Karnataka High Court
Mohammadyunis S/O Mohammad Ismail ... vs The State Of Karnataka on 3 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.3541/2012
BETWEEN:
1. MOHAMMADYUNIS
S/O MOHAMMAD ISMAIL BEPARI
AGE : 34 YEARS
2. MAHIMOOD @ MOHAMMADPEERA
S/O SHAMSUDDIN INAMDAR
AGE : 34 YEARS
3. MOHAMMADISMAIL
S/O NABISAB BEPARI
AGE : 56 YEARS
4. MOHAMMADTALA
S/O MADARSAB USTHAD
AGE : MAJOR
5. BABAJAN
S/O MAHIBOOBSAB BADAGANDI
AGE : 33 YEARS
6. ILLIYAS S/O BABAT INAMDAR
AGE : MAJOR
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7. JUBED S/O RASHEED INAMDAR
AGE : MAJOR
APPELLANTS 1 TO 7 ARE ALL
R/O NEAR JUMMA MASJID, BIJAPUR
... APPELLANTS
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE &
SRI S.S. MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE
HIGH COURT CIRCUIT BENCH BUILDING
GULBARGA
... 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 OF CONVICTION AND ORDER OF SENTENCE
DATED 29.12.2011 PASSED BY THE LEARNED II
ADDITIONAL SESSIONS JUDGE, BIJAPUR, IN
S.C.NO.23/2006 AND ACQUIT THE APPELLANTS OF THE
AFORESAID OFFENCES.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Appellant Nos.1 to 7 were the accused before the trial Court. They were convicted for the offences punishable under Sections 143, 147, 148, 324, 326, 504 R/w Section 149 of IPC.
2. The case of the prosecution is that on 18.03.2005, at about 8-15 p.m., on account of the previous dispute regarding right of way to go to Tazam Tariq Masjid, all the accused persons formed into an unlawful assembly armed with deadly weapons like, iron rods and cycle chain covers and by using criminal force, assaulted the complainant (PW.1), PWs.3 to 6 and caused simple and grievous injuries.
3. In support of the accusations, the prosecution examined the complainant (PW.1) as well as injured witnesses namely, PWs.3, 4, 5 and 6. All these witnesses consistently deposed about the overt acts committed by 4 the accused persons and stated that all the accused persons assaulted them with two cycle chain covers and iron rods. Two cycle chain covers and iron rods were marked as MOs.1 to 4 indicating that only four of the accused were armed with the said weapons. From the evidence of the medical officer it was proved that PW.6 had sustained the following injuries: -
1. Cult lacerated wound present over forehead 2 x ½ inch bleeding present.
2. Cut lacerated wound present over the right ulternal process (Rt Elbow) bleeding present.
4. Though in the wound certificate Ex.P.6 it is mentioned that the said injuries are grievous in nature, but during his evidence before the Court PW.9, the medical officer clarified that by inadvertence, he had named the said injuries as grievous, whereas the injuries suffered by PW.6 are simple in nature. Ex.P.7 wound certificate relates to PW.5, who has sustained the following injuries:- 5
1. Cult lacerated wound present over left little finger 2 x 2 cm.
2. Incised wound present over the left side chest bleeding present 5cm left side neck.
5. These injuries are certified as simple in nature. Ex.P.8 wound certificate relates to the injuries sustained by PW.4. The injuries are:-
1. Cut lacerated wound present over left Hunar region 2 x 1 cm.
2. Cult lacerated wound present over left pinna ½ x ½ cm bleeding present.
6. Even these injuries are certified as simple in nature. Ex.P.9 wound certificate relates to the injury sustained by PW.1. The injury is described as abrasion over the right middle finger 1 x 1 cm bleeding present, which is certified as simple in nature. Ex.P.10 wound certificate relates to PW.3, the injuries noted therein are: 6
1. Cut lacerated wound present over left side eyebrow horizontally present 3 x ½ cm bleeding present.
2. Cut lacerated wound present over right elbow joint.
7. Injury No.1 is certified as simple in nature and injury No.2 is certified as grievous in nature.
8. Considering the above evidence, the trial Court has held all the accused guilty of causing grievous and simple injuries and consequently, convicted the accused for the offences punishable under Sections 143, 147, 148, 324, 326, 504 R/w 149 of IPC.
9. The learned counsel for the appellants at the outset submitted that in respect of the very same incident, a counter case was filed against PW.1 and others. The said case was registered in Crime No.82/2005, which culminated in a chargesheet against 5 accused persons. As per the procedure contemplated in law, the trial Court was required to hold the trial in both the above cases 7 simultaneously and pronounce the judgment one after another. In support of his argument, the learned counsel for the appellants has placed reliance in the case of Nathilal vs. State of U.P. reported in 1990 SCC (Crl.)
638. He further submits that in the counter case, the accused therein are acquitted. Under the said circumstance, the present appellants are also required to be acquitted of the charges. Further, he submits that on account of the failure of the trial Court to conduct simultaneous trial, the impugned conviction is bad in law and hence the conviction of the appellants is liable to be set aside.
10. Secondly, he contends that the evidence let in by the prosecution and the circumstances proved thereby indicate that various criminal cases were filed against the complainant and his party. Therefore, the complainant and his party themselves were the aggressors. None of the appellants were armed with any deadly weapons. 8 Even accepting the case of the prosecution that some injuries were caused to the prosecution witnesses, there is no evidence to show that the said injuries were caused by the weapons seized during the occurrence. There is no clear and definite evidence as to which of the appellants inflicted the said injuries. General and omnibus allegations are made against the accused persons alleging that all the accused assaulted the complainant and the witnesses with deadly weapons, but during investigation only four weapons are seized. Therefore, it was not proper on the part of the trial Court to hold seven accused persons guilty of causing grievous injuries. The evidence let in by the prosecution does not make out the offence under Section 326 of Indian Penal Code. On this count also the conviction of the accused for the offence under Section 326 IPC is liable to be set aside.
11. The learned counsel for the appellants further submits that having regard to the circumstance in which 9 the alleged offence has taken place, the sentence imposed by the trial Court is harsh and excessive. None of the appellants had any criminal antecedents. In the said circumstance, the trial Court ought to have extended the benefit of Probation of Offenders Act to the appellants. Thus he seeks to set aside the impugned judgment and the sentence passed by the trial court.
12. Refuting the above contentions, the learned High Court Government Pleader has placed reliance on the decision of the Division Bench of this High Court in Criminal Appeal No.9/2002, State by Vijayapura Police Station vs. Doddasubbana @ Subbarayappa and others reported in ILR 2010 KAR 737= 2009 SCC online KAR 225 and wound contend that on account of the failure of the trial Court to try the case and counter case simultaneously, the trial does not get vitiated unless the appellants are able to establish that the conviction recorded against them has caused injustice or prejudice to them. No such 10 material is available in support of the contention urged by the appellants. Therefore, the said plea is liable to be rejected.
13. Coming to the merits of the case, the learned High Court Government Pleader submits that the Court below has based its conclusion on the legal evidence produced by the prosecution. The presence of the accused persons is established through the evidence of PWs.1 and 3 to 6. All these witnesses are injured witnesses. Their evidence deserves full credibility and their testimonies are corroborated by the wound certificates. The doctor who examined the injured has spoken about the nature of injuries. Therefore, the impugned judgment does not suffer from any error or infirmity warranting interference by this Court.
14. Considered the submissions and carefully examined the records.
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15. Regarding the contention urged by the appellants that the impugned judgment is passed in violation of the principles laid down in Nathilal vs. State of U.P. reported in 1990 SCC (Crl.) 638 is concerned, it is apt to refer to the Full Bench decision of this Court in State of Karnataka by Circle Inspector of Police vs. Hosakeri Ningappa (ILR 2012 Karnataka 509) wherein referring to the law expounded in Nathilal case, referred to supra, and section 465 of Cr.P.C., it has been held:
"18(a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs. State of U.P. (supra) and in the case of Sudhir and others vs. State of M.P. (supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceedings and the trial vitiates.
12Otherwise, the proceedings are protected under Section 465 of the Code."
16. The ratio laid down in the above decision, in my view, squarely applies to the facts of the case. It is not the case of the appellants that they were not aware of the pendency of the alleged counter case. The appellants themselves having failed to bring to the notice of the trial court the pendency of the counter case, after having suffered an order of conviction, cannot seek to set at naught the impugned conviction without demonstrating any instance of breach and violation of justice on account of the failure of the trial court to conduct the trial in both the cases simultaneously. Therefore, I do not find any merit in the contention urged by the learned counsel for the appellants in this regard. As a result, the contention urged by the learned counsel for the appellants in this regard is rejected.
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17. Insofar as the conviction of the appellants for the offences punishable under Sections 143, 147, 148 and 504 R/w 149 of IPC is concerned, I find that the prosecution has let in cogent and convincing evidence establishing the fact that on the date of the occurrence, all the accused persons were present at the spot and they were armed with deadly weapons and they caused injuries and threatened the complainant and PWs.3 to 6 and also caused injuries to all these persons. Even on reconsideration of their evidence, I do not find any reason to differ with the view taken by the trial Court with regard to the finding on these charges. Therefore, the conviction recorded by the trial Court for the offences punishable under Sections 143, 147, 148, 504 R/w 149 of IPC deserves to be confirmed.
18. Insofar as the offences under Sections 324 and 326 of IPC are concerned, in my view, the evidence on record is not sufficient to establish the ingredients of the 14 offence neither under Section 324 nor under Section 326 of IPC. As already noted above, except PW.3, no other witness has sustained any grievous injuries. Even with regard to PW.3 there is no clear evidence as to which of the accused persons assaulted PW.3 with deadly weapon. The case of the prosecution is that all the accused persons were armed with deadly weapons like iron rods and cycle chain covers. But the prosecution has seized only four weapons which were found at the spot. The said weapons cannot be individually linked to any of the accused. There is no clear and definite evidence as to whether the injuries sustained by PW.3 were caused with the iron rod or with the cycle chain cover. Cycle chain cover by its very nature cannot be classified as deadly weapon. The circumstances indicate that it was lying at the spot and was used as weapon of assault. There is no evidence to show that the injury sustained by PW.3 has resulted in any permanent disfiguration or privation of any part of the body of PW.3 so as to make out the offence under section 326 & 324 of 15 Indian Penal Code. Having regard to the nature of injuries sustained by the prosecution witnesses and the circumstances in which the said injury is inflicted, in my view, the accused could be convicted only under Section 323 of Indian Penal Code and not under Sections 326 and 324 of Indian Penal Code. To this extent, the impugned judgment calls for modification.
19. Accordingly, I proceed to pass the following order:-
(a) The conviction of the appellants for the offences punishable under Sections 143, 147, 148, 504 R/w 149 of IPC is sustained. The conviction of the appellants under Sections 326 and 324 r/w Section 149 of Indian Penal Code is set aside.
(b) In modification of the conviction of the appellants for the offence under Section 324 r/w Section 149 of Indian Penal Code, the accused Nos.1 to 7 are held 16 guilty of the offence punishable under Section 323 r/w Section 149 of Indian Penal Code and are accordingly convicted for the said offence.
(c) Insofar as the sentence is concerned, the learned counsel for the appellants submits that the incident had taken place in the year 2005. Over the years, the appellants have undergone stress and mental agony on account of the long drawn trial. The appellants do not have any criminal antecedents. Under the said circumstance, he pleads for reduction of sentence and submits that having regard to the circumstance in which the alleged incident has taken place, the appellants be sentenced to pay substantial fine in lieu of the substantive period of incarceration.
(d) The submission of the learned counsel for the appellants are well found. Undisputedly, the incident has taken place in the year 2005. In the counter case, the prosecution witnesses are acquitted. Nonetheless, the fact 17 remains that both the parties had sustained injuries during the incident. There is no material on record to indicate that the appellants had any criminal antecedents. In the said circumstance, the custodial sentence would be deleterious to the well being of the appellants and therefore, having regard to these circumstances, sentence of substantial fine would serve the ends of justice. Therefore, taking into consideration all the above facts and circumstances, the appellants/accused Nos.1 to 7 are hereby sentenced to pay a fine of Rs.5,000/- for each of the offences under Sections 143, 147, 148, 323, 504 r/w Section 149 of Indian Penal Code.
(e) Each of the accused shall pay total fine of Rs.25,000/- for the above offences.
(f) On deposit of the fine amount, the same shall be forfeited to the State.
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(g) In default to pay the aforesaid fine amount, the appellants/accused Nos.1 to 7 each shall undergo three months simple imprisonment for each of the offences, in all 15 months each.
(h) It is clarified that since the above sentence is awarded in default of payment of fine amount, the same shall run consecutively and not concurrently.
The appeal stands partly allowed as indicated above.
Sd/-
JUDGE RSP.bss