Karnataka High Court
Fhajalulla And Anr vs The State on 10 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 200120 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200120 OF 2018 (374)
BETWEEN:
1. FHAJALULLA S/O ISMAIL KHAJI
AGE:26 YEARS, OCC: STUDENT,
R/O. BADI KAMAN, VIJAYAPURA.
2. ANEES S/O ABDULJABBAR KHATEEB
AGE:26 YEARS, OCC: STUDENT,
R/O. BADI KAMAN, VIJAYAPURA.
...APPELLANTS
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
AND:
Digitally signed THE STATE THROUGH JALANAGAR PS,
by SHILPA R
TENIHALLI REP. THROUGH HIGH COURT ADDL. PUBLIC
Location: HIGH PROSECUTOR, BENCH AT KALABURAGI-585107.
COURT OF
KARNATAKA ...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO CALL FOR THE RECORDS OF THE PROCEEDINGS BEFORE
THE COURT OF THE HON'BLE PRINCIPAL SESSIONS JUDGE AT
VIJAYAPURA IN SESSION'S CASE NO.35/2016 AND ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER
DATED 3/9/2018 IN SC NO. 35/2016 BEFORE THE PRINCIPAL
SESSIONS JUDGE AT VIJAYAPUR AND ACQUIT THE
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CRL.A No. 200120 of 2018
APPELLANTS HEREIN OF THE OFFENCES CHARGED AGAINST
HIM IN THE ABOVE SAID CONVICTION ORDER.
THIS APPEAL COMING ON FOR DICTATION OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellants under Section
374(2) of Cr.P.C. challenging the judgment of conviction
and order of sentence passed by the learned Principal
Sessions Judge, Vijayapura in S.C.No.35/2016 dated
03.09.2018, whereby, the learned Sessions Judge has
convicted the appellants for the offences punishable under
Sections 323, 307 and 504 read with Section 34 of IPC.
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 are
that on 03.09.2014 at about 7.35 p.m., near the bus-stop
of Jalanagar, the complainant and CW.4 - Anil were
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returning on the motorcycle to their house from the
market and when they were taking turn by giving an
indicator, the accused persons came on a motorcycle
bearing registration No.KA-28/EB-3220, in a high speed
and brushed the motorbike of the complainant and are
supposed to dash the vehicle of the complainant. Then,
the complainant questioned the said act of accused
persons and then the both the accused persons in
furtherance of their common intention, picked up quarrel
with the complainant, assaulted him by hands, kicked him
and he was also assaulted by stone on his stomach, chest
causing grievous injuries to his rib and accused No.1
attempted to throttle his neck by making an attempt on
his life. It is also alleged that the accused persons have
also abused the complainant in vulgar language and in this
regard, the complainant lodged a complaint. On the basis
of the complaint, the Investigating Officer has investigated
the crime and submitted the charge sheet for the offences
punishable under Sections 323, 324, 307, 504, 506 read
with Section 34 of IPC.
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4. The accused persons have appeared before the
learned Magistrate and were enlarged on bail. They were
also provided with the prosecution papers. Then the
matter was committed to Sessions Judge. The charge
framed was read over and explained to them and they
pleaded not guilty and claimed to be tried. To prove the
guilt of the accused, the prosecution has examined in all 9
witnesses and also placed reliance on 10 documents
marked at Exs.P1 to P10. Further, the prosecution has
also placed reliance on MO.1.
5. After conclusion of the evidence of the
prosecution, the statement of the accused under Section
313 of Cr.P.C. was recorded to enable the accused persons
to explain the incriminating evidence appearing against
them in the case of the prosecution. The case of the
accused is of total denial and they did not choose to lead
any oral or documentary evidence in support of their
defence.
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6. After having heard the arguments and after
appreciating the oral and documentary evidence, the
learned Sessions Judge has acquitted the accused persons
for the offences punishable under Sections 324 and 506
read with Section 34 of IPC. However, the learned
Sessions Judge has convicted them for the offences
punishable under Sections 323, 307, 504 read with
Section 34 of IPC and imposed the sentence for a period of
one month, five years and six months with fine to all the
sentences respectively with default clause.
7. Being aggrieved by this judgment of conviction
and order of sentence, the appellants/accused are before
this Court by way of this appeal.
8. Heard the arguments advanced by the learned
counsel for the appellants/accused and the learned High
Court Government Pleader for the respondent - State.
Perused the records.
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9. The learned counsel for the appellants would
contend that the evidence of PWs.2 and 3 does not
corroborate to each other and consisting lot of
improvements. He would contend that the medical
evidence of PW.5 is not consistent and the documents at
Exs.P6 and P7 are not trustworthy. He would also assert
that the appellants are the students and only with rivalry,
they have been falsely roped in this crime and they have
already suffered a lot. Hence, he would seek for allowing
the appeal and alternatively he would contend that the
sentence of imprisonment may be set aside by enhancing
the fine amount and restricting the sentence to the period
of custody to the tune of 1 month 18 days undergone by
accused/appellants by setting off the same.
10. Per contra, the learned High Court Government
Pleader would contend that there is material evidence and
the evidence of PWs.2 and 3 is consistent and again it is
supported by other evidence of a police constable, who
has seen the accused persons and the complainant at the
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spot and admittedly the complainant sustained injuries.
He would contend that the learned Sessions Judge has
appreciated the oral and documentary evidence in a
proper perspective and has rightly convicted the accused
persons by imposing reasonable sentence. Hence, he
would assert that the judgment of conviction and order of
sentence does not call for any interference and sought for
dismissal of the appeal.
11. Having heard the arguments and after perusing
the oral and documentary evidence, now the following
point would arise for my consideration:
"Whether the judgment of conviction and
order of sentence passed by the learned
Sessions Judge is perverse, arbitrary and
erroneous so as to call for any interference by
this Court?"
12. The allegations of the prosecution disclose that
the alleged incident has taken place on 03.09.2014 at
about 7.35 p.m., when the complainant and CW.4 were
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proceedings towards their house from the market on their
motorcycle and the vehicle of the accused was driven in a
rash and negligent manner, high speed and touched the
vehicle of the complainant, which was provoked cause for
this incident. The allegations disclose that the accused
persons used unparliamentarily abusive words against the
complainant as well as CW.4. Further, the allegations
disclose that the complainant was assaulted by hands and
was kicked and later on, accused No.2 fisted on his chest
and stomach and accused No.1 attempted to throttle the
neck of the complainant.
13. PW.2 is the victim - complainant and he has
deposed regarding abusive words used by the accused
persons and he being assaulted and fisted by both the
accused persons on his chest and stomach and CWs.5 to 7
rushing to the spot and pacifying the scuffle. His evidence
further discloses that he was shifted to Ayush Hospital,
Vijayapura and was inpatient for a period three days and
he has deposed regarding lodging of the complaint as per
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Ex.P1 and getting it drafted through his colleague
advocate.
14. PW.3 - Anil is another eyewitness, who was
accompanying the complainant and he has also deposed in
terms of the statement made by the complainant. He has
also specifically deposed about the abusive words used by
both the accused persons. His evidence further discloses
that accused No.1 has fisted the complainant and kicked
him and when he tried to separate them, accused No.1
abused him. He further asserts that accused No.1 has
also assaulted the complainant with stone on his chest.
His evidence further discloses that at that time, CWs.5 and
6 came there and resolved the scuffle and the complainant
was taken to Ayush Hospital, wherein, he has obtained
treatment. He has also identified MO.1 as stone, used for
assaulting the complainant.
15. Both the witnesses were cross-examined at
length, but, except formal denial, nothing was elicited so
as to impeach their evidence. They have consistently
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deposed regarding the alleged incident and interestingly
their cross-examination reveals that certain fatal
suggestions have been made to the witnesses. However,
on perusal of the cross-examination of PW.2, it is evident
that he did not whisper regarding assault by a stone. His
evidence is only he being fisted and kicked, but, PW.3 has
deposed regarding assault, which is nowhere stated by
PW.2 - victim. Further, PW.2 has not even identified the
stone. No doubt, PWs.2 and 3 have deposed regarding
throttling the neck of the complainant, but, there is no
evidence to show that they had an intention to cause the
death of the complainant by throttling his neck. Even on
perusal of the doctor's certificate marked at Ex.P6, no
such injury was found on the neck and no impression was
also traced. However, a contusion was noticed on the
lower part of the chest and x-ray reveals the fracture of
left side of the rib.
16. PW.6 is an independent witness and he has also
supported the case of the prosecution and specifically
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deposed the overt-acts as alleged against the accused
persons. He has also deposed regarding accused No.2
throttling the neck of the complainant and accused No.1
assaulting by stone, but, as observed above, the medical
evidence regarding throttling the neck is absent and the
evidence of PW.2 is silent regarding the assault by a
stone.
17. The evidence of PWs.2, 3 and 6 is again
corroborated by the evidence of PW.1, who rushed to the
spot immediately after the scuffle was pacified and he
noticed both the complainant and accused at the spot
during relevant time.
18. PW.4 has deposed regarding drawing of spot
mahazar and seizure of the stone from the spot, but, the
said stone was not at all identified by the complainant.
His evidence simply discloses about drawing of spot
mahazar at Ex.P2 as well as recovery of the motorcycle
driven by the accused persons as per Ex.P4.
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19. PW.5 is the medical officer and he deposed
regarding giving treatment to the injured complainant.
20. PW.7 claims to be the eyewitness, but, he did
not support the case of the prosecution. But, his evidence
discloses that he received information regarding the
incident and complainant being admitted to the hospital.
However, he denied the suggestion pertaining to showing
the spot to the police. But, the evidence of PWs.1 to 3
and 6 is consistent and supporting to each other.
21. PWs.8 and 9 are the investigating officers. The
evidence on record discloses that the accused persons
have without any proper reason quarreled with the
complainant and CW.4 and abused them in vulgar
language by using unparliamentarily words such as " K
gÁAqÀPÉ vÀÄeÉ UÁr ZÀ¯Á£ÉPÆ
É Ã Dw PÁå £À»Ã. K ºÀgÁªÀÄPÉÆÃgÀ K §ºÀÄvÀ ¨ÁvÀ PÀgÀv,É
E¸ÀPÉÆà PÀvª
À ÀÄ PÀgP
À É ZÉÆqÀAUÉÃ." The words used by the accused
persons are in normal course can provoke any person to
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break the public peace. Hence, it is evident that the
offence under Section 504 of IPC is attracted.
22. The allegations of the prosecution further
disclose that both the accused persons have assaulted the
complainant by hands and hence, the offence under
Section 323 of IPC is also attracted.
23. The learned Sessions Judge has also convicted
the accused persons for the offence punishable under
Section 307 of IPC. However, as observed above, there is
no evidence to show that the complainant has suffered any
injuries on his neck due to throttling and the medical
evident is silent in this regard. The ingredients of Section
307 of IPC are not at all attracted. The learned Sessions
Judge only on the basis of the statement of the witnesses,
has come to the conclusion that there is an attempt, but,
considering the fact that it is a public place and the
ingredients of Section 307 of IPC are not applicable to the
case on hand. Hence, the conviction under Section 307 of
IPC may not be proper. However, at the same time, it is
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also evident that the accused persons have kicked the
complainant and he suffered the fracture of rib. No
weapon is used and hence, the offence under Section 325
of IPC is attracted rather than the offence under Section
307 of IPC and the learned Sessions Judge has erred in
convicting the accused persons for the offence punishable
under Section 307 of IPC rather than the offence under
Section 325 of IPC. Hence, to this extent, the judgment of
conviction calls for interference.
24. The learned Sessions Judge has imposed the
sentence of imprisonment for the offence punishable under
Sections 323 and 504 of IPC. Upon hearing on the
sentence for the offence punishable under Section 325 of
IPC, the learned counsel for the appellants submits that
the sentence already undergone by the accused persons in
the custody may be set off as against the proposed
sentence. The offence under Section 325 of IPC is
punishable with imprisonment upto 7 years and fine. No
minimum sentence is prescribed for the said offence.
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However, the records disclose that both the accused
persons are the students. The learned counsel for the
appellants further submit that the appellants have suffered
a lot as thy being the engineers and have lost their job
because of the incident and prosecution.
25. Considering the age of the appellants, I am of
the considered opinion that it is not a fit case, wherein, the
imprisonment for higher period can be imposed and
imprisonment already undergone to the extent of 1 month
18 days would serve the purpose, but, at the same time,
accused are required to pay the fine of Rs.15,000/- each
with default sentence of simple imprisonment for a period
of one and half months.
26. For the offence under Section 323 of IPC, the
sentence of imprisonment imposed by the learned
Sessions Judge for a period of one month does not call for
any interference.
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27. For the offence under Section 504 of IPC, the
sentence of imprisonment for a period of six months was
imposed. In my considered opinion, it is on the higher
side. The offence under Section 504 of IPC is punishable
with imprisonment for a period of 2 years or fine or both.
The learned Sessions Judge has imposed fine of
Rs.5,000/- each with default sentence and considering the
nature and gravity of the offences, it does not call for any
interference, but, the sentence is not warranted. Hence,
considering these facts and circumstances, the appeal
needs to be allowed in part and accordingly, I proceed to
pass the following:
ORDER
A. The appeal is allowed in part.
B. The impugned judgment of conviction is partially
confirmed. However, the conviction and sentence
imposed for the offence under Section 307 read
with Section 34 of IPC is set aside and modified
by convicting the appellants/accused for the
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offence punishable under Section 325 read with
Section 34 of IPC.
C. The sentence for the offence under Section 323
read with Section 34 of IPC stands confirmed.
D. As regard the offence under Section 504 of IPC,
the sentence of imprisonment is set aside and it
is restricted to fine alone.
E. Further, for the offence punishable under Section
325 of IPC, the appellants/accused are
sentenced to undergo imprisonment for a period
of 1 month 18 days, which they have already
undergone and further they are directed to pay
fine of Rs.15,000/- each and in default, they
shall undergo simple imprisonment for a period
of one month.
F. The sentence of imprisonment imposed under
Sections 323 and 325 of IPC shall run
concurrently.
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G. The period of custody already undergone by the
appellants/accused is set off as against the
sentenced imposed.
H. Registry is directed to send back the records to
the Trial Court along with the copy of this
judgment with a direction to the learned
Sessions Judge to secure the presence of the
appellants/accused for recovering of balance fine
amount.
I. The fine shall be deposited within four weeks
from today.
Sd/-
JUDGE
SRT
