Dismissed

Yaasin @ Yaasin Sharif v. State by Nagamangala Town Police

Karnataka HC10 Dec 2024CRL.A/774/2012

Case brief

AI extract

What is this about?

High Court dismissed two criminal appeals challenging convictions for attempt to murder under Section 307 IPC. The court held that despite witnesses turning hostile and procedural lapses, the injured victim's evidence corroborated by medical records proved the intent to kill. Section 307 does not require injuries be life-threatening, only that the act displayed intent to cause death.

What did the court decide?

Conviction and sentence under Section 307 IPC affirmed; appeals dismissed.

Yaasin @ Yaasin Sharif Vs State by… — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:50885 CRL.A No. 774 of 2012 C/W CRL.A No. 825 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 774 OF 2012

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C/W

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CRIMINAL APPEAL No. 825 OF 2012

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IN CRL.A No. 774/2012:

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BETWEEN:

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YAASIN @ YAASIN SHARIF S/O GHOUSE PASHA AGED ABOUT 26 YEARS R/A SOWKALI MOHALLA MYSORE ROAD, NAGAMANGALA TOWN MANDYA DISTRICT.

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…APPELLANT

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(BY SRI MANJUNATH PRASANNA H A, ADVOCATE)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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STATE BY NAGAMANGALA TOWN POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI B LAKSHMAN, HCGP)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 2.07.2012 IN S.C.No.16/2009 BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE, MANDYA - CONVICTING THE APPELLANT/ACCUSED

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NC: 2024:KHC:50885 CRL.A No. 774 of 2012 C/W CRL.A No. 825 of 2012

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FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 R/W SECTION 34 OF IPC AND ETC.,

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IN CRL.A No. 825/2012:

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BETWEEN:

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NADEEM PHASHA S/O ILIYAS PASHA AGED ABOUT 26 YEARS R/AT NEAR MEKKA MASIDI FACTORY ROAD 1^ST CROSS, MANDYA ROAD NAGAMANGALA TOWN MANDYA DISTRICT.

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...APPELLANT

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(BY SRI HARIPRASAD M B, ADVOCATE)

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AND:

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STATE BY NAGAMANGALA TOWN POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001.

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...RESPONDENT

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(BY SRI B LAKSHMAN, HCGP)

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THIS CRL.A IS FILED UNDER SECTION 374(2) OF Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION & SENTENCE DATED 2/7/2012 PASSED IN S.C. No.16/2009 BY ADDITIONAL DISTRICT & SESSIONS JUDGE, MANDYA - CONVICTING THE APPELLANT/ACCUSED No.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 R/W 34 OF IPC AND ETC.,

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THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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Crl.A.No.774/2012 is filed by accused No.1 and

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Crl.A.No.825/2012 is filed by accused No.2. Both the appeals are filed challenging the judgment of conviction and order on sentence passed in S.C.No.16/2009 dated 02.07.2012 by the Additional District and Sessions Judge, Mandya, whereunder, the appellants – accused Nos.1 and 2 have been convicted for the offence under Section 307 of the Indian Penal Code, 1860 (for short hereinafter referred to as ‘IPC’) and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.2,000/- each.

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The factual matrix of the case is that; on 08.06.2008, at 3.30 pm., PW1 – Sri.Shivanna was in his furniture shop doing business. At that time, accused Nos.1 and 2 came to the furniture shop of PW1 in their goods autorickshaw bearing No.KA-54-349 stating that they are intending to purchase almirah and they took PW1 to godown situated on the back side of the shop where

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they gave him life threat, put hands in his pocket in order to rob cash. At that time, PW1 objected and resisted for the same. At that time, accused Nos.1 and 2 stabbed PW1 with knives on his stomach, chest and lower abdomen and attempted to commit his murder and the persons gathered there, took PW1 to Mallige hospital.

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Charge sheet has been filed against accused Nos.1 and 2 for the offences under Sections 504, 393, 394 and 307 r/w Section 34 of IPC. The matter came to be committed to the Court of Sessions. The Sessions Court framed the charge for the offences under Sections 393, 394 and 307 of IPC. In order to prove the charge, the prosecution has examined eleven witnesses as PWs.1 to 11 and got marked the documents as Exs.P1 to P19 and material objects as MOs.1 to 9. The statement of accused Nos.1 and 2 came to be recorded under Section 313 of Cr.P.C. After hearing the arguments on both sides, the learned Sessions Judge has formulated points for consideration and convicted accused Nos.1 and 2 for the offence under section 307 of IPC and sentenced them as noted supra

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and acquitted them of the offences under Sections 393 and 394 of IPC. The said judgment of conviction and order on sentence has been challenged in these two appeals by accused Nos.1 and 2.

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Heard learned counsels for accused Nos.1 and 2 in both the appeals and learned High Government Pleader for the respondent – State in both the appeals.

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Learned counsel for the appellant in

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Crl.A.No.774/2012 would contend that PW1 who is the injured even though has supported the case of the prosecution in the chief examination, he did not support in the cross examination by the learned counsel for the accused and he has been treated as hostile by the prosecution. PWs.2 and 4 – eye witnesses have not supported the case of the prosecution. PW1 in his cross examination has stated that there were six customers in

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his shop and he do not know who assaulted him. He submits that considering the said evidence, the accused persons ought to have been acquitted by the Trial Court.

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PW3 – complainant has not supported the case of the prosecution. PW6 who is pancha to Exs.P4 and P5 - mahazar has also not supported the case of the prosecution. PW7 – pancha to the seizure mahazar of the autorickshaw – Ex.P11 has not supported the case of the prosecution. PW8 – Head Constable has registered the complaint as per Ex.P1, but there is no endorsement on it by the doctor that he was capable of giving statement on that day. MOs.1 and 2 have not been sent to PW9 – doctor for his opinion as to whether they can cause injuries found on PW1 and noted in Ex.P12 – wound certificate. PW9 – doctor has not stated that the injuries sustained by PW1 are life threatening injuries. There was no mens rea on the part of the accused persons to cause death of PW1 and therefore, the offence under Section 307 of IPC is not attracted. The Investigating Officer has not collected the blood stains on the spot and there is a lapse in that regard. As the eye witnesses and the injured have turned hostile, the benefit of doubt is to be extended to the accused persons.

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Learned counsel for the appellant in

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Crl.A.No.825/2012 would contend that PW1 in his evidence has stated that accused No.2 assaulted him five times and accused No.1 assaulted him 4 to 5 times with knives and on perusal of Ex.P12 – wound certificate there are only five injuries sustained by PW1. Therefore, there is a contradiction in that regard and evidence of PW1 is not corroborated by the medical evidence. In the history noted in Ex.P12 – wound certificate, there is no mention regarding who assaulted PW1. The incident had taken place at 3.30 pm and the complaint came to be filed at 8.15 pm and there is delay in filing the complaint. Accused Nos.1 and 2 came to be arrested in the hospital at Mysuru and there is no investigation as to why they had been to the said hospital. There is delay in recording the statement of PW1, whose statement was recorded on 13.06.2008, even though the incident had occurred on 08.06.2008. The learned Trial Judge has placed reliance only on the chief examination of PW1. On reading of cross examination of PW1, there is a contradiction in the chief

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examination and the cross examination, as he has stated that he do not know among six customers who had assaulted him. Both the counsels placed reliance on the following decisions;

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“ 1. State of Maharashtra Vs. Balram Singh reported in 1983(2)SCC 28.

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2. State of Rajasthan Vs. Dhool Singh reported in (2004) 12 SCC 546.

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3. Raju and another Vs. State of Uttarkhan reported in 2024 INSC 633.

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4. Sat Paul Vs. Delhi Administration reported in AIR 1976 SC 294.”

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Learned High Court Government Pleader for the respondent – State has supported the reasons assigned by the Trial Court. He submits that PW1 is the injured and he

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has specifically stated the assault by accused No.1 with knife and accused No.2 with knife on his stomach, chest and lower abdomen. The admission given by PW1 in his cross examination cannot be relied, as the cross examination has been done after a long gap after the chief examination. PW1 was knowing that accused Nos.1

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and 2 assaulted him and he has specifically identified them and specifically stated the assault made by them on his body with knives. Due to the assault by the accused persons, the intestine of PW1 came out and he took treatment in Mallige Hospital, Bengaluru. MOs.1 and 2 have been seized from the spot. Considering the evidence on record, the learned Trial Judge has rightly convicted the appellants for the offence under Section 307 of IPC. On these grounds, he prayed for dismissal of both the appeals.

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Having heard the learned counsels and on perusal of the appeal memo and the Trial Court and considering the grounds urged, the following point arises for my consideration;

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“Whether the Trial Court has erred in convicting the appellants – accused Nos.1 and 2 for the offence under Section 307 of IPC?”

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My answer to the above point is in the negative, for the following reasons;

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PW1 is the injured in the incident. PWs.2 and 4 are

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the eye witnesses to the incident and they have not supported the case of the prosecution. PW3 is the relative of PW1 who has filed complaint as per Ex.P3. The incident had taken place at 3.30 pm on 08.06.2008 and complaint came to be lodged at 6.15 pm on the same day. PW1 – injured was taken to Mallige Hospital, Bengaluru and he was admitted there as inpatient and he took treatment from 08.06.2008 till his discharge on 25.06.2008. Ex.P12 is the wound certificate, wherein PW1 came to be admitted with the history of assault. Name of the persons who assaulted PW1 has not been mentioned in Ex.P12.

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PW1 in his examination in chief has stated that he was knowing accused Nos.1 and 2 as they used to come to his shop for transporting the furniture purchased by the customers to the customers’ place. PW1 has specifically stated that accused Nos.1 and 2 on 08.06.2008 came to

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his shop at 3.25 pm., and they enquired about the furniture and at that time, accused No.2 assaulted him

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with knife on his stomach and lower abdomen five times and accused No.1 assaulted with knife for 4 to 5 times below his umbilical region and his intestine came out. He screamed and PWs.2 and 4 came inside the shop and accused Nos.1 and 2 leaving their chappals, ran away by throwing both the weapons and he was taken to Mallige Hospital and he gained conscious in the night. He has identified MOs.1 and 2 – knives as used by the accused persons to assault him. He has also identified the cloths worn by them which are at MOs.3 to 5. He has also identified the holes in those cloths. He has stated that the accused persons demanded money from him and told that if he does not give money, they will kill him and they were knowing that he was having money got out of his furniture business. On the date of chief examination ie., on 26.12.2011, he has not been cross examined on the ground that he will be cross examined after the evidence of the eye witnesses. Thereafter, he has been cross examined on 02.04.2012, wherein he has admitted that at the time of the incident, there were 7 to 8 customers in

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his shop and there was dark in the godown and as there were 7 to 8 customers, he could not know who had assaulted him and who took him to the hospital. Considering the said admission, at the request of the Public Prosecutor, he has been treated as hostile and he has been cross examined by the Public Prosecutor. In the

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cross examination by the Public Prosecutor, he has admitted that he has stated names of the persons who assaulted him with knives and he could not have named them, if they had not assaulted him. Thereafter, there was no cross examination of PW1 by the accused persons.

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PW2 is one of the eye witnesses to the incident and in his examination in chief recorded on 26.12.2011, he has stated that when he was returning to his village on the motor cycle, he saw the accused persons running away after assaulting PW1 with knife. His examination in chief was not completed on that day and it continued on 02.04.2012, wherein, he has stated that he did not see the accused persons assaulting PW1 and he has been

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treated as hostile. PW4 is another eye witness and he has been examined on 20.04.2012 and he turned hostile and not supported the case of the prosecution. The Trial Court placing reliance on the evidence of PW1 has convicted the accused Nos.1 and 2 for the offence under Section 307 of IPC. It is contended by the learned counsels for the appellants that as PW1 has turned hostile, his evidence cannot be placed reliance, as his evidence is not corroborated by any other witness. The Hon’ble Apex Court in case of Sat Paul Vs. Delhi Adminsitration , supra , has considered the evidence of a hostile witness and observed thus;

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“51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge

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finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”

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The Hon’ble Apex Court in the case of Selvamani

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Vs. The Sate Rep. by the Inspector of Police reported in 2024 INSC 393 , has held thus;

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8 . No doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case.

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9. A 3-Judge Bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh - (1991) 2 SCC 627:1991 INSC 153, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana – (1976) 1

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SCC 389 : 1975 INSC 306, Sri Rabindra Kuamr Dey v. State of Orissa – (1976) 4 SCC 233 : 1976 INSC 204, Syad Akbar v. State of Karnataka – (1980)1 SCC 30 : 1979 INSC 126, has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.

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10. This Court, in the case of C. Muniappan and Others v. State of Tamil Nadu, (2010 9 SCC 567 : 2010 INSC 553, has observed thus:

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"81. It is settled legal proposition that : (Khujji case, SCC p. 635, para 6)

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'6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.'

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82 . In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally

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rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543, Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516, Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450, Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 and Subbu Singh v. State, (2009) 6 SCC 462.

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83 . Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

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84 . In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

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85 . It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary

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evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Vide Sohrab v. State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash, (2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588, State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v. Saravanan, (2008) 17 SCC 587"

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11. In the case of Vinod Kumar v. State of Punjab (2015)3 SCC 220:2014 INSC 670,, this Court has observed thus:

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" 51 . It is necessary, though painful, to note that PW7 was examined-in-chief on 30-91999 and was cross-examined on 25-52001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-

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examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and reexamined.

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52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the court on 13-9-1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in the court. It has also been accepted by him that he had given the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9-1999 after going through and admitting it to be correct. It has come in the reexamination that PW 7 had not stated in his statement dated 13-9-1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.

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53 . Reading the evidence in entirety, PW7's evidence cannot be brushed aside. The delay

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in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination-inchief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examinationin- chief and the re-examination.

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XXX XXXX XXX

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57 . Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts:

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57.1 . Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.

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57.2 . As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurise the witness and to

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gain over him by adopting all kinds of tactics.

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57.3 . There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for nonacceptable reasons.

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57.4 . In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the crossexamination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for crossexamination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.

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57.5 . The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to

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note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort.

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Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the crossexamination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot be allowed to be lonely; a destitute."

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12. Relying on the aforesaid judgments, this Court has taken a similar view in the case of Rajesh Yadav and Another v. State of Uttar Pradesh (2022) 12 SCC 200:2022 INSC 148.

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13. In the present case also, it appears that, on account of a long gap between the examination-inchief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother (PW-2) and aunt (PW-3) is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), we find that

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there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.”

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In the said case also, the prosecution witnesses in their cross examination recorded three months after recording of examination in chief have turned hostile and not supported the prosecution case.

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In the case on hand, PW1 injured has been examined in chief on 26.12.2011 and he has been cross examined on 02.04.2012. There is a gap of more than three months between the chief examination and the cross examination.

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PW1 has been examined in chief on 26.12.2011 and PW2 has also been examined in chief on 26.12.2011. The cross examination of PW1 came to be deferred as the accused persons intimated the Court that they will cross examine him after recording the evidence of the eye witnesses. The eye witnesses are PWs.2 and 4. The evidence of PW4 came to be recorded on 20.04.2012. Prior to examination of the eye witness ie., PW4, PW1 has been cross examined by the counsels for the accused

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persons. The counsels for the accused persons without waiting for examination of another eye witness ie., PW4, has cross examined PW1. The cross examination of PW1 has been postponed at the request of the learned counsels for the accused as they intended to cross examine him after recording the evidence of eye witnesses. The fact that without waiting till examination of the other eye witness, cross examining of PW1 itself would indicate that in that time gap of more than three months, PW1 was won over or threatened. It appears that on account of a long gap between the examination in chief and the cross examination, PW1 was won over by the accused and he resiled from the version that he had deposed in the examination in chief which has fully incriminated the accused persons. Considering the said aspect, the learned Sessions Judge has rightly placed reliance on the evidence of PW1. PW1 in his cross examination by the Public Prosecutor, has stated that he has named the accused persons who have assaulted him. PW1 has also admitted that the accused persons had requested him not to give

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evidence against them. Thereafter, there is no cross examination of PW1 by the accused persons.

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Learned counsels for the accused persons much highlighted regarding number of assaults made by the accused persons as stated by PW1 in his chief examination and number of injuries found in the wound certificate. PW1 in his evidence has stated that accused No.2 assaulted him five times and accused No.1 assaulted him 4 to 5 times. Ex.P12 – wound certificate would indicate that PW1 had sustained five stab injuries. Even though the evidence of PW1 is an exaggeration, the same does not vitiate his entire evidence. The statement of PW1 is at Ex.P1 and it has been recorded by PW8 in the hospital on 13.06.2008. The contents of the said Ex.P1 regarding number of assaults made by accused Nos.1 and 2 corroborates the number of injuries noted in Ex.P12 – wound certificate. PW1 has identified MOs.1 and 2 –

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knives as used by accused Nos.1 and 2 to assault him. PW1 has also identified his cloths which are at MOs.3 to 5

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as he was wearing them and they had holes as he has been assaulted with knives by the accused persons. The Allahabad High Court in the case of Madho Ram Shakya Vs. State of Uttar Pradesh reported in 1993 SCC Online All 644, considering the similar case has disbelieved the statements of the prosecution witnesses made in the cross examination stating that it is falsely made to nullify the effect of his statement on the earlier date and in order to help the accused.

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Learned counsels for the appellants in both the appeals have contended that there was no intention on the part of the accused persons to commit murder and the injuries sustained by PW1 are not life threatening and therefore, the offence under Section 307 is not attracted. On that point they placed reliance in the case of State of

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Maharashtra Vs. Balram Bama Patil and Others,

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supra , wherein it is held as under;

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“9. Shri Ranna appearing for the State strenuously contended that the High Court has committed a

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grave error in holding that the offence under Section 307 IPC was not made out merely because the injuries inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307 IPC would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 were not tenable. Section 307 IPC reads:

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Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

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To justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction

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between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.”

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In the case of State of Rajasthan Vs. Dhool Singh reported in (2004) 12 SCC 546, relied on by the appellants on the point that the injuries are not life threatening and not on the vital organs and therefore, the intention to kill, cannot be presumed.

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On perusal of the evidence of PW9 – doctor and Ex.P12 – wound certificate, the stab injuries were on the lower abdomen near umbilical region and left and right

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side of the chest and above the private part of PW1. Considering the injuries sustained on the lower abdomen and above the private part, it can be easily said that they are on vital parts of the body. Causing injuries on right and left side of the chest, on the lower abdomen and near umbilical region with the knives are life threatening injuries. PW1 has deposed that his intestine has come out. If PW1 has not been treated, it would have caused his death. PW1 was admitted on 08.06.2008 and he has been discharged on 25.06.2008. The very fact of assault with the deadly weapons like knives on the stomach, chest etc., would itself indicate that the accused persons tried to cause death of PW1. Therefore, the contention of learned counsels for the appellants that there was no intention on the part of accused persons to cause death of PW1, does not hold any water. Considering all these aspects, the learned Sessions Judge has rightly convicted the appellants – accused Nos.1 and 2 for the offence under Section 307 of IPC. There are no grounds made out for

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setting aside the judgment of conviction and order on

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sentence. In the result, the following;

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ORDER

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Both the appeals are dismissed . The conviction of the appellant in both the appeals ie., accused Nos.1 and 2 for the offence under Section 307 of IPC passed in S.C.No.16/2009 dated 02.07.2012 and the sentence thereon is affirmed .

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In view of disposal of the appeals, the pending interlocutory applications, if any, do not survive for consideration.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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List No.: 1 Sl No.: 8

Yaasin @ Yaasin Sharif v. State by Nagamangala Town Police

Case brief

What is this about?

What did the court decide?

Yaasin @ Yaasin Sharif v. State by Nagamangala Town Police

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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