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2020 DIGILAW 1359 (KAR)

Abdul Rahaman v. State Of Karnataka

2020-07-08

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar,J. - This appeal is filed by the accused No.2 challenging his conviction and order of sentence passed by the Fast Track-I, Dharwad in SC No.127/2010 dated 02.06.2012 wherein accused No.2 has been convicted for the offence punishable under Sections 341 R/w 34 of IPC and Section 307 of IPC. The appellant-accused No.2 has been convicted and sentenced to undergo simple imprisonment for a period of three days for the offence punishable under Section 341 r/w 34 of IPC and sentenced to undergo simple imprisonment for a period of 4 years and shall pay fine of Rs.5000/- in default to undergo simple imprisonment for a period of 15 days for the offence punishable under Section 307 of IPC. 2. The appellant/accused No.2 has been acquitted for the offence punishable under Sections 323, 504 and 506 R/w Section 34 of IPC. Accused Nos.1 to 3 are acquitted for the offence punishable under Sections 504, 323, 506 and Section 307 of IPC. 3. The factual matrix of the case is as under: On 12.11.1996 at 6.30 p.m. PW.4-complainant was going on his TATA Mobile vehicle to his dairy farm along with PW.5, PW.7 and CW.6. Accused Nos.1 to 3 with common intention came in a Maxi Cab bearing No.407 and over took the vehicle of the complainant and stopped their vehicle in front of the complainant's vehicle at Navalur Bridge, P.B.Road, Tadasinakoppa by wrongfully restraining them and thereafter accused Nos.1 to 3 got down from their vehicle and abused the complainant by using filthy language and assaulted the complainant and other with hands and iron rods and accused No.2 assaulted the complainant with iron rod with an intention to commit murder and threatened to do away their life. Thereafter, according to the complainant, they came to the Police Station along with accused and vehicle and gave complaint as per Ex.P.5. 4. Pw.8 is the Investigating Officer who after investigation filed the charge sheet. The prosecution in all examined eight witnesses i.e. PW1 to PW8 and got marked nine documents as EX.P1 to Ex.P9 and M.O.s 1 and 2. 5. The accused were examined under 313 of Cr.P.C. After hearing the arguments on both the sides, the trial Court framed the points for consideration and passed the impugned judgment and order of sentence. The prosecution in all examined eight witnesses i.e. PW1 to PW8 and got marked nine documents as EX.P1 to Ex.P9 and M.O.s 1 and 2. 5. The accused were examined under 313 of Cr.P.C. After hearing the arguments on both the sides, the trial Court framed the points for consideration and passed the impugned judgment and order of sentence. The appellant who is the accused No.2 has challenged his conviction for the offence punishable under Section 341 and 307 of IPC on the following grounds. a. The learned Presiding Officer of the Fast Track Court No.1, Dharwad has committed a serious error in passing the order finding the appellant-accused No.2 as guilty, only on the basis of evidence of highly interested evidence which is contradictory and unreliable and artificial. b. The prosecution has suppressed the material evidence and has not come with true version of the incident. c. The Trial Court has committed a serious error in holding that the prosecution has proved its case beyond all reasonable doubt. d. The Trial Court would have disbelieved the testimony of interested witnesses as there is no corroboration by independent witnesses. e. The prosecution has not proved that the injury No.1 is grievous in nature and the Xray report is not produced and marked and the doctor who has taken X-ray has not been examined. f. The Trial Court has failed to appreciate that the injuries are not sufficient to cause the death or endanger to cause death of the injured person. g. The trial was concluded after 16 years and the evidence of the prosecution witnesses are highly interested and the PW.4 is the son of the retired Police Officer and at the time of incident his father was working as CPI at Dharwad and other places. h. There is no record and case sheet pertaining to PW.4 regarding treatment taken by him for his injury on the nose. i. The sentence imposed on the appellant is too harsh and dis-appropriate. With these points the appellant/accused No.2 prays to allow the appeal and set aside his conviction. 6. The learned counsel appearing for appellantaccused No.2 has argued that PWs.4 to 7 are interested witnesses and their evidence cannot be relied on. In the complaint, the name of PWs.5 and 7 is not mentioned and the person who's name is mentioned as Shivanand Nagannavar-CW.6 has not been examined. 6. The learned counsel appearing for appellantaccused No.2 has argued that PWs.4 to 7 are interested witnesses and their evidence cannot be relied on. In the complaint, the name of PWs.5 and 7 is not mentioned and the person who's name is mentioned as Shivanand Nagannavar-CW.6 has not been examined. Therefore, the evidence of PW.5 to PW.7 is not reliable. He further argued that PW.6 is the friend of PW.4 and PW.7 and he is the interested witness and therefore his testimony cannot be believed. The prosecution has not produced any X-ray or X-ray report to show that the injury on the nose of PW.4 is a grievous injury. 7. He further argued that the accused and injured are unknown to each other and the alleged incident has happened on the spur of the movement and there was no intention on the part of the appellant-accused No.2 to commit the murder of the PW.4. The injury sustained by PW.4 is not on vital part of the body. He further submitted that at the most offence under Section 324 is attracted and the offence under Section 307 is not attracted. He further argued that there are material contradictions in the evidence of PW.4 to PW.7. The witness to spot mahazer Ex.P.8 and seizer Mahazer Ex.P.7 are not examined and the same are not proved by the prosecution. He further argued that PW.4 and PW.7 are sons of a Police Officer who was working at the time of incident in Dharwad and therefore, a false case has been registered against the appellant-accused No.2. 8. On the contra, the learned HCGP has argued that the evidence of PW.4 is corroborated by the evidence of PW.6 and PW.7 and the medical evidence of PW.2. He further submitted that the assault is made on the face of the injured with deadly weapon material object No.1- iron rod with an intention to cause death and therefore, offence under Section 307 is attracted. He further submitted that the trial Court has rightly appreciated the evidence on record and rightly convicted the appellant-accused No.2 for the offence punishable under Section 341 and 307 of IPC. He has supported the reasons assigned by the trial Court. 9. On perusing the grounds urged and the arguments advanced by both the side, the following points arises for my consideration: 1. He has supported the reasons assigned by the trial Court. 9. On perusing the grounds urged and the arguments advanced by both the side, the following points arises for my consideration: 1. Whether the trial Court has committed an error in convicting the appellant-accused No.2 for the offence punishable under Section 341 of IPC? 2. Whether the trial Court has committed an error in convicting the appellant-accused No.2 for the offence punishable under Section 307 of IPC? 10. My answer to the above points are as under Point No.1-in the negative Point No.2- Partly in the affirmative holding that the appellant-accused No.2 has committed an offence punishable under Section 324 of IPC for the following reasons:- It is the evidence of PW.4 that on 12.11.1996, he along with PW.5, PW.7 and CW.6 were going on their TATA Mobile vehicle to perform Deepavali pooja, at about 6.00 - 6.30 p.m. when they were between Gandhinagar to Tadasinakoppa Cross on NH-4, the Tempo of the accused over took their vehicle and subsequently again stopped for alightening and boarding passengers and subsequently it over took the vehicle of the PW.4 and the said thing was happened two to three times and when PW-4 gave a hand signal after Navalur bridge to take right turn at that time the accused drove their Tempo bearing No.KA-25-7928 and parked in front of the vehicle of the PW.4 and wrongfully restrained them from moving forward. The accused Nos.1 to 3 were in the said Tempo. The evidence of PWs.5 to 7 corroborate the said evidence of PW.4 regarding wrongfully restraining the PW.4 from moving forward. 11. The Trial Court by the impugned Judgment has convicted the appellant-accused No.2 and also accused Nos.1 and 3 for the offence punishable under Section 341 R/w Section 34 of IPC and sentenced to undergo imprisonment for a period of three days and given the benefit of setoff. The accused Nos.1 and 3 have not challenged the said finding. 12. It is the evidence of the PW.4 that at that time accused No.3 who got down from the Tempo has assaulted on the right cheek of the PW.4 with fist and accused No.2 assaulted with iron rod on his nose and he has also sustained injury on his left index finger when he put forward his hand to save himself. He has identified the said rod-M.O.1. 13. He has identified the said rod-M.O.1. 13. Pw.6 who was traveling in the Tempo of the accused has deposed that the cleaner of the Tempo assaulted on the face with fist and the driver assaulted with iron rod on the face of the driver of TATA Mobile vehicle who is PW.4. 14. In the cross examination of PW.6, he has deposed that it is the accused No.2 who has assaulted with rod on the nose of PW.4. PW.7 also deposed that accused No.2 took rod from the accused No.3 and assaulted his brother PW.4 on his nose. Merely because PW.6 has admitted that he is the friend of PW.4, their testimony cannot be discarded. 15. The learned counsel appearing for the appellantaccused No.2 argued that the name of PWs.5 and 7 are not mentioned in the complaint-Ex.P.5 and therefore, they were not present at the time of incident in the TATA Mobile vehicle of PW.4, merely because their name is not mentioned in the complaint is not a ground to disbelieve their evidence. It is settled law that the complaint is not an encyclopedia to contain each and every minute details of the incident. 16. Pw.6 was the driver in the Tempo of accused who at the time of incident got down from the Tempo and witness the incident. The presence of PW.6 is natural as he is traveling in the Tempo of accused No.2. Therefore, the evidence of PW.4 coupled with the evidence of PW.6 and PW.7 establishes that the accused No.2 assaulted PW.4 on his nose with material object No.1-iron rod (pipe). 17. The learned counsel appearing for the appellant has contended that, there are no ingredients to attract the offence punishable under Section 307 as the accused and P.W.4 are unknown to each other and there was no intention of the accused No.2 to commit murder of P.W.4 and the incident had occurred on the spur of the moment. 18. The essential ingredients required to be proved in the case of an offence punishable under Section 307 of IPC are as follows: (i) that the death of a human being was attempted. 18. The essential ingredients required to be proved in the case of an offence punishable under Section 307 of IPC are as follows: (i) that the death of a human being was attempted. (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 19. In the case of Gangadhar Behidar Vs. State of Orissa, (1995) CriLJ 2441 page 2441, the Hon'ble Apex Court has observed as under: "10. The scope of Section 307, IPC and its applicability came up for consideration in Om Parkash v. State of Punjab. After taking note of apparent divergent views expressed by the Bombay High Court in the matter, the Supreme Court in paragraph 9 of the judgment observed as follows: "...On a parity of reasoning, a person commits an offence under Section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 100. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence' in Section 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence'. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence' in Section 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence'. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder' in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression 'by that act' does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time." 20. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in Section 307 of IPC. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 21. The injured P.W.4 and the accused did not know each other prior to the incident. The quarrel stated between them regarding overtaking of the vehicle. The accused No.2 who is the appellant herein has assaulted with iron rod (pipe) on the nose of the PW.4 and caused injury. On looking to the said aspect, it is clear that there was no intention on the part of the appellant-accused No.2 to cause the death of PW.4. The injury inflicted by the appellant/accused No.2 did not cut any vital organ of the injured. On looking to the facts and circumstances of the case and the nature of injury sustained by PW.4, it is clear that there is no intention or knowledge on the part of the appellant/accused No.2 to commit the murder of PW.4. The act of the accused No.2 is only to cause injury to PW.4. Therefore, the ingredients of Section 307 of IPC are not attracted. 22. An injury has been caused on the nose of PW.4 with M.O.1 i.e. iron rod (pipe). The act of the accused No.2 is only to cause injury to PW.4. Therefore, the ingredients of Section 307 of IPC are not attracted. 22. An injury has been caused on the nose of PW.4 with M.O.1 i.e. iron rod (pipe). Whether the said injury is a simple or grievous has to be ascertained. Ex.P.2 is the wound certificate of PW.4 issued by Dr. S.H.Soratur (PW.2). In the said wound certificate (Ex.P.2), there are two injuries. The Doctor has opined that injury No.1 is grievous in nature and injury No.2 is simple in nature. PW.2 i.e. Doctor in his evidence has stated that x-ray No.1024 dated 13.11.1996 has been taken and on the basis of that, he opined that injury No.1 is grievous as there is a fracture of nasal bone. The said x-ray No.1024 dated 13.11.1996 or the report of the Radiologist has not been produced. The learned counsel for the appellant has vehemently contended that the production of xray and the report of the Radiologist are essential to come to a conclusion that the injuries are grievous or simple in nature and if it is not produced, the Court has to consider the injuries as simple injuries. This Court in Criminal Appeal No.3721/2010 clubbed with Criminal Appeal No.3611/2013 (Kalaburgi Bench) dated 10.09.2015 in the case of Chanabasappa S/o. Shivanna Vs. The State of Karntaka, at paragraph Nos.29 to 32 has observed thus: "29. In the present case, the doctor has opined that there was fracture on the left elbow joint and it was grievous in nature. He has opined on the basis of the x-ray report stated to have been sent to him by the District Govt. Hospital, Bijapur, where the injured- Basavaraj was treated as in-patient. No material is placed on record to evidence the treatment given to Mr.Basavaraj in Govt. Hospital at Bijapur except making a reference about x-ray being taken. Production of x-ray was absolutely required to substantiate his opinion that the injured had sustained grievous injury. 30. What is the effect of nonproduction of the x-ray report has been dealt by a Division Bench of this court in the case of STATE OF KARNATAKA Vs. SHEENAPPA GOWDA, (2011) 4 KCCR 2759 . As per the facts of the said case, PW4 had sustained a grievous injury; x-ray had been taken to confirm that he had sustained a fracture. SHEENAPPA GOWDA, (2011) 4 KCCR 2759 . As per the facts of the said case, PW4 had sustained a grievous injury; x-ray had been taken to confirm that he had sustained a fracture. It is held that 'one cannot say that the injury would be grievous injury in the absence of x-ray report.' In the present case, the opinion of PW8 can only be said to be given on clinical examination. It is well settled that in criminal cases, the burden of proof is always on the prosecution and that burden would not shift unless there is a presumption or defence is taken as enumerated in the Indian Penal Code. In the present case, the defence of the accused is one of total denial of the allegations leveled. 31. It is clear from the evidence of PW.8-Dr.Yashwant Gouda that he has described the injury noticed by him as grievous injury. When the prosecution has alleged that the injured had sustained fracture of left elbow and the same is supported by x-ray report, non-production of x-ray report would not help the prosecution to contend that it was grievous in nature. The evidence of PW.8 would only show that injured had suffered injuries as described in Ex.P3. Unless the x-ray report is produced for confirmation of the fracture opined by the doctor on clinical examination, it cannot be said that the accused had caused grievous injury, that is fracture. 32. PW.8-Dr.Yashwant Gouda has specifically admitted that he received the xray report from Bijapur Govt. Hospital and does not remember whether he intimated the police about receipt of the report. Apart from this, he issued injury certificate almost six months after the injured was examined. Taking into consideration all these facts, this court is of the opinion that the prosecution has failed to prove that the injury i.e., fracture of left elbow sustained by Basavaraj was grievous in nature so as to punish the accused for the offence punishable under Section 326, I.P.C. Therefore the injuries found in Ex.P3 issued by PW8 will have to be construed as simple injuries punishable under Section 324, I.P.C. and not 326, I.P.C." 23. Pw.2 Doctor in his cross-examination has admitted that x-ray report has not been produced and he may produce the x-ray report. The prosecution has not made any efforts to get production of the said xray and x-ray report of PW.4. Pw.2 Doctor in his cross-examination has admitted that x-ray report has not been produced and he may produce the x-ray report. The prosecution has not made any efforts to get production of the said xray and x-ray report of PW.4. By taking into consideration all these facts, this Court is of the opinion that the prosecution has failed to prove that the injury i.e. fracture of nasal bone sustained by PW.4 was grievous in nature so as to punish the appellant/accused No.2 for the offence punishable under Section 326 of IPC. Therefore, the injuries found in Ex.P.2 issued by PW.2 will have to be construed as simple injuries punishable under Section 324 of IPC. 24. There is no charge for the offence punishable under Section 324 of IPC. The offence punishable under Section 324 of IPC is a minor offence to that of offence punishable under Section 307 of IPC. Therefore, in the absence of charge also, the appellant/accused be convicted for the offence punishable under Section 324 of IPC as per the provision contained in Section 222 of Cr.P.C. 25. The punishment provided for the offence punishable under Section 324 of IPC is with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The incident is of the year 1996. The Trial has taken place after 16 years of the incident. Now 24 years have been elapsed. Therefore, the appellant/accused be sentenced to undergo imprisonment for the period of which he was already in the judicial custody. The appellant/accused No.2 was in judicial custody for a period approximately about 51 days. Accordingly, point No.1 is answered in the negative, and point No.2 is answered partly in the affirmative, holding that the appellant/accused No.2 has committed offence punishable under Section 324 of IPC. Accordingly, I pass the following: ORDER In the result, the appeal is allowed in-part. The Judgment of conviction and order of sentence passed against the appellant/accused No.2 for the offence punishable under Sections 341 r/w Section 34 of IPC is affirmed. The appellant/accused No.2 is acquitted for the offence punishable under Section 307 of IPC. Accordingly, I pass the following: ORDER In the result, the appeal is allowed in-part. The Judgment of conviction and order of sentence passed against the appellant/accused No.2 for the offence punishable under Sections 341 r/w Section 34 of IPC is affirmed. The appellant/accused No.2 is acquitted for the offence punishable under Section 307 of IPC. The appellant/accused No.2 is held guilty of offence punishable under Section 324 of IPC and sentenced to undergo simple imprisonment for the period already in judicial custody (approximately 51 days) and sentenced to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for 15 days. The appellant/accused No.2 shall deposit the fine amount before 30th September, 2020.