Karnataka High Court
State Of Karnataka vs Salim Khan And Ors. on 17 June, 2003
Equivalent citations: 2004CRILJ335, ILR2003KAR3337, 2004 CRI. L. J. 335, 2004 AIR - KANT. H. C. R. 32, (2003) ILR (KANT) (4) 3337, (2003) 4 ALLCRILR 265
JUDGMENT Saldanha, J.
1. These appeals preferred by the State of Karnataka assail the common judgment dated 26.3.1998 whereby the Trial Court had acquitted all the accused in the 4 sessions cases that were heard together. Though the incidents was common, since some of the accused were absconding at different times those cases were separated and later on, they formed part of a common trial. The learned Trial Judge has acquitted the accused principally on the ground that there are infirmities in the evidence which are virtually fatal to the prosecution and it is against this order of acquittal that the present set of appeals have been filed.
2. We have heard the learned Counsel in support of the appeals at considerable length and we have also reviewed the record threadbare. We have also heard the learned Counsel who represents the respondent - accused who has again referred to various particulars of the record and both the learned Counsel have made their submissions both on facts and in law. In other words, we have undertaken a total and complete review of the record as this Court is required to do.
3. There is no doubt about the fact that the incident in question took place at about 10.30 p.m. on the night of 29.12.1992 close to the house of Celine D' Silva who is PW. 2 and that in the course of this incident her son who is deceased Vivian sustained injuries of some seriousness, as a result of which he died. It is also alleged that P.W. 1 Ivan Dias sustained injuries of some seriousness in the course of the same incident and that one other person by the name of Ashok Shetty was also injured. The prosecution alleges that the accused were armed with a sword, with a knife and an iron rod and that these weapons were used in the course of the assault. Various reasons have been set out in support of the alleged motive including the fact that one or the other of the accused who were young men, were alleged to have been making friendly gestures towards some of the young ladies in the localities but in our considered view, the prosecution has really failed to establish any motive. It does appear that the parties were known to each other and that they used to visit each other's house and it also appears that some minor quarrel had taken place in the preceding week.
4. The appellant's learned Counsel submits that the evidence of PW. 1 Ivan who admittedly had sustained injuries at the time of the incident is more than sufficient to establish the prosecution case and he also relies on the evidence of P.W.2 Celine who is the mother of the deceased and at whose house the entire incident took place and he submits that there is absolutely no ground made out by the defence as to why these persons should falsely implicate the accused. Thirdly, he has relied on the evidence of P.W. 3 Abdul Rahiman Saheb who is a neighbour who had been called to the scene of offence almost immediately and who has assisted in taking the injured person to the hospital. His submission is that the various infirmities that have been set out by the Trial Court such as delay in lodging of the complaint, the non-mention at the earliest point of time of the names of the persons, the evidence of the PSI to the effect that when he first went to the scene of offence he was not told the names of the accused and that he was searching for them, are all technicalities which would in no way reduce the quality of the evidence of PWs. 1, 2 and 3. He also relies heavily on the medical evidence which corroborates the evidence of these 3 witnesses and it is his submission that once this evidence is accepted, all the charges stand established and that the accused are liable to be convicted.
5. Mr. Deshpande, learned Counsel who represents the respondent-accused has commenced his submission by pointing out to us that even if the prosecution evidence were to be accepted totally that the Court would have to take note of one very important fact viz., that irrespective of the fact that the incident took place at night and that the parties knew each other, that PW.1 really and effectively have only implicated 3 accused persons. He submits that the evidence in its totality levels charges against the accused Murali on the ground that he had assaulted the deceased Vivian with a sword and caused injuries to him, that accused Salim Khan had used a knife in the assault on deceased Vivian and caused injuries to him and thirdly that the accused Sampi is alleged to have used an iron rod and caused injuries by way of fractures to PW.1. His submission therefore is that the implication of the remaining accused was totally and completely unjustified and that if the Court were to take note of the fact that assuming without admitting that these 3 persons were participants in the assault, that the prosecution evidence would become highly suspect on the ground that a whole lot of other accused have been wrongly and unjustifiably implicated. His submission is that this is a ground on which the veracity of the P.Ws. 1, 2 and 3 will become seriously suspect. We need to observe that the learned Counsel may not be fully justified in his submission for the simple reason that we have very carefully culled out the roles attributed to the accused and in our considered view, while it may be correct that specific overt acts are attributed to these 3 accused we find it a little difficult to hold that the remaining accused have been falsely implicated. In our considered view a more correct appraisal would be to hold that the remaining accused have rightly been given the benefit of doubt by the Trial Court which, on the state of record in an appeal against acquittal we do not propose to interfere with.
6. As far as the evidence against these 3 accused are concerned, we find that it is conclusive, we also find that the evidence is unimpeachable and that the Trial Court was doubly in error in having acquitted these 3 accused persons. It is true that the learned Counsel has brought to our notice slight discrepancies particularly as far as the evidence of P.W.3 is concerned wherein he has mentioned 3 persons as assailants but, has referred to one. As if which in our considered view is an obvious error. Having regard to the acceptability of the evidence of P.W. 1, we do not really see how this small discrepancy could in any way affect the general credibility of the prosecution evidence. The presence of A1, A2, and A3 cannot be disputed particularly since P.W.1 has sustained injuries in the incident, P.W.2 was obviously there because it was at her house that the incident took place and P.W. 3 is a neighbour who took the injured to the hospital and we see absolutely no ground on which it can even be alleged that there was even any motive on their part to falsely implicate.
7. The learned Counsel also drew our attention to the fact that at the earliest point of time the names have not been mentioned and he submits that even if some incident took place at night, that it is obvious that the assailants had run away and this was the reason why the names could not be mentioned. We have carefully re-tested and reexamined the evidence of that night and we do find that the police officer to whom the injured George went at night has taken the matter rather lightly and it was only after he received intimation from the hospital that the deceased had died that he seems to have embarked on a serious course of action, that he went to the hospital and recorded the statement of P.W. 1 at about 6.30 a.m. In our considered view, having regard to the distance between the various points and the hospitals and the movements of the police officer that he was obviously unaware of the names of the accused until the statement of P.W. 1 was taken down. In the special facts and circumstances of the case, we are not prepared to draw any inference against the prosecution having regard to the fact that the delay in our considered view is understandable.
8. It is true that a death has taken place in this case and it is also true that P.W. 1 was rather seriously injured, what we need to take cognizance of is that as far as Accused Murali and Salim Khan are concerned that undoubtedly they were armed with deadly weapons and the injuries inflicted by them were of some seriousness on vital parts of the body, but on a careful perusal of the record, background and nature of the injuries it could only be held that they are liable for the offences punishable under Section 304 Part II read with Section 34 IPC. As far as accused Sampi is concerned the injuries inflicted by him are with an iron rod to P.W. 1 and he would be liable for the offence punishable under Section 326 IPC.
9. As far as the sentence is concerned, we have checked the record and we find that these 3 accused were in custody for different periods of time though they have secured bail thereafter. We have also carefully checked the record and we find that they were young men, that they were employed in various vocations at that time and furthermore that they have no antecedents or criminal background. It was obvious that this incident was the outcome of some violent quarrel inter se between the groups and having regard to all that has been pointed out on their behalf and the fact that several years have now elapsed since the date of the incident, in other words the fact that 13 years have now elapsed since the date of the incident, we accept the submission that, that it would be harsh to direct that they should be re-consigned to jail. The Supreme Court and this Court have in numerous similar situations taken cognisance of the fact that it would not be the ideal situation after the lapse of almost a decade to redirect the accused to undergo further imprisonment, the simple reason being that many things have happened during the interim period after the acquittal in numerous instances, the accused persons have got married and they have families and the like and having regard to the social fallout of such a situation, the Courts have invariably held that if any further punishment is required that the interests of justice would be served by imposing a relatively heavy fine having regard to the status of the accused and directing that the same be paid as compensation. In the present instance while we set aside the order of acquittal recorded by the Trial Court in favour of the accused Murali, Salimkhan and Sampi, we convict the accused Murali and accused Salimkhan of the offence punishable under Section 304 Part-II read with Section 34 IPC and we direct that they shall undergo imprisonment for the period already undergone and that they shall pay a fine quantified at Rs. 10,000/-each, in de-fault to suffer Rl for a period of 6 months each. As far as accused Sampi is concerned, we set aside the order of acquittal recorded in his favour by the Trial Court, we convict him of the offence punishable under Section 326 IPC and we direct that he shall undergo imprisonment for the period already undergone and that he shall also pay a fine quantified at Rs. 5,000/-, in default to suffer Rl for a period of 3 months. The three accused are granted time of 8 weeks to deposit the fine amount in the Trial Court failing which the in default sentences to take effect. Out of the fine recovered the Trial Court to pay a sum of Rs. 20,000/- to P.W. 2 the mother of the deceased Vivian and to pay a sum of Rs. 5,000 to P.W.1 Ivan as compensation.
10. The appeals succeed to this extent as far as these 3 accused are concerned. As far as the remaining accused are concerned the orders of acquittal are confirmed and the appeals to stand dismissed. The bail bonds of the accused to stand cancelled.