Karnataka High Court
Mehaboob Pasha @ Babu vs State Of Karnataka on 1 February, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01st DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
CRIMINAL APPEAL No.1357/2018
BETWEEN:
1 . MEHABOOB PASHA @ BABU
@ MEHABOOB,
S/O MAHAMMED KHALEEL,
AGED ABOUT 33 YEARS,
R/O HUNASANAHALLI VILLAGE,
KODIHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT - 560204.
...APPELLANT
(BY SRI TEJAS N., ADVOCATE)
AND:
1 . STATE OF KARNATAKA,
BY KODIHALLI POLICE,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT - 560204.
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560001.
..RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, SPP-II)
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THIS CRL.A. IS FILED UNDER SECTION 374(2) OF CR.P.C
BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 13.07.2018 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA, TO SIT AT
KANAKAPURA IN S.C.No.5001/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
JUDGMENT WAS PRONOUNCED AS UNDER:
CORAM: HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE MR. JUSTICE K. V. ARAVIND)
This appeal by the accused is against the judgment
and sentence dated 13.07.2018 in S.C.No.5001/2016 on
the file of the II Additional District and Sessions Judge,
Ramanagara, sit at Kanakapura. The accused is convicted
for offence punishable under Section 302 of Indian Penal
Code, 1860 ('IPC' for short) besides fine of Rs.50,000/-,
in default, to undergo rigorous imprisonment for one year.
2. The case of the prosecution is that the deceased,
Sikandar Beig, and his brother, P.W.15, visited
Shivalingeshwara Hotel for lunch on 18.06.2015 at about
1.45 p.m. At the same time, the accused entered the
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hotel and seated himself at a table opposite to the
deceased. The deceased started teasing the accused by
making comments about the accused's wife, Isha Taj,
allegedly showing affection for him. Despite the accused
repeatedly asking the deceased to refrain from making
such remarks, the deceased persisted in his taunts.
Meanwhile, P.W.15 had stepped outside to take a phone
call. In response to the deceased's continuous
provocation, the accused, who had been carrying a knife,
stabbed the deceased. The victim Sikandar Beig was taken
to Kanakapura Government Hospital around 2:45 P.M. in a
Tata Sumo vehicle, however, he died.
3. The prosecution filed a charge sheet on 04.09.2015,
accusing the accused of an offence punishable under
Section 302 of IPC. Upon thorough examination of the
evidence, the trial Court convicted the accused under
Section 302 IPC and sentenced him to rigorous
imprisonment for life, along with a fine of Rs. 50,000/-,
in default of payment of the fine, the accused was directed
to undergo one year rigorous imprisonment.
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4. Shri Tejas, learned Counsel appearing for the
appellant, submits that the entire prosecution case is
based on the evidence of P.W.15-complainant, the
deceased's brother. P.W.15 is an interested witness and
cannot be relied on. It is further submitted that P.W.15
has not witnessed the accused stabbing the deceased.
P.W.15 has deposed for his presence at the place of the
incident and the conversation between the deceased and
the accused.
4.1 It is submitted that P.Ws.1 to 5 were treated as
eyewitnesses. The prosecution case is on the statements
of P.Ws.1 to 5. These witnesses have turned hostile.
4.2 It is submitted that P.Ws.6 to 12 are spot and
recovery panch witnesses. The prosecution case is on the
recovery of M.O.1 alleged to have been used by the
accused to stab the deceased. These witnesses have not
supported the case of prosecution.
4.3 It is further submitted that there are contradictions
and omissions with reference to the description of the
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knife. P.W.15 has stated the knife with a wooden
handle. The knife sent to Forensic as per Ex.P14 has a
plastic handle. There is no description to the knife in the
forensic report as per Ex.P34. As per Ex.P31, the property
list submitted to the court, a knife with a plastic handle is
stated. P.W.21 has admitted the knife with a wooden
handle. As per Ex.P9, knife with a brick colour plastic
handle is seized by P.W.20. P.W.20 admitted M.O.1 with a
wooden handle as a seized article. In view of the above
inconsistencies and contradictions, the use of an alleged
knife is not proved by the prosecution.
4.4 It is further submitted that the alleged incident took
place in the hotel premises owned by P.W.1. P.W.1, in his
examination, denied having given a statement to the
police, as well as the reason for the death of the
deceased. The identity of the accused to the incident
itself is denied.
5. Shri Vijaykumar Majage, learned SPP-II submits that
the incident of stabbing the deceased in Shivalingeswara
hotel is not in dispute. The evidence of P.W.21 would
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establish the death of the deceased due to stabbing with
M.O.1.
5.1 Ex.P9 was drawn, and M.O.1 was recovered at the
instance of the accused. The description of the knife
matches with the stab injuries as per Ex.P10 and Ex.P34.
The presence of blood stains on M.O.1 is proved as 'AB'
group.
5.2 It is submitted that the description to M.O.1 knife to
it's length is not in dispute. The discrepancy pointed out
is to the handle as to plastic or wooden. The said
discrepancy has no significance.
6. We have heard learned Counsel for the parties and
perused the record. We have thoughtfully considered the
submissions by the counsels.
7. Before examining the correctness of the conviction
and sentence, the evidence has to be reassessed.
8. P.W.1, the employee of Shri Shivalingeshwara Hotel
where the incident occurred, stated in his statement
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recorded under Section 161 of the Cr.P.C. that the
deceased provoked the accused by making comments
about the accused's wife. The accused requested the
deceased not to make such comments, but the deceased
continued. The accused stabbed the deceased with a knife
that he was carrying. However, P.W.1 has turned hostile
during the trial.
9. P.W.2, in his statement recorded under Section 161
of the Cr.P.C., stated that he witnessed the accused
stabbing the deceased. The other details provided by
P.W.2 were consistent with the statement of P.W.1.
However, P.W.2 also turned hostile during the trial.
10. P.W.3 in his statement under Section 161 of Cr.P.C.,
has stated to have witnessed the deceased suffering
injuries. However, his statement on the incident is on
hear-say. P.W.3 has turned hostile.
11. P.Ws.4 and 5, in their statements under Section 161
of the Cr.P.C., testified that the deceased was making
comments about having a relationship with the accused's
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wife and that the accused had advised him not to do so.
They further stated that they witnessed the accused
stabbing the deceased. However, both P.Ws.4 and 5 have
turned hostile during the trial.
12. P.Ws.6 to 10 have not supported the prosecution.
13. P.W.15, the brother of the deceased, deposed that
he, along with the deceased, went to Rudrappa's Hotel for
lunch, where the accused, accompanied by his friends,
also arrived. The deceased, in an attempt to tease the
accused, made comments about the accused's wife.
Despite the accused's repeated requests for the deceased
to stop, the deceased continued his remarks, resulting in
the accused stabbing him twice on the left side of the
stomach. P.W.15 further stated that the deceased,
Sikandhar Beig, succumbed to his injuries on the way to
Kanakapura Government Hospital. He identified the knife
used in the stabbing, marked as M.O.1. During cross-
examination, the defense rigorously questioned P.W.15 on
various aspects, including the incident, the presence of the
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accused, the spot mahazar, and the seizure of the knife,
but P.W.15 remained consistent in his testimony.
14. P.W.20- Investigation Officer has explained the
investigation and collection of evidence. This witness has
further explained the spot mahazar, Ex.P6 and seizure
mahazar Ex.P9. It is stated that at the instance of the
accused, the M.O.1 was recovered in the presence of the
witnesses. P.W.20 has stated about the injury to the
accused on his right hand index finger, which, according to
the accused, was caused while stabbing the deceased.
P.W.20 has withstood the cross-examination except for the
minor discrepancies regarding the M.O.1.
15. P.W.13, the doctor who conducted the post-mortem
on the deceased, testified about two injuries found on the
stomach, measuring 3x2x10 cms. and 10x5x10 cms.
The doctor identified M.O.1 as the weapon that caused the
injuries. During cross-examination, no contradictory
evidence was brought out to challenge his testimony.
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16. P.W.21 testified regarding the examination of the
sample sent for forensic analysis. During cross-
examination, it was confirmed that M.O.1 was sent for
examination and the blood stains found on M.O.1 were
certified as human blood. No contradictory evidence was
elicited during the cross-examination.
17. The prosecution has successfully established that
Sikandhar Beig died as a result of being stabbed in the
stomach with a knife at Shivalingeshwara Hotel. The
evidence further confirms the presence of both the
deceased and the accused at the hotel prior to the
incident. P.W.15 provided testimony regarding the heated
exchange between the accused and the deceased at the
hotel. Statements recorded under Section 161 of Cr.P.C.
from P.Ws.1 to 5 corroborate the presence of the accused
at the scene. Additionally, these witnesses described the
deceased's teasing comments about the accused's wife.
Furthermore, P.Ws.1, 2, 4, and 5 initially stated that they
witnessed the accused stabbing the deceased. However,
during trial, all these witnesses have turned hostile,
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disavowing any knowledge of the incident and the prior
conversation between the deceased and the accused.
18. P.Ws.1 and 2, who are employees at
Shivalingeshwara Hotel, identified both the accused and
the deceased in their statements recorded under Section
161 of Cr.P.C., where they described the exchange of
words between the two. These statements were made on
19.06.2015, while their testimonies were recorded on
18.02.2017. Despite both witnesses turning hostile and
claiming ignorance of the incident, their ignorance claimed
in the trial cannot be accepted as credible. Given that the
incident occurred in the hotel owned by P.Ws.1 and 2, it is
highly improbable that they were unaware of it. Various
factors may explain their failure to support the
prosecution's case. However, upon perusing the
statements of P.Ws.1 to 5 under Section 161 of Cr.P.C., it
is difficult to believe that P.Ws.1 and 2 were not present or
unaware of the incident. The layout of the hotel suggests
that the conversation between the accused and the
deceased would have been audible to anyone in the
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vicinity. The circumstances would not persuade this Court
to accept their ignorance to the incident.
19. Moreover, Ex.P9, the seizure mahazar, documents
the recovery of M.O.1 (the weapon) based on the
accused's statement. When considered alongside P.W.15's
testimony, this establishes, beyond reasonable doubt, that
the accused used M.O.1 to fatally stab the deceased.
20. P.W.15 was present at the scene of the incident
alongside the deceased, which is supported by the
testimony of P.W.15 itself. The presence of P.W.15 is
further corroborated by the Section 161 statements of
P.Ws.1 to 5. P.W.6 was also present when Ex.P6, the
spot mahazar, was conducted. The testimony of P.W.15
remained consistent and unchallenged during
cross-examination. When P.W.15's statement is
considered alongside the testimonies of P.W.20 and
P.W.21, it is clear that the accused was present at the
scene and fatally stabbed the deceased with M.O.1. This
evidence can be safely relied upon.
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21. The discrepancy in the description of M.O.1,
particularly regarding the nature of the handle being
plastic or wood, does not significantly impact the
prosecution's case. The description of the knife provided
by P.W.15, P.W.20, P.W.21, Ex.P9, Ex.14, and Ex.P31
remains consistent. This minor discrepancy regarding the
handle does not alter the material facts, especially when
considering other corroborative evidence, such as the
blood stains, the knife's measurements, the nature of the
wounds, and the potential for cause of death resulting
from the stabbing with M.O.1. In this context, the
testimony of P.W.21 is reliable.
22. P.W.20 records recovery of M.O.1 at the instance of
accused. Ex.P9 also records the description of M.O.1
which corroborates with the evidence of P.W.21, Ex.P10
and Ex.P34.
23. The trial court, after thoroughly considering the
evidence of P.Ws. 15 and 20, correctly concluded that the
accused caused the death of the deceased by stabbing him
twice in the stomach with M.O.1, the knife. Upon
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re-assessing the evidence, this court arrives at the same
conclusion. No errors or deficiencies have been identified
in the trial court's reasoning. Therefore, this court sees no
reason to disagree with the trial court's judgment.
24. Though case is made out for conviction, in the
attending circumstances, it is necessary to examine
whether the offence is punishable under Section 302 of
IPC.
25. It is the case of the prosecution that the deceased
and P.W.15 were having lunch at a hotel on 18.06.2015 at
1:45 P.M. The accused, along with his friends, arrived at
the same hotel and sat at an opposite table. The
deceased, in turn, started teasing the accused by making
comments about his relationship with the accused's wife,
insinuating her inclination towards the deceased. The
accused repeatedly requested the deceased to refrain
from such remarks. Deceased was persistent in his
comments. The accused stabbed the deceased twice with
the knife, due to which the deceased died.
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25.1 In these circumstances, it can be reasonably
concluded that the incident was not premeditated. The
meeting between the deceased and the accused at the
hotel was coincidental and not planned. The deceased's
provocation led to a reaction from the accused. The
incident occurred in the heat of the moment, with no prior
intention to kill.
25.2 It is a natural human reaction to become intolerant
when personal and uncomfortable matters, such as family
issues, are discussed publicly. In this instance, the
deceased made remarks about the accused's wife and her
character, prompting the accused to warn the deceased
not to continue the discussion.
26. The surrounding circumstances in this case clearly
brings the incident within the scope of Exception 4 to
Section 300 of the IPC. The incident occurred without
any premeditation, during a sudden altercation, in the
heat of passion, and the offender did not take undue
advantage of the deceased. Given that Exception 4 to
Section 300 is applicable, the offence does not amount to
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murder under Section 300 of the IPC. As such, the charge
of murder under Section 302 IPC would not be sustainable
in this context.
27. In the present case, Section 304 of IPC is applicable.
Upon careful assessment of the evidence and
circumstances, it is evident that the accused did not have
the intention to cause the deceased's death. However, it is
clear that the accused had knowledge that his actions
were likely to result in death. Therefore, this case falls
under the second part of Section 304 of the IPC, which
applies to culpable homicide not amounting to murder.
28. These principles are enunciated by the Hon'ble
Supreme Court in the case of N.Ramkumar Vs. The State
Rep. by Inspector, 2023 SCC OnLine SC 1129. It reads
as under:
"16. It requires to be borne in mind that the test
suggested in the aforesaid decision and the fact
that the legislature has used two different
terminologies, 'intent' and 'knowledge' and
separate punishments are provided for an act
committed with an intent to cause bodily injury
which is likely to cause death and for an act
committed with a knowledge that his act is likely to
cause death without intent to cause such bodily
injury as is likely to cause death, it would be unsafe
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to treat 'intent' and 'knowledge' in equal terms.
They are not different things. Knowledge would be
one of the circumstances to be taken into
consideration while determining or inferring the
requisite intent. Where the evidence would not
disclose that there was any intention to cause
death of the deceased but it was clear that the
accused had knowledge that his acts were likely to
cause death, the accused can be held guilty under
second part of Section 304 IPC. It is in this
background that the expression used in Penal Code,
1860 namely "intention" and "knowledge" has to be
seen as there being a thin line of distinction
between these two expressions. The act to
constitute murder, if in given facts and
circumstances, would disclose that the ingredients
of Section 300 are not satisfied and such act is one
of extreme recklessness, it would not attract the
said Section. In order to bring a case within Part 3
of Section 300 IPC, it must be proved that there
was an intention to inflict that particular bodily
injury which in the ordinary course of nature was
sufficient to cause death. In other words, that the
injury found to be present was the injury that was
intended to be inflicted."
29. The Hon'ble Supreme Court in the case of Pulicherla
Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh,
(2006) 11 SCC 444 has observed thus:
"Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution,
as that will decide whether the case falls under
Section 302 or 304 Part I or 304 Part II. Many
petty or insignificant matters -- plucking of a fruit,
straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may
lead to altercations and group clashes culminating
in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such
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cases. There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there
may be cases of murder where the accused
attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to
ensure that the cases of murder punishable under
Section 302, are not converted into offences
punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are
treated as murder punishable under Section 302.
The intention to cause death can be gathered
generally from a combination of a few or several of
the following, among other, circumstances : (i)
nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked
up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act
was in the course of sudden quarrel or sudden fight
or free for all fight; (vi) whether the incident occurs
by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or
whether the deceased was a stranger; (viii)
whether there was any grave and sudden
provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury
has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused
dealt a single blow or several blows. The above list
of circumstances is, of course, not exhaustive and
there may be several other special circumstances
with reference to individual cases which may throw
light on the question of intention. Be that as it
may."
30. The assessment of facts and evidence shows that the
deceased provoked the accused by making offensive
comments about a supposed relationship between the
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deceased and accused's wife. The deceased further stated
that he had visited the accused's house earlier that
morning and spent time with his wife and he also
questioned whether the accused's wife had asked about
him.
31. It is natural for someone to become emotional and
upset when the conduct of their spouse is discussed in
front of others. The accused had already asked the
deceased to refrain from making comments about his wife.
It was only when the deceased persisted in making such
comments, in the heat of the moment that the accused
acted and stabbed the deceased. When considering the
circumstances of the incident, it is clear that there was no
premeditation and the deceased was not in a
disadvantaged position at the time of the attack.
32. Considering the facts, this case warrants a reduction
of the charge from Section 302 to Section 304 Part-II of
the Indian Penal Code, 1860. The incident occurred on
18.06.2015. Although the accused was on bail during the
trial, he has been in custody since his conviction in July
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2018, having served over 6½ years of rigorous
imprisonment. At the time of the incident, the accused
was 31 years old. The loss of life was a tragic
consequence of a rash and impulsive act. These
mitigating circumstances are to be considered by this
Court.
33. Taking into account the surrounding circumstances
and the material evidence on record, this Court is of the
opinion that while upholding the conviction of the
appellant, the sentence imposed should be modified to the
period of sentence already served by him. Hence, to that
extent, the Judgment of conviction and sentence passed
by the trial Court deserves to be modified.
34. Hence, we pass the following:
ORDER
(i) The appeal is partly allowed;
(ii) The judgment of conviction and order of
sentence dated 13.07.2018 passed by the
II Additional District and Sessions Judge,
Ramanagara, sit at Kanakapura in
S.C.No.5001/2016 stands modified;
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(iii) The accused is held guilty of the offence
punishable under Section 304 Part II of IPC
instead of Section 302 of IPC;
(iv) For the offence punishable under section 304
Part-II of IPC, the accused is sentenced to
rigorous imprisonment for the period he has
already spent in jail;
(v) The fine of Rs.50,000/- is modified to
Rs.25,000/- and in default of payment of fine
amount, the appellant shall further undergo
simple imprisonment for a period of three
months;
(vi) The fine amount in excess of Rs.25,000/- shall
be refunded to the appellant after due
verification.
(vii) The accused shall be set at liberty forthwith, if
his presence is not required in any other case/s.
(viii) Registry is directed to send back the trial court
records with a copy of this judgment.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
YN
List No.1 SL.No.1
