Karnataka High Court
Mohammed Asif @ Syed Babu vs State Of Karnataka on 16 March, 2012
Bench: K.Bhakthavatsala, H.S.Kempanna
COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 167! DAY OF MARCH 2012. PRESENT THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA THE HON'BLE MR. JUSTICE H. s. KEMPANNA AS | CRL.A. No. CRLANo.842 12008 BETWEEN: Mohammed Asif @ Syed Babu ~ Aged about 25° years, ae S/o. Abdul Khalil, " . R/at vinobha Nagar, | Behind K.G Halli Pelice Station, Nagavara Main Road, . Bangalore. OD . Appellant. (By Sri. LCR R, Abdui Rasheed & A/s. Adv,} - AND : -. State of Karnataka SHO by K.R. Puram PS. Bangalore. .. Respondent, ~ This Criminal Appeal is fled under Section ae 374 (2) of Cr.P.C. praying to set aside the judgment and sentence dated 28/30.1.2008 passed by the City Fast Track (Sessions) Judge, Bangalore City H COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUI ade (FTC VID in S.C.No.534/2005 convicting the appellant/accused No.1 for the offence punishable under Section/s.302 & 307 of IPC. Appellant/accused No.1 is sentenced to undergo imprisonment for life for the offence punisnable under Section/s/ 302 of IPC, and shall also. pay a fine of Rs.10,000/- and 1.D. Shall undeiigo further -- imprisonment for a period of one year. And further. accused is sentenced to undergo RI. for a. period of five years and shall also pay a fine of Rs.5,000/- and in default shall undergo R.I. for a period of six. months for the offence. 'punishabie under Section -- 307 of IPC. BO This Criminai Appeal coming on for further arguments this day, Dr. BHARTHAVATSALA J., delivered the following: 7 "pour 'This 2 appeal is filed under Section 374(2) of the Code. of Crimina! Procedure by accused No.1 in S.C. No. 534 /2005 iclubbed with $.C.No.64/ 2003) o ou, the. file of the City Fast Track (Sessions) Judge, mS ; Bangalore City (FTC VII), challenging the order of conviction : dated 28.1.2008 and sentence dated ss 30.1.2608, for the offence punishable under "Sections 302 and 307 of IPC. --_ COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ' 2. Brief facts of the case leading to the filing of the appeal may be stated as under :- | | On 25.9.2003 at about 6.30 p.m. when PW.2- I.P. Muniyappa was standing in front of | hie house, - accused Nos.2 and 3 viz., Tanwir and Riyaz gare, riding on a motor-cycle and 'dashed. against a culvert and fell down. Pw. 2 _ Muniyappa advised accused Nos.2 and 3 that 'they 'should ride the motor-cycle only if f they know riding. Accused Nos.2 and 3 replied stating that who wae he to ask them and went away, later came back along with accused No.l - Nohammed Asif '@ ® Syed Babu @ Bihari to the a spot atid picked up quarrel with PW.2 and when mS : Pw 2 3 son Raju intervened, accused No.2 held him and accused No.1 stabbed him. When PW.2 came to the rescue of his son, accused No.1 stabbed PW.2 " 'on his stomach. It is alleged that there was no Pe common intention of all the three accused. Accused --_ H COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA 'HIGH COUl ~4. No.1 stabbed PW.2 and also killed Raju, S/o. Muniyappa (PW.2}. PWi mother of the deceased Raju and W/o. PW.2 lodged the complaint with the Police. The police registered a cage on 25.9.2008 at 7 about 11.00 p.m. against all the three "accused : persons viz., accused No. 1 end against "ride r. of motor-cycle accused No. 2 Tanwir and. -avoused No. 3. Riyaz for the offence punishable under Sections 302 and 307 of IPC. During. the course, of investigation accused Nog / was 'arrested on "10. 16.2063 and accused No. 3 as arreeted on on 15. 11.2003. Accused No.l was absconding. The Investigating Officer laid chatge- sheet agains: 'all the three accused persons oo for the offence purushable under Sections 302, 324, ° 7 307 and 202 r/w 34 of IPC, showing accused No.1 as absconding. Learned Magistrate directed to split os up the case, as against abaconding accused No.1. ~ On receipt of the committal recorda ag per the --_ committal order dated 14.1.2004, court of sessions --_ COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT" -5- registered a case in $.C.Nc.67/2004 as against accused Nos.2 and 3. Split up charge-sheet wag registered against accused No. 1 7 . - ag C.C.No.22397/2008. Accused No.1 was arrested on 18.2.2005. Additional . report was: Tei on | 28.4.2005 by the Investigating Officer. on. receipt. of the committal records. in CC. No. 22397/ 2005, - case was registered i in S. C. No. 5384/2005. ~ Accused Nos.2 and 3 in 8.C. No. si /. +2004 pleaded not guilty and claimed. to be : "tried, Accused in S.C. No. 5334/2005 also pleaded not guilty and claimed. to be tried, ; 'The Sessione Court clubbed $.C.Nos: 67/2004 end 5334/2008 and recorded -- common evidence. In support of the case of the = : prosecution, it has got examined 18 witnesses and got | marked 16 documents. After the evidence on os the aide of the prosecution was closed, statement of - 'accused No.1 to 3 was recorded under Section 313 +. of Cr.P.C. They have denied the incriminating H COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! circumstances appearing in the evidence of the prosecution witness. Accused have not adduced defence evidence. The trial court on considering the " eral and documentary evidence, | cane to a" conclusion that the prosecution foiled to bring home. the guilt to the accused Nos.2 and 3 for the offence - alleged against them; bat soiivibted accused No.1 for the offence under, Sections 302 and 307 of IPC and by order dated 30. 1 2008 sentenced the accused No.1 1 'to undergo imprisonment for life and pay a fine of Re. 10 000/- , in default of payment of fine to undergo imprisonment of one year for the eo offence under Section 302 of IPC and to undergo RI SS : for a period of 5 years and to pay a fine of 8.5,000/-, in default of payment of fine, he shall o undergo RI for a period of 6 months for the offence SS punishable under Section 307 of IPC. This is me, impugned in this appeal. a COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT 3. Learned counsel appearing for the appellant submits that the trial court, having acquitied accused Nos.2 and 3 erred in convicting the appellant/accused No.1 for the offences punisheble | under Sections 302 and 307 of IPC. "He 'alec. submits that the Investigating Officer, who arrested | the present appeliant-accused No.1 was not examined, and there is ; 20 evidende to prove that accused No.1 ageaialted Pwo Muniyappa and his son Raju with a keife and as a result of which, Raju died and Pw ., | Muniyappa sustained grievous injuries. He submite that the impugned judgment oa of conviction and aentence may be set aside and the -- accused No.3 .1, who is serving sentence, may be set at liberty. "o : 4 Sri. Sampangiramaiah, eared HCGP, submits that during the course of preparing notice in this case, he came to know that learned L eee a 4 COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR ~§.- prosecutor who appeared before the trial Court did not notice as to filing of additional report and charge-sheet on 28.4.2005 and he has proceeded with the cage only on the basis of the original - officer, who was cited as a a sel fF additional charge sheet was not examined to prove aest of the present appellant/ ascused No, A, » recording his (A-1) voluntary statement; and: recovery of weapon and there is. 'eufficient "evidence to connect the present "apcellaiit : accused for the offence punishable usider Sections 302 and 307 of IPC. He submits that the matter may be remanded to the 7 Trial Court for recording evidence of the prosecution * : witnesses as per the additional charge-sheet filed by the Investigating Officer and fresh disposal of the ease by the Trial Court. --_ -9. S. In view of the arguments canvassed by the learned counsels for the parties, the following points arise for our consideration : i. Whether the Trial Court is justified os in convicting the, appellant. a accused No.l for the - offences punishable under Sections 307 and - 302 of IPC and | passing " the sentence? a ae ii. Whether it is a fir case to remand ? Our answer to. the above points ie in the negative for the following reasons, Re. Foint No.l: - -- Alpha and omege. of the prosecution case is that 7 PW Mariyappa advised accused Nos.2 and 3 to ride OURT OF KARNATAKAHIGH COURF OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ~ a - : 'the motorcycle if they know driving the vehicle. But "accused Nos.2 and 3 took his (PW2) advise very ™ seridusly and with an intention to retaliate him, they went away from the spot and again came back with accused No.i questioned him as to his --_ H COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUI -10- remarks. Seeing the quarrel the deceased Raju S/o PW2, came to the rescue of his father (PW2). At that time, it ia alleged that accused No.2 held Raju and accuged No.1 stabbed him with a knife. "When PW2 came to the rescue of hia son - - Raju, accused me No.1 stabbed him and caused. grievous injaries.. PW.1 is wife of PW.2 and mother of deceased Raju. | The alleged incident oocurred on 2 25 9 2003 at about 6.30 p.m near of Cross, a rain, Darga Mohalla, K.R. Purara, Pw lodged | a complaint against three persons viz., Accused No, 1 unknown rider of motor cycle and 'adoused 2 and 3. There is no mention about the motorcycle number also. According to the oo case of the prosecution, the Investigation Officer mS ; came to know the name of the accused No.1, when 'he recorded the voluntary statement of accused = . No.2, The Investigating Officer has recorded further - "statement of PW2 after he came to know the name >... of accused No.1. Keeping in view that a case was OURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA MIG COURT | *. -
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registered against an unknown person i.e., accused - No.1, the Investigating Officer haa not placed co- gent and satiafactory evidence ae to the : role of accused No.1 in the alleged crime. Apart from that | "prosecution hae not examined the officer, who :
arrested and recorded voluntary statement of 7 accused No.1 and as to. Feoovery. of knife from :
accused No.1. It is the case of the prosecution that investigating officer in Crime No 10/2008 of Ashok Nagar P.S, arrested accused Noi and during the course of interroge tion of accused in that case, the Investigating - Officer came to know about his (accused No.1) involvement in this case, but the a Investigating - Officer was not examined and
- : therefore voluntary statement of accused No.1 and Tecovery of weapon pag not proved. It is pertinent > to mertion that the Trial Court has answered point | Wo. in the negative holding that there wae no
- eommon intention and the accused Nos.1 to 3 were
--_ 4 COURT OF KARNATAKA HIGH COURT-OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR -12- acquitted for the offences punishable under Section 341 and 323 r/w 34 of IPC. Further accused Nos. 2 and 3 were also acquitted for the offence punishable under Sections 302, 307 r/w Section 34 oF IPC. The 7 whole episode was because of. accused Nos.2 2 and 3 Sy but they were acquitted for all the offens oes, but the Trial Court erred in convicting th € acoused No. 1 though the prosecution: failed ta prove 'its case against him.
6. Admitindy, the moterial witnesses | were not examined to prove 'the case against accused No.1 Out « of 18 witnesses. , examined by the prosecution, PWs. 13 and 14 'the alleged eye witness to the
- incident shave 'not supported the case of the : _proescuition Further PWs.7 and 11 mahazar witneas 'also have not supported the case of the
-.. prosecution. In our view, there is evidence on me record to prove the guilt of the accused No.1 for the alleged offences, but the Trial Court erred in L COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT"
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considering him for the above said offences. Hence we answer point No.1 hin the negative.
Re: Point No.ii ;
It is pertinent to note that t the 'espondent . State has not filed appeal as to acquittal recorded in favour of accused Noa. 2 and a. it the prosecution fails to examine the mat terial witness before the Trial Court, the accused is 'entitled for acquittal and question of remarding the | case does not arise and we aneawer poiat No.2 alao in the negative.
7. in the result, appeal i is allowed. The impugned : | judgment of conviction dated 28.01.2008 and order of ~ sentence dated 30.1.2008 made in $.C No.534/ 2005 on the file of Fast Track (Sessions) | * Judge, Bangalore City (FTC VII), are set aside.
Bo, : _ Appellant/Accused No.1 who is serving sentence of LL Sd/-
JUDGE sa/-
JUDGE «14.
imprisonment in jail shall be set at liberty, if his presence is not required in any other cage.
NG*