Pleader has disputed the finding recorded by the first appellate Court contending that the first appellate Court has misread the evidence, I have carefully scrutinized the evidence of PWs.2, 3, 4 and 8 and I am in full agreement with the observation made by the appellate Court in paragraph No.12 of the impugned judgment, wherein the inconsistencies and the contradictions in their evidence are 9 highlighted by the first appellate Court. Suffice to note that PW.2 who claims to be the eyewitness to the incident has stated in his evidence that during the occurrence, accused No.1 assaulted Jafarbi-PW.3 with an iron rod, as a result, she suffered fracture on the hand. Further, he has stated that accused Nos.3 and 7 assaulted him and PW.8 with clubs. But in the cross-examination it is elicited during the occurrence, PW.8 Afsarbi had sustained bleeding injuries, whereas PW.3 did not sustain any bleeding injuries. As against this evidence, PW.3 Jafarbi has given a total inconsistent version stating that during the occurrence, accused No.1 assaulted her with an iron rod and fractured her left hand and also caused injury on her left leg and waist. Further, she has stated that accused Nos.2, 4 and 7 assaulted the complainant with hands. She has nowhere stated that accused No.1 or any other accused persons assaulted her mother PW.8. 10
11. PW.8 though she is a deaf and dumb witness has nowhere stated that during the occurrence, her daughter namely PW.3 was assaulted by the accused. She has merely stated that all the accused persons assaulted her with iron rod. This statement is contrary to the statement of PWs.2 and 3 who have stated that the accused persons assaulted PW.8 with iron rod. PW.3 has stated that only accused No.1 assaulted her with iron rod. This inconsistency is further strengthened by the wound certificate relied on by the prosecution. Ex.P.3 is the wound certificate relating to the injuries sustained by PW.8-Afsarbi.
12. In proof of this document, the prosecution has examined PW.5 and according to PW.5, PW.8 has sustained the following injuries namely:
• A Local swelling over left hand • A Local tenderness over left scapular region • A Local tenderness over left maxillary line 11
13. This document is contrary to the evidence of the complainant who has deposed that PW-8 had suffered bleeding injuries, leading to doubt the occurrence and the overt acts committed by the respective accused.
14. Ex.P-4 wound certificate relating to PW-3 mentions the following injuries;
• A CLW over waddle 4/3rd of left forearm • A local swelling over left ankle • A local tenderness over left (not clear)
15. Though PW-5 has certified that injury No.3 suffered by PW-3 is grievous in nature but on account of the inconsistency noted above, the said injury cannot be ascribed to any of the accused persons. In that view of the matter, the First Appellate Court was justified in holding that on account of the serious inconsistencies and contradictions in the evidence let in by the prosecution, benefit of doubt is required to be extended to the accused. 12
16. On reconsidering the entire material on record, I do not find any reason to differ with the view taken by the first appellate Court. Furthermore, the present appeal is directed against the judgment of acquittal. Therefore merely because another view is possible from the material on record, cannot be a reason to interfere with the impugned judgment. On evaluation of the evidence on record, I find that the view taken by the first appellate Court is proper and reasonable and it does not suffer from manifest error or perversity warranting interference by this Court. The State has not been able to point out any perversity or illegality in the finding recorded by the first appellate Court.
17. On going through the impugned judgment, I find that the first appellate Court has meticulously analyzed the evidence of the material witnesses and having come to the conclusion that their testimonies suffer from irreconcilable contradictions and inconsistencies, has 13 extended the benefit of doubt. The findings rendered by the first appellate Court are based on the material available on record. Therefore, I do not find any merit in the contentions urged in the appeal. Consequently the appeal has turned out to be devoid of merits. As a result, the appeal is dismissed. The impugned judgment dated 07.09.2011 passed by the III Addl. Sessions Judge, Vijayapur, in Criminal Appeal No.28/2008 is hereby confirmed.
Sd/-
JUDGE RSP/VNR