Karnataka High Court
State Of Karnataka vs Sheik Khader And Anr. on 27 July, 1999
Equivalent citations: 2000CRILJ430
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT M.F. Saldanha, J.
1. The facts of this case which we shall refer to presently are extremely gruesome and the investigating authorities had put up for trial two accused persons on the charge that in pursuance of their common intention, on 30-7-1992 at about 6.30 p.m. at Chikkabettahalli in the limits of Yelahanka Police Station, that they had assaulted the deceased Sheikh Ghouse with matchu and that pursuant to the injuries inflicted on him, they had caused his death. The prosecution had contended that the deceased who is a' married man, had eloped with the sister of the two accused about six months earlier and that they had returned recently. The accused were supposed to have been infuriated by this act on the part of the deceased apart from which there is also a suggestion that he was a regular bad character of the area. In the evening in question, it is alleged that the two accused stopped him when he was returning from his work at the nearby quarry at a point near his brother's house which is about 100 feet from that residence and he was mercilessly assaulted by the accused. The first blow is alleged to have been given on the back of his legs and there is also one fatal blow that has landed on the rear of the neck. Thus he virtually collapsed under the blows and died on the spot. The accused are alleged to have discarded one of the weapons at that place and ran away with the other one. The second weapon was recovered sometime later in the course of the investigation on 1-8-1992 pursuant to a voluntary statement which accused No. 1 had made. He is stated to have taken the police to a spot near the Savitha Bar from where M.O.I, the matchu was recovered under a mahazar Ext. P. 2. On completion of the investigation, the two accused were put up for trial and the learned trial Judge on the conclusion of the trial recorded a finding that the prosecution has failed to establish the charges and acquitted the two accused. The present appeal has been preferred by the State and it assails the acquittal order in question. The State is represented by the learned Additional State Public Prosecutor and we have also heard the learned advocate Mr. J. Nisar Ahmed, who appears on behalf of the respondents-accused. The two learned advocates have taken us elaborately through the entire record which has been carefully reviewed. We have considered the submissions canvassed by them on points of facts as also with regard to the legal position and we have done a total and complete review of the entire record.
2. One of the principal submissions canvassed by the respondents' learned advocate is that this is an appeal against acquittal and the submission was that if a perusal of the judgment of the trial Court indicates that all the evidence has been considered, that the law on the point has also been borne in mind and that after having carefully evaluated all the relevant aspects, the trial Court has recorded a verdict of acquittal, that the High Court should not interfere with that verdict if that judgment is sustainable. We are well aware of this proposition of law which we subscribe to and which we endorse and it is from this point of view that we have carefully perused the judgment under appeal for purposes of first of all deciding as to whether it is sustainable. Unfortunately, in our considered view, the judgment is not only thoroughly unsatisfactory, we find that the conclusions are not only incorrect but down right wrong even on the factual aspects and that there is a total misreading of the law. We are aware of the fact that a sustainable judgment or a view taken by the trial Court which is a possible, probable and correct view will not be interfered with merely because another view is possible or better reasonings could be recorded but having perused the judgment and the submissions canvassed on either side, we do find that this is a case which requires a thorough re-examination.
3. Mr. Ahmed has relied on a decision of the Bombay High Court reported in 1996 (4) Crimes 352 : 1997 Cri LJ 2377 (State of Maharashtra v. Ahmed Gulam Nabi Shaikh) wherein the Division Bench of the Bombay High Court had occasion to observe that unless conclusions reached on facts are unreasonable or the impugned order is vitiated by any illegality, the appellate Court will not interfere. The circumstance that the appellate Court would have taken a different view of the evidence from that taken by trial Court, would be no ground for interfering in appeal. We are in respectful agreement with this proposition and it was precisely for this reason that even though the appeal having been admitted, this Court is obliged to review the record, we have commenced by perusing the judgment of the trial Court for purposes of deciding as to prima facie whether there appears to be substance in the contentions canvassed by the learned Additional State Public Prosecutor that this is a case which requires interference. Mr. Ahmed has also relied on an earlier Division Bench decision of this Court reported in 1996(1) Crimes 292 (State of Karnataka v. Mahadeva) wherein the Court while deciding an appeal against acquittal held that where the prosecution case was full of infirmities and discrepancies, the High Court would not be justified in interfering on appeal. We concur with this view and it is bearing in mind these principles that we have re-examined the records of this case. We need to add that we are conscious of the fact that this is an appeal against acquittal and that the crystallised case law on the point leads to the proposition that the presumption of innocence available to the accused in a criminal trial gets fortified when the trial Court records an acquittal and that it is only if it is demonstrated that the decision of the trial court has virtually led to a miscarriage of justice and that it is legally unsustainable, that in such an event alone will the High Court be justified in interfering and reversing the order of acquittal. These briefly are the tenets that we have borne in mind while hearing the present appeal.
4. The evidence in this case essentially consists of the eye-witnesses' evidence which is supported by the evidence of witnesses from that area who have seen the accused running away from the spot and lastly the recovery evidence. We need to first of all point out that the accused were not strangers in so far as they are also residents of that area and it is an admitted position that the deceased Sheikh Ghouse who resides in the same area had eloped with the sister of the two accused and that these two persons returned after a gap of about six months. What aggravated the situation was that the deceased was a married person who went back to his own residence and it was obvious that the accused were furious with him for having gone away with their sister and then jettisoning her. We need to point out that in the course of hearing, we have been able to form a fair picture of the area where the incident took place, particularly the spot mahazar Ext. P. 2, and from this we find that the incident had taken place within a relatively close proximity of the house of the different witnesses. The other aspect of importance is that the incident took place at about 6.30 p.m. and even though the witnesses seem to indicate that it was a little cloudy, the consistent version is that there was more than enough light for all concerned to clearly see and observe what precisely had happened. P.W. 1, Sheik Yaseen is the brother of the deceased. He states that on the evening of 30-7-1992 the deceased was returning from his duty work at Oni Raste at about 6.30 p.m. According to him, the accused who were angry with Sheikh Ghouse because he had taken away their sister waited for him and assaulted him with a matchu and a chopper. P.W. 1 states that he had witnessed the incident at close quarters and he has also given a description of the manner in which his brother was assaulted by stating that the first blow was on the leg and that the accused continued their hittings as if they were hitting a mad dog. He also attributes two blows to both the accused by stating that these blows landed on the neck of the deceased. It is P.W.I who states that his brother virtually died on the spot and that the accused ran away after which, he proceeded to the police station and lodged a complaint which is Ext. P. 1, P.W. 15, P. K. Shivashankara, who was the Station House Officer on duty at that time has recorded the complaint. This witness has identified the weapon M.O. 1 which is a sword as also the clothes of his brother. The witness has been cross-examined to a considerable extent and a case was sought to be put to him that quarrying work is going on in the area and that when the detonators were used and the stone blasting took place, his brother sustained the fatal injuries. This suggestion has not only been denied but he has clarified that nothing of this sort happens in the village where the incident took place and that the quarrying work is only carried out at the site which is at a distance away. He has admitted the fact that his brother has eloped with the sister of the accused by name Jabeeda and he has also stated that he does not know whether the deceased was supposed to have teased and outraged the modesty of the other sister of the accused. We have perused the cross-examination of this witness wherein nothing of consequence has emerged from which his evidence can be discredited. As we shall subsequently point out, the learned trial Judge has virtually picked out very minor and insignificant details contrasting them inter se between one witness and the other and has used these grounds for purposes of rejecting the evidence of the witnesses. We are doubly aware of the fact that the P.W. 1 is the brother of the deceased but we do not find anything that has emerged from the evidence which would justify the view that he was in any way hostile to the accused or that there was any reason for him to falsely implicate them. P.W. 1 is a resident of the area and a person who would naturally be there. He states that he heard the cry emanating from the deceased "Amma" and he has also given a description of the incident which subtantially and totally tallies with what emerges from the evidence of other witnesses and consequently, we find sufficient corroboration to this evidence from P.Ws. 2, 3,4, 5, 6 and 7 and therefore, we see no reason how and why this evidence can be discarded.
5. We also have on record the evidence of P.W. 2, Sheik Masthan, who is the elder brother of the deceased. He states that it was the commotion which attracted him to the incident and he has clearly deposed to the fact that he saw both the accused who were armed with "a matchu and a chopper and that he saw them inflicting the injuries on his younger brother. He states that since the accused were armed, nobody tried to intervene or stop them and he also states that one of the weapons was thrown there and that the accused took away the other one with them. The line of cross-examination that has been followed with regard to this witness is more or less the same as that of P.W. 1. There is a two-fold attempt to discredit the evidence on the ground that he must have come to the spot after the incident and not while it was taking place, but he has withstood the cross-examination and it clearly emerges from his evidence that he did witness the incident. He has denied the detonator theory and he has also denied the suggestion that because of certain other quarrels between the deceased and some persons that the decased was attacked by people other than the accused. He has also given an elaborate description of the area which again has emerged in the cross-examination from which it is very clear to us that all these places are within such close proximity for each other that it would not take time for persons to come to the spot or for that matter to witness the incident at close quarters. Once again, the respondents' learned advocate submitted that P.W. 2 like P.W. 1 being the brother is highly interested and he also submitted that because of the incident concerning Jabeeda that there was trouble between the accused and the deceased and that being brothers, these two witnesses are not only prejudiced but are hostile towards the accused and have falsely implicated them. We find this suggestion to be far fetched. The quality of the evidence of P. W. 2 like that of P. W. 1 inspires sufficient confidence and deserves to be relied upon.
6. Next we have on record the evidence of P.W. 3, Abdul Sardar and P.W. 4, Anwar. Accused No. 1 is alleged to have made a voluntary statement pursuant to which he led the police and the panchayatdars to a spot near the Savitha Bar from where he retrieved M.O. 1, which is a matchu. That was recovered under a mahazar Ext. P. 2 and P.W. 3 is the attesting witness who has supported the prosecution case. Similarly P.W. 4 who is the other attesting witness has also supported the case of the prosecution. Apart from these two witnesses and the mahazar Ext. P. 2, we also have on record the evidence of the Investigating Officer who is P.W. 15 who has clearly deposed to the fact that this recovery was at the instance of accused No. 1.
7. We now come to the evidence of P.W. 5, Ashrabi, who is the wife of the deceased. She has also indicated the background to the incident and she states that the deceased who was her husband had returned to his house and that the girl Jabeeda returned to the house of the accused. According to her, on the evening in question the deceased went out of the house and shortly thereafter she was informed that her husband has been murdered. On rushing to the spot, she found that her husband was already dead, but it is her case that she saw accused Nos. 1 and 2 running away and that one of them had a matchu. She has also given an elaborate description of the injuries sustained by her husband. The cross-examination of this witness is very limited and the respondents' learned advocate has heavily relied on the time factor as emerges from the cross-examination of this witness. She has stated that her husband returned at about 4.30 p.m. that he took some food and that he left home at about 5.00 p.m. The learned advocate draws our attention to the fact, that whereas it is evident from other witnesses that the incident took place at around 6.30 p.m. the evidence of P.W. 5 would indicate that the incident happened at around 5.00 p.m. The submission is that this discrepancy is serious because it clearly indicates that these persons could not have been witnesses to the incident and that they are only concluding that because of the previous problem relating to Jabeeda that the accused must have assaulted the deceased. We only need to record here that the Court needs to take into account the status of the witnesses. Admittedly, all of them are illiterate persons and even though they would have a fair idea of the time, one cannot discard their evidence only because of the approximation as a result of which the time factor may vary slightly. That the incident did take place on that evening is established. That these witnesses who are close relations are residents in the immediate proximity is also established. The quality of their evidence indicates that they were certainly, present and that they have seen the incident to the extent as deposed by them. We have no hesitation in holding that this evidence is acceptable. The additional reason for it is because we find further support from the evidence of P.W. 6, Syed Jabbar and P.W. 7, Jaharabeen, who is a neighbour both of whom have fully corroborated the evidence of P.Ws. 1, 2 and 5. In totality therefore, the Court is required to not only individually evaluate the credibility of these witnesses all of whom have passed this test but more importantly to check as to whether the versions tally and furthermore, if there are minor variations as to whether there is any inherent contradiction or inconsistency inter se between their evidence. The answer to this question is in the negative. It is also for this reason that it has become necessary for us to interfere with the finding recorded by the learned trial Judge who has done a very cursory and summary appraisal of the evidence and who has not borne in mind the well established and well defined principles which a criminal Court is required as of necessity to follow which appreciating the evidence in a criminal trial. Where such an error has occurred, the inevitable result is a miscarriage of justice and it is in such a situation that the High Court is required to intervene in an appeal against acquittal.
8. We need to, as of necessity to deal with the medical evidence and the prosecution has examined P.W. 8, Syed Maqthiya, who has proved the inquest mahazar. The prosecution witnesses have deposed in no uncertain terms that the deceased died on the spot as a result of the assault on him and that his body was lying in the lane. The inquest mahazar confirms this. P.W.9, Dr. M. Raju has conducted the post mortem and he has serialised the injuries all of which are of an extremely serious nature. He has also deposed to the fact that the injuries are such as are likely to cause death in the normal course and that they are also ones which can be inflicted by the type of weapon M. O. 1 that was shown to him. The prosecution has conclusively established that the deceased died a homicidal death. Incidentally, we need to mention that that the police had arranged for photographs of the dead body to be taken which are Exts. P. 10 to P. 13 with their respective negatives and P.W. 11, S. Ameer has been examined to prove these photographs. The photographs are gory and one look at these photographs indicates how gruesome the attack on the deceased was, how horrifying the effect of the assault was and the manner in which the injuries were inflicted clearly indicates that the deceased was virtually butchered.
9. The rest of the evidence in this case is really of a formal nature and we do not need to recount it except to say that these formal witnesses were necessary in order to indicate that all the requisite procedures have been complied with.
10. The learned Additional State Public Prosecutor submitted that the oral evidence in this case which is inter se corroborative and which is more fully borne out by the medical evidence, fully establishes the charges against the two accused in so far as it indicates that the two accused in furtherance of their common intention which is evident from the facts that they came together, that they were both armed with deadly weapons and that they assaulted the deceased and murdered him. His submission is that in these circumstances, the respondents are liable to be convicted of the offence punishable under Sections 302 read with 34, IPC. The learned Additional State Public Prosecutor also submitted that in so far as the accused obstructed the deceased in the lane on the way home, that they must also be convicted of the offence punishable under Sections 341 read with 34 IPC. We have considered this subsidiary submission, but in our considered view, the offence of wrongful restraint presupposes several other ingredients viz., that the accused must be shown to have stopped the person from proceeding in the direction in which that person was lawfully entitled to go etc., and we find on the facts of the present case that the accused virtually pounced on the deceased while he was returning and that consequently it would be too technical and far fetched to contend that they are guilty of the offence of wrongful restraint.
11. The respondents' learned advocate submitted that the prosecution relied heavily on the evidence of interested witnesses and that in the back ground of hostility the Court must discard their evidence. The law on the point is that the evidence of interested witnesses must be viewed with a high degree of caution and that the Court must also look for independent corroboration. We have borne these two principles in mind and we do find that in the first instance it would hardly be permissible to allege that the two brothers and the wife are interested in so far as even if they are closely related with the deceased, on the peculiar facts of this case, there is nothing to support the view that they were hostile to the accused. We find independent corroboration from the evidence of P.W. 7 as also from the recovery evidence and consequently, the contention that the evidence of P.Ws. 1, 2 and 5 as also 6 and 7 should be discarded cannot be upheld. We have already dealt with the principal contention raised on behalf of the respondents that this Court should not interfere with the judgment of the lower Court regarding an acquittal if that judgment is sustainable and we need to record here that we have set out elaborate reasons after hearing the appeal, as to what are the grounds on which this Court considers it absolutely essential to interfere in the present case.
12. The prosecution evidence completely and conclusively brings home the charge under Sections 302 read with 34, IPC as against the two accused persons before us.
13. On the question of sentence, we have heard the learned advocates on both sides. The respondents' learned advocate submitted that the accused are young persons and that they have aged parents and that they have already undergone two years in custody. We have taken into consideration these factors as also the overall complexion of the case. We need to note that the facts clearly establish that this was a premeditated murder and that this was committed with an abnormally high degree of brutality. The case, viewed at from various features which the Supreme Court has laid down from time to time does come dangerously close to the rarest of the rare cases, but in our considered view, we would be right in awarding the lesser of the two sentences prescribed under Section 302, IPC.
14. We accordingly set aside the order of acquittal recorded in favour of the accused by the trial Court for the offence punishable under Sections 302 read with 34, IPC and each of the accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for life for the offence punishable under Sections 302 read with 34 IPC.
15. For the reasons earlier indicated, however, we confirm the acquittal recorded in favour of the accused for the offence punishable under Sections 341 read with 34, IPC.
The appeal succeeds to this extent and stands disposed of.
In view of the observations contained in this judgment, the Registrar General to forward a copy of the same to the learned Administrative Judge of the district where the learned trial Judge is now posted.