Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 190 (KAR)

Ansar v. State of Karnataka

2011-02-17

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal has been filed challenging the judgment dated 16.4.2004 passed by the 1st Addl. Sessions Judge, Mysore, in S.C. No. 218/2002 convicting the accused-appellants for the offence under Sections 143, 147, 148, 149, 307 read with 34 IPC and sentencing them to pay a fine of Rs. 300/- each, for offence under Section 143 read with 149; to undergo rigorous imprisonment for 3 months for offence under Section 147 read with 149 IPC; to undergo rigorous imprisonment for 2 years for offence under Section 148 read with 149 IPC and rigorous imprisonment for 5 years for offence under Section 307 read with l49 IPC and to pay a fine of Rs. 1,000/- each, in default to undergo simple imprisonment for 3 months. 2. It is the case of the prosecution that on 1.7.2001 at about. 10 p.m., near Azeezia Circle situated at 10th Cross, Rajendranagar, Mysore, A2 to A6 alongwith A1 formed themselves into an unlawful assembly with the common object of murdering Iqbal @ Acid Iqbal by committing rioting, and by holding deadly weapons like chopper and talwar and attempted to commit murder of Iqbal @ Acid Iqbal thereby they are alleged to have committed offence under Sections 143, 147, 148, 307 read with 149 IPC. 3. The prosecution to prove its case has examined in all 13 witnesses and got marked Ex. P1 to P15 and produced M.Os. 1 to 3. The defence of the accused was one of total denial. However, after hearing the prosecution and defence, the learned Sessions Judge was pleased to hold that the appellants have committed offences as hereinabove mentioned and sentenced them accordingly. The convicted accused have filed this appeal. 4. Heard Sri Hashmath Pasha, learned counsel for the appellants and Sri Raja Subramanya Bhat, learned HCGP for State. 5. The learned counsel for the appellants submits that this is a case and a counter case. The counter case has been registered in respect of the murder of A1 in this case who was done to death by the witnesses in this case. He further submits that this Court has confirmed the order of conviction passed against the accused in the counter case which has been further confirmed by the Hon’ble Supreme Court in Crl. A. No. 1505/07 wherein the witnesses in this case have been found guilty of offence committed under Section 304A IPC. He further submits that this Court has confirmed the order of conviction passed against the accused in the counter case which has been further confirmed by the Hon’ble Supreme Court in Crl. A. No. 1505/07 wherein the witnesses in this case have been found guilty of offence committed under Section 304A IPC. He, therefore, submits that the prosecution in this case has not explained the cause of injury on A1 nor the cause of death of A1. The prosecution has suppressed the injuries caused by the accused not only in the FIR but also in the evidence of the eye-witnesses in the Court. Therefore, the very genesis of the incident has been suppressed by the prosecution which entitles the accused for an order of acquittal. He further submits that the averments made by the complainant P.W. 2 in the complaint drastically differ from the overt-acts mentioned in the evidence of P.W. 2 the complainant. There is glaring omission in respect of holding Pepsi bottle by A4, the fact of which is not mentioned in the FIR. Neither the Pepsi bottle has been seized nor produced before the Court. Therefore, the eye-witness version in this case is glaringly separate from the version given in the FIR and there is drastic inconsistency between the two. Hence, he submits that the order of conviction passed by the learned Sessions Judge may be set aside and accused may be acquitted. 6. The learned HCGP submits that the injuries as mentioned by the complainant P.W. 2 in the complaint are the same as spoken to by P.W. 1 the Medical Officer. Further he submits that there may be slight discrepancy in explaining the incident but on a totality of the evidence on record, it can be safely held that the accused have committed offence and that they had intended to cause death of Iqbal @ Acid Iqbal on the date of the incident and that in view of the fact that A1 to A4 were known to the complainant and that they have explained the eye-witness version of the complainant and other witnesses. He further submits the fact that the witnesses in this case have been convicted on the basis of the eye-witness account of present accused in the counter case, further confirms the presence of the accused at the scene of occurrence. He further submits the fact that the witnesses in this case have been convicted on the basis of the eye-witness account of present accused in the counter case, further confirms the presence of the accused at the scene of occurrence. Because the very same accused are witnesses in the counter case, the Courts have believed the presence of the witnesses, viz., the accused in this case in order to convict them in the counter case. Under the circumstances, the order of conviction is based on evidence on record and does not suffer from any infirmity or illegality and submits that the appeal may be dismissed. 7. The prosecution in this case commenced with the filing of the complaint by Iqbal @ Acid Iqbal before N.R. Police Station, Mysore on 2.7.2001 at about 3’O clock. In the complaint, it is mentioned that the complainant is working as an Auto driver and in the year 2001 Corporation election, he has canvassed for one Nurulla. In the election one Madanbabu had stood for election and the accused Akram, Ansar, Zabi and others were working on the side of Madanbabu. For this reason, there was enmity between himself and the said Akram and others. In the election, when Nurulla had won, anger of the accused had increased. On 1.7.2001, at about 5 a.m., he had been to Saligrama for the repair of the autorickshaw. At about 6 p.m., in the evening he had come near Ajeejiya Hotel for putting puncture to the auto wheels. At that time, the son of the owner of the hotel by name Immu met him and he started talking with him. At about 9 p.m., about 5 to 6 people, viz., Akram, Ansar, Zabi and others came, out of them. Akram and Ansar suddenly assaulted him on his head by means of a long weapon, Zabi and Chan assaulted him on his right shoulder by means of one long sword and other accused fisted with hands on him and he fell down. On seeing the bleeding, the accused ran away from the scene of occurrence. Thereafter, somebody lifted him to the K.R. Hospital and by that time, he regained consciousness. One Auto driver by name Riyaz and Shakeel brought him to the hospital. On seeing the bleeding, the accused ran away from the scene of occurrence. Thereafter, somebody lifted him to the K.R. Hospital and by that time, he regained consciousness. One Auto driver by name Riyaz and Shakeel brought him to the hospital. Since he was working for Nurulla in the election, the accused Akram alongwith two others had attempted to kill him by means of long swords and, therefore, he prayed for action as per law. The Police after registration of the case and after completion of investigation, filed charge-sheet. 8. P.W. 1 Dr. M.R. Shashikumar is the Medical Officer of K.R. Hospital, Mysore. He has stated in his evidence that on 1.7.2001, at about 10.20 p.m., one Iqbal was brought by Shakeel and on examination, he found that Iqbal had sustained four injuries, out of which one was lacerated wound on parietal region in the middle part of the head and another wound was on posterior region of right side. The injured was also found sustained one incised wound on dorsum of right hand near the wrist joint over 4th metacarpal region and another lacerated wound over posterior aspect of right elbow. He has opined that injury No. 4 is grievous in nature and the other injuries are simple in nature. 9. P.W. 2 Iqbal @ Acid Iqbal is the injured in this case. He has stated that about two years back at about 9 p.m., when he was talking with lmmu near Azeeziya Hotel Circle, A1 came alongwith other accused by holding chopper and long machchu and knives. A1 suddenly attacked him. At that time, A4 was holding Pepsi bottle. A1 asked him as to why he was not working for him in the previous Corporation election. Thereafter, A1 Akram assaulted him on his head by means of a long knife. A2 assaulted on his head by means of a chopper. A1 again assaulted him on his head by means of a chopper. A4 assaulted him by means of Pepsi bottle on his head. A3 and A5 had held him. Due to assault, he lost conscious and he does not know who has seen the incident. At about 12 in the mid night he regained consciousness. Thereafter he had given complaint to the Police who had come to the hospital. He was in the hospital for about 19 days as an inpatient and has identified M.Os. Due to assault, he lost conscious and he does not know who has seen the incident. At about 12 in the mid night he regained consciousness. Thereafter he had given complaint to the Police who had come to the hospital. He was in the hospital for about 19 days as an inpatient and has identified M.Os. 1 to 3 which are used for the commission of offence. In the cross-examination, he has stated that after election, till the date of incident, no fight has taken place between himself and the accused. It is elicited that his shop is one kilometre away from the place where the incident took place. It is further elicited that he has not stated before the Police that A4 has assaulted him by long machchu. It. is further elicited from him that he has not stated that A3 and A5 had held him. 10. P.W. 3 is Shakeel. He has stated that by the time he reached the scene of occurrence, both Akram as well as Iqbal had fallen unconscious at the place. However, he has stated that the accused and the injured were fighting with each other when he reached the spot. Thereafter, he had removed the injured to the hospital. P.W. 4 is another witness by name Riyaz who reached the scene of occurrence immediately after the incident. However, he denied the knowledge about the incident and turned hostile to the case of the prosecution. P.Ws. 5, 8, 9 and 10 have turned hostile to the case of the prosecution. 11. P.W. 6 T.D. Manjunath is the Police Constable who has apprehended A2 Ansar on the date of offence. P.W. 7 is Head Constable who carried the FIR to the Court on the date of offence. P.W. 11 is the Head Constable who has arrested A4 in this case. P.W. 12 K.C. Beerappa, P.C. has arrested A3 and produced him before the investigating officer. P.W. 13 is the Police Inspector who had conducted investigation in this case. In the cross-examination, it is elicited from him that he has registered a counter case in Crime No. 99/2001 on the same night and in the said case, charge-sheet has been filed against the witnesses in this case for having committed the murder of A1 Akram. 12. P.W. 13 is the Police Inspector who had conducted investigation in this case. In the cross-examination, it is elicited from him that he has registered a counter case in Crime No. 99/2001 on the same night and in the said case, charge-sheet has been filed against the witnesses in this case for having committed the murder of A1 Akram. 12. It is from the above evidence of the witnesses that, the learned Sessions Judge has found the accused guilty and has passed the order of conviction as herein above mentioned. 13. I have gone through the judgment of the Trial Court and also carefully scrutinized the evidence on record. At the very out set, it is seen that though the accused are known to P.W. 2 Iqbal the injured, P.W. 3 and P.W. 4, but P.W. 2 has given different version in the Court regarding incident from the one which he has given in the FIR. While he has stated at the time of giving complaint that A1 and A2 had assaulted on his head by means of a chopper but in the Court he has stated that A1 assaulted him on the head, A2 assaulted on his right hand with chopper and thereafter A1 again assaulted on his head. He has further stated in the complaint that A3 and A4 have assaulted him on his right elbow and right hand whereas in the Court he has stated that A4 has assaulted him by means of Pepsi bottle and A3 and A5 held him. The mention of Pepsi bottle does not find a place in the FIR. Therefore, regarding the narration of the incident as such there is discrepancy in the evidence of P.W. 2 in Court and the averments in the complaint. It is further seen that A1 had died in the incident whereas the complaint is silent regarding the death of A1 Akram. Even in the Court, he does not whisper anything about the death of the said Akram. On the basis of the evidence all these accused persons, witnesses in this case have been convicted and sentenced to imprisonment for offence under Section 304-1 of IPC which order of conviction has been confirmed by the Hon’ble Supreme Court. Under the circumstances, it can be safely said that the witnesses in this case are not telling truth and have suppressed the genesis of the incident. Under the circumstances, it can be safely said that the witnesses in this case are not telling truth and have suppressed the genesis of the incident. Non-explanation of the injuries on the accused itself is a ground for disbelieving the version of the witnesses. Therefore, I am of the opinion that the complainant and other witnesses in this case have not spoken the truth and there is doubt regarding the happening of the incident as alleged by the prosecution in that view of the matter, I hold that the accused are entitled for benefit of doubt. 14. A5 and A6 are not named in the FIR. All that is stated is that three others had come alongwith A1 to A4. The prosecution does not come up with a case that there was any identification parade conducted to identify A5 and A6 and, therefore, identity of A5 and A6 is not established by the prosecution. Therefore, they are entitled for acquittal on this ground itself. Further though there was bitter enmity between P.W. 2 on one hand and A2 to A4 on the other in respect of Corporation election, when the injured was taken to the hospital, he has not disclosed the history of assault as having caused by the accused persons. Therefore, on this ground also the case of the prosecution becomes weak. 15. In the result, the appeal is allowed. The order of conviction passed against the accused is set aside and the accused are acquitted of the charges levelled against them. 16. Bail bonds executed by the accused are cancelled. Fine amount if any, paid, shall be refundable to them.