Karnataka High Court

M.M Razak vs State Of Karnataka on 20 February, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                                                  -1-
                                                              NC: 2024:KHC:7147
                                                          CRL.A No. 331 of 2013




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 20TH DAY OF FEBRUARY, 2024

                                                 BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 331 OF 2013
                      BETWEEN:

                      1.    M.M RAZAK
                            S/O M B MOHAMMAD
                            AGED ABOUT 38 YEARS
                            AGRICULTURIST
                            KOLAKERI VILLAGE
                            MADIKER TALUK
                            KODAGU DISTRICT.

                      2.    M M HYASEEM
                            S/O M B MOHAMMAD
                            AGED ABOUT 44 YEARS
Digitally signed by         AGRICULTURIST
LAKSHMINARAYANA
MURTHY RAJASHRI             KOLAKERI VILLAGE
Location: HIGH              MADIEKERI TALUK
COURT OF
KARNATAKA                   KODAGU DISTRICT.
                                                                ...APPELLANTS

                      (BY SRI D P PRASANNA, ADVOCATE)

                      AND:

                            STATE OF KARNATAKA
                            BY NAPOKLU POLICE

                                                               ...RESPONDENT

                      (BY SRI B LAKSHMAN, HCGP
                       SMT. BHANUPRIYA, ADVOCATE FOR P.W-1 AND 2)


                           THIS CRL.A. IS FILED U/S.374(2) CR.P.C Nos.1 AND 2
                      PRAYING TO SET ASIDE THE ORDER DATED:16/21.3.13
                                   -2-
                                              NC: 2024:KHC:7147
                                          CRL.A No. 331 of 2013




PASSED BY THE AD-HOC DISTRICT JUDGE AND P.O., FTC,
KODAGU, MADIKERI IN SESSIONS CASE No.25/2005 -
CONVICTING THE APPELLANTS/ACCUSED Nos. 1 AND 2 FOR
THE OFFENCE P/U/S 307, 114 R/W 34 OF IPC AND SECTION 3
AND 25 OF INDIAN ARMS ACT AND ETC,.


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

                            JUDGMENT

Appellants -accused Nos.1 and 2 have challenged

their conviction order passed in S.C.No.25/2005 for

offences punishable under Sections 307, 114 read with

Section 34 of Indian Penal Code (for short hereinafter

referred to as `IPC') and Section 3 read with Section 25

of the Arms Act.

2. The appellant -accused No.1 has been

sentenced to undergo rigorous imprisonment for a period

of five years and six months and pay fine of Rs.12,000/-

for offence punishable under Section 307 read with Section

34 of IPC and he has further sentenced to undergo

rigorous imprisonment for a period of three years and pay

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fine of Rs.4,000/- for offence punishable under Section 3

read with Section 25 of the Act.

3. The appellant -accused No.2 has been

sentenced to undergo rigorous imprisonment for a period

of four years and six months and pay fine of Rs.6,000/- for

offence punishable under Section 114 read with Section 34

of IPC. The Trial Court has ordered that substantive

sentence of imprisonment to run concurrently.

4. The factual matrix of the case as under

The allegation against the accused in the charge

sheet are that on 09.07.2004, at about 5.00 P.M. in the

Jurisdiction of Napoklu Police Station, in Kolakeri Village,

on the mud road leading towards Kannapani, the accused

Nos.1 to 3 of this case with common intention to commit

an offence having enmity with CW.1/K.Y.Sulaiman and

CW.2/K.Y.Ashraf in regard to the previous cases registered

against them with an intention to commit murder, the

accused Nos.1 and 2 were holding single barrel gun which

belonging to their father i.e.CW.10/M.B.Mohammed and

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accused No.3 holding knife came in the Jeep bearing

Reg.No.KA-12-M-3082 attacked on CW.1/K.Y.Sulaiman

when he was returning from the house of CW.3/K.A.Amu

and was talking with CW.4/K.A.Ali stating that they found

the person who they wanted (£ÀªÀÄUÉ ¨ÉÃPÁzÀ ªÀåQÛ ¹QÌzÀ JAzÀÄ ºÉÃ½

fÃ¦¤AzÀ PÉÆÃc PÀwÛ ¸ÀªÄÉ ÃvÀªÁV E½zÀÄ §AzÀÄ) A.1 fired towards CW.1

with gun, in the consequences the pellets hit to the right

upper arm of CW.1 and sustained simple injuries. On

hearing the sound of fire through the Gun, CW.2 rushed to

the spot, at that time the accused proceeded further near

to him, the accused No.3 was holding Kathi, the accused

Nos.2 and 3 instigated to accused No.1 stating that CW.1

did not die, hence fire again by saying so instigated to

Accused No.1, hence the accused No.1 has fired aiming

towards the CW.1, with an intention to commit murder by

using the gun belonging to their father CW.10, in the

consequences the pellets hit to CW.2's head, shoulder,

stomach and to fingers, the CW.2 sustained grievous and

simple injuries, thereby the accused have committed the

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offence punishable under Sections 307 read with Section

34 of IPC and Section 3, 25, 27 of Arms Act.

5. Learned counsel for appellants -accused Nos.1

and 2 submits that appellants and P.W.1 and P.W.2 have

compromised the matter. He further submits that in view

of the compromise, he prays for reducing the sentence for

the period already undergone by appellants -accused

Nos.1 and 2. He further submits that appellants -accused

Nos.1 and 2 were in judicial custody for a period of four

months, on that point he placed reliance on the decision of

the Hon'ble Apex Court in the case of Ishwar Singh Vs

State of Madhya Pradesh, decided on 17.10.200,

wherein it is held as under

"16. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the petitioner was taken into custody. During the pendency of appeal before the High

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Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Considering the totality of facts and circumstances, in our opinion, ends of justice would be met if the sentence of imprisonment awarded to the appellant(Accused No.1) is reduced to the period already undergone."

6. He has also placed reliance on the decision of

the Madras High Court at Madurai Bench in the case of

Fazeeth Reguman Vs The Inspector of Police, decided

on 28.02.2023, wherein it is held as under

"11. In later decisions including in Ram Lal v. State of J&K, [(1999) 2 SCC 213], Bankat v. State of Maharastra, [(2005) 1 SCC 343], Mohar Singh v. State of Rajasthan[(2015) 11 SCC 226], Nanda Gopalan v. State of Kerala [(2015) 11 SCC 137], Shankar v. State of Maharastra, [(2019) 5 SCC 166], this Court has taken note of the compromise between parties to reduce the sentence of the convicts even in serious non compoundable offences.

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14. In this case also, at the time of incident, the victim was aged about 19 years and the attack was in sequel to the family dispute between the parties. Due to intervention of elders and family members, the parties have buried their hatchet and amicably settled their issues. The defacto complainant also submitted that he has pardoned the petitioner. The defacto complainant is aged about 60 years and the petitioner is aged about 32 years. In the question of the Court it is a fit case for reduction of sentence.

15. In view of the above, this Criminal Revision Case stands partly allowed, while confirming the conviction and sentence imposed against the petitioner for the offence under Sections 452 and 307 of IPC, the sentence and the imprisonment imposed upon the petitioner is modified and reduced to the period of sentence, already undergone by the petitioner. The petitioner did not have to surrender before the Court. Consequently, connected miscellaneous petitioner is closed."

7. An application under Section 320(2) of Cr.P.C is

filed along with affidavits of P.W.1 and P.W.2. In the

affidavits it is stated as under

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"4. I further state that, since we are belongs to same village and in the intervention of elders and well-wisher have settled our dispute amicably and we have leading harmonies life without any further quarrel. Since last 20 year there is no any dispute between us and no other cases were registered against the appellants.

5. I further state that, since the incident was occurred without any motive and due to sudden provocation no purpose will be served by sending the appellants to prison for undergoing further sentence. Hence the appeal maybe allowed by acquitting the appellants."

8. Appellants -accused Nos.1 and 2 and P.W.1 and

P.W.2 are physically present before the Court and copies

of aadhar cards of P.W.1 and P.W.2 are furnished for the

purpose of their identification.

9. P.W.1 and 2 who are present before the Court

states that they have voluntarily compromised the matter,

there is no any coercion to enter into compromise.

10. Appellants -accused Nos.1 and 2 are residing in

the same locality and now the matter is amicably settled

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between them. They have undertaken not to repeat the

same incident.