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2020 DIGILAW 746 (KAR)

Zubair, S/o. Abdul Khader v. State

2020-03-17

K.N.PHANEENDRA, S.R.KRISHNA KUMAR

body2020
: The appellant, who is the sole accused in SC No.143/2011 on the file of the I Addl. District and Sessions Judge, D.K. Mangaluru, has preferred this appeal calling in question the Judgment of conviction and sentence passed against him for the offence punishable under section 302 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for one year. The entire fine amount was ordered to be paid to PW1 Mohammad Shabeer, who is the brother of the deceased. 2. Before adverting to the brief factual matrix of the case and the evidence on record, we would like to have the brief facts of the case as which revealed from the trial court records: It is the case of the prosecution that the accused Zubair, the appellant herein and the deceased Mohammad Sheriff belonged to the same village i.e., Nandavar Sajipa Munnur village, Bantwal Taluk. It is the further case of the prosecution that the accused and the deceased were having some previous ill-will and hatredness against each other. In this context, on 23.06.2011 in the afternoon at about 12.15 p.m., both of them have picked up quarrel with each other for some time and thereafter, the accused went near a shop, brought two soda bottles, broke the same and with one broken bottle having sharp edges, assaulted on the left side neck of the deceased and caused severe fatal injury. Though the deceased was shifted to the Hospital i.e., first to Sowmyaji Hospital and then to Bantwal Government Hospital, but he succumbed to the injuries later in the said Government Hospital. The brother of the deceased PW1 Mohammad Shabeer has lodged a police report narrating the above said factual aspects as per Ex.P1, on which basis the police have registered a case in Crime No.116/2011 and investigated the matter and submitted the charge sheet for the offence punishable under section 302 of IPC. The accused was also arrested in connection with this case on 23.06.2011. During the course of the trial, it appears he was released on bail on 06.01.2016. Thereafter, the Trial Court has rendered the Judgment on 05.02.2015 and since then, he has been in judicial custody. In all, the accused has been in judicial custody for a period of 5 years 7 months. 3. During the course of the trial, it appears he was released on bail on 06.01.2016. Thereafter, the Trial Court has rendered the Judgment on 05.02.2015 and since then, he has been in judicial custody. In all, the accused has been in judicial custody for a period of 5 years 7 months. 3. After committal proceedings, the Trial Court has framed charges against him for the offence punishable under section 302 of IPC. As the accused pleaded not guilty, he was ordered to be tried. The prosecution in order to bring home the guilt of the accused, examined as many as 16 witnesses PWs.1 to 16 and got marked Exhibits P1 to P17 and Material Objects Mos.1 to 8. 4. The accused did not choose to lead any evidence on his side even after his examination before the court u/s.313 of Cr.PC. During the course of evidence before the Trial Court, it appears, no specific defence has been taken by the accused except total denial of the entire case of the prosecution. 5. Before adverting to the material evidence on record for appreciation in this case, we will just have the cursory look at the evidence of the prosecution witnesses. 6. PWs.1 & 2 Mohammad Shabeer and Zaheer Abas are the eyewitnesses to the incident. PW3 Ismail is the witness to the Spot Mahazar Ex.P2 under which the Material Objects 1, 3 to 5 have been seized by the Police. The said witness, even to that extent, has turned hostile and not supported the case of the prosecution to any extent. PW4 Ahmmed is also examined to establish the seizure of same Material Objects Mos.1, 3 to 5 under Ex.P2. He has also not supported the case. PW5 Sulaiman is another eyewitness, who turned hostile to the case of the prosecution. Even in the course of cross examination, nothing worth has been elicited from him to corroborate the evidence of other eyewitnesses. PW6 Dr.Surendranath, is the person who conducted the Post Mortem examination on the body of the deceased and issued Post Mortem report as per Ex.P6 on the request of the Investigating Officer. PW7 Yunas, is alleged to be another eyewitness, but he has also not supported the case of the prosecution and his contradicted portion is marked at Ex.P8. PW8 Abdul Rahiman is examined to prove the inquest mahazar drawn by the Investigating Officer as per Ex.P9. PW7 Yunas, is alleged to be another eyewitness, but he has also not supported the case of the prosecution and his contradicted portion is marked at Ex.P8. PW8 Abdul Rahiman is examined to prove the inquest mahazar drawn by the Investigating Officer as per Ex.P9. PW9 Sahul Hameed is signatory to Ex.P10 which is the seizure mahazar regarding seizure of soda bottles at the instance of the accused marked at Mos.1 & 2, but he has also not supported the case of the prosecution. Likewise, PW10 Yusuf Abdul Rahiman has deposed. PW11 Dr.Geethalaxmi examined the material objects sent to FSL and she has given her report as per Exs.P11, P12 and P13. PW12 Kepu Gowda, is the person received a report from PW1, registered a case in Crime No.116/2011 and dispatched the FIR to the jurisdictional Magistrate as per Ex.P14. PW13 Anil S. Kulkarni is the Investigating Officer who initially conducted the investigation and thereafter handed over the same to superior officer and finally he has filed the charge sheet. PW14 Chandrashekar is the Police Constable who carried the FIR to the court. PW15 K.Nanjunde Gowda is the Police Officer who conducted part of the investigation, recorded the statements of some of the witnesses and handed over the investigation to PW16. PW16 Vivekananda, is the Investigation Officer completed the investigation and filed the charge sheet. On the basis of the above said materials available on record, the Trial Court has relied upon and believed the evidence of the eyewitnesses and the recovery of the incriminating articles at the instance of the accused and arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt. Accordingly, the Trial Court has convicted and sentenced the accused as noted supra. 7. On reevaluation of the entire evidence on record, the learned counsel for the appellant has not disputed before this court with regard to the homicidal death of the deceased. Even otherwise, the inquest report conducted by the Investigating Officer and also the Post Mortem examination report submitted by PW6 as per Ex.P6 clearly reveal that the deceased has sustained severe injury to his left neck and he died due to that particular injury. It is not the case of the accused that, the deceased died due to any accidental or suicidal death or natural death. It is not the case of the accused that, the deceased died due to any accidental or suicidal death or natural death. In the absence of such materials on record, there is no difficulty for this court to hold that the prosecution has proved homicidal death of the deceased. Merely because the homicidal death of the deceased is established, it is not sufficient that the accused is the perpetrator of the crime. In this context, the eyewitnesses version has to be taken into consideration. 8. The learned counsel though argued in detail with regard to the recovery of incriminating articles at the instance of the accused being not proved, but ultimately he concentrated on the legal aspect that even if the court comes to the conclusion that the prosecution has proved the act of the accused as pleaded by it, the offence may not fall under the provisions of Section 302 of IPC. At the most, it may fall u/s.304 Part I or II of IPC. Therefore, in our opinion there is no much to be discussed by us with regard to the merits of the case with reference to the incident being happened and assault by the accused, injured sustaining injuries and died in the Hospital later. Therefore, we confine ourselves to consider primarily whether the prosecution has proved its case beyond reasonable doubt with regard to the act of the accused and thereafter we will consider whether the said act falls under the provision u/s.302 of IPC or otherwise. 9. The prosecution mainly relied upon the evidence of the eyewitnesses. PWs.1 and 2 are the eyewitnesses to the incident. PW1 is not only an eyewitness, but also is the brother of the deceased and he lodged a report narrating the factual aspects. He has stated that on the date of the incident i.e., on 23.06.2011, he came back to the house after attending his school work as he was working as an Arabic Teacher in Kalladka Madarasa. PW1 is not only an eyewitness, but also is the brother of the deceased and he lodged a report narrating the factual aspects. He has stated that on the date of the incident i.e., on 23.06.2011, he came back to the house after attending his school work as he was working as an Arabic Teacher in Kalladka Madarasa. After coming back from school he went to Masjid to offer prayer and reached Nandavara junction, at that time lot of people gathered in front of Badriya Hotel and his deceased brother was coming from Badriya hotel side and he enquired his deceased brother as to why the people were assembled in that place and his deceased brother informed that there was a quarrel between himself and accused due to previous illwill. He has also told that, when PW1 and the deceased were talking with each other, the accused suddenly came from back side with two bottles which he broke by dashing against each other and came from back side of the deceased and assaulted on the left side neck of the deceased which caused severe bleeding injury, suddenly, the deceased fell down. At that time, another person PW2 also came there, and both of them shifted the deceased to Bantwal Hospital, by the time, they reach the Hospital, the deceased was already succumbed to the injuries and the doctor declared him as dead. Thereafter, PW1 went to the Police Station and lodged a complaint. During the course of cross examination, of course some contradictions and omissions are elicited, with regard to the time and place of previous galata, motive etc., but on overall looking into the cross examination, the core of the prosecution that the accused assaulted the deceased and the deceased fell down and thereafter shifted to the Hospital has not been disturbed. 10. Likewise, in the course of the evidence of PW2 driver of an autorickshaw, he has also similarly stated that on that day, he came in his Autorickshaw from Panemangaluru junction to Nandavara to drop the passengers. At that time, he has also saw the deceased was talking with his brother (PW1), and also saw that the accused came from backside and assaulted the deceased with broken bottle on the left side neck of the deceased which caused severe injury and deceased succumbed to the injuries later. At that time, he has also saw the deceased was talking with his brother (PW1), and also saw that the accused came from backside and assaulted the deceased with broken bottle on the left side neck of the deceased which caused severe injury and deceased succumbed to the injuries later. Even before he was admitted to the Hospital at Bantwal, he was declared as dead. Therefore, no much elucidation of discrepancy in the course of cross examination though the other eyewitnesses i.e., PWs.5 & 7 turned hostile, but these two witnesses i.e., PWs.1 & 2 have stubbornly stated about the incident, sustaining of the injuries by the deceased and the deceased succumbed to the injuries. There is no necessity for us to go in detail and to deal with the evidence with reference to the recovery and connection of the recovered articles with that of the crime, because there is no much dispute so far as the incident being happened is concerned, when eyewitnesses version is available to the court. Therefore, we will now concentrate on the legal aspect with reference to above said facts to find out whether it will fall u/s.302 of IPC or under any of the other provisions of IPC. 11. Learned Senior counsel Sri Sandesh Chouta, appearing for the appellant strenuously brought to our notice the contents of Ex.P1, wherein it is stated that PW1 has narrated about the incident, that the accused and the deceased earlier to PW1 met his deceased brother, there was a quarrel with each other, and they have virtually rolled on the road and thereafter, it appears, the people at large have separated them once. Even in the course of examination in chief, it is evident that, just prior to the said incident, a quarrel had taken place between the accused and the deceased. No witnesses have stated nor the prosecution has placed any material that the deceased was only a silent spectator and the accused is the only person who abused him, assaulted him. The role of the deceased has not been specifically elucidated. The quarrel itself presupposes that there should be some acts between accused and the deceased. Therefore, in the said circumstances, considering the natural course of events of human conduct, it presupposes that the accused and the deceased quarreled with each other, even accepting the evidence of PWs.1 & 2 as it is. 12. The quarrel itself presupposes that there should be some acts between accused and the deceased. Therefore, in the said circumstances, considering the natural course of events of human conduct, it presupposes that the accused and the deceased quarreled with each other, even accepting the evidence of PWs.1 & 2 as it is. 12. Of course, there is no evidence to show that there was any gap between ending of the first quarrel and the accused bringing soda bottles and assaulting the deceased. The incident happened i.e., the quarrel between the accused and the deceased and the accused stabbing the deceased on his neck at the same place and it appears, the previous quarrel and the present incident which took place in the presence of PWs.1 & 2 are simultaneously with each other. There is no time gap established before the court by the prosecution. Though the witnesses have not stated nor the prosecution has examined any other witnesses to show as to what exactly the earlier quarrel taken place between the accused and the deceased prior to the accused stabbing the deceased. Therefore, it goes without saying that the quarrel between the accused and the deceased must have reached to such a climax which prompted the accused in a heat of passion to go and bring two bottles, broke the same and assault the deceased. Even in the absence of any specific evidence before the court but on the basis of the surrounding circumstance, the court can infer that, such incident must had happened, considering the nature of allegations and the conduct of the deceased as well as the accused. Therefore, it clearly goes to show that the assault by the accused is nothing but the continuation of the quarrel between the accused and the deceased who has suddenly, immediately after the quarrel without there being any gap of time, the accused might have went to the nearest shop, brought two soda bottles from the same hotel situated just in front of the place of the incident which took place and assaulted. Therefore, when there is no time gap between the earlier incident and the assault by the accused, so as to come to the conclusion that there was a cooling period and thereafter also, the accused intentionally brought the said bottles to kill the deceased. Therefore, when there is no time gap between the earlier incident and the assault by the accused, so as to come to the conclusion that there was a cooling period and thereafter also, the accused intentionally brought the said bottles to kill the deceased. If the overt act of the accused is taken into consideration that even after the quarrel, may be due to sudden provocation or heat of passion or sudden quarrel which persisted in his mind which made him to bring the bottle and broke the same and assault the deceased. The act of the accused that he brought such bottle as a weapon and broke the same and with the sharp edge of the bottle, he hit very deeply and strongly on the neck of the deceased so as to cause severe injury on the neck of the deceased. 13. PW6 Dr.Surendranath, in fact who gave the Post Mortem examination report has categorically stated that the deceased had suffered a lacerated wound of 2 inch deep and 2 inch wide and 2 inch length on the over side of upper neck below left ear which cut off the left carotid artery and left jugular veins. Therefore, depth of the injury was so strong enough to cut the main artery vessels which carry blood to the brain and bring back the blood to the heart. When such a situation is there, it cannot be said that the accused did not hit the deceased with any intention to kill him. Therefore, the intention of the accused can very well be gathered that, he has taken a deadly weapon and prepared the said weapon so as to assault the deceased and the blow was so severe and strong enough to cause such a bodily injury which is sufficient or likely to cause the death of the deceased. Therefore, we are of the opinion that the accused has really intended to kill the deceased, therefore, he has selected such portion of the body of the deceased to cause such bodily injury which in our opinion is sufficient to cause the death of a person even in the ordinary course. 14. Though the learned senior counsel contended that minimum medical treatment was not given to the deceased. 14. Though the learned senior counsel contended that minimum medical treatment was not given to the deceased. If at all he was given treatment, there would have been chances of survival of the deceased, but without any materials on record, we cannot imagine such things. 15. Be that as it may, the fact remains that, the accused had intended to kill the deceased but still the court has to examine whether such intention of the accused and the act of the accused falls under any of the exceptions to Section 300 of IPC. Section 300 read with Section 299 of IPC says that, culpable homicide amounting to murder, but if it falls under exception of the definition of Section 300 of IPC, then it will not amount to culpable homicide amounting to murder, and then it will fall u/s.304 part I or II of IPC, if there was no intention of the accused, but it was only a knowledge that the act may cause or injury would cause the death, then the offence u/s.304 Part II of IPC would attract. We are of the consistent considered opinion that the act of the accused would not fall u/s.304 Part II of IPC. 16. Learned Senior counsel concentrate his arguments to exception (4) to Section 300 of IPC. The said provision reads thus: “300. Murder–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – Secondly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – Thirdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – Fourthly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 17. In order to establish this aspect, the learned counsel contended that, there was no premeditation. In order to establish this aspect, the learned counsel contended that, there was no premeditation. There was absolutely no preparation by the accused to cause such bodily injury to the deceased and he has also submitted that the accused has not acted in a cruel manner or taken undue advantage of the situation and it was preceded by a sudden fight and cause of the sudden quarrel in a heat of passion, the accused might have done that. 18. Even again on reevaluation of the entire factual matrix of the case, we have observed that the prosecution itself has produced sufficient materials to show that there was assault on the deceased, there was sudden fight and quarrel between the deceased and the accused, perhaps may be due to persistence of that heat of passion, due to sudden quarrel, the accused might have assaulted the deceased. He has also not acted in a cruel manner as rightly contended by the learned counsel because though he had opportunity to hit the deceased more than once, but he has dealt only one blow on the deceased. Undue advantage was also appears to have not been taken because in spite of so many persons present, he has assaulted the deceased, it shows that it should be due to some persistence of sudden quarrel and heat of passion otherwise leaving that particular circumstance, he would have selected a separate time for the purpose of assaulting or killing the deceased. 19. Even at the cost of repetition, we may say that at the time of quarrel, it is not the case of the prosecution that any one of the parties had any deadly weapons in their hands, therefore, suddenly after the incident, the accused took out the bottles which were available in a shop near the spot itself. Therefore, it can be very well said that it must be due to sudden quarrel and sudden fight and on a heat of passion, the accused must have done that particular act. 20. With these references and reasons, we conclude that the offence committed by the accused does not fall u/s.302 of IPC, but it fall u/s.304 Part I of the IPC. Though the learned Senior counsel submitted many number of decisions, in order to enunciate the above said principle, but we feel it just and necessary not to over burden this Judgment by citing the decisions. 21. Though the learned Senior counsel submitted many number of decisions, in order to enunciate the above said principle, but we feel it just and necessary not to over burden this Judgment by citing the decisions. 21. Now, the question that arises is what would be the reasonable punishment for the offence committed by the accused. 22. Of course, the learned counsel contended that the accused is a married person and he has got wife with two children and ailing mother. He is the only bread earner of the family and he has to take care the entire responsibility of the family and he has no bad antecedents and he is not a antisocial element at any point of time and no other case is pending against him except this. The above said submission is not controverted by the other side. Therefore, in our opinion, sentencing the accused to undergo rigorous imprisonment for a period of 8 years and to pay a fine of Rs.1 lakh with default sentence would meet the ends of justice. With this observation, we proceed to pass the following: ORDER The appeal is partly allowed. The Judgment of conviction and sentence passed by the Trial Court against the accused for the offence punishable under section 302 of IPC is hereby set aside. However, the accused is convicted for the offence punishable under section 304 Part I of IPC and he is sentenced to undergo rigorous imprisonment for a period of 8 years and to pay a fine of Rs.1 lakh with default sentence to undergo simple imprisonment for another two years. The accused is entitled for set of as provided u/s.428 of Cr.PC. Out of the fine amount if deposited, a sum of Rs.50,000/(Rupees Fifty thousand only) shall be paid to the parents and if the parents are not available to be paid, then it shall be paid to PW1, the brother of the deceased after due identification and acknowledgement.