Karnataka High Court
The State By Cod Police vs Afjal Khan on 27 July, 2011
i CrLA 853/04
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 277 DAY OF JULY 2011
BEFORE
THE HON'BLE MR.JUSTICE A. S. PACHEU® URE _ |
CRIMINAL APPEAL NO.853 Or-2004 a
BETWEEN
THE STATE BY COD POLICE, ; me _APPE LLANTY iS
(BY SRI. SATISH R. GIR, FICGP)
AND
L. AFJAL KHAN,
S/O. NAWAB KHAN,
AGED 34 YEARS)...
R/AT NO.6, 4% CROSS,
J.J NAGAR, BANGALORE, |
2. SADIQ PASHA,
S/O, ABDUL SATHAR.
AGED | 3 YEARS,
"NOE | 389. CROSS:
NAGAR BANGALORE,
3. IQBAL. Oe
S) OOABDUL iL KHALAK.
AGED 50 YEARS,
/ NOAT, | ot CROSS,
"RAYAP URA, BANGALORE-26.
a Ba AS | PASHA,
S/O. ASLAM PASHA,
AGED 18 YEARS.
"R/AT NOLS,
2 CrLaA 853/04
RANGANATH COLONY,
JLd.NAGAR. BANGALORE.
ANWAR PASHA @ PACHI,
S/O. ABDUL SATHAR,
AGED 38 YEARS.
NO.L8, BRP CROSS, ci
J.J.NAGAR, BANGALORE. ey RESPONDENT/S_ .
ol
,
IBY SRI. SHANKARAPPA, ADV. FOR
M/S. MLT. NANAIAH & ASSTS, ADVS,) me
petemeak de _ .
THIS CRIMINAL APPEAL iS F ILED UN DER SECTION 8781}
& (8B) CRPLC BY THE STATE PLP: FOR TH EE STATE PRAYING
THAT THIS HON'BLE COURT MAY BE "PLEASED TO GRANT
LEAVE TO FILE AN APPEAL AGAINST THE GU HGEME! re DT.
93.904 PASSED BY THE KOOP ABDL. C.C. & Sil. & SPL. JUDGE
iINDPS), BANGALORE, ~ TN: S.C.8O.646 {97 -AC QUITTING THE
RESPONDENTS/ACCUSED FOR THY. OFFENCE P/U/Ss.143,
147, 149 AND 204-PARTALIPC.
THIS CRIMINAL APPEAL-COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED. THE FOLLOWING:
| JUDGMENT
The State has prelerred this appeal challenging the
'acquittal of. the-respondents for the charge under Section
30441) | P.C: and inadequacy of sentence.
2. The facts relevant for the purpose of this appeal are as
~ dinder: > «.
7 me oP es
8 CrLaA 853/04
Aslam Pasha (the deceased) was the husband of
Mallikabi, the first wife and Farida, the second wile. Through
the wediock with the first wife, he had six daughters and three. _
sons and the eldest is Parveen Taj. On & 06-1995, in between -
4.00 p.m. and 5.30 p.m., the first wile Mallik abi and Parveen.
Taj. the daughter submitted the petitions Exs. Pp. i tot PA to
Jamath people of Jamia Masjid. wit erein the first wi "fe had
sought for a divorce on the. giour d of a crueliy and harassment
by the deceased Aslam -asha and. the daughter had filed a
petition alleging "crveity. "harassment and forcible sexual
intercourse by the father (cease o on her and it is in these
circumstances. that there was aS altere ation and ultimately, the
accused / appellant 'herein sate to have beat the deceased,
kicked on. the testicles 'and ifiereafter, the deceased went to his
- home and diedwithin few minutes.
pw L Shutiulla Khan filed a complaint (£x.P.6) to
ttins® sth | sciminal law in motion for the death of the
~ "deceased, Accused Nos.4 and 5 are the sons of the deceased
"Asie nt Pasha through the first wife, whereas, the remaining
_decused are said to be the relatives. After the registration of the
FS SSS LLS Ca
4 OrLA 853 /04
complaint, the investigation was held, the dead body after
inquest was sent for postmortem examination and PW. 13 held
the autopsy on the body and issued the postmortem reports, -
statement of the witnesses and on cempletion ~ of the:
investigation, filed a charge sheet against the accused for the
offence punishable under Sections faa, \47, 823 and 804 ay
readwith 149 LP.C.
During the trial, the prosecution examined PWs.1 to 25
and in their evidence got marked the documents Fxs.P.1 to
P.27. The. statement "of ihe. accused: were recorded under
Section 312 Orbe. "Hey pave taken the defense of total denial.
The Trial Court alter hearing the parties and on appreciation of
the material on record convicted the respondents/accused for
the offence punishable under Section 323 L:P.C. and ordered to
pay fine of 'Rs 300 /-. Aggrieved by the acquiital of the
respondents /avcused for the charge under Section 304 U5
~EP.C.. and inadequacy of the sentence, the present appeal has
&&
AL
ao
been filed by the state.
Re
o CrLA 853/04
4, | have heard the learned High Court Government
Pleader and the learned counsel for the respondents.
5. The autopsy report has been produced at Ex.P.1}. and.
Dr.S.B.Patil, who held the postmortem. examination On the
body of the deceased. The injured had the following external
injuries: |
"|. Abrasion over the back of right elbow
measuring 3 cni. x 2 cms:
2. Contusion over the left side of the face
measuring A em. x2 crh.". we |
6. After itic 'postinortem examination, he has given the
report Ex P. 1 4 stating that the dedith was due to cardiac failure
as a result. of coronary insufficiency. in the cross-examination,
he states tiiat in the cases of cardiac arrest, there will be
insufficiency of. coronary and in such circurmstances, death
"would be natural: So also, he states that when a person is
wo assaulted . on the testes, there would be shock and the
instantaneous death would follow in some cases. Admittedly,
~ tHe assault by the accused is said to have been done in the
.f
pa
PSO ESS SUSE GSU
6 OrLaA 653/04
Masjid, whereas the death of Aslam Pasha was in his house.
The death was not instantaneous. It is irom _ Hest
circumstances that il can be inferred thai it was a nabiral'._
body of the deceased, the Trial Court took into vonsideration'
the background history of the insident, the nature of ass. alt
and the fact that the death was natural one: convicted the
respondents/accused for the Offence purshable under Section
523 LP.C.
7. Itis in the evidence.ofthe witnesses that there were
as many as 150 people:at the tme'ef the incident and it is not
known except Accused No.1 as to who are the other accused
who had interition to cause the injury. May be, because of
these ressoric, the Trial Court was of the opinion that the
prosecution has failed to prove the existence of an unlawful
assembly with the common object to cause the assault.
8. So taking into consideration the circumstances stated
"above, I'am of the opinion that the appellant/State has not
"made: out any such grounds to warrant interference in the
wa
PE
Pom
ne
ss
i
an
om]
CrLaA 8353/04
judgment and order of the Court below and also the sentence
awarded. In the circumstances, I proceed to pass the followings:
ORDER
The appeal is dismissed. No costs.
On the lasi occasion, Amicus Cirriae was 'appointed:
Though he prepared himself to argue the. matter, as the Counsel being present today, the fees ef Amicus Curiae is fixed at Rs.2,500/- and the State shall pay the same.