K Rizwan vs The State Of Karnataka
2022 Latest Caselaw 2940 Kant

                                1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              CRIMINAL APPEAL No.772/2011

BETWEEN:

K. RIZWAN
S/O KARIMSAB
AGED 33 YEARS
OCC: AGRICULTURIST
R/AT DIBBADAHATTI VILLAGE
JAGALUR TALUK
DAVANGERE DISTRICT
                                            ....APPELLANT
(BY SRI. S.B. PAVIN, ADVOCATE)


AND:

THE STATE OF KARNATAKA
BY JAGALUR POLICE
                                        .... RESPONDENT
(BY SRI. K.S. ABHIJITH, HCGP)


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

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                        2



                               JUDGMENT

The appellant/accused has filed this appeal under

Section 374(2) of Criminal Procedure Code, 1973 ( 'Cr.P.C.'

for short) challenging the judgment of conviction and order

of sentence dated 16.07.2010 passed by the Principal

District and Sessions Judge, Davangere, in SC No.40/2009,

whereby the learned Sessions Judge has convicted the

accused and sentenced him to undergo Simple

Imprisonment for a period of five years and to pay fine of

Rs.2,000/-, for the offences under Section 307 of Indian

Penal Code, 1860 ( 'IPC' for short).

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to the case is

that, the complainant-Ibrahim is the resident of

Dibbadahatti Village, Jagalur Taluk in Davangere District

and he was eking his livelihood by selling Ice Candies by

carrying it on his bicycle. On 23.10.2008, by pledging the

ear-studs of his wife, he has taken loan of Rs.3,700/- in

Bharamasagara. Then the accused demanded for Rs.100/-,

but the complainant denied the same. Then the accused

has requested him to pay at least for Rs.50/-. But, that

request was also turned down by the complainant and as

such, the accused threatened him that he would see him,

when he comes to village. Then the complainant took Tiffin

in Bharamasagara in one of the hotels and reached

Gollarahalli Cross in a bus and then he was proceeding

towards his village. At that time, at about 8.00 p.m., while

he was passing in a vacant site, nearby the house of one

Bharamajja situated in Dibbadahatti village, the accused,

who was hiding in manure pit, suddenly pounced upon him

and abused him in filthy language and assaulted him with

chopper causing injuries on left side of the head, left hand

palm and fingers, left eyebrow, with an intention to cause

his death having knowledge that, his act would cause death

and in that event, he would have been guilty of murder.

Then the persons gathered there, pacified the disputes by

snatching away the chopper from the accused and then

accused ran-away and the complainant was immediately

shifted to the hospital, wherein the police came and

recorded the complaint. The complaint was registered and

FIR came to be issued for the offence under Sections 504

and 307 of PC. In the meanwhile, accused was arrested

and later on he was enlarged on bail. The Investigating

Officer has also drawn spot-mahazar, recovered the

material objects and recorded the statement of witnesses

and after completion of investigation, submitted the charge

sheet under Sections 504 and 307 of IPC.

4. After taking cognizance of the said offences, in

pursuance of summons, accused appeared before the Court

through a counsel and was enlarged on bail. The

prosecution papers have been furnished to him. Then the

learned Sessions Judge after hearing the Public Prosecutor

and the defence counsel, has framed charges under

Sections 504 and 307 of IPC. The accused pleaded not

guilty and claimed to be tried.

5. To prove the guilt of accused, the prosecution

has examined in all Ten witnesses as PW.1 to PW.10 and

placed reliance on Six documents as Exs.P1 to P6 and Three

Material Objects as MOs.1 to 3. During cross-examination,

the learned defence counsel has also got marked a

document as Ex.D1. After conclusion of evidence on the

side of prosecution, the statement of accused under Section

313 Cr.P.C. was recorded to enable him to explain

incriminating evidence appearing against him. But, the case

of accused is of total denial and he did not choose to lead

any evidence in support of defence. He has given

explanation that, his land and the land of the father-in-law

of complainant are adjacent to each other and due to

previous enmity between the accused and the father-in-law

of the complainant, earlier to the incident in question, on

many occasions, false complaint came to be lodged.

6. After hearing arguments of the counsels

appearing for the parties on both sides and after perusing

the oral and documentary evidence, the learned Sessions

Judge has acquitted the accused for offence under Section

504 of IPC. But, he convicted accused for offence under

Section 307 of IPC by imposing sentence of Simple

Imprisonment for a period of 5 years with fine of Rs.2,000/-

with a default cause. Being aggrieved by this judgment of

conviction and order of sentence, accused has filed this

appeal.

7. Learned counsel for the appellant would contend

that, the judgment of the trial Court is illegal and the

learned Sessions Judge has convicted the accused against

the material evidence. He would also contend that the

learned Sessions Judge when acquitted the accused for the

offence under Section 504 of IPC, has erred in convicting

accused for offence under Section 307 of IPC. He would

also contend that, independent eyewitnesses were not

examined and the evidence of PW.3 is not trust-worthy, and

that the evidence of PW.7 discloses that, the incident has

taken place in the night and as such in darkness of night,

identifying the accused is improbable. He would further

contend that the medical evidence and the injuries

sustained by PW.1 did not support the case of prosecution

and the evidence is inconsistent; that the learned Sessions

Judge has ignored the fact of enmity between family of

complainant and accused and further when the complainant

claims that, he left Bharamasagara at 7.45, it is hard to

accept that within 15 minutes to 30 minutes, he reached

village, when his village is about 13 Kms. away from

Bharamasagara and that too the complainant should walk

for two kilometers to reach his village and hence, the entire

case of prosecution is doubtful. The trial Court has also not

considered the fact that the blood group of the complainant

was not at all disclosed and the evidence is inconsistent and

contrary to each other. Hence, he would contend that the

judgment of conviction and order of sentence are perverse,

illegal and arbitrary and as such, he has sought for setting

aside the impugned judgment of conviction by acquitting

the accused, by allowing the appeal.

8. Per contra, the learned High Court Government

Pleader ('HCGP' for short) would support the Judgment of

conviction and order of sentence and submit that there is no

reason for discarding the evidence of prosecution witnesses.

He would also contend that the minor discrepancies in the

evidence are bound to occur, which cannot be given much

prominence, as the memory is likely to fade due to lapse of

time. Hence, would seek or dismissal of the appeal by

confirming the impugned judgment of the trial Court.

9. Having heard arguments of the learned counsels

appearing for the parties on both sides and perusing the

records, now the following point would arise for

consideration:

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

10. To prove the guilt of the accused, the

prosecution has examined in all 10 witnesses:

a) PW.1-Ibrahim is the complainant and PW.2-

Rudresha and PW.3-Kampalesha are the spot-mahazar

witnesses. PW.2 has turned hostile to the case of

prosecution.

b) PW.4-M.R. Nagaraja and PW.5-Zakir Sab are two

seizure mahazar witnesses in respect of seizure of Shirt of

the complainant. But, they have also turned hostile

partially.

c) PW.6-Rama @ Ramanna and PW.7-P. Appanna

are two material eyewitnesses, while PW.8-Dr. N. Rajappa

is the Medical Officer. PW.9-Hassan Sab is the Investigating

Officer and PW.10-Dr.N.L.inegowda is the Chemist, who

deposed regarding issuance of FSL Report as per Ex.P6. The

complaint is marked as Ex.P1.

11. It is to be noted here that the alleged incident is

said to have taken place on 23.10.2008 at about 8 'O' Clock

in the night. The complainant was admitted in the

Government Hospital at Jagaluru and the complaint was

lodged on 24.10.2008 between 0.45 am and 1.15 am i.e, in

midnight. Hence, it is evident that there is no delay in

lodging the complaint and in the hospital itself the

complainant has lodged complaint and the complaint was

lodged in presence of the Medical Officer, and the Medical

Officer has attested the complaint and identified his

signature as Ex.P1(b) and he has specifically deposed that

at the time of lodging complaint, the complainant was

oriented and was capable of giving the complaint, and he

has given complaint/statement in his presence.

12. The complaint reveals that the complainant is

doing business of selling Ice Candies by visiting different

villages on bicycle and as he was facing difficulty, he

intended to buy a second-hand TVS motor cycle and as

such, he pledged the gold ear-studs of his wife in a jewelry

shop at Bharamasagar on 23.10.2008 and received a

Rs.3,700/-. According to prosecution, when he was standing

in front of bus-stop, the accused approached him and

demanded Rs.100/- and when he refused to give, the

accused requested to give at least Rs.50/-, which the

complainant refused to pay expressing his financial

constraint. Then the accused threatened the complainant

stating that he will see him in village and went away and

then the complainant took Tiffin in a hotel at Bharamasagar

and reached Gollarahalli Cross in a bus. It is the further

case of the prosecution that, when the complainant was

proceeding towards his village at 8.00 p.m., near the house

of Bharamajja, the accused who was hiding in a manure pit,

suddenly pounced on him, abused him in filthy language

and assaulted him with a chopper on his head and hands,

and as a result, the complainant sustained injuries. He

further deposed that at that time, PW.7-Appanna, who was

present at some distance came to the spot and snatched

the chopper from the hands of the accused and

immediately, the accused ran-away. Thereafter, the

complainant was shifted to Government Hospital at

Jagaluru, wherein the complaint came to be lodged.

13. The complainant was examined as PW.1 and in

his examination-in-chief, he has reiterated the averments

made in complaint. No doubt, there are minor

discrepancies in his evidence, but they cannot go to the root

of the case so as to discard the entire evidence of the

complainant. No doubt, in his cross-examination, it is

elicited that the distance between his village and

Bharamasagar is 13 Kms., and there was no direct bus

facility to his village-Dibbadahatti and therefore the people

of the village have to walk for two kilometers to catch bus

to Bharamasagar. It is also elicited that, he left

Bharamasagar at 7.30 to 7.45 p.m., and on the basis of

these admissions, it is vehemently argued by the learned

counsel for the appellant that, it is hard to accept that

complainant reached village in 15 to 30 minutes' and it is

not acceptable, as the complainant himself has admitted

that, it will take minimum one hour to reach their village

from Bharamasagar by bus and hence he disputed the

entire story of the prosecution. However, it is to be noted

here that the complainant is a rustic villager and hence,

strict timings cannot be taken note of and the evidence is

given on the basis of the approximate timings and hence,

the discrepancy regarding timings does have any relevancy.

The said argument advanced by the learned counsel for the

appellant is not acceptable.

14. Further, PW.1 has specifically deposed that,

PW.7-Appanna snatched the chopper from the hands of

accused at the time of incident and this statement is

corroborated by the evidence of PW.3, PW.6 and PW.7-

Appanna. PW.3 has deposed regarding PW.7-Appanna

producing chopper at the time of drawing mahazar as per

Ex.P2 and identified it as MO.1. No doubt, he has admitted

that, he does not know the contents of mahazar. PW.2,

who is another mahazar witness and he turned hostile. But,

his evidence discloses that the police visited the spot and

obtained his signature. Further, the evidence of PW.3 is

again corroborated by PWs.6 & 7 and both PWs. 6 & 7 have

deposed regarding assault made by accused on the

complainant. During cross-examination of PWs. 1 & 7,

certain suggestions have been made regarding the dispute

between father-in-law of the complainant and accused, and

lodging number of complaints in this regard including the

suit. But, except bald suggestions, no documents have

been produced by accused to substantiate the contention

that there was animosity between the family of the

complainant or his father-in-law, with accused. No doubt,

PW.6 has initially supported the case of prosecution, but

was cross-examined later on 01.09.2010. During cross-

examination of PW.6 by defence counsel, he claims that, he

was not present when the incident has occurred and

thereby given a go-by to his original statement given before

the Court. To this extent alone, this witness was treated as

hostile to the prosecution case and conduct of this witness

would clearly establish that he was own-over by the

defence and supported the case of prosecution fully in

examination-in-chief and during cross-examination by the

defence counsel, after adjournment, he has given a go-by

to his statement before the court. He did not explain as to

why he has given evidence before the court regarding he

witnessing assault earlier. This disclose that he was won-

over by accused.

15. PW.7-Appanna has also supported the case of

prosecution and though he was cross-examined at length,

nothing was elicited so as to impeach his evidence. PW.8

-Dr. N. Rajappa is the Medical Officer and he deposed that,

on 23.10.2008 in the night at about 11.20 p.m., the

injured-Ibrahim was brought to hospital with a history of

assault by accused-K.Rizwan. It is important to note here

that the history given all along is consistent and complaint

was also lodged immediately. The medical evidence

disclose that the complainant has suffered incised would

over left parietal region of scalp and Irregular shaped

abrasion over left upper eye-lid, lacerated would both over

left middle finger on palmer surface and also on palmer

surface of left ring finger. He has also deposed that, later

on, the police had visited the hospital and in the hospital,

the complainant has lodged the complaint and he endorsed

the same by signing it as per Ex.P1(b). Though this witness

was cross-examined at length, nothing was elicited so as to

impeach his evidence, except suggesting that, if a person is

assaulted, more grievous injuries or fracture of bones can

cause, but the witnesses specifically stated that, it may

happen and it may not happen. It is evident that, it depends

on the force used and the medical evidence completely

corroborates the case of prosecution.

16. PW.10-Dr.N.L. Lingegowda, who is a scientific

officer, has deposed regarding issuing Ex.P6 and deposed

that, when he examined MOs. 1, 2 & 3, they were having

human blood of 'B' group. The learned defence counsel has

contended that the prosecution has not established the fact

that the blood group of the complainant is of 'B' group and

no medical evidence was collected in this regard. But,

however, the injuries on the body of the complainant were

not at all denied or disputed. No attempt has been made by

the accused to explain the injuries found on the body of the

complainant. Non-production of receipt pertaining to

pledging ear-stud is not a ground to discard the entire case

of the prosecution. Learned counsel for the appellant has

also invited the attention of the Court regarding

inconsistency in the spot-mahazar-Ex.P2 and the evidence

of the witnesses regarding production of MO.1-Chopper.

But, the evidence is consistent regarding production of

chopper by PW.7-Appanna. Further, the incident has

occurred in October, 2008 and the evidence was recorded in

2010 and 2011. Hence, the discrepancies are bound to

occur due to lapse of time. In this regard, the learned HCGP

has placed reliance on a decision reported in (2011) 4

SCC 324 [State of Uttar Pradesh Vs. Naresh and

others) and invited the attention of the Court to Para-30,

which reads as under

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

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

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

Hence, it is evident that, minor discrepancies which

are bound to occur, cannot be given much importance, as

they do not go to the root of the case. Further, there is no

exaggeration in the case of prosecution and the evidence is

consistent. Further, no reason is forthcoming for

complainant to give false evidence and though the defence

has alleged animosity, the same is not substantiated by

producing any evidence. The medical evidence coupled with

the evidence of the injured and eyewitnesses clearly

establish that accused has attacked the complainant by a

chopper on his head and other parts of the body, and

thereby attempted on his life.

17. The learned Sessions Judge has appreciated the

oral and documentary evidence in detail and arrived at a

just decision. Merely because the learned Sessions Judge

has acquitted the accused for offence under Section 504 of

IPC, that by itself is not a ground to discard the other

evidence. The learned Sessions Judge only after considering

insufficient evidence for offence under Section 504 of IPC,

has acquitted accused. But, as regards offence under

Section 307 of IPC, he has convicted accused after

appreciating the material evidence on record.

18. The offence under Section 307 of IPC is

punishable with imprisonment, which may extend to 10

years and fine or for life imprisonment or imprisonment for

10 years and fine. In the instant case, admittedly injuries

have been caused to the complainant, when the accused

has attacked him by a chopper. The accused ought to know

the consequences of using a sharp-edged weapon viz.,

chopper and that too attacking on vital part of the body i.e.,

head and as such, the intention can be gathered. Hence,

the ingredients of Section 307 of IPC are established. The

learned Sessions Judge has imposed imprisonment for a

period of five years with fine of Rs.2,000/-, and no

minimum sentence is prescribed for the said offence under

the said provision.

19. Considering the facts and circumstances of the

case, in my considered opinion, the sentence of

imprisonment can be reduced by enhancing the fine amount

so as to award compensation to the complainant, which

would serve the purpose. Only to this extent, the judgment

can be interfered and in my considered opinion, the accused

can be imposed sentence of imprisonment for two years by

enhancing the fine amount from Rs.2,000/- to Rs.20,000/-,

which will serve the purpose and accordingly, the point

under consideration is answered. As such, the appeal needs

to be allowed so far as it is concerned with the sentence of

imprisonment. Accordingly, I proceed to pass the

following:-

ORDER

i) The appeal is allowed-in-part.

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

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

Sd/-

JUDGE

KGR*