Partly allowed

K Rizwan v. the State of Karnataka

Karnataka HC22 Feb 2022CRL.A/772/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal partially regarding the sentence but confirmed the conviction under Section 307 IPC for attempted murder. The court reduced the imprisonment term from five to two years and enhanced the fine from Rs.2,000 to Rs.20,000, directing that Rs.15,000 be paid as compensation to the victim.

What did the court decide?

Imprisonment reduced to two years; fine enhanced to Rs.20,000 with Rs.15,000 as compensation to complainant.

K Rizwan Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL No.772/2011

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BETWEEN:

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K. RIZWAN S/O KARIMSAB AGED 33 YEARS OCC: AGRICULTURIST R/AT DIBBADAHATTI VILLAGE JAGALUR TALUK DAVANGERE DISTRICT

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….APPELLANT

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(BY SRI. S.B. PAVIN, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY JAGALUR POLICE

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…. RESPONDENT

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(BY SRI. K.S. ABHIJITH, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DT: 16.07.2011 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANGERE IN S.C.NO.40/2009, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.02.2022, COMING ON FOR ‘PRONOUNCEMENT JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appellant/accused has filed this appeal under Section 374(2) of Criminal Procedure Code, 1973 ( ‘Cr.P.C.’ for short) challenging the judgment of conviction and order of sentence dated 16.07.2010 passed by the Principal District and Sessions Judge, Davangere, in SC No.40/2009, whereby the learned Sessions Judge has convicted the accused and sentenced him to undergo Simple Imprisonment for a period of five years and to pay fine of Rs.2,000/-, for the offences under Section 307 of Indian Penal Code, 1860 ( ‘IPC’ for short).

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case is that, the complainant-Ibrahim is the resident of Dibbadahatti Village, Jagalur Taluk in Davangere District and he was eking his livelihood by selling Ice Candies by

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carrying it on his bicycle. On 23.10.2008, by pledging the ear-studs of his wife, he has taken loan of Rs.3,700/- in Bharamasagara. Then the accused demanded for Rs.100/-, but the complainant denied the same. Then the accused

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has requested him to pay at least for Rs.50/-. But, that request was also turned down by the complainant and as such, the accused threatened him that he would see him, when he comes to village. Then the complainant took Tiffin in Bharamasagara in one of the hotels and reached Gollarahalli Cross in a bus and then he was proceeding towards his village. At that time, at about 8.00 p.m., while he was passing in a vacant site, nearby the house of one Bharamajja situated in Dibbadahatti village, the accused, who was hiding in manure pit, suddenly pounced upon him and abused him in filthy language and assaulted him with chopper causing injuries on left side of the head, left hand palm and fingers, left eyebrow, with an intention to cause his death having knowledge that, his act would cause death and in that event, he would have been guilty of murder. Then the persons gathered there, pacified the disputes by

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snatching away the chopper from the accused and then accused ran-away and the complainant was immediately shifted to the hospital, wherein the police came and recorded the complaint. The complaint was registered and FIR came to be issued for the offence under Sections 504 and 307 of PC. In the meanwhile, accused was arrested and later on he was enlarged on bail. The Investigating Officer has also drawn spot-mahazar, recovered the material objects and recorded the statement of witnesses and after completion of investigation, submitted the charge sheet under Sections 504 and 307 of IPC.

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After taking cognizance of the said offences, in pursuance of summons, accused appeared before the Court through a counsel and was enlarged on bail. The prosecution papers have been furnished to him. Then the learned Sessions Judge after hearing the Public Prosecutor and the defence counsel, has framed charges under Sections 504 and 307 of IPC. The accused pleaded not guilty and claimed to be tried.

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5. To prove the guilt of accused, the prosecution

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has examined in all Ten witnesses as PW.1 to PW.10 and placed reliance on Six documents as Exs.P1 to P6 and Three Material Objects as MOs.1 to 3. During cross-examination, the learned defence counsel has also got marked a document as Ex.D1. After conclusion of evidence on the side of prosecution, the statement of accused under Section 313 Cr.P.C. was recorded to enable him to explain incriminating evidence appearing against him. But, the case of accused is of total denial and he did not choose to lead any evidence in support of defence. He has given explanation that, his land and the land of the father-in-law of complainant are adjacent to each other and due to previous enmity between the accused and the father-in-law of the complainant, earlier to the incident in question, on many occasions, false complaint came to be lodged.

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After hearing arguments of the counsels

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appearing for the parties on both sides and after perusing the oral and documentary evidence, the learned Sessions Judge has acquitted the accused for offence under Section

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504 of IPC. But, he convicted accused for offence under Section 307 of IPC by imposing sentence of Simple Imprisonment for a period of 5 years with fine of Rs.2,000/with a default cause. Being aggrieved by this judgment of conviction and order of sentence, accused has filed this appeal.

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Learned counsel for the appellant would contend

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that, the judgment of the trial Court is illegal and the learned Sessions Judge has convicted the accused against the material evidence. He would also contend that the learned Sessions Judge when acquitted the accused for the offence under Section 504 of IPC, has erred in convicting accused for offence under Section 307 of IPC. He would

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also contend that, independent eyewitnesses were not examined and the evidence of PW.3 is not trust-worthy, and that the evidence of PW.7 discloses that, the incident has taken place in the night and as such in darkness of night, identifying the accused is improbable. He would further contend that the medical evidence and the injuries sustained by PW.1 did not support the case of prosecution

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and the evidence is inconsistent; that the learned Sessions Judge has ignored the fact of enmity between family of complainant and accused and further when the complainant claims that, he left Bharamasagara at 7.45, it is hard to accept that within 15 minutes to 30 minutes, he reached village, when his village is about 13 Kms. away from Bharamasagara and that too the complainant should walk for two kilometers to reach his village and hence, the entire case of prosecution is doubtful. The trial Court has also not considered the fact that the blood group of the complainant was not at all disclosed and the evidence is inconsistent and contrary to each other. Hence, he would contend that the judgment of conviction and order of sentence are perverse, illegal and arbitrary and as such, he has sought for setting aside the impugned judgment of conviction by acquitting the accused, by allowing the appeal.

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Per contra, the learned High Court Government Pleader (‘HCGP’ for short) would support the Judgment of conviction and order of sentence and submit that there is no reason for discarding the evidence of prosecution witnesses.

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He would also contend that the minor discrepancies in the evidence are bound to occur, which cannot be given much prominence, as the memory is likely to fade due to lapse of time. Hence, would seek or dismissal of the appeal by confirming the impugned judgment of the trial Court.

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Having heard arguments of the learned counsels appearing for the parties on both sides and perusing the records, now the following point would arise for consideration:

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Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, erroneous, illegal and arbitrary so as to call for any interference by this Court ?

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To prove the guilt of the accused, the

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prosecution has examined in all 10 witnesses:

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a) PW.1-Ibrahim is the complainant and PW.2Rudresha and PW.3-Kampalesha are the spot-mahazar witnesses. PW.2 has turned hostile to the case of prosecution.

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b) PW.4-M.R. Nagaraja and PW.5-Zakir Sab are two seizure mahazar witnesses in respect of seizure of Shirt of the complainant. But, they have also turned hostile partially.

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c) PW.6-Rama @ Ramanna and PW.7-P. Appanna are two material eyewitnesses, while PW.8-Dr. N. Rajappa is the Medical Officer. PW.9-Hassan Sab is the Investigating Officer and PW.10-Dr.N.L.inegowda is the Chemist, who deposed regarding issuance of FSL Report as per Ex.P6. The complaint is marked as Ex.P1.

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It is to be noted here that the alleged incident is said to have taken place on 23.10.2008 at about 8 ‘O’ Clock in the night. The complainant was admitted in the Government Hospital at Jagaluru and the complaint was lodged on 24.10.2008 between 0.45 am and 1.15 am i.e, in midnight. Hence, it is evident that there is no delay in lodging the complaint and in the hospital itself the complainant has lodged complaint and the complaint was lodged in presence of the Medical Officer, and the Medical Officer has attested the complaint and identified his

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signature as Ex.P1(b) and he has specifically deposed that at the time of lodging complaint, the complainant was oriented and was capable of giving the complaint, and he has given complaint/statement in his presence.

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The complaint reveals that the complainant is doing business of selling Ice Candies by visiting different villages on bicycle and as he was facing difficulty, he intended to buy a second-hand TVS motor cycle and as such, he pledged the gold ear-studs of his wife in a jewelry shop at Bharamasagar on 23.10.2008 and received a Rs.3,700/-. According to prosecution, when he was standing in front of bus-stop, the accused approached him and demanded Rs.100/- and when he refused to give, the accused requested to give at least Rs.50/-, which the complainant refused to pay expressing his financial constraint. Then the accused threatened the complainant stating that he will see him in village and went away and then the complainant took Tiffin in a hotel at Bharamasagar and reached Gollarahalli Cross in a bus. It is the further case of the prosecution that, when the complainant was

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proceeding towards his village at 8.00 p.m., near the house of Bharamajja, the accused who was hiding in a manure pit, suddenly pounced on him, abused him in filthy language and assaulted him with a chopper on his head and hands, and as a result, the complainant sustained injuries. He further deposed that at that time, PW.7-Appanna, who was present at some distance came to the spot and snatched the chopper from the hands of the accused and immediately, the accused ran-away. Thereafter, the complainant was shifted to Government Hospital at Jagaluru, wherein the complaint came to be lodged.

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The complainant was examined as PW.1 and in

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his examination-in-chief, he has reiterated the averments made in complaint. No doubt, there are minor discrepancies in his evidence, but they cannot go to the root of the case so as to discard the entire evidence of the complainant. No doubt, in his cross-examination, it is elicited that the distance between his village and Bharamasagar is 13 Kms., and there was no direct bus facility to his village-Dibbadahatti and therefore the people

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of the village have to walk for two kilometers to catch bus to Bharamasagar. It is also elicited that, he left Bharamasagar at 7.30 to 7.45 p.m., and on the basis of these admissions, it is vehemently argued by the learned counsel for the appellant that, it is hard to accept that complainant reached village in 15 to 30 minutes’ and it is not acceptable, as the complainant himself has admitted that, it will take minimum one hour to reach their village from Bharamasagar by bus and hence he disputed the entire story of the prosecution. However, it is to be noted here that the complainant is a rustic villager and hence, strict timings cannot be taken note of and the evidence is given on the basis of the approximate timings and hence, the discrepancy regarding timings does have any relevancy. The said argument advanced by the learned counsel for the appellant is not acceptable.

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Further, PW.1 has specifically deposed that, PW.7-Appanna snatched the chopper from the hands of accused at the time of incident and this statement is corroborated by the evidence of PW.3, PW.6 and PW.7-

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Appanna. PW.3 has deposed regarding PW.7-Appanna producing chopper at the time of drawing mahazar as per Ex.P2 and identified it as MO.1. No doubt, he has admitted that, he does not know the contents of mahazar. PW.2, who is another mahazar witness and he turned hostile. But, his evidence discloses that the police visited the spot and obtained his signature. Further, the evidence of PW.3 is again corroborated by PWs.6 & 7 and both PWs. 6 & 7 have deposed regarding assault made by accused on the complainant. During cross-examination of PWs. 1 & 7, certain suggestions have been made regarding the dispute between father-in-law of the complainant and accused, and lodging number of complaints in this regard including the suit. But, except bald suggestions, no documents have been produced by accused to substantiate the contention that there was animosity between the family of the complainant or his father-in-law, with accused. No doubt, PW.6 has initially supported the case of prosecution, but was cross-examined later on 01.09.2010. During crossexamination of PW.6 by defence counsel, he claims that, he

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was not present when the incident has occurred and thereby given a go-by to his original statement given before the Court. To this extent alone, this witness was treated as hostile to the prosecution case and conduct of this witness would clearly establish that he was own-over by the defence and supported the case of prosecution fully in examination-in-chief and during cross-examination by the defence counsel, after adjournment, he has given a go-by to his statement before the court. He did not explain as to why he has given evidence before the court regarding he witnessing assault earlier. This disclose that he was wonover by accused.

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PW.7-Appanna has also supported the case of prosecution and though he was cross-examined at length, nothing was elicited so as to impeach his evidence. PW.8 –Dr. N. Rajappa is the Medical Officer and he deposed that, on 23.10.2008 in the night at about 11.20 p.m., the injured-Ibrahim was brought to hospital with a history of assault by accused-K.Rizwan. It is important to note here that the history given all along is consistent and complaint

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was also lodged immediately. The medical evidence disclose that the complainant has suffered incised would over left parietal region of scalp and Irregular shaped abrasion over left upper eye-lid, lacerated would both over left middle finger on palmer surface and also on palmer surface of left ring finger. He has also deposed that, later on, the police had visited the hospital and in the hospital, the complainant has lodged the complaint and he endorsed the same by signing it as per Ex.P1(b). Though this witness was cross-examined at length, nothing was elicited so as to impeach his evidence, except suggesting that, if a person is assaulted, more grievous injuries or fracture of bones can cause, but the witnesses specifically stated that, it may happen and it may not happen. It is evident that, it depends on the force used and the medical evidence completely corroborates the case of prosecution.

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PW.10-Dr.N.L. Lingegowda, who is a scientific officer, has deposed regarding issuing Ex.P6 and deposed that, when he examined MOs. 1, 2 & 3, they were having human blood of ‘B’ group. The learned defence counsel has

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contended that the prosecution has not established the fact that the blood group of the complainant is of ‘B’ group and no medical evidence was collected in this regard. But, however, the injuries on the body of the complainant were not at all denied or disputed. No attempt has been made by the accused to explain the injuries found on the body of the complainant. Non-production of receipt pertaining to pledging ear-stud is not a ground to discard the entire case of the prosecution. Learned counsel for the appellant has also invited the attention of the Court regarding inconsistency in the spot-mahazar-Ex.P2 and the evidence of the witnesses regarding production of MO.1-Chopper. But, the evidence is consistent regarding production of chopper by PW.7-Appanna. Further, the incident has occurred in October, 2008 and the evidence was recorded in 2010 and 2011. Hence, the discrepancies are bound to occur due to lapse of time. In this regard, the learned HCGP has placed reliance on a decision reported in (2011) 4

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SCC 324 [State of Uttar Pradesh Vs. Naresh and

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others) and invited the attention of the Court to Para-30, which reads as under

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“30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

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"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

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Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State v. Saravanan, Arumugam v. State, Mahendra Pratap Singh v. State of U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra]”

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Hence, it is evident that, minor discrepancies which are bound to occur, cannot be given much importance, as they do not go to the root of the case. Further, there is no exaggeration in the case of prosecution and the evidence is consistent. Further, no reason is forthcoming for complainant to give false evidence and though the defence has alleged animosity, the same is not substantiated by producing any evidence. The medical evidence coupled with the evidence of the injured and eyewitnesses clearly establish that accused has attacked the complainant by a chopper on his head and other parts of the body, and thereby attempted on his life.

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The learned Sessions Judge has appreciated the

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oral and documentary evidence in detail and arrived at a just decision. Merely because the learned Sessions Judge has acquitted the accused for offence under Section 504 of IPC, that by itself is not a ground to discard the other evidence. The learned Sessions Judge only after considering insufficient evidence for offence under Section 504 of IPC, has acquitted accused. But, as regards offence under Section 307 of IPC, he has convicted accused after appreciating the material evidence on record.

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The offence under Section 307 of IPC is

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punishable with imprisonment, which may extend to 10 years and fine or for life imprisonment or imprisonment for 10 years and fine. In the instant case, admittedly injuries have been caused to the complainant, when the accused has attacked him by a chopper. The accused ought to know the consequences of using a sharp-edged weapon viz., chopper and that too attacking on vital part of the body i.e., head and as such, the intention can be gathered. Hence,

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the ingredients of Section 307 of IPC are established. The learned Sessions Judge has imposed imprisonment for a period of five years with fine of Rs.2,000/-, and no minimum sentence is prescribed for the said offence under the said provision.

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Considering the facts and circumstances of the case, in my considered opinion, the sentence of imprisonment can be reduced by enhancing the fine amount so as to award compensation to the complainant, which would serve the purpose. Only to this extent, the judgment can be interfered and in my considered opinion, the accused can be imposed sentence of imprisonment for two years by enhancing the fine amount from Rs.2,000/- to Rs.20,000/-, which will serve the purpose and accordingly, the point under consideration is answered. As such, the appeal needs to be allowed so far as it is concerned with the sentence of imprisonment. Accordingly, I proceed to pass the following:-

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ORDER

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i) The appeal is allowed-in-part .

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ii) The judgment of conviction dated 16.07.2010 passed by the trial Court viz., Principal District and Sessions Judge Davangere, in SC No.40/2009 stands confirmed. However, the order of sentence of simple imprisonment for five years for the offence under Section 307 of IPC with fine of Rs.2,000/- is modified by reducing to sentence of Simple Imprisonment for a period of two years and the fine is enhanced to Rs.20,000/- in default, simple imprisonment for six months.

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iii) Out of recovered fine amount of Rs.20,000/, Rs.15,000/- shall be paid to the complainant by way of compensation and Rs.5,000/- shall be credited to the State Treasury.

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JUDGE

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Sd/-

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KGR*

K Rizwan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

K Rizwan v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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