Partly allowed

Nayaz @ Mohammed Siraj v. State of Karnataka

Karnataka HC12 Dec 2022CRL.A/279/2011

Case brief

AI extract

What is this about?

The High Court disposed of two criminal appeals challenging convictions for culpable homicide and voluntarily causing hurt. Upholding the trial court's finding of guilt based on injured eyewitness testimony despite hostile witnesses, the High Court partially allowed the appeals. The sentence for the greater offence was reduced from eight years to five years, while rejecting a plea for probation.

What did the court decide?

The sentence of imprisonment for the offence under section 304(1) IPC was reduced to five years. The conviction was sustained.

Nayaz @ Mohammed Siraj Vs State of Karnataka — 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 12^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL APPEAL NO.308 OF 2011 C/W CRIMINAL APPEAL NO.279 OF 2011

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In Crl.A.No.308/2011

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BETWEEN:

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Girishkumar @ Giri @ Girish, S/o. K.Anjanappa, 20 years, R/at No.107, 2^nd Main, 2^nd Cross, K.G.S.Layout, Marenahalli, Vijayanagara, Bengaluru.

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Swamygowda @ Swamy, S/o Veerabhadregowda, Aged about 23 years, R/o No.9/9, 18^th Cross, 2^nd Main, Bytarayanapura, Bengaluru-26.

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…Appellants

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(By Sri Mohammad Mujassim, Advocate, as Amicus Curiae for appellant No.2; Appeal against appellant No.1 dismissed as abated vide order dated 28.03.2022)

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AND:

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The State of Karnataka, By Ramanagara Rural Police,

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…Respondent

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(By Sri Mahesh Shetty, HCGP)

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This Criminal Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the order dated 21/23.02.2011 passed by the District and Sessions Judge & Special Judge, Ramanagara in S.C.No.49/08 convicting the appellants/accused for the offence p/u/s 304(1), 308, 324 read with section 34 of IPC and etc.

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In Crl.A.No.279/2011

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BETWEEN:

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Nayaz @ Mohammed Siraj, Aged 21 years, S/o Sardar @ Asiff, No.61, 7^th Main Road, Near Police Station, Goripalya, Bengaluru-560026.

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…Appellant

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(By Sri MRC Manohar, Advocate for Sri Prabhugoud Tumbigi, Advocate)

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AND:

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State of Karnataka, Represented by Ramanagara Rural Police, Ramanagara City and District.

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…Respondent

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(By Sri Mahesh Shetty, HCGP)

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This Criminal Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the order dated 21.02.2011 passed by the District and Sessions Judge & Special Judge, Ramanagara in S.C.No.49/08 convicting the appellant/accused for the offence p/u/s 304(1), 308, 324 read with section 34 of IPC and etc.

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These Criminal Appeals coming on for hearing this day, the Court delivered the following:

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JUDGMENT

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These two appeals are disposed of by a common judgment as they arise from judgment of conviction dated 21.2.2011 passed by the District and Sessions Judge, Ramanagara, in Sessions Case No. 49/2008. Criminal Appeal 279/2011 is filed by accused No.3. In Criminal Appeal 308/2011, the appellants are accused 1 and 2. During pendency of the appeal, accused No.1-Girishkumar died and therefore the appeal against him stood abated. In the trial court judgment it is noted that accused No.4 died during pendency of the trial and the case abated relating to him. The prosecution case is as follows :

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PW1-Ananda, PW2-Andani @ Andanaiah

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and Shivarama-the deceased were painters. On 5.2.2008 all the three went to a village, namely Basavanapura to paint the house of one Ramakrishnaiah. After finishing the painting work,

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they were returning to their village. They had to

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pass through a coconut plantation of one Aaga Saheb as there was a pathway in the garden land leading to their village. On the way they saw three unknown persons standing on the pathway near Yamuna Dhaba abutting the land of Aaga Saheb. The said persons picked up quarrel with PW1, PW2 and Shivarama and inflicted injuries with a knife on the stomach and shoulder of Shivarama. They also attacked PWs1 and 2 and inflicted injuries to them. Shivarama died at the spot. PW2 could not walk because of injuries, but PW1-Ananda was somehow able to manage to reach his village and inform about the incident to the villagers. Thereafter the villagers came to the spot and shifted the dead body of Shivarama to the hospital. This incident was reported to the police by PW1. The police registered FIR for the offences under sections 324, 307, 302 read with section 34 IPC, held investigation and filed charge

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sheet against four accused persons for the said offences.

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The prosecution examined 22 witnesses

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and relied on 28 documents as per Exs. P1 to P28 and 16 material objects as per MOs1 to 16. During cross-examination, defence counsel marked Ex.D1 being a portion of statement of PW18.

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Assessing the evidence, the trial court

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recorded the findings that the entire oral and documentary evidence would help the court come to an irresistible conclusion that accused Nos. 1 to

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3 along with accused No.4 assaulted Shivarama, and PWs1 and 2 with knives, in order to cause the death of Shivarama and injuries to PWs1 and 2.

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The trial court has held that though the eye witness, PW10, has turned hostile and also the witnesses to the mahazar turned hostile, the testimonies of PWs1 and 2 could be believed. PWs1 and 2 were the injured and they also

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witnessed the accused inflicting injuries to deceased Shivarama. Their testimonies have not been discredited in the cross-examination. After arrest of accused No.1, the investigating officer was able to arrest the other accused and seize the car used by the accused persons at the time of committing the offence and also the weapons. FSL report as per Ex.P26 discloses that blood stains found on the shirt, banian, pant and also the sample mud collected at the spot were stained with blood of ‘O’ group. During trial the place of occurrence was disputed and therefore the court itself made spot inspection and came to conclusion that the spot as mentioned in the spot mahazar was correct.

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The trial court did not believe the defence theory that PWs1, 2 and the deceased Shivarama were all drunk and they quarreled among themselves for sharing money they had earned

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from painting work and in that course they fell on the sharp objects. Disbelieving the defence version, the trial court held that the prosecution case was worthy of acceptance. Having held so, the trial court came to the conclusion that offences under section 302 and section 307 IPC were not established, however, it recorded conviction for the offences under sections 304(1), 308 and 324 read with section 34 IPC as against all the accused. Each of the accused was sentenced to rigorous imprisonment for a period of eight years and fine of Rs.25,000/- with default imprisonment for two years for the offence under section 304(1) IPC, rigorous imprisonment for two years and fine of Rs.10,000/- with default imprisonment for six months for the offence under section 308 IPC and simple imprisonment for one year and fine of Rs.5,000/- with default imprisonment for two months for the offence under section 324 IPC.

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I have heard the arguments of Sri

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Mohammad Mujassim, amicus curiae appointed in Criminal Appeal 308/2011, Sri M.R.C.Manohar, learned counsel for the appellant in Criminal Appeal No. 279/2011 and the learned Government Pleader for the respondent/State in both the appeals.

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It was the argument of Sri Mohammad Mujassim, learned amicus curiae, that the trial court committed an error in recording conviction against accused 1 and 2 when many witnesses examined on behalf of the prosecution turned hostile. His argument was that though PWs1 and 2 were the injured, having regard to the time when the incident was said to have taken place, PWs1 and 2 could not have seen the face of assailants and therefore for the purpose of their identification, the investigating officer ought to have arranged for test identification parade.

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PWs1 and 2 have deposed that they identified the accused in the police station. In this view, the trial court should not have believed the testimonies of PWs1 and 2 although they are the injured witnesses. PW10 is an eye witness according to the prosecution, but he did not support. For the reason that the eye witness did not support, the testimonies of PWs1 and 2 should have been viewed with suspicion. With regard to recovery of the weapons and the car, his argument was that the independent witness did not support the prosecution. The recoveries were made on the basis of the voluntary statements said to have been given by the accused. Whenever recovery was made on the basis of voluntary statement, it was necessary that the independent witnesses should support the prosecution or otherwise recovery would become doubtful. The trial court should not have believed the testimonies of the investigating officer in regard to recovery. For

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these reasons, the trial court ought to have acquitted accused Nos. 1 and 2 and thus there is a case for interference.

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Sri M.R.C. Manohar, learned counsel for the appellant in Criminal Appeal 279/2011, argued that though there was no evidence that accused No.3 inflicted injuries to Shivarama, he has been held guilty of the offences. PWs1 and 2 might have supported the prosecution, but their testimonies do not find corroboration from the independent eyewitness. PWs14 and 15 turned hostile. Seizure of knives and car was not proved. In Ex.P3, it is written that PW1 and the deceased Shivarama saw three persons standing on the pathway, but in the charge sheet four persons were implicated. Therefore the investigation itself was bad. There is no explanation as to how one more person could be added in the charge sheet. He also argued that the incident was said to have

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taken place at 7.30 PM and for proper

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identification of the accused, test identification parade was necessary to be held. For the reason that test identification parade was not held, the trial court should have come to conclusion that there was no identification of the accused and in this view the evidence placed by the prosecution should have been disbelieved and thereby

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acquitted accused No.3.

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Government Pleader argued that PWs1 and

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2 were key witnesses and they specifically named the accused. PWs1 and 2 have not been discredited in the cross-examination. The defence theory has no basis at all. The investigating officer was not questioned relating to overt act of each of the accused. The trial court has rightly believed the testimony of the investigating officer in regard to recovery of the weapons and the car. For obvious reasons, the independent witnesses

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might have turned hostile, but it does not mean that the court should not believe the testimony of the investigating officer. It was only after the arrest of accused No.1, the involvement of other accused came to light and thereafter based on the confession statement, if the investigating officer was able to seize the car and recover the weapons, no infirmity can be found in it. It was his further argument that only after thoroughly appreciating the evidence, the trial court could come to conclusion that offence under section 302 IPC was not made out. However, the offence under section 304 (1) IPC was proved. As regards the offence under section 307 IPC, the trial court found that the offence under section 308 IPC was proved and thus the trial court took a lenient view while recording conviction and imposing sentence. Therefore it was his argument that there are no grounds to interfere with the well reasoned judgment of the trial court.

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I have perused the entire evidence as

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also the impugned judgment. Re-appreciating the evidence, it may be stated that the trial court’s conclusions cannot said to be wrong. PWs1 and 2 are the eyewitnesses as also the injured. The motive for the incident was that while PWs1, 2 and the deceased Shivarama were passing through the garden land of Aaga Saheb, the shoulder of PW1 rubbed the shoulder of first accused. Accused persons did not tolerate this, they became infuriated and suspected the deceased and PW1 and PW2 to be pick pocketers. There is no dispute that accused were strangers to PWs1 and 2 and the deceased. In this background, if the evidence of PWs1 and 2 is subjected to analysis, I do not find any good ground to discard their testimonies.

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Defence theory was that PWs1, 2 and the

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deceased quarreled among themselves in sharing the daily wages and fell on the sharp objects and

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sustained injuries. But this defence theory is inherently improbable to be believed if the nature of the injuries sustained by the deceased and PWs1 and 2 are seen. Though PWs1 and 2 have appeared to have stumbled while giving description of the overt act of each accused, as has been observed by the trial court expecting the witnesses to give an accurate account of the incident replicating their statements before the investigating officer is highly impossible; and even if they depose in that way, the defence will take an objection that their evidence is nothing but a parrot like version and therefore it is to be disbelieved. It is true that PWs1 and 2 were strangers to the accused, but it is not the defence version that there was enmity between them and therefore PWs1 and 2 deposed falsehood against them in order to inculpate them unnecessarily. The wound certificate clearly discloses the nature of injuries sustained by them and the description

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made in the wound certificate. The doctors who examined them have also spoken about it. In this view, though PWs4 and 10 did not support the prosecution, I do not find a good ground to disbelieve the testimonies of PWs1 and 2.

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The main ground of argument of Sri M.R.C.Manohar and the learned amicus curiae was

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that there was no chance that PWs1 and 2 were able to see the faces of assailants in the pitch dark and therefore test identification parade was necessary. The trial court has answered this point very well. It is not necessary that test identification parade should always be held. It has come in the evidence of PW1 especially that he was able to identify accused No.1 in the police station because of presence of scar on the face of accused No.1. The arrest of first accused led to arrest of other accused. If the witnesses were able to identify the assailants in the police station,

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I do not find any infirmity in it. If at all the evidence of witnesses in this regard is to be disbelieved, the defence must come out with a circumstance as to how this kind of identification should be disbelieved. Therefore merely for the reason that test identification parade was not held, I do not find it a ground to disbelieve the case of the prosecution so far as the identification of the accused was concerned.

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It is true that mahazar witnesses have turned hostile. Their hostility does not affect the prosecution case. The investigating officer was able to seize the car on the basis of information given to him by PW10. PW10 might have turned hostile, but again it may be stated that his hostile evidence does not affect the evidence given by the investigating officer. If the car was seized at the house of accused No.1, obvious inference is that unless such an information was given to the

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investigating officer by PW10, he would not have been able to seize the car. Whenever a witness turns hostile, sometimes the public prosecutors might find it difficult to impeach the hostile witnesses; at times the public prosecutors can do not more than giving suggestion. It is a settled principle now that the evidence given by the investigating officer can be believed if his evidence is believable and there is probity in investigation. For these reasons, I do not find any good ground to discard the testimonies of the prime witnesses, PWs1, 2 and 16.

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The impugned judgment also discloses the fact that the defence disputed the place of incident and for this reason the Presiding Officer of the trial court conducted spot inspection and found that the place of incident mentioned in the mahazar was the very place where the incident

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had occurred. This is also another circumstance that goes against the accused.

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The trial court has found that the offence under section 302 IPC is not proved. However, it has recorded conviction for the offence under section 304 (1) IPC. This conclusion cannot said to be incorrect. The incident might have taken place in a fit of anger as accused No.1 did not tolerate anybody rubbing his shoulder as he himself was a rowdy element and he suspected PW1, PW2 and the deceased as pick pocketers. Rightly the accused have been convicted for the offence under section 304 (1) IPC.

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Having regard to the nature of injuries sustained by PW2, instead of convicting the accused for the offence under section 307 IPC, the trial court found it fit to convict the accused for the offence under section 308 IPC. It is not incorrect finding. The wound certificate pertaining

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to PW1 discloses that he suffered simple injuries and for this reason the accused were convicted for the offence under section 324 IPC. As common intention was forthcoming in inflicting the injuries to PWs1 and 2 and the deceased, rightly section 34 IPC was also applied. Therefore I do not find a good ground to interfere with the well reasoned judgment of the trial court.

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So far as the sentence is concerned, the trial court has imposed eight years rigorous imprisonment. In the facts and circumstances it can be reduced to five years maintaining the fine amount. The sentence of imprisonment for other offences does not require any modification. Therefore with this discussion, I proceed to pass the following :

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ORDER

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(a) Appeals are partly allowed. Judgment of

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conviction is sustained.

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(b) Sentence of imprisonment imposed on the accused for the offence under section 304(1) IPC is reduced to five years. The fine amount is retained.

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(c) The compensation awarded by the trial court to PWs1, 2 and the wife of deceased Shivarama does not require modification.

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(d) The sentence period already undergone by the accused shall be set off and the sentence shall run concurrently.

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At this stage, Sri M.R.C.Manohar prays for releasing of accused No.3 by applying section 4 of the Probation of Offenders Act. Government Pleader, Sri Mahesh Shetty, opposes this submission as accused No.3 along with accused No.1 caused the death of accused No.4 during trial of this case. In reply to this, Sri M.R.C.Manohar submits that accused No.3 was acquitted of the

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offence. Therefore involvement of accused No.3 in another crime is not forthcoming. In this regard, it may be stated that it is not the question of conviction or acquittal; it is a factual aspect that accused No.3 was involved in a criminal case. Therefore it is not feasible to give the benefit of section 4 of the Probation of Offenders Act.

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The High Court Legal Services Committee is directed to pay the fees of Rs.10,000/- to Sri Mohammad Mujassim for the services rendered by him as amicus curiae.

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Sd/JUDGE

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ckl/-

Nayaz @ Mohammed Siraj v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Nayaz @ Mohammed Siraj v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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