Akthar W/O. Farooq Patel vs The State Of Karnataka
2022 Latest Caselaw 1546 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH
       DATED THIS THE 02ND DAY OF FEBRUARY, 2022
                           BEFORE
     THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

              CRIMINAL APPEAL No.2745 / 2012
BETWEEN:
1.     SMT. AKTHAR, W/O. FAROOQ PATEL,
       AGE:36 YEARS, OCC:HOUSE HOLD WORK,
       R/O:FAISAL LODGE, BIJAPUR ROAD,
       JAMKHANDI, DIST:BAGALKOT.
2.     ALLAUDDIN, S/O. SHABIRAHMED PATEL,
       AGE:42 YEARS, OCC:BUSINESS,
       R/O:FAISAL LODGE, BIJAPUR ROAD,
       JAMKHANDI, DIST:BAGALKOT.
3.     MUSSIR S/O. SHABIRAHMED PATEL,
       AGE:34 YEARS, OCC:TAILORING,
4.     MAINUDDIN S/O. KUTBUDIN PATEL,
       AGE:57 YEARS, OCC:TAILORING,
5.     SMT.NOORJAHAN W/O. SHABIRAHMED PATEL,
       AGE:53 YEARS, OCC:HOUSE HOLD WORK,
       3 TO 5 ARE R/O.BARPET GALLI, AMMKHANDI,DIST:BAGALKOT.
6.     MAHIBOOB S/O. HANIF PACHAPUR,
       AGE:43 YEARS, OCC:BUSINESS,
       R/O:SHANTINAGAR, JAMAKHANDI,
       DIST:BAGALKOT.
                                                ...APPELLANTS
       (BY SHRI.B. V. SOMAPUR, ADVOCATE AND
       SHRI.K. S. PATIL FOR A-1, 2, 3, 5 AND 6)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BNY CPI JAMAKHANDI P.S.
REPRESENTED BY SPP CIRCUIT BENCH,
DHARWAD.                                       ...RESPONDENT
(BY SHRI. VIJAY S. KALASURMATH, HCGP)
       THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO ACQUIT THE ACCUSED/ APPELLANTS FROM ALL THE
CHARGES LEVELLED AGAINST THEM BY SETTING ASIDE THE
JUDGEMENT AND ORDER PASSED BY THE FAST TRACK COURT,
JAMKHANDI IN S.C.NO.83/2010 FOR THE OFFENCES P/U/S 143, 147,
148, 504, 304 PART II R/W. SEC.149 OF IPC, DATED 27.06.2012.
                               2




      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is preferred against the judgment

and order dated 27.06.2012 passed by the Court

of Fast Track Jamkhandi at Jamkhandi, in

S.C.No.83/2010, whereby the accused/ appellants

are convicted and sentenced for the offences

punishable under Sections 143, 147, 148, 504 and

304 Part-II of IPC read with Section 149 of IPC.

2. Heard the learned counsel for appellants

and the learned High Court Government Pleader

for respondent/State and perused the evidence

and material on record.

3. Brief facts of the prosecution case are

as under:

CW.13 - Badasha S/o Kutbuddin Patel is the

owner of one Faisal Lodge. He has five children.

His eldest son by name Farooq Patel died about 6

years prior to the date of incident. Smt. Najma/

(PW.1), Nafisa Patel and Nargis Patel are the three

daughters of CW.13 and Faisal Patel (PW-6) is the

son of CW-13. He had sold the Faisal Lodge to

one Usman (CW-9) s/o Babusab Sagar of

Jamakhandi for Rs.1,11,00,000/- (Rupees one

crore and eleven lakhs). Regarding sharing of the

sale consideration, there was a dispute among the

children and daughter-in-law of Badasha Patel.

Accused No.1 is the daughter-in-law of Badasha

Patel and she is the wife of late Farooq Patel. She

was demanding more share out of the sale

proceedings and accused No.2 who is the son-in-

law of Badasha was not happy with the lodge

having been sold. The complainant/PW-1 and the

accused were quarreling with each other in respect

of sharing of the amount. In order to resolve the

dispute, CW-13 had executed a Power of Attorney

in favour of one Prashant Basavaraj Kalyani

(deceased). On the strength of said Power of

Attorney, deceased Prashant Basavaraj Kalyani

was mediating between CW-1 and the accused.

This was not tolerated and accepted by the

accused.

On 27.06.2010 at about 3 p.m., a quarrel

took place between the complainant/PW-1 and

accused Nos.1 to 6. PW-1 telephoned and

informed the deceased about the quarrel. The

deceased came near Faisal Lodge wherein all the

accused persons as well as the complainant were

present. All the accused formed an unlawful

assembly and they held the deceased and

assaulted him with cricket stumps and bats. The

deceased sustained grievous injuries and

succumbed to injuries on the same day at about 4

p.m., in the hospital.

4. Charges were framed against accused

Nos.1 to 6 for offences punishable under Sections

143, 147, 148, 302, 504 read with Section 149 of

IPC.

5. In order to bring home the guilt of the

accused, the prosecution in all got examined 18

witnesses, got marked Ex.P.1 to Ex.P.28 and

M.Os.1 to 9.

6. The learned Sessions Judge vide

judgment dated 27.06.2012 passed in Sessions

Case No.83/2010 convicted the accused for the

offences punishable under Sections 143, 147, 148,

504 and Section 304 Part II of IPC read with

Section 149 of IPC.

7. The learned Sessions Judge was of the

view that, the facts and circumstances of the case

attracts the offence punishable under Section 304

Part II of IPC coming under Exception 4 of Section

300 of IPC and also under Section 299 (c) of IPC,

wherein the offence appears to have been

committed in a sudden quarrel which took place

between PW-1 and deceased on one hand and

accused Nos.1 to 6 on other hand.

8. The complaint is lodged by PW-1. The

complaint is marked as Ex.P.1. PWs-1, 4 and 5

are the eyewitnesses to the incident in question.

PWs-2 and 3 are the panch witnesses to the spot

mahazar (Ex.P.2) and seizure mahazar (Ex.P.3).

PWs-6 and 17 are the circumstantial witnesses

who speak about the earlier quarrel and motive.

PW-7 is the doctor who conducted the autopsy.

The Post Mortem report is marked as Ex.P.9. PW-

8 is the Assistant Executive Engineer, PWD, who

prepared the spot sketch Ex.P.10. PW-9 is the PSI

who registered the case and issued FIR-Ex.P.12 to

the jurisdictional Court. PW-10 is the ASI who

carried the articles to FSL and PWs-11 and 15 are

panch witnesses to the inquest mahazar (Ex.P.14).

PWs-12 to 14 are police constables who assisted in

the investigation. PW-16 is the panch witness to

Ex.P.20 and Ex.P.21. PW-18 is the Investigation

Officer who laid the charge-sheet.

9. Out of the above prosecution witnesses,

PWs-1 to 6, 11, 15 and 17 have totally turned

hostile and they have not supported the case of

prosecution. The evidence of PW.7 and the

postmortem report- Ex.P.9 would show that the

death is on account of trauma on the skull and

injury to main vital organ brain. The evidence of

PWs.8 to 10 and 12 to 14 are formal in nature.

PWs 1, 4 and 5 being eyewitnesses to the incident

in question have totally denied the prosecution

case and there is nothing elicited from their cross-

examination to establish the guilt of the accused.

The only evidence which is available is that of PW-

16 i.e., with regard to seizure of 3 bats from

accused Nos.3 and 6.

10. The learned Sessions Judge has held

that PW-1 had accompanied the injured to KLE

Hospital, Jamakhandi and deceased succumbed to

the injuries in the hospital at 4 p.m. and the

complaint was lodged at 6 p.m. by PW-1 on the

very same day and after a lapse of 2 years, PW-1

has attempted to depose that she has not filed any

complaint. The trial Court has further observed

that PW-9/PSI who had recorded the statement of

PW-1 and registered the complaint/Ex.P.1 has

clearly stated that PW-1 appeared before him and

gave her statement and the same was reduced

into writing and PW-1 has signed the complaint.

Further, it is observed that PW-1 in order to save

her husband and accused No.2 and other accused

from the clutches of law, deliberately tried to give

false evidence before the Court. Further, the trial

Court taking into consideration Ex.P.4 and Ex.P.5,

photographs of scene of occurrence has held that

prosecution has proved the scene of offence,

Ex.P.2 and seizure panchanama, Ex.P.3. Further,

it is observed that the voluntary statement of

accused Nos.2, 3 and 6 marked as Ex.P.23 to

Ex.P.25 are admissible piece of evidence since the

said accused have not denied their signatures

appearing on their voluntary statements and PW-

18/Investigation Officer has identified the

signatures of accused Nos.2, 3 and 6 on the

voluntary statements. The trial Court has relied

on the evidence of PW-16 regarding recovery of

bats from two of the accused and held that said

evidence is very material in respect of seizure

panchanama and therefore, prosecution has

proved the recovery of M.Os.1 to 3 and also

proved Ex.P.2 and Ex.P.20 to Ex.P.22.

11. The entire approach of the trial Court

and the reasons assigned for convicting

accused/appellants herein is not in accordance

with law. In the case on hand, the eyewitnesses

as well as other material witnesses have turned

hostile. The evidence on record are not sufficient

to hold that accused are guilty of the offences

charged against them or the offences for which

they are now convicted and sentenced. It is well

settled that FIR is not a substantive evidence and

complaint has to be either corroborated or

contradicted by the maker of it. In the case on

hand, when the complainant has denied the case

of prosecution, then only on the basis of Ex.P.1,

accused cannot be convicted for the reason that

signature on Ex.P.1 is not denied. Suspicion,

however strong, cannot take the place of proof.

There is absolutely no legal evidence available to

sustain the conviction. The impugned judgment

and order passed by the Sessions Court is

therefore, not sustainable in law.

12. Hence, the following:

ORDER

i) Appeal is allowed,

ii) The judgment dated 27.06.2012 passed

in S.C.No.83/2010 by Fast Track Court,

Jamkhandi, is hereby set aside and

accused are acquitted and their bail

bonds stand cancelled.

Sd/-

JUDGE

PJ/ Jm/-