Partly allowed

Sri Abdul Fareed v. the State of Karnataka

Karnataka HC8 Feb 2024CRL.A/1971/2021

Case brief

AI extract

What is this about?

Appeal against life sentence for murdering a transgender woman who refused the accused's sexual advance. The High Court upheld the dying declarations and last-seen evidence but held that provocation from insults while inebriated attracted Exception 1 to Section 300 IPC, converting the murder conviction to culpable homicide under Section 304 Part I with sentence limited to time already undergone pl

What did the court decide?

Conviction under S.302 IPC set aside; convicted under S.304 Part I IPC, sentenced to period already undergone and Rs.50,000 fine (default RI 2 years).

Sri Abdul Fareed Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:5477-DB CRL.A No.1971/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY 2024

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PRESENT

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THE HON'BLE MRS.JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR.JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1971/2021(C)

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BETWEEN:

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SRI ABDUL FAREED S/O LATE ABDUL RAHAMAN AGED ABOUT 33 YEARS R/AT 5^TH CROSS NEAR KALIKAMBA TEMPLE ARAFATH NAGAR, HALEGUDDADALLI BENGALURU-560 026 PRESENTLY AT CENTRAL PRISON PARAPPANAAGRAHARA BENGALURU- 560 100 …APPELLANT

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(BY SRI GANGADHAR, ADVOCATE)

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AND:

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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THE STATE OF KARNATAKA BY BYATARAYANAPURA POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU-560 001 …RESPONDENT

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(BY SRI VIJAYAKUMAR MAJAGE, S.P.P-II)

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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 DATED 30.10.2018 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.292/2012 CONVICTING THE APPELLANTACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the order of his conviction and sentence, the accused in S.C.No.292/2012 on the file of the Principal City Civil and Sessions Judge, Bengaluru has preferred this appeal.

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The appellant was tried in S.C.No.292/2012 for the charge for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC') on the basis of the charge sheet filed by Byatarayanapura Police in Crime No.351/2011 of their Police Station.

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The appellant was the sole accused. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The case of the prosecution in brief is as follows: (i) That the victim Naveen @ Preethi was

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transgender. PW.2 Suma and PW.9 Parveen @ Devi were also transgenders. They were residing in rented house of PW.14. They used to beg for their livelihood.

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(ii) On 28.10.2011, the victim along with her friend had gone to Bar situated in Hosaguddadahalli. The accused also joined them there. Victim's friend Saleem was also there. After having drinks, the accused and the deceased

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went to a movie. After watching the movie, the accused solicited sexual favour from the victim, when the victim declined, the accused with an intention to commit her murder, stabbed her with knife MO.3. The victim ran from the said place and moving little distance, she sighted the Police who were on patrol duty, she informed them about the same. They shifted her to Victoria Hospital.

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(iii) PW.3 reported the incident to police. Based on the said report, the first information report as per Ex.P22 was registered for the offence punishable under Section 307 of IPC. When the victim was in the hospital, the Investigating Officer recorded her statement. When she was being treated in the hospital, she succumbed to the injuries on 15.11.2011. (iv) On receiving the intimation of death of the victim, another first information report as per Ex.P11 was registered for the offence punishable under Section 302 IPC. During the course of investigation, the accused was arrested. On the basis of his voluntary statement Ex.P26 knife MO.3 was seized under mahazar Ex.P7. After completing investigation, the Investigating Officer filed the charge sheet against the accused for the offence punishable under Section 302 IPC.

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The trial Court on hearing the parties framed the charge against the accused for the offence punishable under Section 302 IPC. Since the accused claimed to be tried, the trial was conducted. In support of the case of the prosecution, PWs.1 to 20 were examined, Exs.P1 and P34 and MOs.1 to 3 were marked.

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The trial Court on hearing the parties by the impugned judgment and order convicted the accused for the charge for the offence punishable under Section 302 of IPC and sentenced him to imprisonment for life and fine of Rs.5,000/- with default sentence.

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The trial Court held that the case of the prosecution was proved by the evidence of the eyewitnesses, dying declarations of the victim before the Investigating Officer, PWs.2 and 9. The evidence of the eyewitnesses was further corroborated by the medical evidence and the evidence of recovery of incriminating articles at the instance of the accused. The accused has challenged the said judgment and order of conviction and sentence in the above case.

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8. Submissions of Sri Gangadhar, learned Counsel for the appellant/accused:

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(i) The entire case of the prosecution is loaded with suspicion. Ex.P16 the report of PW.7 suffers credibility. Though in Ex.P16 the victim allegedly gave all minute details of the incident and culprit, she did not tell her name itself.

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(ii) The victim being in a position to give such statement itself is very doubtful. Ex.P16 shows that after informing PW.7, the victim collapsed. Whereas the dying declaration Ex.P5 says that the moment she was stabbed she collapsed due to the profuse bleeding and on seeing her, police shifted her to the hospital. Ex.P5 the alleged dying declaration does not state about she implicating the accused and when she was first rescued. Nothing was produced to show that she was in a position to reveal the incident either at the time of shifting her to the hospital or at the time of recording of Ex.P5.

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(iii) The case sheet of the victim was suppressed. The endorsement of the doctor on Ex.P5 clearly shows that endorsement and recording the fitness of the victim to give statement were later interpolated.

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(iv) PWs.1, 10 and 11 being the eyewitnesses is also doubtful as PW.16 does not whisper about their presence at

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the scene of offence. The evidence of the doctor who conducted postmortem examination shows that the stab injury was not direct cause of the death. The death has taken place after 15 days of the incident. Postmortem report and medical evidence show that pus was oozing from the affected part. So the cause of death was due to septicemia.

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(v) The accused has already undergone detention of more than 12 years. The material on record shows that because of his disability, PWs.9 to 11 and 13 were not cross examined. The trial Court without providing him free legal aid placed the conviction relying on the evidence of PWs.9 to 11 and 13 which vitiates the trial.

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(vi) The theory of PWs.2 and 9 being the witnesses to the last seen circumstance is also doubtful. Even assuming that the accused had stabbed the victim, as per the prosecution itself both the accused and victim were drunk and it was the victim who provoked the accused commenting on his skin colour and figure, consequent to that the accused inflicted single stab injury in fit of anger. If at all the Court accepts that he inflicted the stab injury, then also under the

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given circumstances, the act of the accused does not constitute an offence under Section 302 of IPC. But it

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amounts to offence under Section 304 of IPC. Considering

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the aforesaid facts and circumstances, alternatively it is submitted that the order of conviction be modified to one under Section 304 of IPC from Section 302 of IPC. Confining the sentence to the period of detention already undergone by him, the accused be released.

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9. Submissions of Sri Vijayakumar Majage, learned SPP-II for the State:

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(i) Soon after the incident, the victim revealed the incident implicating the accused before PW.7. Immediately thereafter he submitted the report and the first information report was registered. The evidence on record shows that the victim, PWs.2 and 9 were living together.

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(ii) The evidence of PWs.2 and 9 shows that the victim before her death implicated the accused as assailant. The dying declarations of the victim before PWs.2, 9, 7, 16 was further corroborated by the evidence of PW.3 the scribe and the doctor PW.19. The victim survived for more than 15 days after injury. Therefore the victim’s capacity to give dying declarations cannot be doubted.

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(iii) The evidence of PWs.2 and 9 shows that the accused and the deceased were last seen together soon thereafter she was found with homicidal injuries. The medical

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evidence shows that the death was homicidal one. The knife MO.3 was recovered on the basis of the voluntary statement of the accused before the Investigating Officer. The Investigating Officer and the scribe had no reason to falsely implicate the accused.

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(iv) The overall evidence points to the only hypothesis of the guilt of the accused. The fact of the accused carrying knife with him and assaulting the victim on the vital part shows that he had the intention to commit murder. Despite giving sufficient opportunity, the defence Counsel did not cross-examine PWs.9 to 11 and 13. Even if the evidence of PWs.9 to 11 and 13 is eschewed, there is sufficient material to hold that the accused is guilty of murder and such nonexamination of PWs.9 to 11 and 13 has not vitiated the trial. There is no reason to reduce the order of conviction from Section 302 of IPC to Section 304 of IPC. The trial Court on proper appreciation of the evidence has rightly convicted and sentenced the accused. There is no merit in the appeal. Hence the appeal may be dismissed.

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Considering the submissions of both side and on perusal of the records, the point that arises for consideration

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of the Court is “Whether the impugned judgment and order

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of conviction and sentence is sustainable?”

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Analysis

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There is no dispute about the fact that the victim Naveen @ Preeti was a transgender. The evidence of PWs.2 and 9 that they were also transgenders is also not disputed. The evidence of PWs.2 and 9 coupled with the evidence of PW.14 shows that he had let out his house to PW.9 and she was living in the house with four to five transgender people. In the cross-examination of PWs.2 and 9 they living with the victim in the house of PW.14 was not seriously disputed.

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According to the prosecution, on 28.10.2011 in the evening the victim and the accused went to watch movie. Thereafter, the accused solicited sexual favour from the victim. When she resisted, he stabbed her. There were no eyewitnesses to the incident. The case is based on the circumstantial evidence. The circumstances relied on by the prosecution are as follows:

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(i) That the accused and the deceased were last seen together by PWs.2 and 9, thereafter the victim was found with homicidal injuries;

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(ii) Dying declarations made by the victim before:

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(a) PWs.7 and 18 as depicted in Ex.P16.

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(b) PW.16 as per Ex.P5 in the presence of the doctor PW.19 and scribed by PW.3.

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(iii) The recovery of knife MO.3 on the basis of the voluntary statement of the accused under the mahazar as per Ex.P7;

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(iv) The medical evidence, forensic evidence and the evidence of the official witnesses.

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Reg. Nature of death:

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The date of the incident was 28.10.2011. The evidence of PWs.7, 16, 2, 9 and PW.19 the then Medical Officer and Surgeon in Victoria Hospital shows that the victim was admitted in Victoria Hospital on 28.10.2011 with history of stab injury. The evidence of PWs.2, 9, the doctor PW.12 and the death memo Ex.P13 shows that the victim died on 15.11.2011 at 2.00 p.m. The evidence of PW.12 the doctor in forensic department of Bangalore Medical College shows that on 15.11.2011 on the requisition of the Investigating Officer he conducted postmortem examination on the dead body of the victim Naveen @ Preeti and issued postmortem report as

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per Ex.P20. As per his evidence and postmortem examination

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report, the following external and internal injuries were found on the dead body of the victim.

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“(i) Surgical sutured wound measuring 13 cms, present over front of abdomen situated 9.5 cms. below xiphysterumn 11 cms. above the pubic symphysis and placed 0.2 cms. left to umbilicus, 5 sutures and 1 pin in situ.

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(ii) Peritonial cavity contained 200 ml. of pale yellow fluid, Coils of intestine and mesentry adherent to each other, Jejunal part of small intestine and parts of mesentry shows surgical sutures in situ.

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(iii) Both the lungs were consolidated and on cut section pus mixed with blood was exuded out.”

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PW.12 opined that the death was due to stab

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injury sustained to the abdomen and the injuries were ante mortem in nature. In the cross-examination of PW.12, the presence of stab injury on the dead body of the victim was not disputed. But it was suggested that the death was due to septicemia which he denied. By the above evidence, it becomes clear that the victim was admitted for treating stab injury on 28.10.2011 and died on 15.11.2011 i.e. after 15 days.

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The stab injury was the basic cause for death.

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Though the doctor in his own evidence disputed that the death was due to septicemia, the findings under Part III Thorax in Ex.P20 is to the following effect:

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(i) Lungs were consolidated.

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(ii) Cut section pus mixed with blood was exuded out/cut section exudes pus mixed with blood.

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The above finding goes to show that the victim had suffered complications secondary to surgery undergone by the victim. Therefore there is force in the submission of learned defence Counsel that the death was due to septicemia which was secondary to stab injury.

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Reg. Last seen circumstance:

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As per the prosecution, PWs.1, 2 and 9 have last seen the accused and the victim together and thereafter she was found with homicidal injuries. PW.1 did not support the prosecution version and he denied having given statement as per Ex.P1 to that effect. However, PW.2 states that on 28.10.2011 she saw the accused and the deceased at 5.30 p.m. talking to each other in Renuka Bar at Hosaguddadahalli. She further states that on enquiry, the accused and the deceased told that they are friends and therefore they have come there for alcohol. She further

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deposed that thereafter herself, PW.9 Parveen, one Anuksha and others went towards Bapujinagar and the accused and the deceased went towards the bar. She further states that on the next day, the police informed about the accused stabbing the victim.

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PW.9 states that on 28.10.2011 at 5.30 p.m. when herself, PW.2 and two other transgender people were returning home after begging, they saw the accused and the deceased standing near Priyanka Bar and Restaurant at Hosaguddadahalli. She further states that on enquiry, the accused and the deceased told them that they intend to go to bar to consume alcohol. Further herself and her associate left towards Bapujinagar. Next day, she came to know that the victim was stabbed by the accused.

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As already noted, the deceased, PWs.2 and 9 staying together in the house of PW.14 was not impeached nor seriously denied. In the cross-examination of PWs.2 and 9 nothing was elicited to disbelieve their evidence on they sighting the accused and the deceased together. Merely because their names did not appear in Ex.P16 the first information, the evidence of PWs.2 and 9 about they being witnesses to the last seen circumstances cannot be

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disbelieved. It is settled principle of law that the complaint/first information report is not an encyclopedia. Therefore the trial Court was justified in holding that the last seen circumstance was proved.

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Reg. Dying declarations:

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The accused is implicated on the basis of dying declaration made by the victim soon after the stabbing. As per the prosecution version, the victim rushed towards PW.7 the Police Officer who was on duty and revealed about the incident. At that time, PW.7 was accompanied by PW.18 the police constable. The evidence of PWs.7 and 18 coupled with the evidence of PW.19 shows that the victim was shifted to Victoria Hospital by PW.7. PW.7 the police head constable of Byatarayanapura police station who was on secret information duty deposed that they found the injured victim and she revealed that she refused the request of the accused for sexual favour and he stabbed her. Therefore, on shifting her to the hospital under escort, PW.7 went to the police station and submitted his report as per Ex.P16.

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Much was argued referring to the recitals in Ex.P5 the dying declaration made before the Investigating Officer to the effect that soon after stabbing, the victim fell down, if the

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victim had collapsed there, she could not have given information as shown in Ex.P16 implicating the accused. It was further argued that if the victim revealed such information, then she should have revealed her name also which is absent in Ex.P16. Therefore Ex.P16 shall be disbelieved. Neither the victim nor the accused were the persons known to PWs.7 & 18. Therefore there is no chance of PW.7 falsely implicating the accused in Ex.P16. Moreover, when the victim has stated in Ex.P5 that soon after the incident i.e., after the accused stabbing, she started bleeding, she screamed and fell down, she has not stated that she lost her consciousness. Even in Ex.P16, what is stated is that after the victim revealed the incident to PW.7 due to stabbing she fell down. That does not state that she became unconscious.

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The defence Counsel did not elicit in the crossexamination of PW.19 the doctor who treated the victim that when the victim was brought to the hospital she was unconscious. He states that the victim was not unconscious. Therefore the contention that she could not have given statement as per Ex.P16 was rightly rejected by the trial Court.

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After PW.7 submitted the report as per Ex.P16, PW.16 registered the first information report as per Ex.P22

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for the offence punishable under Section 307 of IPC. He claims that based on the first information report, on 29.10.2011 he visited Victoria Hospital and recorded the statement of the victim as per Ex.P5 in the presence of the doctor PW.19 and the doctor had certified about fitness of the victim and the victim gave statement as per Ex.P5 implicating the accused.

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Much was argued referring to the places in which the doctor has certified about fitness of the victim to give the statement to claim that there was interpolation. Even assuming that the endorsement in Ex.P5 referring to the fitness of the victim is not very credible, still the fact remains that the victim did not die soon after the incident. The said incident occurred on 28.10.2011. The statement was recorded on 29.10.2011. She died after 15 days of recording of the statement. As per the accused himself, the victim died due to septicemia and not due to stab injury. Therefore it becomes clear that the victim was in a fit condition to give the statement.

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Much before giving the statement as per Ex.P5, the victim had revealed the name of the accused before PW.7 which is evident from Ex.P16. The victim was suffering stab injury. Under such circumstances if the culprit was somebody else, there was no reason for her to shield him or falsely implicate the accused. The statement in Ex.P5 is almost same as in Ex.P16, except little elaboration about her native place, parents and she living with PWs.2 and 9 etc. Therefore there is no reason to disbelieve the statement Ex.P5 implicating the accused.

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PWs.2 and 9 who were the transgender persons living with the victim deposed that, on getting information about the victim suffering injuries and about her admission in the hospital, they visited the hospital and the victim revealed to them that the accused solicited sexual favour from her, when she resisted, he stabbed her and the police rescued and admitted her to the hospital. The evidence of PW.2 in that regard was not impeached in her cross-examination. PW.9 was not cross-examined at all.

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It was contended that since the accused was in judicial custody, the accused was not given opportunity to cross-examine PW.9. Therefore the trial was vitiated.

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Whether the trial was vitiated or not will be discussed in the later part of the judgment. However even if the evidence of PW.9 is eschewed, the evidence of PW.2 satisfactorily proves that the dying declaration was made before her in sound state. The above discussions go to show that the dying declaration by the deceased made before PWs.2, 9, 16, 7 implicating the accused to the crime was proved by acceptable evidence.

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Reg. Recovery of Knife:

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On his arrest, the accused gave voluntary statement as per Ex.P26 and showed the place where he concealed the weapon of offence namely MO.3 the knife. Then he led the Investigating Officer and the panchas near the electrical pole situated near almariah factory of one Krishnappa in Shamanna Garden area on Mysore Road and took out the knife from the projection portion of the factory building and produced the same. In Ex.P7 it is stated that the accused showed the place of offence. However, since the place of offence was already within the knowledge of the victim, the police and others, that cannot be called as discovery.

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So far as recovery of knife also, PW.13 mahazar witness did not support the prosecution case. Despite PW.13 turning hostile, the other pancha witness namely CW.16 was not examined. The witnesses from the locality where the said weapon was discovered or the owner of the said building were not examined. Therefore it can be said that the circumstance of recovery of MO.3 the knife was not proved beyond reasonable doubt. Then the question is whether not proving the circumstance of recovery alone belies the entire prosecution case, even if the circumstance of last seen together and the dying declaration are proved.

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The Hon'ble Supreme Court in the judgment in Jayamma v. State of Karnataka¹ held that if the dying declaration is found acceptable, the conviction can be based on the same. Therefore even if the circumstance of recovery of knife fails, the conviction can be based on the circumstance of dying declaration.

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Reg. Non cross examination of PWs.9 to 11 & 13:

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The next question is whether the failure of accused to cross-examine PWs.9 to 11 and 13 vitiates entire trial. Out of the said witnesses, except PW.9 others namely

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1 (2021) 6 SCC 213

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PWs.10, 11 and 13 who were examined as circumstantial witnesses, did not support the prosecution case. The trial Court did not rely on the evidence of PWs.10, 11 and 13. Even this Court has not relied on their evidence.

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PW.9 was examined to prove the theory of last seen circumstance and dying declaration made before her. Even if the evidence of PW.9 is eschewed, the last seen circumstance is proved by the evidence of another witness PW.2 who was cross-examined by the defence Counsel. Similarly the circumstance of dying declaration was proved by Ex.P16 which was made before PW.7 and Ex.P5 which was made before PW.16 the Investigating Officer in the presence of doctor PW.19, PW.18 who was present during such dying declaration before PW.7 who shifted the victim to the hospital and PW.3 the scribe in whose presence the victim made such statement. Therefore even if the evidence of PW.9 with regard to dying declaration is eschewed, still the dying declaration sustains based on other evidence. Therefore it cannot be said that the trial was totally vitiated.

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The case was of the year 2012. The accused is in judicial custody since 2011. No purpose will be served by remanding the matter to give opportunity to cross-examine

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PWs.9 to 11 and 13. For the aforesaid reason, there are no grounds to set aside the impugned judgment and order only on the ground that PWs.9 to 11 and 13 were not crossexamined and the same has not prejudiced the case of the accused.

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Reg. Conviction and Sentence:

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Learned Counsel for the appellant argued that as per the victim’s own statement, herself and the accused both were drunk and she herself provoked the accused commenting on his colour and figure. Therefore she states that the accused all of a sudden inflicted single stab injury. Therefore the knowledge and the intention to commit murder cannot be imputed to the accused attracting Section 302 of IPC.

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Perusal of Exs.P5 and P16 shows that the accused and the deceased together went to the Bar. They had cordiality from entering the Bar till they came on the road. Even after that they went to watch a movie. In Exs.P5 and P16 the victim herself states that after watching movie when they were proceeding on the road, the accused made sexual advancement towards her and she rejected his advancement stating that he is dark and fat man, then accused all of a

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sudden picked up quarrel with her and stabbed her on her

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stomach and attempted to commit her murder.

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The above circumstances show that both the

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accused and the deceased were drunk and the accused was infatuated after staying with the deceased for such long time. When he tried to be intimate with her, she insulted him using slang language and sarcastic remarks about his colour and figure. He inflicted a single stab on her. It is true that the evidence on record shows that the accused stabbed the victim saying that he will kill her and he had knowledge that such stab injury is likely to cause her death. However, the evidence on record shows that at the time of the incident, he was inebriated, in addition to that, the victim infuriated him commenting that he is fat and dark, thereby he was unfit for sexual cohabitation. Thus, he was not in a position to make informed decision. Therefore the offence falls under Exception 1 of Section 300 which reads as follows:

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“Exception 1 .— When culpable homicide is not murder. —Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

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The above exception is subject to the following provisos:—

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First .—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

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Secondly .—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

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Thirdly .—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation .—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”

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In such cases, the act of the accused constitutes the offence punishable under First Part of Section 304 of IPC.

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First Part of Section 304 of IPC carries

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imprisonment for life or imprisonment upto 10 years and fine. In the case on hand, the accused has no other criminal antecedents. There is nothing to show that the accused had any other criminal antecedents. He was arrested on 01.11.2011. He has undergone detention for more than 12 years. At the time of offence, he was aged 25 years. Considering the same, it would be just and appropriate to sentence him to the period of detention already undergone

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by him. Therefore the appeal deserves to be allowed in part.

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Hence the following:

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ORDER

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The appeal is allowed in part.

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The impugned judgment and order of conviction and

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sentence passed by the trial Court against the appellant/accused for the offence punishable under Section 302 of IPC is hereby set aside.

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The accused is hereby convicted for the offence punishable under First Part of Section 304 of IPC. For the said offence the accused is sentenced to imprisonment for the period of detention already undergone by him and fine of Rs.50,000/-. In default to pay the fine amount, he shall undergo rigorous imprisonment for two years.

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The order of the trial Court with regard to disposal of properties is maintained.

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Communicate copy of this order to the trial Court and the concerned prison.

Sd/JUDGE

Sd/-

JUDGE

KVK/PKN/KSR List No.: 1 Sl No.: 7

Sri Abdul Fareed v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Abdul Fareed v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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