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2017 DIGILAW 600 (KAR)

ASHPAK AHAMED v. STATE OF KARNATAKA

2017-03-15

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. The appellant is the accused in S.C. No. 50/2013 on the file of First Additional District & Sessions Judge, Dharwad, sitting at Hubli, being aggrieved by the judgment dated 06.05.2014 in the said case in which he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- in default to undergo imprisonment for one year for the offence punishable under Section 307 of IPC, the accused has challenged the said judgment and sentence passed by the trial Court. 2. The brief factual matrix which emanate from the records are that the injured P.W.2 Smt. Yasmin was given in marriage to the appellant herein about 16-17 years prior to the date of incident. The appellant and the injured-P.W.2 were blessed with two children, they were residing together with all love and affection for a period of 16-17 years at Kumbaragada village in Hubballi. It appears, thereafter the appellant- accused started suspecting her fidelity. In this context they were often quarrelling with each other. In this backdrop it is alleged that on 16.07.2012, the accused and the injured were together in the house at about 6 p.m. in the evening. When they were talking to each other and the victim Yasmin was laying down on the ground to go to sleep, at that time taking advantage of the situation, the appellant who brought some acid in a plastic can kept in the house previously, suddenly poured said acid on the face and other parts of the body of P.W.2. She sustained severe burn injuries on her face and other parts of the body. She screamed for help and thereafter her mother-in-law and others who were residing along with her shifted her to KIMS Hospital at Hubballi. She has taken treatment and her statement was recorded by the Police and on that basis the Police have registered a case in Crime No. 39/2012 for the offences punishable u/Ss. 326 and 307 of IPC and after thorough investigation they have submitted a charge-sheet. The accused was in fact arrested on 17.07.2012 and since then he has been in judicial custody. After committal proceedings, the trial Court has framed charges against the accused for the offence u/S. 307 of IPC. As the accused pleaded not guilty, he was put on trial. 3. The accused was in fact arrested on 17.07.2012 and since then he has been in judicial custody. After committal proceedings, the trial Court has framed charges against the accused for the offence u/S. 307 of IPC. As the accused pleaded not guilty, he was put on trial. 3. The prosecution in order to bring home guilt of the accused, examined as many as 13 witnesses as P.Ws.1 to 13 and got marked Exs.P.1 to 20 and also M.Os.1 to 6. The accused was also examined u/S. 313 of Cr.P.C. and opportunity was provided to the accused to lead evidence on his side. As the accused did not choose to lead evidence on his side, after hearing the arguments, the trial Court has proceeded to pass judgment which is impugned under this appeal. 4. The learned counsel for the appellant strenuously contended before this Court, that, the accused and the injured are related to each other, they were happily married to each other, they lead happy marital life for more than 16-17 years, and they were blessed with two children. Because of some doubtful circumstances in the family, as the appellant started suspecting fidelity of the wife, this unpleasant situation must have been taken in the family. There was no intention on the part of the accused to do away with the life of his wife. At no point of time she expressed insecurity with the husband for her life during the period of their happy married life. In considering the medical report of the evidence of PW.2, the victim lady, there is no semblance of evidence that the appellant at any point intended to kill her. Therefore, the conviction of sentence passed by the trial Court is not on proper appreciation of oral and documentary evidence on record. 5. The learned counsel also contended that even for any reason this Court comes to the conclusion that the judgment of conviction cannot be interfered, but on considering the age of the appellant and also his responsibility towards his children and also he being in the jail for more than four and half years, a lenient view may be taken with regard to the sentence passed by the trial Court and the period of punishment already undergone by him. For all these reasons, the learned counsel seeks the indulgence of this Court. 6. For all these reasons, the learned counsel seeks the indulgence of this Court. 6. The learned HCGP countering to the above said arguments submitted that, there are eye-witnesses to the incident. Further, the mother of the appellant has supported the case of the prosecution. The victim is no other than the wife, knowing fully well the family background, she truthfully has given statement before the Court and deposed about the real fact which has happened. There is no reason for to discard the evidence of these witnesses, they are no other than the wife and mother of appellant and there is no reason for them to falsely implicate the accused. The evidence of PW.12 coupled with doctors evidence clearly disclose that there were sufficient material to hold that the accused had knowledge about his act that it may cause the death of deceased. 7. The trial Court after considering the entire oral and documentary evidence has rightly convicted the sentence and there is no room to interfere with such reasoned judgment of conviction and sentence passed by the trial Court. Hence, the learned High Court Government Pleader submitted that the appeal deserves to be dismissed. 8. Having heard the arguments and after going through the evidence of the victim and other witnesses and also considering the entire circumstances of the case, the point that would arise for consideration of this Court is; (i) Whether the appellant has made out any reasonable or specific ground to interfere with the judgment and conviction and sentence passed by the trial Court? (ii) What order? 9. The prime witness to the prosecution is PW.2 who is the victim and also other witnesses particularly the mother of the accused and the mother of the victim and the doctors evidence in this particular case. PW.1, Mohammad Salim is the pancha witness who was present at the point of drawing up of mahazar. Ex.P1 which is the spot mahazar from where the police have collected one small plastic can and observed the drops of acid on a pillow and other places in the house of accused. Her evidence need not be in detain gone into, because the learned counsel does not dispute with regard to the happening of the incident but the appellant only challenges that he had no intention to commit any offence against his wife and the sentence is exorbitant. Her evidence need not be in detain gone into, because the learned counsel does not dispute with regard to the happening of the incident but the appellant only challenges that he had no intention to commit any offence against his wife and the sentence is exorbitant. PW.3, Smt. Hamidabee Nalband, is none other than the mother of the victim who has stated about the conduct of the accused and the victim with reference to the their previous quarrel with each other. PW.4, Smt. Jubedabee Nalband, is the mother of the appellant/accused, she also states about the incident and also the previous conduct of accused. PW.5, Smt. Malan, who is a sister of the victim lady and she also tells about the conduct of the appellant and shifted the victim to the hospital. PW.6, Smt. Aliya Begum, she is the neighbor and she also states about the conduct of the accused and as to what exactly happened on that particular date. PW.7, Deepak Meharwad, who is owner of Shakti Chemicals shop from where the accused has purchased the toilet cleaner acid. He was examined to elucidate that the accused had purchased the acid from his shop but this witness turned hostile to the prosecution. PW.8, Dr. Nagarajrao, deposed about the condition of the victim, when she was admitted to the hospital. PW.9, Dr. Sangeeta, is also a doctor who treated the victim and given her opinion as per Exs.P11 and 12. PW.10, Andappa, police personnel who registered a case in Crime No.39/12 and dispatched the FIR to the jurisdictional Court as per Ex.P14. PW.11, Sharanappa, was working as police constable at Ghantikeri police station who has recorded the statement of the victim as per Ex.P7 and also assisted the investigation. PW.12, Shivayaa Hiremath, was the Sub-Inspector of Police who partially investigated the case and PW.13, Subhas who has received the information from the hospital about the admission of the victim Yasminbanu to the hospital, he visited the hospital to ascertain whether she was in a fit condition to give any statement. 10. Though the prosecution has relied upon the above evidence, but the evidence of PW.2 play a dominant role. PW.2 is the victim has specifically stated about the incident, she has stated that the accused/appellant is her husband, about 18 years back her marriage took place and they were blessed with two children. 10. Though the prosecution has relied upon the above evidence, but the evidence of PW.2 play a dominant role. PW.2 is the victim has specifically stated about the incident, she has stated that the accused/appellant is her husband, about 18 years back her marriage took place and they were blessed with two children. Her mother-in-law and other relatives were also residing in the neighboring house. She has also doing some beedi tying business. The accused was taking care of her and children and he was spending time happily with the children also. In this background, it is alleged that subsequently he started suspecting her fidelity and conduct and he has started quarrelling with her. On the date of the incident also, the accused was standing in front of the house with a plastic can in his hand, she questioned him but he has given an erosive answer and thereafter she went to sleep. Taking advantage that she was lying on the ground, the accused/appellant poured the acid on the face and other parts of the body of the victim. She started screaming for help, at that time her father-in-law and mother-in-law and others came and tried to extinguish the burn injuries on the body of the injured. Thereafter, they shifted her to the hospital. She suffered irritation due to acid burns, her hands were completely stiffened because of loss of skin. She has taken treatment for a period of one month in the KIMS hospital, she also suffered difficulty to her eyes as the acid drops were sprinkled on the eyes. The trial Court has also observed the disfiguration and scary on the body. She also stated that the accused has intended to kill her by suspecting her fidelity. 11. There is no much cross-examination except eliciting that the accused was looking after her with all love and affection. Though she has admitted in the cross-examination to that extent but she also reiterated that the accused/appellant had been suspecting her fidelity. On the previous day itself he has brought a plastic can containing acid, that shows that he has pre-planned to do something to his wife. Except putting suggestions that the accused had not done such acts, nothing worth has been elicited in order to totally discard the evidence of the victim lady. 12. On the previous day itself he has brought a plastic can containing acid, that shows that he has pre-planned to do something to his wife. Except putting suggestions that the accused had not done such acts, nothing worth has been elicited in order to totally discard the evidence of the victim lady. 12. PWs.3 to 6, have actually stated before the Court about the relationship between the accused and the victim and also that they were receiving information from the victim about the conduct of the accused that he was suspecting her loyalty and her fidelity. Therefore, on the date of the incident, he poured acid on her and ran away from the spot. Particularly, the mother of the appellant, Smt. Jubedabee, PW.4, she has specifically implicated the accused, stating that he was addicted to alcohol and he had been suspecting the conduct of the victim and in spite of repeated advice by this witness and others, he did not desist himself from suspecting his wife. She also stated as to what happened on the day of incident. She has deposed that, the victim came out of the house with screaming voice and she had sustained burn injuries on the face and other parts of the body. She also saw the accused running away from the house at that time, and the victim also disclosed about the conduct of the accused in pouring acid on her and causing such injuries. PW.8, the doctor has also stated that when she was admitted to the hospital on 17.07.2012, she was in talking condition and he has stated that the police have enquired him whether the victim is fit to give any statement, he told that the statement of the victim can be recorded and accordingly, in his presence the police have recorded the statement of the victim. Nothing has been elicited in the course of cross- examination but on the other hand, it is elicited in the cross-examination that before giving such information to the police to record the statement, the doctor has talked with her and victim has given coherent answers to his questions. PW.9, Dr. Sangeeta has given the details of the injuries sustained by the injured. It is a notable point in the evidence of doctor that she has referred the victim to the ENT specialist and treatment had been given. PW.9, Dr. Sangeeta has given the details of the injuries sustained by the injured. It is a notable point in the evidence of doctor that she has referred the victim to the ENT specialist and treatment had been given. She has also stated that due to the burns, the left side nasal bone was damaged. She has also stated that if such type of acid is poured on a person, there is a chances of death of the victim. She has also given indication to the police that considering the condition of the victim, the dying declaration has to be recorded. The police during the course of investigation have recovered the acid can in the house of the accused and conducted the mahazar. 13. Looking to the above said factual aspects invariably all the witnesses have supported the case of the prosecution, the doctor has opined that the injuries were fatal in nature and if such acid burns were not treated immediately, there was chance of death of said lady. The intention of the accused has to be gathered from the surrounding circumstances. It is not the defense of the accused that due to quarrelling between himself and the victim, due to sudden provocation, he has committed such an offence. It is evident from the records that even prior to the incident, he brought the acid to his house in a plastic can, that indicates the intention of the accused that he wanted to do something to his wife. Further, added to that the conduct of the accused that bringing acid to his house, he must have knowledge that if he pours that acid on his wife that may also be sufficient to cause her death. Therefore, the intention of the accused is clear that either he had intended to cause such a grievous-bodily injury sufficient to cause her death or to do away with her life. The intention should always be tested with the knowledge of the accused that the consequence of pouring the acid on his wife, which may cause the death of that lady that is sufficient to bring home the guilt of the accused under Section 307 of IPC. The intention should always be tested with the knowledge of the accused that the consequence of pouring the acid on his wife, which may cause the death of that lady that is sufficient to bring home the guilt of the accused under Section 307 of IPC. Therefore, I am of the opinion, the trial Court considering all the above said facts and circumstance of the case, has not committed any error in convicting the accused for the offence punishable under Section 307 of IPC. Hence, I do not find any strong reasons to interfere with the order passed by the trial Court. Therefore, the judgment of conviction passed by the trial Court deserves to be maintained. 14. Of course the learned counsel strongly contended before this Court that though the offence under Section 307 of IPC, punishable with imprisonment for life but discretion is given to the Courts to impose lesser punishment as the said provision empowers the Court to impose the punishment which may extend to life or up to 10 years and the accused shall also be liable for fine. 15. Looking to the above said facts and circumstances, the accused is also a young man leading life with his wife and two children are there. He has to take care of the said children and also his wife. There is no allegation whatsoever as argued by the learned counsel that for a period of 18 years the accused at any point of time ill-treated or harassed his wife. What information he gathered about the conduct of his wife is not forthcoming but still the fact remains that he was suspecting the conduct of his wife. Children are still young, they have to be taken care and the mother of the accused is also there. It is the responsibility of the accused to take care of them. More than four years he has been in jail. Therefore, considering the said facts and circumstances, and the accused/appellant is from the village background and he has to look after his children and mother for their livelihood work, all these things ought to have been taken into consideration by the trial Court while imposing the sentence. 16. More than four years he has been in jail. Therefore, considering the said facts and circumstances, and the accused/appellant is from the village background and he has to look after his children and mother for their livelihood work, all these things ought to have been taken into consideration by the trial Court while imposing the sentence. 16. Under the above facts and circumstances, I am of the opinion the sentence of imprisonment imposed by the trial Court, if it is reduced from seven years to six years, maintaining the remaining sentence of fine and default sentence, it would meet the ends of justice. Under the above said facts and circumstances, the sentence of imprisonment requires to be modified. 17. Hence, for the above said reasons, the following order; ORDER 1. The appeal is partly allowed. The judgment of conviction for the offence punishable under Section 307 of IPC as rendered by the trial Court is undisturbed and the same is maintained. 2. The sentence passed by the trial Court is modified to the extent that accused shall undergo rigorous imprisonment for a period of six years and to pay fine of Rs.10,000/- in default of payment of fine he shall undergo simple imprisonment for a period of one year as ordered by the trial Court. 3. With these observations, the appeal is disposed of.