Karnataka High Court
Ibrahim @ Shabbu vs The State Of Karnataka on 19 August, 2010
Author: N.Ananda
Bench: N.Ananda
1 EN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19'1"" DAY OF AUGUST 2010 BEFORE THE HONBLE MRJUSTICE N. ANANDA V.' CRIMINAL APPEAL No. 1373/2003 A BETWEEN: ibrahim @ Shabbu, S / o.l\/Iamnaad, Aged about 30 Years. IR/at No.71, Railway Layout, Pillamma Garden, A' _ «_ A ' ' K.G.I~ia11i, Bangalore -- 560,045. _ '..v.Ap.pel1ant (By Sri S.G.Rajendra Reddy,' n ' The State Hennur 1:~::1:c%.:lsté:::o11'.*§, ' . Bangaloreycity. . l ' ...Respondent
(By Sri Karunakatf, »~ A appealV"1s.__VfflVed under section 37'4 Cr.P.C against the ' ljudgme_n"t c;',ated_ 14.08.2(}{-}3'passed by the IV Additional City Civil V.van'ci« Sessions _J'u_(_ige, Mayo Hall Unit, Bangalore City in SC No.22i20{}£_, '(:Qnvict--i_ng the appellant/ accused No.2 for an offence pu-_r1isha.bA1e..u:1derfset:ti0n 307 {PC and sentencing him to undergo R.I for 7~yeai's-- andspay a fine of Rs.30,000/-- in default to undergo R.I. fo1:'6 and to pay Rs.15,000/-- as compensation to PW3 out of fine amount.
A « .1'hi$V"'appea1 coming on for final hearing this day, the A C-our; delivered the following:
3. In brief, the case of prosecution is as foIlows:--
Accused l\lo.l~H.Ahn1eduIIah Principal of Jamia Moharnrnedia College _ Jaleel (injured) was the Vice:--JI5tesiderl«t_. differences between accused No.1 had made certain alIegations'--v,of*v.misapptoptiaztilonu'againstl accused No.1. Therefore,' accuscd'V,_:'No';»l._.' restgneddrom his post on 13.05.1998. Ac¢ug¢d illgfixzill against PW3. Accused No.1 No.2-Ibrahim @ Shabbu. No.1 instigated accused to cs;;_11rr;it"n1urder.,of.PW3. 'ton about 5.15 p.m., PW3 was proceedinglon hisgscoovtelfion Bangalore-Kog1'lu Main Road, ._VnearffhanisandrallwRailway under bridge, PW3 slowed down .'--..:hisA"scoo*t.e1'"near *-road humps, at that time accused 2 to 5, who "had PW3 in an autorickshaw which dashed j against rear; side of scooter, as a result PW3 fell down. Accused 2 to surrounded PW3 and assaulted him with deadly weapons. {U ' [,J*\_.A_ fi,.«v-C£7;%--. -
Some of the passersby saved PW3. Therefore, accused 2 to 5 ran away from the place of occurrence along with weap;ons.._ held by them. The passersby informed the _ PW6--Parveez Ahmed (nephew of PWZ3},M who ll fact to PW1-Abdul Haseeb Jaieel. PW3 given.' at treatment in Bowtring Hospital andthereafter he: to Maliya Hospital, Bangalore. treated: alvfgperiod of ten days in Mallya Vlsta_teAn;-.ent ofVluPl\lV3 was recorded when he was being The Investigating recovered two blood--stained€. & M.O.5., on the
8. The Investigating Oflicer recorded witnesses and submitted charge sheet for aforehstatedl 'offences.
bring home guilt of the accused, _exaniined PW1 to PW13, and produced V _doeu1li'1ents..as':l"lper Ex.P.1 to Ex.P.l0 and material objects "as M.O.1 to M.O.5. On behalf of defence. accused 3 & 4 and absconding accused No.5 assaulted PW3 with knives with intention or knowledge. and circumstances that, if he by such caused death of 1>w3, If1egwould* ghéeii - _ guilty of murder and:ithereby7..;oi*n1ni1tt43d.:gg"Vit an offence punishab1eb':'und_er' EPC? ' i i (2) Whether the Iearned..flSessions eludgevilas properly apghdreciated; gevidence on record'? 1 i x V (3) iinfigiugnediijtidgnient calls for 3: i11?s§§r?«°érei*:ce?'5.":f. r
7. 'I'heu"prosecution._hasrelied on the eyewitness account of (injured): PXVHS-.Ramaiah is an independent witness. _ supported the case of prosecution. The ._h{a;s'V.re1ied on medical evidence given by PW11» Dr.'i\?IflRajagof')a1. The prosecution has also relied on evidence H of PWILPWZ & PW4 regarding motive for occurrence. is, aéivwfi = 9 suffered 14 injuries on Vital parts of his body which included cut, stab and lacerated injuries. In the circumstances, PW3 was not in a position to speak and not able to give the names of assailants when he was examined by DWI.
11. At the relevant time, DW1--Dr.Shankaregoigvda..' A' working as Casualw Medical Officer at Z V' Bangalore. DW1 has deposed _ injuries and PW3 had stated: befoie 1 it assaulted by unknown persons. llblufing DW1 has deposed that lifeggflister (El§;V.lD.lVla)), he has not stated that PW3 was able condition was stable. '."1"'l1e1telf:n':re;"attenipt'made by accused No.2 to show that PW3 v.ras"';1_c§tl.a2a1§§'*_;.¢ identify any of his assailants _ 'was unsuccessful'. ~ V
--»PWf2:_»A.bdiil.Raqueeb is the eldest son of PW3. PW2 has delpolsed' lpfe--eXisting enmity between accused No.1 V «and has deposed about injuries suffered by PW3 admission of PW3 to Bowring Hospital at the first N. sQ._.9..s»é..
11 identification of accused No.2 and assault by accused No.2 does not suffer from any discrepancy. During cross--examination, PW3 has deposed: . accused No.2 from childhood; accused No.1 isflthei 2' uncle of accused No.2. PW3 has deipose'd;f' suffered 18 injuries and he canrxot each of the accused. PW3 has tsoznietvljpasfsersby came there and accused«.._fs;ped: the place of occurrence; his sons to Bowring Hospital at the it was shifted to Mallya Hospital PW3 has been extensively c:ross¥exatnined_;'-nothing has been elicited to discredit his evidence 'fega.rding involvement of accused No.2 and uassau1t"on_VVPW3i)y accused No.2 with a knife. V2 of PW4-Syed Khalid Ahmed relates to _ stained cloiihes of PW3.
inspection of'j__piace of occurrence and seizure of blood 9 W': .. e ....,e».,«. « 12
15. PW5-Araiarnuthu who is alleged to have attested spot inspection mahazar has not supported the prosecution.
16. PW6-Parveez Ahmed is a close "re£ati«ve.;of has deposed about shifting PW3 to Hos~pital.'~ it
17. At the relevant was working as the Sub--Ins:1j_é5:.>tor.'_V§of police station.
he had received first a case. PW7 has given of blood«~stained clothes. PWPZH PW'? has deposed;
on the'iniorrnation:;'volun'teere'd'..'bv'accused Nos..2 «S: 3, PW'? has recovered knives from a bush near place of occlurrence. P'W7"'vvas subjected to extensive cross- i._€X.'£':v.'I:l1'1.i~I1.?_..«lLi0I'~l_ and nothing has been elicited to discredit his V' 'evide:1_c"e... p P "
18A. P\2ff8«-liarriaiah is alleged to have witnessed the "occurrence. PW8 has not supported the case of prosecution. P rPW8_.nhas deposed; at the time of occurrence, PW8 heard We termite.
13 some person crying "Ayyoyyo"; when he went to the place of occurrence. he found none but a scooter was parked
19. At the relevant time, PW9--S.Srinivasa__»lBabu.A_1"~nras3 working" as a Police Constable.
information from jurisdictional policesjtaiion and AC'1.Eli;'J'CI"i'.i'('Zl'.'. V the same to the jurisdictional Magistrate. .
20. At the relevant working as a Police Constable. PW10 has glven'eVtden'cevrelating to arrest of accused.
21. At the. it PW1.1":Dr.lVl.Rajagopal was working as Casnaltjri-.--- Officer at Mallya Hospital, Bangalore. 1_ xhasrdefiosed; on 24.05.1998, PWl1 _ examined 1"-'W3 in 'casualty department at 7.30 p.m.; PW3 Mujeeb with history of assault. PW11 ' i_njt.u'ie's-:-
has.'depos'edV:'_~.,or1l.l.::'e}§amination of PW3, he found following _ 'VILH. 'A_1ac'e:at¢d wound measuring 6 ems x 1/2 cm in pectorial area. _, 14 E. A transverse incise wound measuring 7 ems X 3 crns above stemal notch depth up to trachea cutting through isthumus of thyroid. II. A transverse would measuring 2 ems below the wound described in injury to. the right side of midiine. -
III. A laeerated wound mgeasunngilfizi crr1»s._..tA.Whieh"
above 2 ems from med'iL4.},."i../3rd of Cléflieiyé', IV. A iaeerated wound measnrirag 225 cms"::«; I/g X 2.5 ems above umbiiietis 'bright .si.de_. "T1_r1is wound has penetrated through pe1'itoneur:1.__' " . V. lacerated "wound-.:riea"sun'ng 2 ems X 1/2 cm in epigastrie . -~pg_ene=trating peritoneum. VI. "AA wound Vineasvuriirag 2 ems, penetrating on right i_ewerAante1'idr"chest wail.
15 VIII. A Iacerated wound measuring 2 ems x % cm in left intramammary region.
IX. A Iacerated wound measuring 12 cms x medial to left' nipple ' 2 % X. A Iacerated wound measuring 2Acc.insaa.;§-,%'- era"-es.in"eA:;VaA medial aspect of right azstilia.
XI. A lacerated Wound measuiringxggl cms" {in} on medial surface of s.:_:11o3.c1IVéie.r_.V . ' " « . g XII. A lacerated' .woun'Ei'Vn2eas'uring 1 ~-crii x 3/2 cm on 1atera1_surfac'e_. of 13it._ f. V XIII. A 1ac.r=:Araied«.e__v\'i\rc)unn(::1a"vlneasuring 1 cm x 1 cm in medial su'rfaceV'of '1itile.fi'nger i'1acerai6-dfiiwouiid measuring 2 ems X 1 cm on . surface of right wrist XV.'=.7A Iaceraiied wound measuring 1 cm x % cm on _ mA«e:Ciiaj"'aspect of ring finger. xg AA 7' ,. av' (:3 ,\___'__£/L/L_'\%m ' 16 PW11 has opined that injuries 1, 4, 5 & 6 were grievous in nature and other injuries were simpie in nature. has deposed that injuries found on PW3 could caused by knives marked as M.O.4 & V' deposed the names of assailants Therefore. PW11 had not noted , the of the rnedico legal register. 3 V. if it From the evidence ':oiTy_P'\?\.?'A1"f,_ thapws had suffered cut, stab and couid be caused by sharp; PRPifI:i'--ifiad__Vsuffered as many as 18 PW3 might not have given However, that would not discredit theeyidence er .PV'J$'_.'eand PW11.
"Theyevidencetttof'"¥'W12-S.S.Muddegowda and PW13» VS«igddegowcia,:S »rVe1at'es to investigation of the case. V V' 23. As already stated, defence has examined DWI» if 'DLr.Shankaregowda. At the relevant time, DW1 was working a_s'g_VCas'ualty Medical Officer in Bowring Hospital at W g;Afirc/L. ax muscle deep.
17 Bangalore. DWI has deposed; on 21.05.1998 at 6.10 p.m., K.G.HalIi Police Constable 4701 had brought PW3 with history of assault; DWI examined PW3 and found following. injuries:--
1. Incise wound over from; of neck, I1"1eas_u,1'.iI1_g».V8V ems_ x muscle deep.
I}. Stab injury over Iefifchest meavswinngifq v:i_I_ich_es 11 above nipple in 11 o'c1oc1{i'e»p:osition.1" ~. III. Stab injury ove':;..4_.fi«ght--'_VA._measuring M2" inches below nipple in 4 o'c.1oc3§»position cjms 2: muscle deep.
Stab injury «overv 'lower part over 9"' rib, measuring 6 cms deep.
v.flStabV_i1iju;'_3}' over epigastrivc region, measuring 6 ems We X,.l'I'1'.1'S.Cl'3 A' ' ~._ Stab injury'poaerieilumbflical region. measuring 8 ems gxfi ' 18 DWI has deposed that PW3 had given history of assault by unknown persons with talwars. During crosswexaniination, DWI has Inedico legal register, he had not stated that' v'(PW3)"
was able to speak and his condition was stah}eV.'-.' 'V
24. Considering the natui'e:o'finjuries' thell evidence of DWI, the vevidence"oi&°...thatal5W3had stated he was assaulted looks highly improbable. At4this_vVt'o state that DWI had giVen:.1:AI.g:g_i'ci .'{".lf1\?_§1)Liv".i.'_1€,'I'.-1"'£::..t'0V'?W3, soon after the occurrence.' there was no opportunity for to.1nake"a':_i'de'ta.iled"examination of PW3. Therefore, evidence of"'DWl.th.atA'apai'it from injuries stated above, PW3 , hail suffered Vlaily---other injury cannot be accepted. ihje..eVidence of PW3, we find that accused No.1 is the nzaternal uncle of accused No.2, who had enmity
- "'»agains'tv..lEil'izV3. PW3 had no grudge against accused No.2. PW3 suffered 18 injuries and some injuries were inflicted on wx . W~c«»~-'Qx * 19 vital parts of his body. The occurrence took place at about 5.30 p.m. There was no identification crisis. PW3 has deposed that accused No.2 was known to him childhood. This fact has not been defence. PW3 had no ill--will or grudge against_accu:se'dA..l\lo.l'2' to falsely implicate him. PW3 has that he was not able to identify gaccused 4. l' was not able to identify &."Wthe learned Sessions Judge has..g\eXieIidedV...;?hlx§§"bgenetltl of doubt to accused 3 8: 4. The finds ample corroboration fI'QI11.!I1-16 contents ..4of.°first "information and medical ea/idencel.5~give;1lllb3fPW}.l. the circumstances, the evidence oi"vPW3 ~No'.2 had assaulted him with a knife cannot d_isbel'i--evAed.l l ll ._'fl'he;g_1Aearned hcounsel for accused No.2 has submitted that» given specific overt acts to arrive at a ' 'parts of, lhody. As already stated, PW3 had suffered emenlsixge. cut injury on his throat. PW3 had suffered conclusion accused No.2 had wielded a knife on vital N' ....g:vt. *~€/(K -
$.
20 penetrating injuries on his chest. The occurrence narrated by PW3 would lead to an inference that attack on him was unexpected. The scooter ridden by PW3 was hit by an autorickshaw on its rear side and PW3 fell doVVnJvvfroni~..the scooter. PW3 was in state of confusion. _.§l__IIi1rned.iate1_y thereafter, accused No.2 and other persons--~ , v_.
' knives on PW3. In the circumstances,-it Awaschardlygiocssible for PW3 to see the blows dealt eachof the u PW3 was attacked by four persons with deatdlylweapons like knives, one cannot eraqiect hifrn description of occurrence, nature and suffered by PW3. rnaniiefr-.. PW3 was followed and attacked would lead to an that acts committed by accused No.2; would attract anioffence punishable under section 307 If had died as a result of such attack, accused No.2 "llaire_ held guilty of an offence punishable under sect.ion..__'30?.lIPC. Therefore, the contention of learned counsel for accused No.2 the absence of medical evidence that l '-.injuries suffered by PW3 were not sufficient to cause death in V 21 the ordinary course of life, an offence punishable under section 307 IPC is not attracted cannot be accepted_:.'l~The learned Sessions Judge on proper appreciatior.iyof"'evidence_ has held accused No.2 guilty of an offence under' = section 30'? IPC. _ g
27. The learned counsel for_4_accu'se'd"--No.2dg that accused No.2 was aged _26 of occurrence; he did n(§tx.4,haVed"'any'jyegngeancevvdagainst PW3.
even according to the No.2 had been instigated by evidence is not certain asito \g%11ethe.1- ,::1j:;-:+:é--st_ uvitaid parts were inflicted by accused N02} 'or"=acqu'ittge'cl---- accused 3 & 4. In any event, all the injuries suffered.Vl33r':l£*'.?Sdf43V. cannot be attributed to accused No.4i;_2'. "Accused .No.V2 does not bear any criminal antecedents. Aycvcusedg has chances to reform himself. Therefore, seven years imposed by the learned Sessions Judge has to be reduced. _. 0 . 'A//' "(xx , H71 .
22
28. The learned HCGP appearing for State wouid justify the sentence imposed by the Sessions Court.
29. On overaii appreciation of facts and the case, I find the foiiowing niitigatingiHicifcunistaricesuu against accused No.2:~ I. II.
III. .
PW3 was aged about 60 'years Iofwii' OCCUITCIICC.
Accused No.2""had. «attafiked PW3 in broad day 1igh,.t._:'on 21. within public vision.' itwas a de1iE:i~erate"a_ét... » " iAc.cu';sied IRa'f:.;r3".«2 iiati WieIC'1'ed"a knife on I'-'W3. The extenuating circu.r_ris.ta;nces are:--
1._ Aeci1.sed.VVNo.iv_, 'who is aileged to have instigated Iaccused'~No__.w2 has been acquitted.
III. ..
I "antecedents.
injuries suffered by PW3 cannot be to accused No.2.
accused No.2 does not bear any criminal ~.5\?\ Q,.~u.-"fig.
23 IV. Accused No.2 has chances to reform himself.
30. On consideration of above mitigating and extenu.atiza_g~..Vv circumstances, it would be appropriate . imprisonment of seven years to five years. while ' fine amount imposed by the learned S:e'ssi.or1s:'J4udge."'- l
31. Therefore, Ipass the follovtIi'néi=._ The appeal is accepted 'in judgment of conviction of accused No.2-V-for_ an' -opffence» pufiishable under section Tllielvsentence is modified. Accused simple imprisonment for a period of live and fine of Rs.30,000/--, in default itto_ur1deli'go--..si133.ple irnprisonment for a period of six months. l;3Ve*--.deposited by accused No.2, a sum of Rs.i5.GCl)0/Q be paid as compensation to PW3. The learned Sessions Judge shall secure accused No.2 to f f 24 implement the sentence, Office is directed to send back records along with a copy of this judgment. SNN