Karnataka High Court
Imtiaz Ahamed Alias Imtiaz Pasha vs State By Laxmipuram Police, Mysore on 9 July, 2001
Equivalent citations: ILR2001KAR3790, 2002(3)KARLJ224
Author: H.N. Narayan
Bench: H.N. Narayan, N.S. Veerabhadraiah
JUDGMENT H.N. Narayan, J.
1. This appeal is directed against the judgment of conviction and sentence recorded by the learned II Additional Sessions Judge, Mysore, against the appellant in S.C. No. 78 of 1995, holding him guilty of murdering his father-in-law and attempt on the life of his mother-in-law and wife, punishable under Sections 302 and 307 of the IPC.
2. The case of the prosecution in brief is as follows:
P.W. 1-Sayeeda Begum is the wife of the deceased and P.W. 2-Jahanara is the daughter of the deceased and also the wife of the accused. P.W. 2 was married to the accused about ten years back and two children were born out of the said wedlock. P.W. 2 stayed with her husband along with the children at Bademakhane area and her parents are residing in Rahamania Mohalla. The accused was habituated to drinks. He used to ill-treat his wife. Initially he was doing coolie work, but later on, started doing mutton business by opening a mutton stall. But, the said business did not prosper on account of his bad habits. He was in jail for three months as he was involved in a murder case, during which time P.W. 2 went to stay with her parents. He was released on bail. Thereafter, he approached the deceased to send his wife back to his house and promised his parents-in-law that she would be looked after well. Hence, P.W. 2 was sent to the house of accused. But, the accused continued his bad habits. He used to go home damn drunk and used to assault his wife. A day prior to the date of incident, which occurred on 12-2-1995, the accused attempted to throttle the neck of P.W. 2 in his house, when she sat for Namaaz. She escaped from his clutches and ran to her father's house. After her father came to know of this incident, he went and scolded the accused and there was verbal quarrel between them. The deceased informed the elder brother of the accused and pleaded with him to advise his brother, namely the accused, to give Talaq to P.W. 2. The elder brother of the accused and the sister-in-law of the accused visited the house of the deceased on the same evening and promised them that they would advise the accused. The accused, who came to know that his father-in-law wanted him to give Talaq to his wife, became enraged. Therefore, it is stated that on the next day, i.e., on 12-2-1995, at about 9.00 A.M., accused went to the house of deceased in a drunken condition holding a Choori and stabbed the deceased repeatedly on his abdomen and lower parts of the body. P.Ws. 1 and 2 were taking their breakfast at that time. They came to the rescue of the deceased. Accused assaulted both P.Ws. 1 and 2 with the same Choori and caused bleeding injuries. It appears that people gathered near the house of the deceased and someone informed the Police, who promptly visited the place. Neighbours shifted P.Ws. 1 and 2 and the deceased to the Hospital, where the deceased was declared dead. The Station House Officer of the jurisdictional Police, who visited the place of incident, found the accused lying near the house of the deceased in an unconscious condition with injuries all over the body. He was also shifted to the K.R. Hospital for treatment. Upon the statement made by P.W. 1, the Police registered a criminal case against the accused for the offences punishable under Sections 302 and 307 of the IPC, investigated and laid the charge-sheet against the accused.
3. The prosecution has relied on the evidence of 19 witnesses, 18 documents and 18 material objects, in proof of the charges framed against the accused-appellant. P.Ws. 1, 2 and 4 are the eye-witnesses, while P.W. 8 is a circumstantial witness, The prosecution has relied upon the presence of the accused at the place of the incident and also the medical evidence, which supports the eye-witnesses' account.
4. Apart from denying the prosecution's case, the defence attempted to take shelter under Section 85 of the IPC, falling under Chapter IV of the Code. The Learned Sessions Judge, after considering the case of the prosecution and the defence pleaded, however, found him guilty of both the charges with which he was charged, and passed the impugned judgment. Being aggrieved by the said judgment, the appellant has filed this appeal contending that the findings of the learned Sessions Judge are erroneous and not sustainable in law.
5. We have heard Sri Shankarappa, learned Counsel for the appellant and Sri B.C. Muddappa, learned Additional State Public Prosecutor for the State. We have perused the evidence.
6. The learned Counsel for the appellant, after taking us through the evidence on record, vainly contended that the evidence of P.Ws. 1, 2 and 4 is highly interested and cannot be relied upon and submitted that in view of the overwhelming evidence placed on record by the prosecution in proof of the charges against the accused, he is unable to make any valid ground of insufficiency of evidence. The learned Counsel has mainly relied upon the general exception available to him under Section 85 of the Indian Penal Code, and submitted that the accused was fully drunk and he was incapable of knowing the nature of the Act, or whether what he was doing was wrong or contrary to law and therefore, his act falls within the exception to Section 300 of the IPC, and is liable to be punished under Part II of Section 304 of the IPC. The learned Counsel has relied upon the judgments of Andhra Pradesh High Court and Bombay High Court, which will be referred to at a later stage.
7. The relationship of the accused with the deceased and with P.W. 2 is not in dispute. The evidence of P.Ws. 1 and 2 substantiates the prosecution's case that the accused was a drunkard and used to harass his wife-P.W. 2. This is in spite of her living with him for over ten years and giving birth to two sons. We do not find any material to discard the evidence of P.Ws. 1 and 2 on this aspect.
8. Insofar as the incident is concerned, the evidence of P.Ws. 1 and 2 substantially go to show that at about 9.00 or 9.30 A.M., on 12-2-1995, the deceased and others were taking breakfast; the accused entered their house holding a Choori (a big knife) used for cutting the chicken and stabbed the deceased repeatedly by saying that "what he had said the last evening?" When P.Ws. 1 and 2 went to rescue the deceased, the accused stabbed them with the same knife-M.O. 4. All the injured were shifted by the neighbours to the hospital. Later Police found the accused lying unconscious outside the house of the deceased. The evidence of P.Ws. 1 and 2 is fully corroborated by the evidence of neighbour P.W. 4-Fathima. It was specifically suggested in the cross-examination to this witness that after hearing the noise at 9.30 A.M. when the accused came to the house of the deceased after hearing the noise of about 30-40 people before the house of his father-in-law, those people assaulted the accused also. That is how the accused tried to explain the injuries on his body. The Doctor, who examined the accused, has stated that those injuries could be caused by falling over a rough surface or if assaulted by many people. But, having regard to the defence pleaded by the accused, the possibility of neighbours who assembled there might have assaulted him, is not ruled out. The accused himself had attempted to explain the injuries sustained by him. Therefore, the contention taken by the learned Counsel for the appellant that the Prosecution has failed to explain the injuries on the body of the accused, in our opinion, does not arise at all in this case.
9. P.Ws. 1 and 2 have clearly stated that the accused came to their house in a drunken condition. Therefore, it is not necessary to prove further about the drunken condition of the accused on the said morning. The evidence of P.Ws. 1, 2 and 4 coupled with the evidence of Police Officers who visited the place of incident and lifted the accused to Hospital, amply establishes the fact that he was responsible for the death of his father-in-law and attempt on the life of his wife and his mother-in-law. The evidence of P.Ws. 1 and 2 also shows that accused was lying in front of the house of the deceased in a drunken condition. In this background, the question which crops up for our consideration is that whether the appellant-accused is entitled for the benefit under Section 85 of the Indian Penal Code?
10. Section 85 of the Indian Penal Code reads as follows;
"85. Act of a person incapable of judgment by reason of intoxication caused against his will.--Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law provided that the thing which intoxicated him was administered to him without his knowledge or against his will".
Section 105 of the Indian Evidence Act reads as under;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception of proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances".
Section 105 of the Indian Evidence Act lays down that when a person is accused of any offence, the burden of proving the existence of the circumstances bringing the case within the general exceptions in the Indian Penal Code or within the exception contained in any other part of the same Code, or in any law defining the offence, is on the accused and the Court shall presume the absence of such circumstances.
11. In State of Uttar Pradesh v. Ram Swarup and Anr., the Apex Court held as under:
"The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence".
12. General exceptions are those applicable to all crimes and are stated in the Chapter IV of the Indian Penal Code. The general proposition of law laid down in Bindra and Ors. v. Emperor, AIR 1934 Oudh 485 , Holia Budhoo Gowara v. Emperor, AIR 1949 Nag. 163, Emperor v. Muzaffar Hussain, AIR 1944 Lah.97, Rajaram Maniram v. Jagannath Rawathmal, AIR 1949 Bom. 274 (sic), by the Full Bench, go to show that the burden of proving the existence of the circumstances bringing the case within any general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any part of the same Code, or in any Act defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances. But, this does not mean that the accused must have evidence. If it is apparent from the evidence on the record, whether produced by the Prosecution or by defence, that a general exception would apply, then the presumption is removed and it is open to the Court to consider whether the evidence proves to the satisfaction of the Court that the accused come within the exception. It is settled proposition that in a criminal case, the general rule is that the accused person must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. Section 105 of the Indian Evidence Act is an important qualification of this rule. The settled position in these matters is that the accused is in a much favourable position than the prosecution, because he is not in general called upon to prove them beyond reasonable doubt, but it is sufficient if he succeeds in proving a prima facie case and establishes a reasonable doubt in the case of prosecution.
13. We shall now turn to the language used in Section 85 of the Indian Penal Code. This section is introduced specifically to a case where the act of a person who is incapable of judgment by reason of intoxication caused against his will. It is only where an act is done by a person who, at the time of doing it is by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will, is not an offence.________________________________
14. We quote with approval the judgment of Himachal Pradesh High Court in Chet Ram v. State of Himachal Pradesh, 1971 Cri. L.J. 1246 (HP). In para 19, Himachal Pradesh High Court held as under:
". . . . It should be remembered that voluntary intoxication is not a plea recognized as an exception to criminal liability. It may be different if some drug is administered to a person against his will and he then loses his balance of mind to such an extent that he is unable to see, at the time when an act is committed, that he is doing some wrong".
It is not enough for the accused to contend that he was drunk at that time and that he was, by reason of intoxication, incapable of knowing the nature of act or its correctness or not. He should further show that he was intoxicated by someone else without his knowledge or against his will. It is this circumstance, which brings the act of accused person under the general exception provided in Section 85 of the IPC. There is no defence for an accused to plead that he was intoxicated at the time of committing the offence and was incapable of judging or knowing the nature of the act or what he was doing or what was either wrong or contrary to law.
15. The learned Counsel for the appellant has placed before us the judgment rendered by Andhra Pradesh High Court in Mirza Ghani Baig v. State of Andhra Pradesh, (1997)2 Crimes 19 (AP), in paras 13 and 14 in particular, and submitted that the accused is liable to be convicted under Section 304, Part II of the IPC. Upon reviewing the evidence on record in that case, the Andhra Pradesh High Court concluded that though the accused was drunk at the time of causing the death of his wife by pouring kerosene and setting her on fire, it cannot be said that he was beside his mind altogether at the time of the incident. As his wife obstructed him from going out he got very angry and caused the death of his wife. But, soon he realised his folly and tried to extinguish the fire and sustained burn injuries and it is in the evidence that he was also in the hospital for the said injuries for about two months. Taking into consideration the state of drunkenness and other attendant circumstances, it can be said that the offence committed by the accused is of culpable homicide not amounting to murder. The Andhra Pradesh High Court heavily relied upon the judgment of the Division Bench of the Bombay High Court rendered in Babu Sadhiv Jadhav v. State of Maharashtra, 1986 Cri. L.J. 739 (Bom.). On similar set of facts which came up for consideration before the Bombay High Court, it held as under:
"Therefore, the rule that a man is presumed to intend the natural consequences of his act can be applied to him also. At the same time, to gather his intention, all the attending circumstances and his preceding and subsequent conduct will have to be taken into consideration. The established circumstances and the subsequent conduct of the accused mentioned above clearly indicate that the accused did not intend to cause the death of his wife, but from his act of pouring the kerosene and setting her on fire it can be legitimately inferred that he intended to cause the burn injuries, which were likely to cause death".
With great respect, we differ from the view expressed by these two Courts, as the Bombay High Court and the Andhra Pradesh High Court have not considered the latter part of Section 85 of the Indian Penal Code, but took a decision based upon some special reasons brought on record in those cases.
16. However, in this case, there are no such circumstances pleaded by the accused nor there are circumstances available before the Court from reading of the entire evidence that the accused had no intention to kill his father-in-law. If the evidence of P.W. 2 is scrutinised carefully, it shows that the accused lives in a different street little away from the house of the deceased. On the said morning itself, he consumed alcohol and he was intoxicated and reached the house of the deceased in that intoxicated condition and having regard to the quarrel which occurred between himself and the deceased on the previous evening, especially where the deceased sent words through his elder brother to give Talaq to P.W. 2, which must have enraged him, led the accused to commit this act. There was sufficient time for the accused to think over the matter. His plea that he was assaulted by 30 or 40 people in front of the house of the deceased resulting in injuries to his body itself does not help the accused to avail the benefit of Section 85 of the Indian Penal Code. Therefore, we find absolutely no evidence in support of this defence that the act was done under intoxication, as the intoxication was self-inflicted, but not against his will nor was it administered without his knowledge. Therefore, we do not find any merit in this contention canvassed for our consideration.
17. The other general exception which has to be considered in the context of this case is the provisions of Section 86 of the Indian Penal Code. This section refers to an offence requiring a particular intent or knowledge committed by one who is intoxicated. It refers to cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. This section is provided to meet those cases where certain guilty knowledge or intention forms part of the definition of many offences. The Provision of Section 86 provides that a person voluntarily intoxicated will be deemed to have the same knowledge as he would have had if he had not been intoxicated. There may be cases in which a particular knowledge is an ingredient, and there may be other cases in which a particular intent is an ingredient, the two not being necessarily always identical. The section does not say that the accused shall be liable to be dealt with as if he had the same intention as might have been presumed if he had not been intoxicated. Though there is a presumption so far as knowledge is concerned, there is no such presumption with regard to intention. So far as knowledge is concerned, the Court must attribute to the intoxicated man the same knowledge as if he was quite sober but so far as intent or intention is concerned, the Court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
18. Intention, motive, mens rea, knowledge, innocence, mistake of fact, mistake of law, are some of the elements that play significant role in criminal law. 'Criminal intention' simply means, purpose of design or doing of an act forbidden by the criminal law without just cause or excuse. The act is intentional if it exists in idea before it exists in fact. The word 'intention' does not mean ultimate aim and object. Nor is it used as a synonym for motive.
19. We have already discussed the nature of evidence placed by the prosecution against the overt act committed by the accused. He was, no doubt, drunk when he entered the house of the deceased. He had walked a distance of more than a furlong from his house to the house of the deceased. There is no evidence that he was suffering from extreme intoxication nor such a defence is put forth before this Court. No such evidence is available on record for the Court to presume that he has no requisite intention to cause the death of his father-in-law and attempt on the life of his wife and mother-in-law. Therefore, the Court will have to apply the rule that a man is presumed to intend the natural consequences of his act or acts. The accused-appellant came to the house of the deceased in the background of the quarrel which took place between him and his father-in-law, the deceased, on the previous evening. He was armed with a knife and without affording any opportunity to escape, the accused stabbed his father-in-law with his knife and caused injuries to his wife and mother-in-law, who attempted to rescue the deceased. Therefore, the requisite intention can be gathered from the proved facts. Hence, in our opinion, the act of stabbing was done with a requisite intention to commit murder and therefore, accused is not entitled for the benefit of general exception provided under Section 86 of the Indian Penal Code. The guilt of the accused is proved beyond reasonable doubt and we find abundant material in proof of the guilt of the accused. The learned Trial Judge, who had an occasion to examine the demeanour of the prosecution witnesses, has in fact, scrutinised the entire evidence on record, and in his opinion, the defence pleaded is without merit. Therefore, the judgment of the Trial Judge is clearly sustainable in law and it does not call for interference in this appeal. We do not find any merit in this appeal.
20. This appeal is accordingly dismissed.