Dismissed

Shabir Ahmed S/O Nazir Ahmed v. the State of Karnataka

Karnataka HC16 Sept 2014CRL.A/828/2003

Case brief

AI extract

What is this about?

This judgment dismisses a criminal appeal challenging a conviction under Section 307 IPC for attempted murder by pushing a child from a cliff. The single-judge bench rejected contentions regarding evidence discrepancies and procedural delays.

What did the court decide?

Stay of execution of sentence for two months rejected; Leave to appeal to Supreme Court rejected; Appeal dismissed.

Shabir Ahmed S/O Nazir Ahmed Vs the State of… — Murder and Culpable Homicide | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 16^th DAY OF SEPTEMBER 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL APPEAL No. 828 OF 2003

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BETWEEN:

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Shabir Ahmed, Son of Nazir Ahmed, Age: 31 years, Reddypet, Vijayapura Town, Devanahalli Taluk, Bangalore Rural District.

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…APPELLANT (By Shri. Anant V Albal, Advocate) AND:

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The State of Karnataka, Represented by the State Public Prosecutor At High Court Building, Bangalore – 560 001.

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…RESPONDENT

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(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1) *****

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This Criminal Appeal filed under Section 374(2) Code of Criminal Procedure, 1973 by the Advocate for the appellant

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against the judgment dated 8.4.2003 passed by the I Additional Sessions Judge, Kolar in S.C.No.197/1998, convicting the appellant/accused for the offence punishable under Section 307 of IPC and sentencing him to suffer R.I. for 2-½ years and to pay fine of Rs.10,000/- and in default of payment of fine, to suffer S.I. for six months.

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This Criminal Appeal having been heard and reserved on 02.09.2014 and coming on for pronouncement of Orders this day, the Court delivered the following:-

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JUDGMENT

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The facts of the case are as follows:

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The complainant one Shakeela Bi is said to have married

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one Abdul Jabbar in the year 1989. It is said that Jabbar had divorced Bi and is said to have given Bi Rs.80,000/- as ‘mehar’. Bi had then married Shabir Ahmed, the accused herein and is said to have given him Rs.70,000/- of the above said amount. It is said that Shakeela Bi had a daughter, Samiya Anjum, (aged 7) by her first husband, Jabbar. It is said that Shabir Ahmed was cold towards Samiya and is said to have ill treated her from inception.

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It was alleged that on 5.10.1997, when the complainant

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had left for Kolar town on some work, it is said that the accused had then taken Samiya to the Nandi hills and had pushed her over a sheer cliff known as ‘Tippu’s Drop’, at the top of the hills. She had miraculously survived the fall as she was caught by the limb of a tree, on an outcrop. She was rescued a few hours later by several village boys grazing their cattle in the area. She was then admitted to a hospital at Chikkaballapur town.

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The complainant on her return home and having found that Samiya was not at home had gone in search of her along with the accused, who had returned home by then and who feigned ignorance of her whereabouts. The accused is said to have taken the complainant to the Vijayapura Police Station and while having made her wait outside the station, had made a pretence of making enquiries inside and had come out to inform her that there was information that the child was in the home of Jabbar, the first husband of the complainant. He had

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then said that he would go and fetch her and had sent the complainant home. It is stated that later in the night at 12:30 AM, Sardar, a friend had come home to inform the complainant that Samiya was admitted at the Chikkaballapur hospital and had taken her there.

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It was also found that the accused had visited the hospital and in the guise of embracing Samiya had tried to strangulate her and when she had cried out, the other patients in the ward are said to have come to her rescue. The police were called, who had then arrested the accused.

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After further investigation and other proceedings, charges were framed against the accused, who pleaded not guilty and claimed to be tried. The prosecution had then tendered evidence through its witnesses, PW.1 to PW.9. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ‘Cr.PC’, for brevity) having been recorded and after hearing arguments of

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both sides, the following point was framed consideration by the trial court :

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‘Whether it is proved that on 5-10-1997 between 12-00 noon and 3-30 PM , with an intention to cause the death of CW-11 Samiya Anjum , aged about 7 years , the accused took the said girl to Nandi Hills and pushed her from the hills as alleged ?’

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The same was answered in the affirmative and the accused was convicted to serve a sentence of rigorous imprisonment for two and a half years and to pay a fine of Rs.10,000/-, of which Rs.8,000/- was to be paid to the victim as compensation. It is that which is under challenge in the present appeal.

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The learned counsel Shri Anant Albal appearing for

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the appellant urges the following contentions.

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a. The version of PW.4, the alleged injured victim is totally in variance with the evidence of other witnesses, namely

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PW.5 Srinivas, PW.6 Narayanappa and PW.7 Muniraju. In that, the girl had stated that she was pushed from ‘Tippu’s Drop’, whereas the evidence of the aforesaid three witnesses is that the girl was found on a tree on that part of the cliff face towards Shri Veerabhadraswamy temple, which is atleast 1½ Kms. away from ‘Tippu’s Drop’. It is contended that this discrepancy is not explained and is fatal to the prosecution case. It is further urged that had the girl been pushed from ‘Tippu’s Drop’, she would not have survived at all.

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b. It is pointed out that there is no mahazar drawn of the actual spot, where the girl was said to have been found and no samples of traces of blood or her torn clothes were recovered from the tree where she was found, if indeed the tree had broken her fall and saved her life.

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c. It is contended that the map drawn of the scene is totally misleading and false and does not compare with the actual particulars.

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It is contended that though the evidence of PW.2, a neighbour, who speaks of the accused having taken the injured PW.4 at about 11 A.M., is relied upon by the prosecution, the statement of the said witness was recorded five days later, which casts a doubt on the case of the prosecution. It is contended that the evidence of the Doctor – PW.8, who has categorically stated that on the next morning of the incident, he had talked to the patient namely PW-4 and she had told him that she knew nothing about the incident and that persons present at the spot told her that it is the accused who had pushed her.

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Further, it is contended that if this Court were to come to a conclusion that the accused is guilty of the offence, taking into consideration the mitigating circumstance that the incident had taken place 18 years ago and in view of the fact that there are many changes in the life of the accused, that the sentence of

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2½ years of rigorous imprisonment awarded by the Sessions Court may be reduced.

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Further it is stated that the trial is delayed for no fault of the accused.

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Further that under Article 21 of the Constitution of India,

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speedy trial is a fundamental right of a citizen and had the accused sentenced to undergo imprisonment at an early stage, it would have been a different aspect. It is further stated that the decision rendered by the apex court in State Tr.P.S.Lodhi Colony vs. Sanjeev Nanda, AIR 2012 SC 3104, popularly known as BMW case, has set up a new angle and if permissible, the accused may be directed to be provided a community service. In addition, the accused is also ready to compound the offence by paying a compensation of Rs.49,000/- to PW.4.

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The learned State Public Prosecutor, on the other hand, seeks to justify the judgment of the trial court.

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From the facts and circumstances of the case, it cannot

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be said that the incident had not taken place. The relationship

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of the parties are not denied. The fact that Samiya was taken to Nandi hills by the accused, while having falsely stated that her mother was awaiting them there, has been stated by Samiya, who had miraculously escaped certain death, and lived to tell her story, only by an act of providence. Though she was said to be 7 years of age at the time of the incident, the sequence of events have been vividly described and cannot be dismissed as her imagination. Her evidence coupled with that of the complainant, to demonstrate that the accused had pretended not

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to know about her whereabouts, when the complainant enquired, and the fact that he had tried to mislead her in stating that the girl was with the first husband of the complainant and the further fact that he had visited the girl when she was in the hospital and had tried to strangulate her, before his arrest, would point to the accused being a cold blooded killer, whose act had not translated into the death of the girl, only on account of her luck.

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The discrepancies and inconsistencies sought to be highlighted by the learned counsel for the appellant, notwithstanding, the essential facts to bring home the guilt of the accused are certainly established beyond all reasonable doubt.

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The reference to ‘Tippu’s Drop’ and the fact that the girl had actually been pushed from another part of the hill and not the said ‘Tippu’s Drop’ cannot be made much of, the description having crept in on the basis of the complaint which may have vaguely referred to it, does not take away the fact that the girl was pushed from the top of the hill.

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The discrepancies sought to be pointed out with reference to the persons who had rescued the girl, namely PW-5 to 7 is not fatal to the case. In any event they were independent witnesses and total strangers to the accused and could not be suspected of tendering false evidence to frame the accused. The fact that their evidence was recorded several years after the

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incident is a fact that would require to be kept in view, in addressing any inconsistencies in their evidence.

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The victim having experienced a trauma and not having

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revealed any details of the incident to the doctor who attended on her is not unusual.

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On a close examination of the record, it cannot be said that the trial court has committed any error in having found that the prosecution had proved its case beyond all reasonable doubt and having convicted the accused. On the other hand, in the opinion of this court, the trial court has been extremely liberal and has restricted the punishment to a minimum, which however cannot be interfered with in an appeal by the accused. The several contentions claiming lenience and condonation of the appellant’s conduct do not merit consideration.

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Accordingly, the appeal is dismissed.

Sd/-

JUDGE

nv*

ABJ: