Karnataka High Court
Mohammad Iqbal S/O Lalsab Mulimani vs The State Of Karnataka on 21 March, 2019
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.3561/2012
BETWEEN:
Mohammad Iqbal
S/o Lalsab Mulimani
Age: 34 Years
Occ: Agriculture
R/o Muddebihal Town
Dist. Bijapur
- Appellant
(By Sri R.S. Lagali, Advocate)
AND:
The State of Karnataka
Rep. by the PSI
Muddebihal Police Station
- Respondent
(By Sri Maqbool Ahmed, HCGP)
This Criminal Appeal is filed under Section 374 (2)
of Cr.P.C., praying to set aside the judgment and order
of conviction dated 16.02.2012 passed by the Special
Judge (II Addl. Sessions Judge) Bijapur in Special Case
No.22/2007 and acquit the appellant.
2
This appeal coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred by the appellant/accused No.1 against the judgment of conviction and order of sentence passed by the Court of II Additional District and Sessions Judge/Special Judge, Bijapur in S.C.No.22/2007 dated 16.02.2012, whereby convicted the accused for the offences punishable under Sections 332 and 504 of IPC and sentenced to undergo simple imprisonment for a period of two years for the offence punishable under Section 332 of IPC and also sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 504 of IPC.
2. Factual matrix of this appeal are as under:-
It is evident from the prosecution case that on
03.03.2007 at about 7-00 p.m., in Tangadagi Circle at 3 Muddebihal village, the complainant was on duty of regulating the traffic and was asking the people not to stand on the road. At that time, accused No.1 found to have been sitting on the motorcycle of the complainant, complainant asked him to get down from that motorcycle as the stand may break and vehicle may fall and sustain damage. Therefore, all the accused formed an unlawful assembly with a common object of committing offences against the complainant said to be the ASI. Accused No.1 know that the complainant being the ASI at Muddebihal Police Station and discharging his duty and being a Government servant and also he belong to SC/ST category, intentionally abused him in filthy language, held his caste with intention to commit murder, beaten the complainant with police Lathi on his forehead and other parts of body and other accused have also abused the complainant in filthy language by touching his caste, beaten him with hands and stones and voluntarily caused him injuries. In pursuance of 4 the act of the accused, on filing of the complaint by the complainant, the crime came to be registered for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 353, 186, 307, 504 R/w Section 149 of IPC beside Sections 3 (1) (x), 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST (PA) Act').
3. After registration of the crime, the Investigating Officer has taken up the case for investigation and laid the charge sheet against the accused before the Sessions Court, where charges were framed, read over and explained to accused, who pleaded not guilty and claims to be tried. Accordingly, plea of the accused has been recorded.
4. In order to establish the guilt of the accused, the prosecution, in all examined P.Ws.1 to 24 and got marked Exs.P.1 to P.44 and also material objects as MOs.1 to 5. Subsequent to closure of the evidence, the Trial Court has recorded statements under Section 313 5 of Cr.P.C., wherein the accused have denied the incriminating materials of the prosecution witnesses and did not chose to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.
5. After hearing the arguments advanced by the prosecution and defence counsel, it has come to the conclusion that the prosecution has proved guilt of the accused for the offences under Sections 332 and 504 of IPC and it has held conviction, which incorporated in the operative portion of the judgment. In this appeal, the appellant is challenging the order passed by the Trial Court by urging various grounds.
6. Heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent - State, perused the impugned judgment of conviction and order of sentence passed by the Trial Court in S.C.No.22/2007.
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7. It is contended by the learned counsel for the appellant that the complainant being the ASI, examined as PW.1. That on 03.03.2007 at about 7.00 p.m., he was on duty, accused No.1 sat on his motorcycle. Therefore, complainant asked him to get down from his motorcycle, but the accused said to be abused him in filthy language by holding his caste and also assaulted him along with other accused with means of police Lathi marked as M.O.4. This is the motive factor relating to the offences committed by the accused, wherein the complainant-ASI asked this accused to get down from his motorcycle. The complainant examined as P.W.1 and he has stated in his complaint relating to the incident said to be committed by the accused and also he being the injured has been subjected to treatment by P.W.10 and issued wound certificate as per Ex.P.18. The injury inflicted on his person as the doctor opined that it is the simple in nature. P.Ws.2 and 3 said to be the mahazar witnesses 7 relating to the scene of offence panchanama at Ex.P.2, but these witnesses have not been supported to the case of the prosecution and also contents made in the panchanama. P.Ws.4 to 7 and 14 said to be the eyewitnesses for the prosecution, but these witnesses did not support the case of the prosecution, their evidence are contrary to the evidence of P.W.24 being the Investigating Officer who laid the charge sheet against the accused. The prosecution has much reliance on the evidence of P.Ws.1, 15, 18 to 20 and 22, all most they are the official witnesses and they were also deputed for the purpose of duty at the relevant point of time, but the said eyewitnesses have not been supported to the case of the prosecution. Therefore, there are inconsistencies and contradictions arise in their evidence, but the Trial Court has held conviction against this accused and acquitted remaining accused Nos.2 to 8. Therefore, benefit of doubt is equally extended to this accused also. Therefore, in this appeal 8 it requires to re-appreciate the entire evidence on record and also independently appreciate the evidence of P.Ws.1, 15, 18 to 20 and 22. The Trial Court has misdirected and misread the entire evidence of those witnesses and held conviction against this accused by holding that this accused was assaulted P.W.1 and abused in filthy language and held caste. The evidence of P.W.1 insofar as contents at Ex.P.1 complaint, so also mahazar said to be conducted by the Investigating Officer in the presence of P.Ws.2 and 3 have not been supported to the case of the prosecution and their evidence are contrary to the evidence of P.W.1 so also contents of Ex.P.1 complaint, the same has not been appreciated by the Trial Court in a proper perspective. P.Ws.1, 15, 18 to 20 and 22 are the interested witnesses. It is further contended that no documents have been produced by the prosecution to show that the complainant was serving at the relevant point of time, where the incident has taken place. P.Ws.1, 15, 18 to 9 20 and 22 are also police officials were also discharging their duty at the relevant point of time. No documents are forthcoming in order to establish the guilt of the accused. It is further contended that P.W.22 has been subjected to cross-examination, the same has been seen in his evidence that muster role is maintained in all the police stations showing the respective places of the duty of the police personnel. Infact duty registry is also maintained in Muddebihal Police Station, but the prosecution died not produce the said record in order to prove the guilt of the accused. These are all the vital evidence have not been considered by the Trial Court in proper perspective manner. The Trial Court has committed serious error in not appreciating the evidence of these important factors.
8. It is another error committed by the Trial Court that identical questions have been put forth to all the accused persons. Inspite of there being difference in 10 evidence regarding the role played by the accused persons, the Trial Court has just framed identical questions vitiating the entire case of the prosecution. P.Ws.4 to 8, 12 to 14 and 17 have not supported the case of the prosecution and these witnesses have turned hostile. Nothing worthwhile has been elicited by the prosecution in order to establish the quilt of the accused under Sections 332 and 504 of IPC.
9. It is further contended that there is delay in forwarding the FIR, the alleged incident has taken place at about 7.00 p.m. on 03.03.2007 and complaint is recorded at 8.30 p.m. on the very same day. But the said FIR and complaint reached the Magistrate on 04.03.2007 at about 9.30 a.m. the delay in forwarding the complaint and FIR has not been specifically explained by the prosecution, it creates doubt on the case made out by the prosecution. Even though charge under Section 332 of IPC has not been framed against 11 the accused, but on assumption of the entire evidence of the prosecution, the Trial Court has come to the conclusion that the prosecution has established the guilt of the accused under Section 332 of IPC, but no evidence has been forthcoming in order to prove the guilt of the accused not only offence under Section 332 IPC and other offences also. It is further contended that Exs.P.10 to 17 said to be the caste certificates, P.W.9 being the Tahsildar, who issued caste certificates and also subjected to examination. There is no dispute about the caste of the accused and complainant, but the elements, which require to be established by the prosecution is that accused No.1 abused the complainant in filthy language, held his caste which wounded feelings of PW.1, the same has not forthcoming on the part of the prosecution to prove the guilt of the accused beyond all reasonable grounds. 12
10. It is further contended that P.W.19 said to be eyewitness for the prosecution but his evidence reveals that he has come to the spot after learning about the incident which rules out the possibility of him being an eyewitness as claimed by the prosecution. He further contended that strangely all the witnesses given complete names and particulars of the accused coupled with the fact that when these witnesses were asked to give detail about the accused persons, none of the witnesses were able to give the particulars relating to the accused, which itself create a doubt about the person who were present at the time of spot and these are all the evidence which required to be appreciated by the trial Court. The trial Court misdirected and misread the evidence of those material witnesses and erroneously come to the conclusion that the prosecution has proved the guilt of the offence under Sections 353 and 504 of IPC insofar as appellant is concerned. These are all the grounds urged by the learned counsel for the 13 appellant seeking for intervention with the impugned judgment and order of sentence held by the trial Court and revisiting the entire evidence of P.Ws.1, 15, 18 to 20 and 22 as they did not give specific account of the alleged incident said to be taken place on 03.03.2007 at around 7.00 p.m.
11. On contraverted to the arguments advanced by the learned counsel for the appellant, learned High Court Government Pleader for the State has taken me through the contents made in the complaint at Ex.P-1 so also spot mahazar at Ex.P-2. He further contended that mere because of P.W.2 and 3 have not supported the case of the prosecution relating to the contents of Exs.P.2, spot mahazar, it cannot be thrown out the evidence of P.W.1-ASI who sustained injuries as indicated at Ex.P-18-Wound certificate issued by P.W.10-Doctor. P.W.9 being responsible Tahasildar, issued the caste certificate at Ex.P-9 of the complainant 14 and Exs.P-10 to 17 caste certificates of the accused, said certificates have been got marked on the part of the prosecution in order to establish the guilt of the accused. Merely because P.Ws.4, 5, 6, 7 and 14 said to be the eyewitnesses have not supported the case of the prosecution, their evidence cannot be thrown out.
12. He further contended that P.Ws.1, 15, 18 to 20 and 22 witnesses have been subjected to examination by the prosecution in order establish the guilt and these witnesses have also been subjected to cross-examination, but nothing worthwhile has been elicited by the defence counsel to disbelieve their evidence relating to the charges leveled against this appellant said to be arraigned as accused No.1 as where the trial Court has convicted him for the offences under Sections 332 and 504 of IPC. These are all the evidence has been appreciated by the trial Court and rightly come to the conclusion that the prosecution has proved 15 the guilt of the accused beyond all reasonable doubt and submits that there is no perversity found in the impugned judgment of conviction and order of sentence as passed by the trial Court. All these grounds urged by the learned High Court Government Pleader for the State and seeking for dismissal of the appeal.
13. In the light of the above arguments, the points that emerge for consideration are:-
1. Does the prosecution prove that the appellant/accused No.1 has committed offences under Sections 332 and 504 of IPC?
2. Does the sentence held against the appellant/accused No.1 are commensurate or proper for the offences under Sections 332 and 504 of IPC?
14. In these background of the contention as taken by the learned counsel for the appellant so also 16 by learned High Court Government Pleader for the State relating to the charges leveled against the appellant are concerned, that on 03.03.2007 at around 7.00 p.m. wherein P.W.1 said to be the ASI was on duty at Tangadagi Circle in Muddebihal Town, at that time appellant was present at the scene of the crime and sat on his motorcycle, therefore the complainant asked him to get down from his motorcycle. Consequently, there was an altercation virtually took in between the complainant and the appellant and this appellant assaulted the complainant by means of Police lathi on the part of his forehead and inflicted injuries as mentioned at Ex.P-18, wound certificate issued by the doctor. Accused Nos.1 to 8 have been unlawfully assembled with common object of using criminal force against the complainant and also holding deadly weapon, such as stick and stones. M.O.1 is broken piece of spectacle, M.O.2 is two glass of spectacle, M.O.3 is two stones, M.O.4 is one Police lathi said to be used 17 by the accused and assaulted on the forehead of the complainant and inflicted injuries, M.O.5 is Police uniform said to be seized by the investigation officer during the course of the investigation by conducting mahazar. The investigation officer who conducted the spot mahazar as per Ex.P-2 in the presence of P.Ws.2 and 3, who did not withstood the contents of the spot mahazar. Therefore, the contents which were found in Ex.P-1, all runs contrary to the evidence of P.Ws.4 to 7, they are the eyewitnesses for the prosecution. It is relevant to state that P.Ws.12 and 13 are panch witnesses and these witnesses did not support the case of the prosecution and they have been treated as hostile witnesses.
15. P.W.14 is also eyewitness and he has not supported the case of the prosecution, but remaining police official witnesses, P.Ws.1, 15, 18 to 20 and P.W.22 have been supported the case of the prosecution. But, at a cursory glance of all these 18 witnesses, it is revealed as a contradictory to the evidence of P.W.4, P.Ws.5 to 7 and 14, they are all the eyewitnesses for the prosecution and they did not support the case of the prosecution as they have been given statement during the course of the investigation done by the investigation officer. But, the trial court has believed the evidence of the aforesaid police official witnesses i.e., P.Ws.1, 15, 18 to 20 and 22 relating to the appellant having abused the complainant in filthy words by held his caste and he also assaulted the complainant with means of M.O.4-Police lathi. The trial Court has observed at paragraph No.19 of the impugned judgment that there is no acquaintance between the complainant and the witnesses on one hand and the accused on the other hand, the accused abusing P.W.1- ASI by held his caste it appears to be improper and not acceptable though the evidence of P.Ws.1, 15, 18, 20 and 22 as they are the police official witnesses have been examined on the part of the prosecution, but the 19 trial court extended the benefit of doubt to accused Nos.2 to 8, whereas held conviction against this appellant being arraigned as accused No.1 that he has abused P.W.1 in filthy words by held his caste and assaulted him with Police lathi. Therefore, it requires re-appreciation of entire evidence of these official witnesses in a proper prospective manner as the incident taken place at a spur of moment without any premeditation, but accused No.1 abused the complainant in filthy words and also beaten the complainant by means of M.O.4, the said lathi belongs to the P.W.1 and the same has been picked from the motorcycle which belongs to the complainant and this appellant sat on the motorcycle and asked him to get down from the motorcycle, then only this incident had taken place at the scene of crime on 03.03.2007 at about 7.00 p.m. But, there is no iota of evidence regarding accused Nos.2 to 8 who said to be formed into an unlawful assembly along with accused No.1 and also 20 used criminal force against the complainant. But, accused Nos.2 to 8 have been ended in acquittal by having gone through the entire evidence of the prosecution witnesses. But, the trial court has erroneously comes to the conclusion that the prosecution has established the guilt against this appellant alone abusing the P.W.1-ASI by raising the words held his caste which is wounded to the feelings and also assaulted by means of M.O.4-Police lathi and inflicted injuries on the forehead, which are mentioned wound certificate, Ex.P-18. The trial court has observed that absolutely there is no cogent, reliable and convincing evidence that this appellant/accused No.1 assaulted the complainant with means of stick on the forehead with intent to commit his murder. But, taking into consideration the genesis of the occurrence of the incident, he has formed the opinion that the prosecution has proved the guilt insofar as appellant/ accused No.1 is concerned for the offence under 21 Sections 332 and 504 of IPC as wherein this appellant alone inflicted injuries on the forehead of P.W.1. However, at a cursory glance of the entire evidence of the prosecution, the trial Court has misdirected and also misread the evidence of the P.Ws.1, 15, 18 to 20 and 22 as they are the police official witnesses and believing their evidence convicted the appellant / accused No.1 for the offences under Section 332 and 504 of IPC. But, the remaining accused Nos.2 to 8 were held in acquittal by giving benefit of doubt. In criminal justice system the benefit of doubt has to be equally extended to all the accused when the doubt has been arise in the evidence of the prosecution, the same could have been held in favour of the appellant alone in the instant case even though the evidence has not been forthcoming by the prosecution to prove the guilt of the appellant for the offence under Sections 332 and 504 of IPC. Therefore, in terms of the aforesaid reasons and evidence as opined in this appeal, it requires 22 interference with the impugned judgment of conviction and order of sentence passed by the trial Court in Special Case No.22/2007. Accordingly, I am of the opinion that the appellant deserves for acquittal. Hence, point Nos.1 and 2 are answered in the Negative.
Accordingly, I proceed to pass the following;
ORDER The appeal preferred by the appellant/ accused No.1 is hereby allowed.
Consequently, the impugned judgment of conviction and order of sentence held by the learned Special Judge / II Addl. Sessions Judge, Bijapur in Spl. Case No.22/2007 dated 16.02.2012 convicting the appellant/accused No.1 for the offences under Sections 332 and 504 of IPC is hereby set aside.
23Consequently, the appellant/accused No.1 is hereby acquitted of the offences under Sections 332 and 504 of IPC, for which he held charges.
Sd/-
JUDGE RSP/BL