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Karnataka High Court · body

2007 DIGILAW 76 (KAR)

SHEEB HAHMED v. STATE BY MADDUR POLICE

2007-02-01

V.C.SABHAHIT

body2007
JUDGMENT This appeal by accused 1 to 3 in Sessions Case No. 87 of 1995 is filed being aggrieved by the judgment of conviction and sentence dated 2-2-2002 passed by the learned Additional Sessions Judge, Mandya, wherein accused 1 to 3 have been found guilty of the offences punishable under Section 304, Part II of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for a period of 5 years each and also to pay fine of Rs. 20,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year and it is further ordered that if the fine amount is deposited, a sum of Rs. 30,000/- shall be paid in favour of P.W. 6-wife of the deceased namely Kuthejabi as compensation. 2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Trial Court are as follows.- It is the case of the prosecution that on the basis of the complaint filed by P.W. 3 as per Ex. P. 4, Crime No. 99 of 1993 was registered by Maddur Town Police against accused 1 to 3 for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and thereafter after the death of the injured, First Information Report was filed for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. It is averred in the complaint filed by P.W. 3 that on 2-4-1993 when he was sitting in his shop, his senior uncle Sabulal came to the shop and at about 7.00 p.m., accused 1 to 3 came there and questioned the senior uncle of the complainant Sabulal and there was quarrel between them and accused 1 took iron rod lying in the shop of the complainant and assaulted him near the eyebrow of the left eye and accused 2 and 3 pushed Sabulal and Sabulal fell down and accused ran away. The complaint was registered by P.W. 9 on 3-4-1993 at 00.30 hours and he sent the injured Sabulal to the hospital wherein he was examined by P.W. 1, who issued wound certificate as per Ex. The complaint was registered by P.W. 9 on 3-4-1993 at 00.30 hours and he sent the injured Sabulal to the hospital wherein he was examined by P.W. 1, who issued wound certificate as per Ex. P. 2 and thereafter, at the instance of P.W. 1 he was shifted to Mandya General Hospital and thereafter to NIMHANS Hospital and he succumbed to the injuries and died on 4-4-1993 and thereafter offence under Section 302 read with Section 34 of the Indian Penal Code was included. Post-mortem examination was conducted and report was secured as per Ex. P. 14. Further investigation of the case was taken over and charge-sheet was filed by P.W. 13, who was working as CPI at Maddur Circle, for the offence punishable under Section 302 read with Section 34 of the Indian Penal code. The case was committed to the Sessions Court and charge was framed against the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. All the accused pleaded not guilty and claimed to be tried. The prosecution examined P.Ws. 1 to 13 and got marked Exs. P. 1 to P. 14 and M.Os. 1 to 3. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The defence of the accused is one of denial. The accused did not lead any defence evidence. 3. The Trial Court after considering the contentions of the learned Counsel appearing for the parties, in its judgment dated 2-2-2002 framed the following points for determination.- (1) Whether the prosecution proves that Sabulal died a homicidal death? (2) Whether the prosecution proves that the accused persons are responsible for the homicidal death of the deceased? (3) Whether the guilt of the accused is proved beyond reasonable doubt? and answered the above points as follows.- (1) in the affirmative; (2) in the affirmative; (3) in the affirmative and held that the prosecution has failed to prove that the accused have committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and the offence committed falls within the ambit of Section 304, Part II of the Indian Penal Code. After hearing the accused on the question of sentence, sentenced each of the accused 1 to 3 to undergo rigorous imprisonment for 5 years and to pay fine of Rs. After hearing the accused on the question of sentence, sentenced each of the accused 1 to 3 to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 20,000/- each, in default, to undergo further imprisonment for one year and ordered that out of the fine amount recovered, Rs. 30,000/- shall be paid to P.W. 6-wife of the deceased, as compensation. Being aggrieved by the said judgment of conviction and sentence, accused 1 to 3 are before this Court in this appeal. 4. I have heard the learned Counsel appearing for the appellants and the learned State Public Prosecutor. 5. The learned Counsel appearing for the appellants submitted that the finding of the Trial Court that Sabulal suffered homicidal death is perverse and arbitrary, as the evidence of the complainant and the eyewitnesses, even, if, accepted in its entirety, would not prove that Sabulal suffered homicidal death and the prosecution has failed to prove that the accused have committed any offence and the Trial Court has not appreciated the evidence of the complainant and eye witnesses-P.Ws. 3 and 4 in the proper perspective. The learned Counsel further submitted that other eye-witnesses-P.Ws. 5, 8, 11 and 12 have turned hostile and have not supported the case of the prosecution though they are cited as eye-witnesses and nothing has been elicited in their cross-examination to support the case of the prosecution and the contents of the postmortem report would show that death was due to coma as a result of intracerebral hemorrhage and the evidence of the eye-witnesses P.Ws. 3 and 4 would show that the injury found on the head of Sabulal was not caused by assaulting by any of the accused and wherefore the judgment of conviction and sentence is liable to be set aside and if this Court comes to the conclusion that the evidence of P.Ws. 1, 3 and 4 are reliable and truthful, the offence committed by the accused falls within the ambit of Section 325 of the Indian Penal Code and not under Section 304 of the Indian Penal Code. The learned Counsel further submitted that a lenient view may be taken and the accused are ready to deposit the fine amount and out the fine amount, compensation may be ordered to be paid to P.W. 6, who is the wife of the deceased. 6. The learned Counsel further submitted that a lenient view may be taken and the accused are ready to deposit the fine amount and out the fine amount, compensation may be ordered to be paid to P.W. 6, who is the wife of the deceased. 6. On the other hand, the learned State Public Prosecutor submitted that the judgment of conviction and sentence passed by the Trial Court, is justified having regard to the evidence of the eye-witnesses-P.Ws. 3 and 4 and the material on record including the post-mortem report which shows that Sabulal suffered homicidal death due to the offence committed by the accused and the sentence imposed is reasonable and cannot be said to be excessive. 7. I have considered the contentions of the learned Counsel appearing for the appellants and the learned State Public Prosecutor. 8. Having regard to the contentions urged, the points that arise for determination in this appeal are.- 1. Whether the judgment of conviction passed by the Trial Court holding that accused 1 to 3-appellants herein have committed the offence punishable under Section 304, Part II of the Indian Penal Code, is justified or calls for interference in this appeal? 2. Whether the sentence imposed by the Trial Court calls for interference in this appeal? and 3. What order? and I answer the above points for determination as follows.- 1. The finding of the Trial Court that accused 1 to 3-appellants herein have committed the offence punishable under Section 304, Part II of the Indian Penal Code is liable to be set aside and it is held that the offence committed by the accused 1 to 3-appellants herein is punishable under Section 325 read with Section 34 of the Indian Penal Code; and 2 and 3. The sentence imposed by the Trial Court for the offence punishable under Section 304, Part II of the Indian Penal Code is liable to be set aside and the appellants are liable to be sentenced for the offence punishable under Section 325 of the Indian Penal Code as per the final order for the following reasons. 9. Point No. 1.-I have been taken through the averments made in the complaint as also the evidence of the witnesses examined by the prosecution, the contents of the documents got marked by the prosecution and I have scrutinized and reappreciated the evidence adduced by the prosecution. 10. 9. Point No. 1.-I have been taken through the averments made in the complaint as also the evidence of the witnesses examined by the prosecution, the contents of the documents got marked by the prosecution and I have scrutinized and reappreciated the evidence adduced by the prosecution. 10. It is clear from the perusal of the material on record that though the prosecution has cited P.Ws. 3, 4, 5, 8, 11 and 12 as eye-witnesses, P.Ws. 5, 8, 11 and 12 have turned hostile to the prosecution and they are permitted to be cross-examined by the Public Prosecutor and nothing has been elicited in their examination to support the case of the prosecution and wherefore the prosecution is left with the evidence of P.W. 3 and the evidence of his younger brother P.W. 4, who according to the prosecution are eye-witnesses to the incident. 11. It is clear from the averment made in the complaint filed by P.W. 3, which is got marked as Ex. P. 4, that according to the averments made in the complaint, when Sabulal senior uncle of the complainant was sitting in his shop, on 2-4-1993 at about 7.30 p.m., accused 1 to 3 came there and started abusing him and picked up quarrel with his senior uncle and when Sabulal questioned the accused as to why they teased him at that time, accused 1 picked up iron rod and assaulted near the left eyebrow of Sabulal which caused bleeding injury and accused 2 and 3 pushed Sabulal and Sabulal fell down and sustained injury and he was taken to the hospital. The complaint is registered at 00.30 hours on 3-4-1993. The complaint is registered at 00.30 hours on 3-4-1993. The complainant, P.W. 3 has stated in his evidence before the Court that on 2-4-1993 at about 7.00 p.m. while himself and his brother C.W. 2-Afsar Pasha were sitting in their shop, his senior uncle Sabulal came to the shop and at that time, accused came to the shop and started abusing his senior uncle and questioned Sabulal as to why he was visiting their mother and Sabulal told the accused as to why they have abused him near the tea shop of Lalasab, at that time, accused 1 piclced up an iron rod lying in the shop and assaulted Sabulal and accused' 2 and 3 pushed his senior uncle, who fell down and came in contact with the angular which had been placed as support in their shop and Sabulal sustained grievous injury and fell down and accused ran away from there. He further stated that Sabulal was taken to the Hospital at Maddur wherein he was referred to District Hospital and thereafter he was taken to NIMHANS Hospital wherein they said that he would not survive and asked them to take him to his house. However, they got him admitted to the St. John's Hospital, wherein he succumbed to the injuries and died after two days. He has identified M.O. 1 as the iron rod, which accused 1 used to assault Sabulal and M.Os. 2 and 3 as the clothes, which the Sabulal was wearing at the time of incident. It is elicited in his cross-examination that he has stated in the complaint-Ex. P. 4 that accused 1 assaulted near the left side of the eyebrow and accused 2 and 3 pushed his senior uncle and he fell down and he has further stated in the complaint that Sabulal came in contract with the angular. 12. P.W. 4 has corroborated the evidence of P.W. 3 regarding the incident and has stated in his evidence that when he was in the shop of his elder brother P.W. 3, Sabulal came there and accused also came there and started abusing his senior uncle. 12. P.W. 4 has corroborated the evidence of P.W. 3 regarding the incident and has stated in his evidence that when he was in the shop of his elder brother P.W. 3, Sabulal came there and accused also came there and started abusing his senior uncle. Accused 1 picked up iron rod and assaulted on the left side of the fore head of Sabula 1 and caused him bleeding injuries and accused 2 and 3 pushed Sabulal and he came in contact with the iron pillar and sustained injuries and fell down and the temporal region of his senior uncle came in contact with iron pillar and Sabulal fell down. Thereafter, he was shifted to the hospital. He has denied the suggestion that he was not present when the incident took place and that he is deposing falsely against the accused, as the deceased was related to him and that the accused have not committed any offence. 13. Other witnesses P.Ws. 5, 8, 11 and 12 have turned hostile to the prosecution. Mere fact that P.Ws. 5, 8, 11 and 12 have turned hostile to the prosecution, would not in any way affect the evidence of P.Ws. 3 and 4, as their evidence in truthful, reliable, cogent and consistent regarding the incident and the evidence of P.Ws. 3 and 4 proves beyond reasonable doubt that when P.Ws. 3 and 4 were in their shop, their senior uncle Sabulal came there and the accused also came there and accused started abusing and at that time, accused 1 picked up iron rod and assaulted near the left eyebrow of Sabulal and accused 2 and 3 pushed Sabulal and he came in contact with the angular (iron rod which had been given as support in the shop of the complainant) and sustained injuries and fell down. The wound certificate marked as per Ex. P. 2 issued by P.W. 1 shows that his general condition was poor, tenderness was there in the right temporal and maxillary region and he was referred to Neuro Physician, NIMHANS, Bangalore to rule out head injury. Post-mortem report as per Ex. P. 14 shows that the right parietal bone shows two surgically made Burr holes measuring 0.5 cms. P. 2 issued by P.W. 1 shows that his general condition was poor, tenderness was there in the right temporal and maxillary region and he was referred to Neuro Physician, NIMHANS, Bangalore to rule out head injury. Post-mortem report as per Ex. P. 14 shows that the right parietal bone shows two surgically made Burr holes measuring 0.5 cms. in diameter each situated 2.5 cms and it is observed that removal of vault of the skull, surface of the brain showed obliteration of sulci and on dissection of the brain, it was observed that there is right intracerebral hemorrhage. Wherefore, it is clear from the evidence of P.W. 1 and the contents of the post-mortem report that death of Sabulal was due to coma, as a result of right intracerebral hemorrhage, which is attributable to the fact that Sabulal came in contact with the iron rod which was given as support to the shop of P.W. 3 and not due to the assault by accused 1 and the evidence of P.Ws. 3 and 4 would show that accused did not have any intention to cause death nor had any intention which is likely to cause death of Sabulal and in the heat of the quarrel, accused 1 picked up iron rod and assaulted near the left eyebrow of Sabulal and accused 2 and 3 pushed Sabulal. Under the circumstances, the finding of the Trial Court that death was homicidal cannot be sustained and the same is liable to be set aside, as the cause of death was due to intracerebral hemorrhage, which is attributable to the injury sustained by Sabulal when he came in contact with the iron rod in the shop of P.W. 3 and not due to the assault or any intentional act on the part of accused 2 and 3 in pushing him. In the complaint it is not stated that Sabulal came in contact with angular and it is only stated that Sabulal fell down when he was pushed by accused 2 and 3. Under the circumstances, it is clear that Sabulal did not suffer homicidal death. Wherefore, the next question would be as to the offence, which the accused have committed by causing injury to Sabulal. 14. Under the circumstances, it is clear that Sabulal did not suffer homicidal death. Wherefore, the next question would be as to the offence, which the accused have committed by causing injury to Sabulal. 14. It is clear from the perusal of the post-mortem report and other material on record that the fact that Sabulal sustained injuries due to the act of assault by accused 1 and accused 2 and 3 pushed him, is proved beyond reasonable doubt, as they caused injury which endangered the life of Sabulal and in view of the fact that the assault was in view of the sudden provocation, as a result of quarrel between the accused and Sabulal, it is clear that the offence squarely falls within the ambit of Section 325 of voluntarily causing grievous hurt and it does not fall within the ambit of Section 304 and accordingly, I hold that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 325 of the Indian Penal Code and that the accused 1 to 3 had formed themselves with a common intention and in furtherance of the common intention of accused 1 to 3, which is evidenced from the material on record, that the accused came together and accused 1 picked up quarrel and assaulted with iron rod near the left eyebrow of Sabulal and accused 2 and 3 pushed Sabulal. Accordingly, I hold that the prosecution has proved beyond reasonable doubt that accused 1 to 3 have committed the offence punishable under Section 325 read with Section 34 of the Indian Penal Code. Accordingly, I answer point No. 1. 15. Point No. 2.-The learned Counsel appearing for the appellants submitted that the accused are ready to pay fine amount and compensation may also be awarded to the wife of the deceased P.W. 6 and a lenient view may be taken having regard the facts and circumstances under which the offence has been committed and has relied upon the decision of the Hon'ble Supreme Court in Nain Ram and Another v State of Uttar Pradesh 1, wherein the Supreme Court has reduced the substantive sentence to six months on accused agreeing to pay fine amount. 16. 16. Having regard to the circumstances under which the offence has been committed in the present case and the fact that Sabulal did not suffer homicidal death and the sentence prescribed for the offence under Section 325 and the submission of the learned Counsel appearing for the appellants that they will deposit the fine amount, I hold that the interest of justice would be met by sentencing accused 1 to 3-appellants herein to undergo rigorous imprisonment for six months and to pay fine of Rs. 15,000/- each in default to undergo further rigorous imprisonment for 3 months each and out of the fine amount recovered by accused 1 to 3, Rs. 40,000/- shall be paid as compensation to P.W. 6, who is the wife of deceased Sabulal and accordingly, I answer Point No.2 and pass the following order.- 17. The judgment of conviction and sentence passed by the Trial Court holding that the accused 1 to 3 have committed the offence punishable under Section 304, Part II read with Section 34 of the Indian Penal Code is set aside and they are acquitted of the said offence. Accused 1 to 3 are convicted for the offence punishable under Section 325 of the Indian Penal Code and each of the accused 1 to 3 are sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 15,000/- (Rupees Fifteen Thousand only) each in default of payment of fine, to undergo further imprisonment for three months and out of the fine amount recovered from accused 1 to 3, Rs. 40,000/(Rupees Forty Thousand only) shall be paid to the wife of the deceased-Sabulal P.W. 6 and the accused shall be entitled to set off of the period of detention undergone during trial or investigation against the sentence now imposed, under Section 428 of the Code of Criminal Procedure. Bail granted to the accused is cancelled and the Trial Court shall take steps to secure the presence of accused 1 to 3 and remand them to serve out the sentence imposed upon them. 18. The criminal appeal is disposed of accordingly.