P a Musthafa Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 14.08.2013 PASSED BY THE S.J., KODAGU, MADIKERI IN SPL. CASE (ATRO) NO.2/2010 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 324, 323 AND 506 R/W SEC.149 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR 3 MONTHS AND PAY FINE OF RS.1,000/- EACH, FOR THE SAID OFFENCES, IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO S.I. FOR 1 MONTH FOR THE OFFENCE P/U/S 143 AND 323 OF IPC. THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR 1 YEAR AND PAY FINE OF RS.3,000/- EACH FOR SAID OFFENCES, IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO S.I. FOR 4 MONTHS FOR THE OFFENCE P/U/S 324 AND 506 OF IPC. THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY BUT NOT THE DEFAULT SENTENCES. THE APPELLANTS/ACCUSED PRAYS THAT THEY BE ACQUITTED.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellants - accused Nos. 1 to 5 in

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Spl.C(ATRO).No.2/2010, on the file of the learned Sessions Judge, Kodagu, Madikeri, are impugning the judgment of

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conviction and order of sentence dated 14.08.2013, convicting them for the offences punishable under Sections 143, 323, 324 and 506 r/w Section 149 of IPC, and sentencing to undergo simple imprisonment for a period of three months with fine of Rs.1,000/- each for the offences punishable under Sections 143 and 323 of IPC and to undergo simple imprisonment for a period of one month with fine of Rs.3,000/- each for the offences punishable under Sections 324 and 506 of IPC; with default sentences, while acquitting them for the offence punishable under Section 3(1)(x) of the SC/ST (POA) Act.

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Brief facts of the case of the prosecution are that, on 12.12.2009 at 6.30 pm, when PWs.1 and 2 were near their house, accused Nos. 1 to 5, being neighbourer, formed an unlawful assembly, picked up quarrel with PWs.1 and 2 and assaulted them with club-MO1 and caused injuries. It is specifically stated that, accused No.1 assaulted PW1 with the club-MO1, and accused Nos. 2 and 3 assaulted him with their hands, while accused Nos. 4 and 5 assaulted PW2, and they have also criminally intimidated the injured with dire consequences. Thereby, committed the offences punishable

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under Sections 143, 323, 324 and 506 r/w Section 149 of IPC. Even though the offences punishable under Section 3(1)(x) of the SC/ST (POA) Act is alleged, the accused are acquitted by the Trial Court and the State has not preferred any appeal challenging the said judgment of acquittal.

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On filing of the final report, learned Magistrate took cognizance of offences and summoned the accused. The accused have appeared before the Trial Court, pleaded not guilty and claimed to be tried. Prosecution examined PWs.1 to 10, got marked Ex.P1 to 16 and identified MO1 in support of its contention. The accused have denied all the incriminating materials available on record, but have not led any evidence in support of their defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of accused Nos.1 to 5 for the offences punishable under Sections under Sections 143, 323, 324 and 506 r/w Section 149 of IPC, and sentenced them as stated above, while acquitting them for the offence punishable under Section

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3(1)(x) of the SC/ST (POA) Act. Being aggrieved by their conviction, the accused are before this Court.

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Heard Sri. N. Ravindranath Kamath, learned Senior

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Advocate for Sri. Mohammed Asshar, learned counsel for the appellants and Smt. Rashmi Jadhav, learned Additional SPP for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellants-accused Nos.1 to 5 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

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My answer to the above point is in the 'Affirmative' for the following:

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REASONS

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It is the contention of the prosecution that, accused No.1 assaulted PW1 with a club - MO1, accused Nos. 2 and 3

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assaulted PW1 with their hands, while accused Nos. 4 and 5 have assaulted PW2 with their hands. To prove this contention, PW1 is examined before the Trial Court. He being the injured eye-witness states that, the accused were his neighbours, and on the previous day of incident, when they were cleaning the spot and have thrown the trash. The accused started to quarrel with them claiming that the land belongs to them. He admits that, there was a civil suit pending between his father and the father of accused No.1, which was registered in the year 1999 and that the same was decreed in favour of the father of accused No.1.

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PW2 is the other injured eye-witness. PWs.3 and 4 are also the eye-witnesses to the incident. PWs.5 to 7 are the formal witnesses. PW8 is the mahazar witness to Ex.P2 - the spot mahazar.

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It is the contention of learned Senior Advocate for the appellant that, PWs. 1 to 8 are the family members and they are close relatives. This fact is not disputed by the prosecution. On the other hand, the evidence of these witnesses disclose that they are all family members. Apart from

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PWs.1 to 8, who are the family members, prosecution has only examined PWs. 9 and 10, who are the Investigating Officers.

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EXs.P15 and 16 are the wound certificates pertaining to PWs.1 and 2. As per EX.P15, PW1 has sustained four simple injuries and as per EX.P16, PW2 has sustained 3 simple injuries. Strangely, the Doctor who examined PWs.1 and 2 was not cited as a witness before the Trial Court. Simply because the wound certificates pertaining to PWs.1 and 2 are marked as Exs.P15 and 16, that will not prove the case of the prosecution regarding the overt act committed by the accused. It is the evidence of PW1 that, several persons were gathered at the spot when the incident had taken place. But none of the independent witnesses have been cited or examined to prove the case of the prosecution.

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It is the case of the prosecution that, a spot mahazar as per Ex.P2 was drawn and the wooden club - MO1 which was used by accused No.1 in commission of offence was laying at the spot. As per Ex.P2, MO1 was laying about 15 feet away from the scene of occurrence and the same was shown by PW1 and later recovered by the Investigating Officer. But

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during cross examination PW1 states that MO1 - club was picked up by him and kept in his house. Later he produced it before the police. Witness however states that, after he was assaulted by the accused, he fell down and immediately he was shifted to the hospital. Under such circumstances, PW1 picking up MO1, keeping it in his house, and producing it before the police is quite unbelievable. Moreover, the evidence of PW1 is quite contrary to the spot mahazar - Ex.P2 regarding seizure of MO1.

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In view of all these inconsistencies, I am of the opinion that, it is not safe to accept the contention of the prosecution to prove the guilt of the accused beyond reasonable doubt. It is also pertinent to note that, even though the Trial Court acquitted the accused the offence punishable under Section 3(1)(x) of the SC/ST (POA) Act by disbelieving the version of the witnesses, neither the State nor the informant has challenged the said judgment of acquittal.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has committed an error in convicting the accused. Since there

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are serious doubts in the case made out by the prosecution, it is well settled preposition of law that the benefit of such reasonable doubt is to be extended to the accused, and the accused are liable to be acquitted. Hence, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside. Accordingly, I answer the above point in affirmative and proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The Judgment of Conviction and Order of Sentence dated 14.08.2013 passed in Spl.C(ATRO).No.2/2010, on the file of the learned Sessions Judge, Kodagu, Madikeri, is hereby set aside.

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(iii) Consequently, accused Nos.1 to 5 are acquitted for the offences punishable under Sections 143, 323, 324 and 506 read with Section 149 of IPC.

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(iv) Bail bond of the accused and that of their sureties shall stand cancelled.

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