IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY or JULY 20j1é:'_j ._
BEFORE
THE HON'BLE MR JUSTICE V.
CRIMINAL APPEALS Nogégszzbasi " ' _ j
BETWEEN: A A A A I A
S/O. MOHAMMED HUssA1N,____'
AGED ABOUT 24 . "
WORKER IN FRUIT N1ANDY;._
RESIDENT OF OPPOSITE;
:$EM§L$; A
ARIE§»_IKER_E',¥[_--, ' _
KARNATAKA S"i'A»'§E.~.v
PRESENTLY ,1NV'CtiST0}'§f{
AT_HASSAN.._ ' ....APPELLANT
" . '(EASY :3R1.'vI--VENKA*1"ESH C. SHARMA, ADVOCATE)
A STA':If.fi};OF' KARNATAKA.
BY ITS RURAL POLICE STATION.
ARSIIEERE. ....RESPONDENT
” , (33? SR1 B. RAJA SUBRAHMANYA BHAT, HCGP}
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 CR.F’.C BY THE ADVOCATE FOR THE
” APPELLANT/ ACCUSED AGAINST THE JUDGMENT DATED
8/ 2/ 2005 PASSED BY THE ADDITIONAL SESSIONS
JUDGE AND PRESIDING OFFICER. FAST TRACK COURT-
F
/&_*,-“‘/)
II, HASSAN, IN S.C.NO. 1%)/2003, CONVICTING THE
APPELLANT/ ACCUSED FOR THE VQFFENCES
PUNISHABLE UNDER SECTIONS 324 & 304 PART”I4e:’O’F. IPC
AND SENTENCING HEM TO UNDERGO RI
AND TO PAY FENE OF Rs.1,000/~, 1.D. OE “PA¥1.viE’I\iT_jlo£-“_
FINE, TO UNDERGO s.I., FOR 3 MoNtr’1:’lS “-FOR THE
OFFENCE PUNISHAELE UNDER’ ‘:3EcTIQN_i’32A *IPCT A
AND FURTHER SENTENCING HIM fUNDERoo leg.-FOR
5 YEARS AND TO PAY FINE op Rs.2,o0o,(-,-~ PAY
FINE, UNDERGO s.1. FOR.»i’6._MONTIflS FoR”IfHE_ OEFENCE
PUNISHABLE UNDER SECTION 304 .PAR_T”-,1 oifipc. ALL
THE SUBSTARTIVE SENTENCES .ARE’i»5EREEy? ORDERED
“DO RUN coNcURRE.NzTLY.’..lN’~’– -.
THIS CRIMINAL»APi~5EAi}le?Il_~r§oM1NG ON FOR
DICTATING JUDGMENT THE COURT
DELIVERED T:’j’IEiE_FQ_LL()Vy{ING:.}_–,__ ~ A
De M E N T
Vappellant’/’~.ajée.11’sed took his trial before the
learned Jadée, Fast Track Court–Il, Hassan, in
for the offences punishable under
302 of IPC on the allegation that on
at about 11.00 a.m, he intentionally
U eornmitted murder of deceased Hussain by stabbing him
it a knife on his chest in the land owned by PW.7
–[situated near Kendadagudi, Arsikere Town.
,2) The appellant pleaded not the
charges levelled against him and
After the prosecution led evideiricegiby tot; u
19 and producing documentary”eii”idence.’v”as.
to 13.22 and Mos. 1 to 6, thei’a_i_:)peVllant/ denied all
9 the incriminating him
in the evidence of when he
was Though the
accused’ evidence, his defence
Was:?_that,A when he went to the land of
brother of the deceased
Hiijgslsain, he asked by the said Ameer Sab to
» V1”s-1,1bscribe:hi_s signature to a blank paper for which he
i. ‘- AvrefusetljQtherefore, he was assaulted by the said Ammeer
Slab.’ ‘others, and when the deceased Hussain held
it him from behind, Ameersab tried to assault him with a
knife and since he relieved himself from the clutches of
the deceased Hussain and sat on the ground, the blow
fell on the chest of the deceased, as a result, Hussain
died. Thus, according to the accused,
responsible for the death of the deceasedlpp . 0 “‘ 0
3) The learned Sessions”: “~afterVfi<1.ea;x'_ing
both sides and on assessrnvent oforal. l'd;oci1.rrienta–_rty
evidence, by the appealnheld that the
death of Hussain 'that the appellant
was responsihle_ "death of Hussain.
However; and circumstances
djece'ase'd'~w{-fussain received the stab
wound on "learned Sessions Judge held
that the lldeathppof lthsedeceased Hussain do not constitute
p Inurder punishable under Section 302 of IPC and the act
the accused would amount to culpable
not amounting to murder punishable under
AA Section 304 part I of IPC. Consequently, the learned
"–.;°3je'ssions Judge acquitted the appellant for the charge
levelled against him under Section 302 of IPC.,
nevertheless convicted him for the offence punishable
under Section 304 part I of iPC., in addition to offence
punishable under Section 324 of IPC with
assault on PW.'7~Ameer Sab. After hearingmthe:;;1jpel_Ian_§$
regarding sentence, the learned :,
sentenced the appe1lantVto_under_g'o R.I.V.'for..
to pay fine of Rs. 1,000/~ offence under
Section 324 of IPC for'S irears and to
pay fine of Rs,2,00Q.,!~..:.fcr under
Section the substantive
sentence :':§\tVr'e1*e ordered to run
by the said judgment of
the appellant/ accused
appeal.
__ have heard Sri. Venkatesh C. Sharma,
S’ ‘- appearing for the appellant and Sri. B.
Raja Subramanya Bhat, learned High Court Government
2 V. Pleader appearing for the Respondent / State.
5) Learned counsel for the appellant contended
that the judgment under appeal is perverse, illegal.
inasmuch as the learned Sessions Judge has failed to
This according to the learned counsel
amount of doubt about the case of the it
also contended that the learned Sessizons not
properly appreciated varion-s_.V
on record, which would defence theory.
which is sufficient accused. Therefore,
he submittedthat the appeal is liable to
be set to be acquitted.
Government Pleader
sought ‘to ‘judgment under appeal and he
further”contended.Lthat:having regard to the defence put-
the accused, place of incident. nature of weapon,
‘ ..t’he_ of the material witnesses and the fact that
‘l the sustained injury are all admitted and the
exiiclence of PWs. 7, 15 and 16 would clearly establish the
.V:o’V~ert-act by the accused, as such, the learned Sessions
Judge is justified in holding that the accused was
responsible for the death of the deceased. He also
contended that appreciation of the oral and documentary
evidence by the learned Sessions Judge is in accordance
9
circumstances of the case, the points that .arise.’_.fo’r”i:1y
consideration in this appeal are.-
i) Whether the learned Se.ssi_ons”tJ”udge’i_
justified in holding ” t’i:at–_ _
appellant / accused is guilty of the offence ”
punishable under ‘S-cectio1ic__ 304 “I?art¥i of
1pc ?
ii) Whether “i-the ‘jucigrnerlt “minder appeal
suffers from~i.any–vpe’rv_e_1’sity U; illegality ‘?
If so, whetiierifitlcallsl for interference by
8) _i deceased Hussain died on
accotintv received by knife on
O6.07;iZQOS atVi_ab;oi1it arn., while he was in his land
is iiotiiseriettsly» dislpnted. Thus, the fact that the death of
clefcejasied Hiissain was homicidal. is well–established
,”.c’-said aspect is not disputed by the
appei’lar~-t7 accused, as even according to the defence of
it A. the accused, the deceased received a stab wound on his
dytlchest by a knife held by PW.7–Ameer Sab. The
T appellant/ accused during his examination under Section
313 of Cr.P.C. has stated thus, when he was asked as to
10
whether he has anything else to state, at
No.124:– Q.
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m we mom sfiw-r$5i>’—-.; am ?'”<5,®'§'*.}A , ,,
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“9} dnring the cr0ss–exa1ninat10n of PW.7,
» V:vsuggestiton:s~-have been put to him to the above effect.
H defence of the accused, the following
facts :;u:e’:?1ot in cl1spute:–
Presence of PW.7, deceased, accused
and few others at the scene of
occurrence.
11) The incident took place in the land of
Ameer Sab [PW.7).
111) The deceased Hussaln received stab
wound by a knife on his chest.
I1
10) As could be seen from the aforesaidjdefence of
the accused, what was disputed by him was
not stab the deceased, on the o-th’er- .7 ‘was’ 5
trying to assault him {Accused}
the blow, the blow fell oiidrthe iof”,the””‘d’eceased.i
Therefore, what was~..V_requi1*’edV._:’to”‘b_e considered by the
learned Sessions Judgediwasidiasfwhether the accused
stabbed the the injury to the
deceased. Iiuring his..’fi’.e:{a:n,ination under Section 313 of
state anything as to how
PWI? According to PW. 7-the brother of
deceased’,’-ygrghen. he started questioning the accused,
‘ Vlthe accused tried to assault him with a knife and in the
” r)rocess–,’.”,jhe;=hsustained injury. The presence of the injury
on PW… is admitted by the accused. If the defence of
* accused is to be accepted, there is no way for PW.7 to
sustain injury. Therefore, the presence of injury on the
person of PW.7 would be a strong circumstance to believe
the testimony of PWKF as to the manner in which the
incident occurred. According to the evidence of PWTF,
“E2
there was some previous dispute with regard to the land
in the backyard of his house and on 05.07.2003, the
accused came near the backyard of his (PW_fZ’s)4:l’:’l1ouse
and put-up new fence claiming that it belongs’
that connection, the deceased __adV_ised_-‘the’-‘accused,
the accused, did not yield to his
say of PW.”/’ that on .d.eceased
Hussain informed him aboutllthe “a.ccuse’d– .putting–up new
fence in the backyard of th.efhvouse§_,e.however, he pacified
the things could be sorted out
on the”*,__’nte:g;tVV” ” ‘informing the matter to the
n.cighbours §t is the further evidence of PW.7
‘ gthat a¢n.oef.’07.20o3 at about 1 I he went to the Form
‘* H’olusé’gi1;¢ngV’§vrth PW.12 «Rajanna, PW.-l5~Kik1{erigowda
@4u PW.l6–K.R. Basavanna @ Basavaraju and
ivdeceased in an Autorickshaw to hold panchayath in
connection with the accused putting–up new fence in the
backyard. After reaching their land, the accused was
secured by sending words and accordingly, when the
accused came there, the panchayathdars started asking
13
him about his acts done in puttingdlp
backyard and thereafter, the accused
and threatened even the
stab all of them with a knife_ hepitried to
him {PW.’7), he sustainiedi’ the
deceased tried to phisvbrovther (PW.7),
the accused stabbed… a knife on the
chest, aspay grievous injuries
and andthereafter, he was taken
to the Arsikere from where he
was Hospital, Hassan, where he
s:i;ccumbed”to,Vthe’injuries. According to PW.7, thereafter
» complaint to the police as per Ex..P6, based
H flxon’ police registered the case and took–up
investigation.
11) I have carefully examined the cross-
} examination of PW.7. No doubt, he is the elder brotherof
the deceased However, on that ground, his testimony
cannot be disbelieved or rejected. As noticed above, the
14
presence of PWI7 at the scene of occurrence isdnot in
dispute. The presence of injury on his persori«~~w.o’u1’§i”.j’ helie
the defence theory. Therefore, there ar.e_,no.vretaso11s”for
discarding the testimony of j.that4A_’t–he-..’acciised ‘*
stabbed the deceased. Tiiere is..v;s’ufficic1*itL.
indicate that there was sorr1x’e..V”v1arid hvetween the
accused and his one hand and
the deceased and_his.wfs._ the other hand.
The f3ViC1<3.1T1.C§'~':i;'4' to be another eye-
:€cor:*odb'ora.te "the evidence of PW}? on
iriaterial to the evidence PW.15,
after the accu:sed reached scene of occurrence, he started
PW.7 and the deceased and at that time,
~Eiccused"_~_.vvats'"holding a knife and all of them started
q1iarrei1irig'"d with each other. According to PW. 15 he saw
"t1ie_ deceased I-Iussain falling down on the ground and
2'-thereafter, he snatched knife from the hands of the
it "accused . Of course, PW.15 did not support the case of
the prosecution to the effect that he saw the accused
stabbing the deceased. Nevertheless, the evidence of
15
PW.15 indicates that the accused was holding-V:.a.Vj:knife
when he was quarrelling with the deceasedandr 4_
the knife continued to be in the “hands off Vac’cu’sed’j A’
when he (PW. 15) snatched the is in
the cross–examination to”‘–vs.cdi-scredi’t- of the
evidence of PW. 15. .
12) It _ri-sh now””v.¥¢11§se.tt1ed’_ by catena of
decisions. offva hostile witness can be
relied”toxtjtlied”e};te1:t”V”thVey support the case, of
prosecution. * the court below has not
coijrimitted any..e*rror in piacing reliance on the testimony
oi°~.CPVV;1t3..A Eitidence of PW.16 fully corroborates the
with regard to the accused stabbing the
d’e__Ceased’..i’.V’There is nothing in the cross-examination of
it i?W.z1’6: to discredit his testimony. His presence at the
dvdscene of occurrence is not seriously challenged in the
cross–examination, therefore, he is a competent witness.
It is necessary to note that the accused is also reiated to
the deceased and PWJ7. The material witnesses namely,
:7-
16
PWs. 7 , 15 and 16 had no axe to gI’iT1C1’V.’.f€’i.'”g:V:8i’i1i’_iS1:;’V’the
accused and there was no reason for theymv falsely’
depose against the accused. Under’ these ~circ’ui_nsta’nc’es. 7.
in my opinion, the 1earned4″Sessions
accepted the evidence of ‘to the
conclusion that defence
theory and that OiA”~th%efsig’.V–~u7itneSSeS would
clearly gniiicted stab wound on
the as such, the accused
the deceased Hussain. I
find recorded by the learned
Judge». The investigative lacuna pointed by the
» ;”leai’ned -counsel being post~incident factors and even if
‘gthVere ‘ a1fe”y;some lacunas, in my opinion, they cannot
céfeatey doubt as to the case of the prosecution. The
‘iifact that’ the knife was not sent to the Forensic
examination has not in any Way discredited the case of
the prosecution. Recovery of veil during inquest, in my
opinion, has no significance in the case on hand. I do
not see any discrepancy in the evidence of PWs. 7, 15 &
17
16. which would discredit their testimony. I
do not see any error in the judgment of
holding that the accused title it.
homicidal death of the deceased l4iiissain._K7. V’ 1
13) Having regard to”the:*fact.that the accused was
summoned by PWS. land of PW.’7 for
discussion, ‘fdudge was of the
opinion no intention to commit
murgierloftlthge -\ffi’e”ieV§arned Sessions Judge has
also Vtalstlen that after the accused reached
the. scene occuriencle, the quarrel ensued between the
l ‘Vaccu5s”ed'”and and in that quarrel, the deceased
by the knife held by the accused when he
Ain_ter§zeneTdAlto rescue his brother PW.”/. Under these
n Vcircumstances. the learned Sessions Judge has held that
it act committed by the accused would not fall under
offence punishable under Section 302 of IPC and it
amounts to culpable homicide not amounting to murder
punishable under Section 304 Part–I of IPC.
‘s
E8
14) Having regard to the facts and
of the ease, I see considerable force in.’the”eoVnten_tion_of 1
the iearned Government Piea.der7..’_Ath:at
reached by the learned VSegssions”‘Judge on the –
ienient side having regardto nt15r_i’e’over–\’Afhei-rnirtg evidence
on record. For the to the State, no
appeai has acquittal of the
accused punishable under
Sectf.’on–V8G.fiV5,Qf circumstances, I find no
groundto judgment of the Court beiow
convictinég’ _:the.I- Aapn”ei1ant/ accused for the offence –
‘ Apunishab}.e unde’r”Section 304 Part–I of IPC . Having
r.egar.d”~.itoVV”the evidence on record, the Court beiow is
Aju_stifi__ved:viA.i’in holding the appeliant guiity of the said
.. The judgment under appeai do not suffer from
d perversity or iliegaiity.
15) Having regard to the gravity of the offence
committed by the appellant. the manner _ in which he
committed the said act as also the punishment provided
19
for the offence for which he was found
sentence ordered by the learned Sessions
and proper and it does not call; this 91′
Court. Therefore, in the light of the’above..’discussi.ons;’IL
find no merit in this appeal.
16) Accordingly?’ dismissed. The
judgment of, passed by
the learned Fast Track Court-
II, is hereby confirmed.
The the appellant/ accused are
hereby orderedto be cancelled. The appellant/accused is
‘direct’-ed to surrender himself before the learned Sessions
one month from today and upon such
fappearenicell, the learned Sessions Judge shall commit
up to; the prison to serve the balance period of sentence
if ordered. If the appellant/ accused failed to appear before
the learned Sessions Judge within the aforesaid period,
the learned Sessions Judge shall take necessary steps to
secure his presence and to commit him to prison.
20
Rfistry is directed to transmit
portion of the order forthwith to the…CQurt’b’éic§X_zfv., _ .4 ‘V
KGR*