Sharth Kumar vs State Of Karnataka
2022 Latest Caselaw 5 Kant

                            1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF JANUARY, 2022

                          PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

            THE HON'BLE MRS. JUSTICE M.G. UMA

            CRIMINAL APPEAL No.1809/2019
                           C/W
             CRIMINAL APPEAL No.1593/2019


In Crl. A. No.1809/2019

BETWEEN:

ABBAS @ ABBAS ALI,
S/O REHMAN ALI,
AGED ABOUT 19 YEARS,
R/AT NO. 443, E.W.S.
6TH MAIN, 4TH CROSS,
KENGERI UPANAGARA,
BANGALORE - 560 060.
                                                 ...APPELLANT
(BY SRI: MOHAN KUMAR D., ADVOCATE)

AND:

STATE OF KARNATAKA BY
KENGERI POLICE STATION,
(REPRESENTED BY SPP),
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
                                            ...RESPONDENT

(BY SRI: VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CIRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED

14.08.2019 PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY IN S.C.NO.1284/ 2013, CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,323 AND 302 R/W 34 OF IPC.

In Crl. A. No.1593/2019

BETWEEN:

SHARATH KUMAR @ SHARATH @ DOUBLE, S/O KODANDARAMA, AGED ABOUT 28 YEARS R/AT NO.306, 6TH MAIN, 7TH CROSS, GANDHINAGAR, KENGERI UPANAGARA, BENGALURU 560 060.

...APPELLANT

(BY SRI: VENKATA REDDY S. K., ADVOCATE)

AND:

STATE OF KARNATAKA BY KENGERI POLICE, BENGALURU 560 060, REPRESENTD BY SPP, HIGH COURT OF KARNATAKA, BENGALURU 560001.

...RESPONDENT

(BY SRI: VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR )

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CIRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 14.08.2019 PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY IN S.C.NO.1284/ 2013, CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,323 AND 302 R/W 34 OF IPC.

THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Criminal Appeal No.1593 of 2019 is filed by accused

No.1 and Criminal Appeal No.1809 of 2019 is filed by accused

No.2 against the judgment of conviction and order of sentence

dated 14.08.2019 made in S.C.No.1284/2013 on the file of

the LVIII Additional City Civil and Sessions Judge, (CCH-59),

Bengaluru, convicting and sentencing accused Nos.1 and 2 to

undergo simple imprisonment for a period of one month for

the offence punishable under Section 341 read with Section

34 of the Indian Penal Code, simple imprisonment for a period

of three months for the offence punishable under Section 323

read with Section 34 of the Indian Penal Code and to undergo

imprisonment for life for the offence punishable under Section

302 read with Section 34 of the Indian Penal Code, and to pay

fine of `50,000/- each, in default, to undergo simple

imprisonment for a further period of three months.

2. It is the case of prosecution that on 13.05.2013,

at about 4.00 pm, on the back side of Sri Kalikamba Temple,

Gandhinagar, 7th Main Road, Kengeri Satellite Town, in front

of the house bearing No.31, when P.W.4-Mohan and deceased

Gowrish were talking together, accused persons and juvenile

offenders 4 to 6 came in the Bajaj Discover motor cycle

bearing registration No.KA-02/HA-4975 and Suzuki motor

cycle bearing registration No.KA-05/HG-9332, surrounded

them, abused P.W.4 in filthy language and with a common

intention to kill P.W.4 assaulted him with hands. When

accused No.1 tried to stab P.W.4-Mohan with knife, Gowrish

came to his rescue. Being enraged, accused No.1 abused

Gowrish in filthy language and stabbed him with a knife on his

left arm and left rib and caused grievous injuries. At that

time, accused Nos.2, 3 and juvenile offenders 4 to 6 assaulted

Gowrish with hands, kicked him with legs and tried to kill him.

At that time, C.Ws.7 to 13 and others came to the spot and

even though they tried to caught hold of the accused persons,

they escaped from the spot. C.Ws.23 and 34 who were doing

patrolling duty, took Gowrish in Hoysala van and admitted

him to Rajarajeshwari Medical College and after first aid,

shifted him to Bhagavan Mahaveer Jain Hospital, Vasantha

Nagar. Subsequently, Gowrish died in the said hospital on

25.05.2013 at 9.00 pm. Therefore, the jurisdictional police

registered a case against accused Nos.1 and 2 for the

offences punishable under Sections 341, 323, 302 read with

Section 34 of the Indian Penal Code. On receipt of final report

from the police, the jurisdictional Magistrate took cognizance

of the aforesaid offences against the accused persons,

registered a case in C.C.No.12784/2013 and by the Order

dated 13.09.2013 committed the case to the Court of Principal

Sessions Judge, Bengaluru, who registered the case in

S.C.No.1284/2013 and made over the same to the Court of

LVIII Additional City Civil and Sessions Judge (CCH-59),

Bengaluru. After hearing both sides, Charge was framed.

Accused Nos.1 and 2 pleaded not guilty and claimed to be

tried. Case against accused No.3 was split up. Since

accused Nos.4 to 6 were juvenile offenders, case was referred

to the Juvenile Justice Board.

3. In order to prove the guilt of the accused,

prosecution examined in all 24 witnesses as P.Ws.1 to 24 and

marked the documents Exs.P.1 to P.35 and Material Objects 1

to 5. After completion of the evidence of prosecution

witnesses, statements of the accused under Section 313 of

the Code of Criminal Procedure were recorded. The accused

persons denied all the incriminating evidence adduced against

them, in toto.

4. Based on the aforesaid material on record, the

Trial Court formulated three points for consideration.

Considering both oral and documentary evidence on record,

the learned Sessions Judge answered the points framed in the

affirmative holding that, the prosecution has proved beyond

reasonable doubt that the accused persons were involved in

the homicidal death of deceased Gowrish and accordingly,

convicted them for the offences punishable under Sections

341, 323 and 302 read with 34 of the Indian Penal Code.

Hence, accused No.1 has filed Criminal Appeal No.1593 of

2019 and accused No.2 has filed Criminal Appeal No.1809 of

2019.

5. We have heard the learned counsel for the

parties.

6. Sri S.K.Venkata Reddy, learned counsel for the

appellant/ accused No.1 contended with vehemence that the

impugned judgment of conviction and order of sentence is

erroneous, contrary to the material on record and liable to be

set-aside. He further contended that P.W.19/Ranganath-PSI,

Kengeri Police Station, was on patrol duty on 13.05.2013. At

about 4.15 pm on the said day, upon receiving wireless

message, he went to Gandhinagara, Kengeri Satellite Town

and learnt that Gowrish was assaulted by accused persons,

shifted the injured to Hospital in Hoysala van. The presence

of P.W.1-Santhosh, younger brother of injured Gowrish, at the

spot is not stated by P.W.19. Even P.W.24-Ravikumar @ Raju

who was projected as an eye witness has not stated about the

presence of P.W.1 at the scene of offence and he has not

supported the prosecution case. Learned counsel further

contended that P.Ws.3, 4, 22, 23 and 24 have turned hostile.

So also, P.Ws.5, 6, 7, 8 and 9, witnesses to the mahazar have

turned hostile. He further contended that, P.W.19-PSI has

deposed that he went to Rajarajeshwari Hospital on

13.05.2013 and in the presence of Doctor, recorded the

statement of the injured at 4.40 pm, as per Ex.P.10. The said

witness has not deposed about the condition of the injured

while recording the statement and also has not stated the

name of the Doctor in whose presence he recorded the

statement of the victim. P.W.17-Doctor deposed that on

13.05.2013 at about 3.50 pm, Gowrish was brought to Raja

Rajeshwari Medical College and Hospital and first aid was

given to him. In the cross-examination, it is elicited that the

injured was unconscious at the time of examination. There is

inconsistency in the evidence of material witnesses relied

upon by the prosecution. Therefore, evidence of P.Ws.12, 15,

17 and 19 cannot be considered to convict the accused No.1.

7. Learned counsel further contended that Ex.P.10-

statement of Gowrish, recorded by P.W.12-Police Constable in

the presence of P.W.17-Doctor does not depict that patient

was in fit state of mind and was capable of giving statement.

He had suffered only one injury. But in Ex.P.17-wound

certificate, it is mentioned that there were two injuries.

Ex.P.9-post mortem report depicts that six injuries were found

on the body of the deceased. Admittedly, Gowrish died 12

days after the incident due to respiratory failure. P.W.17-

Doctor has stated that the incident occurred on 13.05.2013 at

about 3.50 p.m. In the cross-examination, he admitted that

his statement is contrary to Ex.P.10/dying declaration. There

is improvement in the further cross examination of P.W.17

which was recorded after lapse of 2 years 3 months.

8. Learned counsel further contended that P.W.13-

Dr.Dileep Kumar who issued post mortem report has stated

that there were six injuries on the body of the deceased.

Therefore, the injuries mentioned in Exs.P.9 and P.17, so also

the evidence of P.Ws.13 and 17 are contrary to each other.

Learned counsel further contended that Ex.P.10-statement of

the deceased recorded when he was alive is the basis for the

police to register the complaint, which depicts that accused

persons had no intention to kill the deceased. Ex.P.10 depicts

that the intention of the accused was to attack Mohan-P.W.4.

When they were assaulting Mohan, deceased intervened and

thereby he was stabbed, accidentally. Therefore, the accused

persons had no intention to stab and kill the deceased. He

further contended that there are inconsistencies in the

evidence and material documents and absolutely there are no

material to prove that the accused persons had any intention

to kill the deceased.

9. Learned counsel further contended that the

material on record clearly depicts that there was no motive

and therefore, the learned Sessions Judge was not justified in

passing the impugned judgment of conviction and order of

sentence. Learned counsel further contended that, in view of

the statement of Gowrish which became dying declaration

after his death, utmost, the incident could be treated as

accidental death and thereby, provisions of the Section 304

Part II attracts and not Section 302 of the Indian Penal Code.

Learned counsel submits that since the accused No.1 has

already undergone imprisonment for a period of 3 years 1

month, sentence to that extent may be imposed and sought

to allow Crl.A.No.1593/2019 filed by accused No.1.

10. Sri Mohan Kumar.D, learned counsel for

appellant/accused No.2 in Crl.A.No.1809/2019, while

reiterating the arguments advanced by the learned counsel for

accused No.1, submits that in the complaint and evidence of

all witnesses, there is no material against accused No.2. In

the absence of any material, impugned judgment of

conviction and order of sentence passed against accused No.2

cannot be sustained. Merely because accused No.2 was in the

company of accused No.1, he cannot be convicted and

therefore, sought to allow Crl.A.No.1809/2019 filed by

accused No.2.

11. Per contra, Sri Vijayakumar Majage, learned

Additional State Public Prosecutor, while justifying the

impugned judgment of conviction and order of sentence

passed by the learned Sessions Judge, contended that, the

dying declaration-Ex.P.10 clearly depicts that accused No.1

intentionally stabbed the deceased. Therefore, provisions of

Section 301 of the Indian Penal Code attracts. P.W.1 is the

eye witness to the incident and he has supported the

prosecution case. Ex.P.10-dying declaration and other

material documents clearly depict the involvement of the

accused in the offences. He further contended that the FSL

report clearly depicts the involvement of accused No.1 in the

commission of offences. Unfortunately, the same was not

marked. He further contended that the learned Sessions

Judge is justified in convicting the accused persons for the

aforesaid offences and therefore, sought to dismiss both the

Criminal Appeals.

12. In view of the aforesaid rival contentions urged by

the learned counsel for the parties, the point that arises for

our consideration is:

"Whether the appellants/accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting them for the offences punishable under Sections 341, 323, 302 r/w Section 34 of the Indian Penal Code, in the facts and circumstances of the present case?"

13. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire material, including original records,

carefully.

14. This Court being the appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

consider the evidence of prosecution witnesses and the

documents relied upon.

(i) P.W.1 -Santhosh, younger brother of the deceased and son of P.Ws.2 and 11 has deposed that he has seen the incident and statement of the deceased was recorded by P.W.18-PSI on 13.05.2013 and supported the prosecution case.

(ii) P.W.2-Bhagyamma, mother of the deceased deposed that the deceased told her about the incident in Rajarajeshwari Hospital. Deceased was later shifted to Bhagavan Mahaveer Jain Hospital and there he died on 25.05.2013 at about 9.00 pm and supported the prosecution case.

(iii) P.W.3-Venkatesh is witness to Ex.P.1-

mahazar dated 13.05.2013 and seizure of M.O.2- pant, M.O.3-Shirt, M.O.4-Sample mud, M.O.5-blood stained mud, turned hostile.

(iv) P.W.4-Mohan, injured person in the incident gave statement before the police as per Ex.P.2 and further statement as per Ex.P.3 and turned hostile.

(v) P.W.5-Dr.G.N.Prabhakar, deposed that Gowrish was admitted to Bhagavan Mahaveer Jain Hospital on 13.05.2013 and died on 25.05.2013 at 9.00 pm. He issued Ex.P.4- MLC/death intimation to High Grounds Police Station and supported the prosecution case.

(vi) P.W.6- Kariyappa is witness to seizure mahazars Exs.P.5 and 6 under which the vehicles involved in the offence were seized.

He is also witness to seizure of knife from a bush near burial ground and supported the prosecution case.

(vii) P.W.7-Manjunath, alleged witness to Ex.P.6 denied his signature and turned hostile.

(viii) P.W.8- Sathish, witness to Ex.P.7-Inquest panchanama dated 26.05.2013 turned hostile.

(ix) P.W.9-Bharath Kumar, witness to Ex.P.7-

Inquest mahazar dated 26.05.2013 turned hostile.

(x) P.W.10-Dr.P.N.Prakash, examined M.O.1-

knife, issued MLC register and issued opinion as per Ex.P.8 and supported the prosecution case.

(xi) P.W.11-Manjunath, father of the deceased, in the cross-examination by accused No.2 has deposed that his injured son was not in conscious state of mind in R.R. Hospital.

(xii) P.W.12-Chowdaraju, Police Constable deposed that statement of the deceased was recorded in the hospital in the presence of P.W.17, as per Ex.P.10 and supported the prosecution case.

(xiii) P.W.13-Dr.Dileep Kumar, deposed that he conducted postmortem on the dead body of Gowrish on 26.05.2013 and found six external injuries. He deposed that M.O.1 can cause such injuries and opined that the death is due to respiratory failure as a result of perforatory injury and issued post mortem report as per Ex.P.9 and supported the prosecution case.

(xiv) P.W.14-Kiran Kumar, Police Constable, Kengeri Police Station deposed that FIR as per Ex.P.11 was lodged for the offence punishable under Section 307 of the Indian Penal Code, he carried FIR to the Court on 14.05.2013. On 26.05.2013 he carried Ex.P.13-FIR lodged under Section 302 of the Indian Penal Code to the Court and supported the case of the prosecution.

(xv) P.W.15-Rajanna, ASI, Kengeri Police Station deposed that he was patrolling in Hoysala van. On 13.05.2013 he learnt that one person was stabbed near Kalikamba Temple. He shifted the victim to Victoria Hospital where the injured made statement about the

assailants and supported the prosecution case.

(xvi) P.W.16-Tulasidas, Police Constable deposed that he was deputed to search the accused and the material objects. He is witness to Exs.P.14 and 15 and supported the prosecution case.

(xvii) P.W.17-Dr.Raghunath, R.R.Medical College and Hospital, Kengeri, deposed that on 13.05.2013 at 3.50 pm, Gowrish was taken to RRMC & Hospital, was given first aid. He issued wound certificate and supported the case of prosecution.

(xviii) P.W.18-Mallikarjun, PSI, Kengeri Police Station, deposed that as per oral instructions from the Police Inspector, he took charge of the case from P.W.19, recorded the statements of witnesses, arrested accused Nos.1, 2 and Gururaj, seized the vehicles used in commission of the offence, and supported the prosecution case.

(xix) P.W.19-Ranganath, PSI, deposed that on 13.05.2013 he was patrol duty. On receiving wireless message, went to Gandhinagar

within the jurisdiction of Kengeri Police Station, learnt that the injured was shifted to Hospital in Hoysala van, recorded the statement of the victim in the presence of the doctor as per Ex.P.10. He further deposed that he registered a case in Crime No.156/2013, conducted the spot mahazar and seized M.Os.2, 3, 4 and 5, and supported the case of the prosecution.

(xx) P.W.20-Sathyanarayana, Police Inspector, Kengeri Police Station, deposed that he took charge for the case from C.W-32 on 28.05.2013 and supported the prosecution case.

(xxi) P.W.21-Paramesh, Assistant Engineer, P.W.D., deposed that upon requisition he visited the spot and drew the sketch, and supported the case of the prosecution.

(xxii) P.W.22-Nagaraj, alleged eye witness working as water supplier in Kengeri Upanagara, turned hostile.

(xxiii) P.W.23-Anand, neighbour of the deceased, alleged eye witness turned hostile.

(xxiv) P.W.24-Ravikumar @ Raju, alleged eye witness and also witness to Ex.P.1 turned hostile.

Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge proceeded to convict

and sentence the accused persons for the offences punishable

under Sections 341, 323 and 302 r/w Section 34 of the Indian

Penal Code.

15. The material on record depicts that, Ex.P.10 is the

basis for registering criminal case against accused Nos.1 and

2. In Ex.P.10- statement of the injured victim, which became

dying declaration after his death, it is stated that on

13.05.2013 at about 4.00 pm, when victim-Gowrish and his

friend Mohan-P.W.4 were standing near their house, local

persons known to them i.e., Double-accused No.1, Abbas-

accused No.2, Kenda, Guru and another came in two motor

cycles, surrounded them and started to abuse P.W.4-Mohan in

filthy language. When accused No.1 tried to assault Mohan-

P.W.1, the deceased intervened and tried to save Mohan. At

that time, accused No.1 stabbed Gowrish. Mohan managed to

escape from accused persons and ran away from the spot.

C.W.12-Syed Imran, P.W.22-Nagaraj, P.W.23-Anand, P.W.24-

Ravikumar and others came to the spot. He has further

stated that since there was enmity between Mohan and

accused persons, in order to kill Mohan, the accused persons

tried to assault Mohan. When the deceased intervened and

tried to rescue P.W.4, accused No.1 stabbed him.

16. A careful reading of Ex.P.10 depicts that while

giving statement, the deceased was in a fit state of mind and

was conscious to give statement. But, it does not depicts the

motive for the accused persons to kill the deceased. The

incident has occurred accidentally since the deceased

intervened and tried to stop the assault on P.W.4 by accused

No.1. Therefore, the assault was not intentional and it

happened accidentally.

17. According to Ex.P.10, only one injury was found

on the deceased. Ex.P.17-wound certificate issued by the

Doctor depicts that there were two injuries. Ex.P.9-post

mortem report issued by P.W.13-Dr.Dileep Kumar depicts that

there were six injuries on the body of the deceased. There is

inconsistency with regard to injuries sustained by the

deceased in the incident.

18. A careful perusal of the depositions of the

prosecution witnesses depicts that the evidence of P.W.17-

Dr.Raghunath was recorded on 24.04.2017. He has stated

that on 13.05.2013 at about 3.50 pm, Gowrish was brought to

the hospital. After giving first aid, he was shifted to Bhagavan

Mahaveer Jain Hospital. He issued Ex.P.16-Memo which

depicts that deceased had sustained two injuries. It is further

admitted in the cross-examination that the injured was in the

hospital for an hour. He has deposed that he does not know

as to who spoke with the injured during the said period. At

the time of recording statement of the injured/victim, M.O.1-

Knife was not shown to him. He denied the suggestion that at

the time of recording statement, the deceased was not in

conscious state of mind. By filing an application under

Section 311 of the Code of Criminal Procedure, P.W.17 was

recalled and examined on 28.06.2019 i.e., after lapse of

about 2 years 2 months. He has stated that when Gowrish

was brought to hospital, he was conscious and statement of

the deceased was recorded in his presence and the deceased

was suffering from bleeding injuries. Subsequent statement

of the said witness is nothing but an improvement.

19. P.W.13-Dr.Dileep Kumar, who issued the post

mortem report has deposed that there were six injuries on the

body of the deceased. In the cross-examination he has stated

that he has not examined M.O.1-Knife. The evidence of

P.Ws.13 and 17 are inconsistent. Ex.P.17 wound certificate

depicts that there were only two injuries. Therefore, there is

no consistency about the number of injuries sustained by the

deceased.

20. However, the fact remains that when accused

Nos.1 and 2 and two other persons surrounded P.W.4-Mohan

with an intention to cause his death and when accused No.1

tried to assault P.W.4, deceased Gowrish intervened and

therefore, he was accidentally stabbed. Thereby, Exception 4

to Section 300 of IPC is attracted, which reads as under:

"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner"

21. A careful reading of the said provision makes it

clear that accused No.1 stabbed the deceased without any

pre-meditation in a sudden fight between PW4 and accused

No.1, when he intervened and the offender has not taken any

advantage and acted in an unusual manner. But, the

provision of Section 302 of IPC would not attract to the

present case.

22. A careful reading of the aforesaid provision

makes it clear that to invoke said provision, four requisites

must be satisfied, namely;

     i)     it was a sudden fight;

     ii)    there was no premeditation;

iii) the act was committed in a heat of passion and

iv) the assailant has not taken any undue advantage

or acted in a cruel manner.

23. Admittedly, in the present case, according to the

deceased as per Ex.P10 dying declaration there was old

enmity between accused Nos.1 and 2 and PW4 - Mohan.

When there was a fight between Mohan and accused person,

the deceased suddenly intervened and by accident accused

No.1 stabbed the deceased with a knife. Thereby, the

material on record i.e., the oral and documentary evidence

depicts that there was no pre-meditation on the part of

accused No.1 and the same was committed by accused No.1

in a sudden heat and passion using MO1 causing two injuries

on the deceased. Thereby, he has not taken any undue

advantage and acted in an cruel manner in causing the death

of deceased. In view of the same, it cannot be said that the

case falls under the provisions of Section 302 of IPC. But it is

a case which falls under Exception 4 of Section 300 of IPC. As

accused No.1 inflicted injuries on the deceased without

intention of causing his death, his act is punishable under

Section 304 Part II of IPC. Moreover admittedly, the death

occurred after 12 days i.e., on 25.05.2013 in the hospital due

to respiratory failure as a result of perforating injury

sustained. Thereby, it is not a case punishable under the

provisions of Section 302 of IPC.

24. It is a well settled proposition that, one of the

fundamental principles of criminal jurisprudence is

undoubtedly the burden of proof squarely rests on the

prosecution and the basic burden never shifts. There can be

no conviction on the basis of surmises and conjectures or

suspicion howsoever grave it may be. Strong suspicion, strong

coincidences and grave doubt cannot take the place of legal

proof. The onus of the prosecution cannot be discharged by

referring to very strong suspicion and existence of highly

suspicious factors to inculpate the accused nor falsity or

defence could take the place of proof which the prosecution

has to establish in order to succeed.

25. Admittedly, in the present case, all the witnesses,

namely PW1 and 4 at whose instance the incident occurred

and PWs.22, 23, 24 have turned hostile and have not

supported the case of prosecution. PWs.3, 4, 7, 8 and 9 who

were the witness to mahazars have also turned hostile and

have not supported the case of prosecution. The evidence of

doctors PWs.13 and 17 are not consistent. The fact remains

that the incident occurred due to sudden intervention of the

deceased when there was a fight between the accused

persons and PW4 - Mohan. Admittedly, accused No.1 was

aged about 22 years and accused No.2 was aged about 19

years as per the date of incident. But no material is produced

by the prosecution to prove the involvement of accused No.2

in causing the death of deceased. The learned Sessions Judge

mainly on the basis of Ex.P10 and the evidence of PW1 has

proceeded to convict accused Nos.1 and 2 under the

provisions of Sections 341, 323, 302 read with 34 of IPC.

Without there being any material to prove that there was

previous motive for accused Nos.1 and 2 to cause death of

the deceased and in the absence of any material, the

conviction against accused No.2 is without any basis and

cannot be sustained.

26. The material on record clearly depicts that the

incident occurred in the heat of passion and the stab was

accidental one and it was not intentional. Therefore, in the

absence of any intention makes him individually answerable

and the conviction has to be only under the provision of

Section 304 Part II of IPC and not under Section 302 of IPC.

27. Though learned Additional State Public Prosecutor

contended that in view of the evidence of PW1 and Ex.P10 -

dying declaration, there is material against accused Nos.1 and

2, cannot be acceptable for the simple reason that on careful

perusal of Ex.P10, it clearly depicts that there was no

intention on the part of accused No.1 to stab the deceased

and there was no motive against the deceased and the

evidence of PW1 is entirely contrary to the material evidence

Ex.P10. Therefore, his contention cannot be accepted. The

evidence of PW1 and Ex.P10 - dying declaration depicts that

there was no role attributed against accused No.2.

28. This view of ours is fortified by the dictum of

Hon'ble Supreme Court in the case of AHMED SHAH AND

ANOTHER -VS- STATE OF RAJASTHAN, reported in (2015) 3

SCC 93. In paragraph 21 the Hon'ble Supreme Court has held

as under:

"21. As elaborated earlier, the complainant party went to the field and Sabbir Shah was armed with gum. In the sudden fight, there was a scuffle. During the course of scuffle, the appellants inflicted injuries on the deceased Sabbir Shah. The accused tried to grapple the gun from Sabbir Shah. There was no premeditation and that the incident was the result of sudden fight. In the scuffle, the other accused inflicted injuries on Rakhu Shah and PW 8 Rakhia. Considering the facts and circumstances of the case, in our view, the present case cannot be said to be a case

punishable under Section 302 IPC but a case falling under Exception 4 to Section 300 IPC. Since the appellants inflicted injuries on the neck and scalp of Sabbir Shah with the intention of causing death, the act of the appellant-accused is punishable under Section 304 Part I IPC."

29. The material on record clearly depicts that there is

no material against accused Nos.1 and 2 to invoke the

provision of Section 302 of IPC. Though accused No.1

assaulted the deceased with MO1 knife, it thereby attracts

Section 323 i.e., grievous injury. As the grievous injury has

resulted in death, it merges with the provision of Section 304

Part II of IPC. There are absolutely no material to attract

Section 341 of IPC against any of the accused.

30. Accordingly, points 1 and 2 are answered Partly in

Affirmative holding that accused No.1 has made out a case to

interfere with the impugned judgment and order of conviction

passed by the learned Sessions Judge and accused No.2 has

made out a case to interfere with the impugned judgment and

order of conviction to the aspect that the prosecution has

failed to prove beyond reasonable doubt and no case is made

out against accused No.2.

31. For the reasons stated above, we pass the

following:

ORDER

(i) Criminal Appeal No.1809 of 2019 filed by accused

No.2 is allowed.

(ii) The impugned judgment and order of sentence

dated 14.08.2019 made in Sessions Case No.1284 of 2013

convicting accused No.2 for the offence punishable under

Sections 341, 323 and 302 read with Section 34 of IPC is set

aside and he is acquitted for the aforesaid offences.

(iii) Criminal Appeal No.1593 of 2019 filed by accused

No.1 is partly allowed.

(iv) The impugned judgment and order of sentence

passed by the Trial Court dated 14.08.2019 made in Sessions

Case No.1284 of 2013 is partly allowed. The impugned

judgment and order of sentence passed by the Trial Court and

order of imprisonment for life under Section 302 of IPC is

hereby modified.

(v) Accused No.1 is hereby convicted under the

provisions of Section 304 Part II of IPC for a period of four

years with a fine of Rs.1,00,000/- (Rupees One Lakh Only) in

default of payment of fine, to undergo simple imprisonment

for a period of one year.

(vi) Accused No.1 is against for the offences

punishable under Sections 341 and 324 read with 34 of IPC.

(vii) Accused No.1 is entitled for set off as provided

under Section 428 of Cr.P.C.

(viii) In view of the provisions under Section 357(3) of

Cr.P.C., out of the fine amount imposed, 90% shall be paid to

the mother of the deceased as compensation and the

remaining amount shall be retained by the State towards the

expenses incurred.

In view of the disposal of main appeal, IA.2 of 2021

filed for suspension of sentence and bail, would not survive

for consideration. Hence, the same is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE kcm/*bgn/-