Partly allowed

Abbas @ Abbas Ali v. State of Karnataka by

Karnataka HC3 Jan 2022CRL.A/1809/2019

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 341, 323 and 302 read with 34 IPC for the stab death of the deceased who intervened in an assault on another. The court held the stabbing was accidental in a sudden fight without premeditation, attracting Exception 4 to Section 300 IPC, convicted accused No.1 under Section 304 Part II IPC, and acquitted accused No.2 for want of material.

What did the court decide?

Accused No.2 acquitted and his conviction set aside; accused No.1 convicted under Section 304 Part II IPC for four years with fine of Rs.1,00,000, 90% of the fine to the deceased's mother as compensat

Abbas @ Abbas Ali Vs State of Karnataka by — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE M.G. UMA

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CRIMINAL APPEAL No.1809/2019

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C/W

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CRIMINAL APPEAL No.1593/2019

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In Crl. A. No.1809/2019

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BETWEEN:

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ABBAS @ ABBAS ALI, S/O REHMAN ALI, AGED ABOUT 19 YEARS, R/AT NO. 443, E.W.S. 6^TH MAIN, 4^TH CROSS, KENGERI UPANAGARA, BANGALORE - 560 060.

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...APPELLANT

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(BY SRI: MOHAN KUMAR D., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KENGERI POLICE STATION, (REPRESENTED BY SPP), HIGH COURT OF KARNATAKA, BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI: VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CIRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED

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14.08.2019 PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY IN S.C.NO.1284/ 2013, CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,323 AND 302 R/W 34 OF IPC.

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In Crl. A. No.1593/2019

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BETWEEN:

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SHARATH KUMAR @ SHARATH @ DOUBLE, S/O KODANDARAMA, AGED ABOUT 28 YEARS R/AT NO.306, 6^TH MAIN, 7^TH CROSS, GANDHINAGAR, KENGERI UPANAGARA, BENGALURU 560 060.

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...APPELLANT

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(BY SRI: VENKATA REDDY S. K., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KENGERI POLICE, BENGALURU 560 060, REPRESENTD BY SPP, HIGH COURT OF KARNATAKA, BENGALURU 560001. …RESPONDENT

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(BY SRI: VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR )

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CIRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 14.08.2019 PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY IN S.C.NO.1284/ 2013, CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,323 AND 302 R/W 34 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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Criminal Appeal No.1593 of 2019 is filed by accused No.1 and Criminal Appeal No.1809 of 2019 is filed by accused No.2 against the judgment of conviction and order of sentence dated 14.08.2019 made in S.C.No.1284/2013 on the file of the LVIII Additional City Civil and Sessions Judge, (CCH-59), Bengaluru, convicting and sentencing accused Nos.1 and 2 to undergo simple imprisonment for a period of one month for the offence punishable under Section 341 read with Section 34 of the Indian Penal Code, simple imprisonment for a period of three months for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code and to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, and to pay fine of `50,000/- each, in default, to undergo simple imprisonment for a further period of three months.

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It is the case of prosecution that on 13.05.2013, at about 4.00 pm, on the back side of Sri Kalikamba Temple, Gandhinagar, 7^th Main Road, Kengeri Satellite Town, in front of the house bearing No.31, when P.W.4-Mohan and deceased Gowrish were talking together, accused persons and juvenile

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offenders 4 to 6 came in the Bajaj Discover motor cycle bearing registration No.KA-02/HA-4975 and Suzuki motor cycle bearing registration No.KA-05/HG-9332, surrounded them, abused P.W.4 in filthy language and with a common intention to kill P.W.4 assaulted him with hands. When accused No.1 tried to stab P.W.4-Mohan with knife, Gowrish came to his rescue. Being enraged, accused No.1 abused Gowrish in filthy language and stabbed him with a knife on his left arm and left rib and caused grievous injuries. At that time, accused Nos.2, 3 and juvenile offenders 4 to 6 assaulted Gowrish with hands, kicked him with legs and tried to kill him. At that time, C.Ws.7 to 13 and others came to the spot and even though they tried to caught hold of the accused persons, they escaped from the spot. C.Ws.23 and 34 who were doing patrolling duty, took Gowrish in Hoysala van and admitted him to Rajarajeshwari Medical College and after first aid, shifted him to Bhagavan Mahaveer Jain Hospital, Vasantha Nagar. Subsequently, Gowrish died in the said hospital on 25.05.2013 at 9.00 pm. Therefore, the jurisdictional police registered a case against accused Nos.1 and 2 for the offences punishable under Sections 341, 323, 302 read with

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Section 34 of the Indian Penal Code. On receipt of final report from the police, the jurisdictional Magistrate took cognizance of the aforesaid offences against the accused persons, registered a case in C.C.No.12784/2013 and by the Order dated 13.09.2013 committed the case to the Court of Principal Sessions Judge, Bengaluru, who registered the case in S.C.No.1284/2013 and made over the same to the Court of LVIII Additional City Civil and Sessions Judge (CCH-59), Bengaluru. After hearing both sides, Charge was framed. Accused Nos.1 and 2 pleaded not guilty and claimed to be tried. Case against accused No.3 was split up. Since accused Nos.4 to 6 were juvenile offenders, case was referred to the Juvenile Justice Board.

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In order to prove the guilt of the accused, prosecution examined in all 24 witnesses as P.Ws.1 to 24 and marked the documents Exs.P.1 to P.35 and Material Objects 1 to 5. After completion of the evidence of prosecution witnesses, statements of the accused under Section 313 of the Code of Criminal Procedure were recorded. The accused persons denied all the incriminating evidence adduced against them, in toto.

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Based on the aforesaid material on record, the Trial Court formulated three points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered the points framed in the affirmative holding that, the prosecution has proved beyond reasonable doubt that the accused persons were involved in the homicidal death of deceased Gowrish and accordingly, convicted them for the offences punishable under Sections 341, 323 and 302 read with 34 of the Indian Penal Code. Hence, accused No.1 has filed Criminal Appeal No.1593 of 2019 and accused No.2 has filed Criminal Appeal No.1809 of 2019.

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We have heard the learned counsel for the

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parties.

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Sri S.K.Venkata Reddy, learned counsel for the appellant/ accused No.1 contended with vehemence that the impugned judgment of conviction and order of sentence is erroneous, contrary to the material on record and liable to be set-aside. He further contended that P.W.19/Ranganath-PSI, Kengeri Police Station, was on patrol duty on 13.05.2013. At

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about 4.15 pm on the said day, upon receiving wireless message, he went to Gandhinagara, Kengeri Satellite Town and learnt that Gowrish was assaulted by accused persons, shifted the injured to Hospital in Hoysala van. The presence of P.W.1-Santhosh, younger brother of injured Gowrish, at the spot is not stated by P.W.19. Even P.W.24-Ravikumar @ Raju who was projected as an eye witness has not stated about the presence of P.W.1 at the scene of offence and he has not supported the prosecution case. Learned counsel further contended that P.Ws.3, 4, 22, 23 and 24 have turned hostile. So also, P.Ws.5, 6, 7, 8 and 9, witnesses to the mahazar have turned hostile. He further contended that, P.W.19-PSI has deposed that he went to Rajarajeshwari Hospital on 13.05.2013 and in the presence of Doctor, recorded the statement of the injured at 4.40 pm, as per Ex.P.10. The said witness has not deposed about the condition of the injured while recording the statement and also has not stated the name of the Doctor in whose presence he recorded the statement of the victim. P.W.17-Doctor deposed that on 13.05.2013 at about 3.50 pm, Gowrish was brought to Raja Rajeshwari Medical College and Hospital and first aid was

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given to him. In the cross-examination, it is elicited that the injured was unconscious at the time of examination. There is inconsistency in the evidence of material witnesses relied upon by the prosecution. Therefore, evidence of P.Ws.12, 15, 17 and 19 cannot be considered to convict the accused No.1.

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Learned counsel further contended that Ex.P.10statement of Gowrish, recorded by P.W.12-Police Constable in the presence of P.W.17-Doctor does not depict that patient was in fit state of mind and was capable of giving statement. He had suffered only one injury. But in Ex.P.17-wound certificate, it is mentioned that there were two injuries. Ex.P.9-post mortem report depicts that six injuries were found on the body of the deceased. Admittedly, Gowrish died 12 days after the incident due to respiratory failure. P.W.17Doctor has stated that the incident occurred on 13.05.2013 at about 3.50 p.m. In the cross-examination, he admitted that his statement is contrary to Ex.P.10/dying declaration. There is improvement in the further cross examination of P.W.17 which was recorded after lapse of 2 years 3 months.

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Learned counsel further contended that P.W.13-

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Dr.Dileep Kumar who issued post mortem report has stated that there were six injuries on the body of the deceased. Therefore, the injuries mentioned in Exs.P.9 and P.17, so also the evidence of P.Ws.13 and 17 are contrary to each other. Learned counsel further contended that Ex.P.10-statement of the deceased recorded when he was alive is the basis for the police to register the complaint, which depicts that accused persons had no intention to kill the deceased. Ex.P.10 depicts that the intention of the accused was to attack Mohan-P.W.4. When they were assaulting Mohan, deceased intervened and thereby he was stabbed, accidentally. Therefore, the accused persons had no intention to stab and kill the deceased. He further contended that there are inconsistencies in the evidence and material documents and absolutely there are no material to prove that the accused persons had any intention to kill the deceased.

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9. Learned counsel further contended that the

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material on record clearly depicts that there was no motive and therefore, the learned Sessions Judge was not justified in passing the impugned judgment of conviction and order of

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sentence. Learned counsel further contended that, in view of the statement of Gowrish which became dying declaration after his death, utmost, the incident could be treated as accidental death and thereby, provisions of the Section 304 Part II attracts and not Section 302 of the Indian Penal Code. Learned counsel submits that since the accused No.1 has already undergone imprisonment for a period of 3 years 1 month, sentence to that extent may be imposed and sought to allow Crl.A.No.1593/2019 filed by accused No.1.

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Sri Mohan Kumar.D, learned counsel for appellant/accused No.2 in Crl.A.No.1809/2019, while reiterating the arguments advanced by the learned counsel for accused No.1, submits that in the complaint and evidence of all witnesses, there is no material against accused No.2. In the absence of any material, impugned judgment of conviction and order of sentence passed against accused No.2 cannot be sustained. Merely because accused No.2 was in the company of accused No.1, he cannot be convicted and therefore, sought to allow Crl.A.No.1809/2019 filed by accused No.2.

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Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, contended that, the dying declaration-Ex.P.10 clearly depicts that accused No.1 intentionally stabbed the deceased. Therefore, provisions of Section 301 of the Indian Penal Code attracts. P.W.1 is the eye witness to the incident and he has supported the prosecution case. Ex.P.10-dying declaration and other material documents clearly depict the involvement of the accused in the offences. He further contended that the FSL report clearly depicts the involvement of accused No.1 in the commission of offences. Unfortunately, the same was not marked. He further contended that the learned Sessions Judge is justified in convicting the accused persons for the aforesaid offences and therefore, sought to dismiss both the Criminal Appeals.

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In view of the aforesaid rival contentions urged by the learned counsel for the parties, the point that arises for our consideration is:

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“Whether the appellants/accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting them for the offences punishable under Sections 341, 323, 302 r/w Section 34 of the Indian Penal Code, in the facts and circumstances of the present case?”

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We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material, including original records, carefully.

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This Court being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.

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(i) P.W.1 -Santhosh, younger brother of the deceased and son of P.Ws.2 and 11 has deposed that he has seen the incident and statement of the deceased was recorded by P.W.18-PSI on 13.05.2013 and supported the prosecution case.

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(ii) P.W.2-Bhagyamma, mother of the deceased deposed that the deceased told her about the incident in Rajarajeshwari Hospital. Deceased was later shifted to Bhagavan Mahaveer Jain Hospital and there he died on 25.05.2013 at about 9.00 pm and supported the prosecution case.

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(iii) P.W.3-Venkatesh is witness to Ex.P.1mahazar dated 13.05.2013 and seizure of M.O.2pant, M.O.3-Shirt, M.O.4-Sample mud, M.O.5-blood stained mud, turned hostile.

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(iv) P.W.4-Mohan, injured person in the incident gave statement before the police as per Ex.P.2 and further statement as per Ex.P.3 and turned hostile.

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(v) P.W.5-Dr.G.N.Prabhakar, deposed that Gowrish was admitted to Bhagavan Mahaveer Jain Hospital on 13.05.2013 and died on 25.05.2013 at 9.00 pm. He issued Ex.P.4MLC/death intimation to High Grounds Police Station and supported the prosecution case.

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(vi) P.W.6Kariyappa is witness to seizure mahazars Exs.P.5 and 6 under which the vehicles involved in the offence were seized.

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He is also witness to seizure of knife from a bush near burial ground and supported the prosecution case.

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(vii) P.W.7-Manjunath, alleged witness to Ex.P.6 denied his signature and turned hostile.

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(viii) P.W.8- Sathish, witness to Ex.P.7-Inquest panchanama dated 26.05.2013 turned hostile.

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(ix) P.W.9-Bharath Kumar, witness to Ex.P.7Inquest mahazar dated 26.05.2013 turned hostile.

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(x) P.W.10-Dr.P.N.Prakash, examined M.O.1knife, issued MLC register and issued opinion as per Ex.P.8 and supported the prosecution case.

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(xi) P.W.11-Manjunath, father of the deceased, in the cross-examination by accused No.2 has deposed that his injured son was not in conscious state of mind in R.R. Hospital.

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(xii) P.W.12-Chowdaraju, Police Constable deposed that statement of the deceased was recorded in the hospital in the presence of P.W.17, as per Ex.P.10 and supported the prosecution case.

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(xiii) P.W.13-Dr.Dileep Kumar, deposed that he conducted postmortem on the dead body of Gowrish on 26.05.2013 and found six external injuries. He deposed that M.O.1 can cause such injuries and opined that the death is due to respiratory failure as a result of perforatory injury and issued post mortem report as per Ex.P.9 and supported the prosecution case.

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(xiv) P.W.14-Kiran Kumar, Police Constable, Kengeri Police Station deposed that FIR as per Ex.P.11 was lodged for the offence punishable under Section 307 of the Indian Penal Code, he carried FIR to the Court on 14.05.2013. On 26.05.2013 he carried Ex.P.13-FIR lodged under Section 302 of the Indian Penal Code to the Court and supported the case of the prosecution.

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(xv) P.W.15-Rajanna, ASI, Kengeri Police Station deposed that he was patrolling in Hoysala van. On 13.05.2013 he learnt that one person was stabbed near Kalikamba Temple. He shifted the victim to Victoria Hospital where the injured made statement about the

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assailants and supported the prosecution case.

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(xvi) P.W.16-Tulasidas, Police Constable deposed that he was deputed to search the accused and the material objects. He is witness to Exs.P.14 and 15 and supported the prosecution case.

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(xvii) P.W.17-Dr.Raghunath, R.R.Medical College and Hospital, Kengeri, deposed that on 13.05.2013 at 3.50 pm, Gowrish was taken to RRMC & Hospital, was given first aid. He issued wound certificate and supported the case of prosecution.

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(xviii)P.W.18-Mallikarjun, PSI, Kengeri Police Station, deposed that as per oral instructions from the Police Inspector, he took charge of the case from P.W.19, recorded the statements of witnesses, arrested accused Nos.1, 2 and Gururaj, seized the vehicles used in commission of the offence, and supported the prosecution case.

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(xix) P.W.19-Ranganath, PSI, deposed that on 13.05.2013 he was patrol duty. On receiving wireless message, went to Gandhinagar

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within the jurisdiction of Kengeri Police Station, learnt that the injured was shifted to Hospital in Hoysala van, recorded the statement of the victim in the presence of the doctor as per Ex.P.10. He further deposed that he registered a case in Crime No.156/2013, conducted the spot mahazar and seized M.Os.2, 3, 4 and 5, and supported the case of the prosecution.

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(xx) P.W.20-Sathyanarayana, Police Inspector, Kengeri Police Station, deposed that he took charge for the case from C.W-32 on 28.05.2013 and supported the prosecution case.

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(xxi) P.W.21-Paramesh, Assistant Engineer, P.W.D., deposed that upon requisition he visited the spot and drew the sketch, and supported the case of the prosecution.

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(xxii) P.W.22-Nagaraj, alleged eye witness working as water supplier in Kengeri Upanagara, turned hostile.

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(xxiii)P.W.23-Anand, neighbour of the deceased, alleged eye witness turned hostile.

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(xxiv)P.W.24-Ravikumar @ Raju, alleged eye witness and also witness to Ex.P.1 turned hostile.

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Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict and sentence the accused persons for the offences punishable under Sections 341, 323 and 302 r/w Section 34 of the Indian Penal Code.

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The material on record depicts that, Ex.P.10 is the basis for registering criminal case against accused Nos.1 and 2. In Ex.P.10- statement of the injured victim, which became

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dying declaration after his death, it is stated that on 13.05.2013 at about 4.00 pm, when victim-Gowrish and his friend Mohan-P.W.4 were standing near their house, local persons known to them i.e., Double-accused No.1, Abbasaccused No.2, Kenda, Guru and another came in two motor cycles, surrounded them and started to abuse P.W.4-Mohan in filthy language. When accused No.1 tried to assault MohanP.W.1, the deceased intervened and tried to save Mohan. At that time, accused No.1 stabbed Gowrish. Mohan managed to escape from accused persons and ran away from the spot.

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C.W.12-Syed Imran, P.W.22-Nagaraj, P.W.23-Anand, P.W.24Ravikumar and others came to the spot. He has further stated that since there was enmity between Mohan and accused persons, in order to kill Mohan, the accused persons tried to assault Mohan. When the deceased intervened and tried to rescue P.W.4, accused No.1 stabbed him.

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A careful reading of Ex.P.10 depicts that while giving statement, the deceased was in a fit state of mind and was conscious to give statement. But, it does not depicts the motive for the accused persons to kill the deceased. The incident has occurred accidentally since the deceased intervened and tried to stop the assault on P.W.4 by accused No.1. Therefore, the assault was not intentional and it happened accidentally.

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According to Ex.P.10, only one injury was found on the deceased. Ex.P.17-wound certificate issued by the Doctor depicts that there were two injuries. Ex.P.9-post mortem report issued by P.W.13-Dr.Dileep Kumar depicts that there were six injuries on the body of the deceased. There is

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inconsistency with regard to injuries sustained by the deceased in the incident.

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A careful perusal of the depositions of the prosecution witnesses depicts that the evidence of P.W.17Dr.Raghunath was recorded on 24.04.2017. He has stated that on 13.05.2013 at about 3.50 pm, Gowrish was brought to the hospital. After giving first aid, he was shifted to Bhagavan Mahaveer Jain Hospital. He issued Ex.P.16-Memo which depicts that deceased had sustained two injuries. It is further admitted in the cross-examination that the injured was in the hospital for an hour. He has deposed that he does not know as to who spoke with the injured during the said period. At the time of recording statement of the injured/victim, M.O.1Knife was not shown to him. He denied the suggestion that at the time of recording statement, the deceased was not in conscious state of mind. By filing an application under Section 311 of the Code of Criminal Procedure, P.W.17 was recalled and examined on 28.06.2019 i.e., after lapse of about 2 years 2 months. He has stated that when Gowrish was brought to hospital, he was conscious and statement of the deceased was recorded in his presence and the deceased

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was suffering from bleeding injuries. Subsequent statement of the said witness is nothing but an improvement.

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P.W.13-Dr.Dileep Kumar, who issued the post mortem report has deposed that there were six injuries on the body of the deceased. In the cross-examination he has stated that he has not examined M.O.1-Knife. The evidence of P.Ws.13 and 17 are inconsistent. Ex.P.17 wound certificate depicts that there were only two injuries. Therefore, there is no consistency about the number of injuries sustained by the deceased.

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However, the fact remains that when accused Nos.1 and 2 and two other persons surrounded P.W.4-Mohan with an intention to cause his death and when accused No.1 tried to assault P.W.4, deceased Gowrish intervened and therefore, he was accidentally stabbed. Thereby, Exception 4 to Section 300 of IPC is attracted, which reads as under:

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"Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner”

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A careful reading of the said provision makes it clear that accused No.1 stabbed the deceased without any pre-meditation in a sudden fight between PW4 and accused No.1, when he intervened and the offender has not taken any advantage and acted in an unusual manner. But, the provision of Section 302 of IPC would not attract to the present case.

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A careful reading of the aforesaid provision makes it clear that to invoke said provision, four requisites must be satisfied, namely;

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i) it was a sudden fight; ii) there was no premeditation; iii) the act was committed in a heat of passion and iv) the assailant has not taken any undue advantage or acted in a cruel manner.

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Admittedly, in the present case, according to the deceased as per Ex.P10 dying declaration there was old enmity between accused Nos.1 and 2 and PW4 - Mohan. When there was a fight between Mohan and accused person, the deceased suddenly intervened and by accident accused

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No.1 stabbed the deceased with a knife. Thereby, the material on record i.e., the oral and documentary evidence depicts that there was no pre-meditation on the part of accused No.1 and the same was committed by accused No.1 in a sudden heat and passion using MO1 causing two injuries on the deceased. Thereby, he has not taken any undue advantage and acted in an cruel manner in causing the death of deceased. In view of the same, it cannot be said that the case falls under the provisions of Section 302 of IPC. But it is a case which falls under Exception 4 of Section 300 of IPC. As accused No.1 inflicted injuries on the deceased without intention of causing his death, his act is punishable under Section 304 Part II of IPC. Moreover admittedly, the death occurred after 12 days i.e., on 25.05.2013 in the hospital due to respiratory failure as a result of perforating injury sustained. Thereby, it is not a case punishable under the provisions of Section 302 of IPC.

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It is a well settled proposition that, one of the fundamental principles of criminal jurisprudence is undoubtedly the burden of proof squarely rests on the prosecution and the basic burden never shifts. There can be

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no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity or defence could take the place of proof which the prosecution has to establish in order to succeed.

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Admittedly, in the present case, all the witnesses, namely PW1 and 4 at whose instance the incident occurred and PWs.22, 23, 24 have turned hostile and have not supported the case of prosecution. PWs.3, 4, 7, 8 and 9 who were the witness to mahazars have also turned hostile and have not supported the case of prosecution. The evidence of doctors PWs.13 and 17 are not consistent. The fact remains that the incident occurred due to sudden intervention of the deceased when there was a fight between the accused persons and PW4 - Mohan. Admittedly, accused No.1 was aged about 22 years and accused No.2 was aged about 19 years as per the date of incident. But no material is produced by the prosecution to prove the involvement of accused No.2

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in causing the death of deceased. The learned Sessions Judge mainly on the basis of Ex.P10 and the evidence of PW1 has proceeded to convict accused Nos.1 and 2 under the provisions of Sections 341, 323, 302 read with 34 of IPC. Without there being any material to prove that there was previous motive for accused Nos.1 and 2 to cause death of the deceased and in the absence of any material, the conviction against accused No.2 is without any basis and cannot be sustained.

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The material on record clearly depicts that the incident occurred in the heat of passion and the stab was accidental one and it was not intentional. Therefore, in the absence of any intention makes him individually answerable and the conviction has to be only under the provision of Section 304 Part II of IPC and not under Section 302 of IPC.

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Though learned Additional State Public Prosecutor contended that in view of the evidence of PW1 and Ex.P10 - dying declaration, there is material against accused Nos.1 and 2, cannot be acceptable for the simple reason that on careful perusal of Ex.P10, it clearly depicts that there was no

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intention on the part of accused No.1 to stab the deceased and there was no motive against the deceased and the evidence of PW1 is entirely contrary to the material evidence Ex.P10. Therefore, his contention cannot be accepted. The evidence of PW1 and Ex.P10 - dying declaration depicts that there was no role attributed against accused No.2.

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This view of ours is fortified by the dictum of Hon’ble Supreme Court in the case of AHMED SHAH AND ANOTHER –VS- STATE OF RAJASTHAN, reported in (2015) 3 SCC 93. In paragraph 21 the Hon’ble Supreme Court has held as under:

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“21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case

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punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC.”

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The material on record clearly depicts that there is no material against accused Nos.1 and 2 to invoke the provision of Section 302 of IPC. Though accused No.1 assaulted the deceased with MO1 knife, it thereby attracts Section 323 i.e., grievous injury. As the grievous injury has resulted in death, it merges with the provision of Section 304 Part II of IPC. There are absolutely no material to attract Section 341 of IPC against any of the accused.

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Accordingly, points 1 and 2 are answered Partly in Affirmative holding that accused No.1 has made out a case to interfere with the impugned judgment and order of conviction passed by the learned Sessions Judge and accused No.2 has made out a case to interfere with the impugned judgment and order of conviction to the aspect that the prosecution has

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failed to prove beyond reasonable doubt and no case is made out against accused No.2.

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For the reasons stated above, we pass the

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following:

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ORDER

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(i) Criminal Appeal No.1809 of 2019 filed by accused

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No.2 is allowed.

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(ii) The impugned judgment and order of sentence dated 14.08.2019 made in Sessions Case No.1284 of 2013 convicting accused No.2 for the offence punishable under Sections 341, 323 and 302 read with Section 34 of IPC is set aside and he is acquitted for the aforesaid offences.

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(iii) Criminal Appeal No.1593 of 2019 filed by accused No.1 is partly allowed.

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(iv) The impugned judgment and order of sentence passed by the Trial Court dated 14.08.2019 made in Sessions Case No.1284 of 2013 is partly allowed. The impugned judgment and order of sentence passed by the Trial Court and

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order of imprisonment for life under Section 302 of IPC is hereby modified.

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(v) Accused No.1 is hereby convicted under the provisions of Section 304 Part II of IPC for a period of four years with a fine of Rs.1,00,000/- (Rupees One Lakh Only) in default of payment of fine, to undergo simple imprisonment for a period of one year.

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(vi) Accused No.1 is against for the offences punishable under Sections 341 and 324 read with 34 of IPC.

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(vii) Accused No.1 is entitled for set off as provided under Section 428 of Cr.P.C.

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(viii) In view of the provisions under Section 357(3) of Cr.P.C., out of the fine amount imposed, 90% shall be paid to the mother of the deceased as compensation and the remaining amount shall be retained by the State towards the expenses incurred.

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In view of the disposal of main appeal, IA.2 of 2021

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filed for suspension of sentence and bail, would not survive

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for consideration. Hence, the same is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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