ARIF v. STATE OF KARNATAKA

accused Nos.1, 3 and 4 are before this Court in these appeals.

4. I have heard Shri Sandesh J.Chouta, learned Counsel appearing appellants Shri K.Rajesh Rai, learned Government Pleader appearing for the respondent-State.

5. Shri Sandesh Chouta, learned Counsel contended that the judgment is highly perverse and illegal for the reasons that finding recorded by the learned Sessions Judge are based only on assumptions and presumptions and he has not properly appreciated - 8 - the various circumstances brought out in the evidence of the material witnesses which falsify the case of the prosecution. He further contended that though evidence of P.Ws.1 to 4 indicate that there was some incident, their evidence with regard to actual assault on P.W.2 does not gain corroboration from the medical evidence. Therefore, user of the weapons with which P.W.2 was stated to have been assaulted is highly doubtful. He contended that even from the evidence of P.W.2, it is clear that after he was dragged from near his house infront of the shop of P.W.6, he was pushed down as a result, he fell down and therefore, possibility of P.W.2 sustaining injury as a result of his head coming in contact with blunt object like edge of stone cannot be ruled out. Therefore, he contended that the findings recorded by the learned Sessions Judge that accused No.1 was responsible for the head injury sustained by P.W.2 is without any basis. He further contended that from the facts and circumstances of the case and in the absence of any - 9 - motive on the part of the appellants, the alleged act of assault was not with an intention of doing away with the life of P.W.2, therefore, ingredients of section 307 of IPC are not attracted. He further contended that the act of assault on P.W.2 would at best may attract offence under section 323 of IPC. He submitted that even according to evidence of P.W.1, he was assaulted by accused No.2 with an iron pipe and since accused No.2 did not take his trial before the Court for the act of assault said to have been committed by accused No.2, these appellants cannot be held liable. In this view of the matter, he submitted that judgment under appeals calls for interference by this Court.

6. On the other hand, Shri Rajesh Rai sought to justify the judgment under appeals contending that the judgment does not suffer from any perversity or illegality warranting interference by this Court since the learned Sessions Judge on proper appreciation of oral as well as documentary evidence has recorded findings which are sound and reasonable having - 10 - regard to the evidence on record. He contended that the very fact that accused persons four in number came near the house of P.Ws.1 and 2 at about 11.00 P.M. armed with talwar and iron pipe, dragged P.W.2 from near his house to a distance and assaulted him would be sufficient to indicate the intention on the part of the accused and therefore, learned Sessions Judge is justified in holding that accused committed acts of assault on P.W.2 with an intention to take away his life. As such, learned Sessions Judge is justified in convicting the appellants for the offence under section 307 read with section 34 of IPC. He further contended that evidence of P.Ws.1 to 4 being consistent and cogent, their evidence clearly establishes the acts committed by these appellants and their evidence as to the site of injury gains corroboration from the medical evidence, therefore, learned Sessions Judge is justified in convicting the appellants for the aforesaid offences, as such, the judgment does not warrant interference by this Court. - 11 -

7. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration are: 1) Whether judgment under appeal suffers from any perversity or illegality warranting interference by this Court? 2) Whether the learned Sessions Judge is justified in convicting the appellants for the offences punishable under Sections 323, 341, 307, 324 read with section 34 of IPC?

8. I have bestowed my anxious considerations to the submissions made on both sides and perused the records secured from the trial Court. As noticed supra, according to the case of the prosecution, first information report about incident came to be recorded between 2.00 and 3.00 A.M. on 23.07.2002 in the S.C.S. hospital, Mangalore as per Ex.P16 and based on the same, the case came to be registered and investigation was taken up. P.W.1 in his oral evidence has reinstated facts. P.W.13- - 12 - U.Sundar, Head Constable, who stated to have recorded statement Ex.P16 has reiterated these facts. Of course, in the evidence of P.W.13 it was brought out that Ex.P16 does not bear the signature of P.W.1. However the said fact has been considered by the learned Sessions Judge and it has been described as an accidental slip. As per the endorsement made by the jurisdictional Magistrate on the FIR Ex.P1, he received FIR along with Ex.P16 at 10 A.M. on

23.07.2002. The jurisdictional Magistrate has also initialed Ex.P16 for having received the same at 10.00 A.M. along with the F.I.R. It is seen that Ex.P16 has been treated as the report received first in point of time and that has been taken as the basis to set the criminal law into motion. Therefore, the learned Sessions Judge, in my opinion, has rightly held that the complainant not signing Ex.P16 is only an accidental slip and P.W.13 appears to have omitted to take the signature of P.W.1 on Ex.P16 by oversight. Having regard to the time at which the report as per - 13 - Ex.P16 is shown to have recorded and the time at which F.I.R. reached the jurisdictional Magistrate, I find no delay either in lodging the F.I.R. or F.I.R. reaching the jurisdictional Magistrate. P.W.2 in his oral evidence has reiterated the case of prosecution. According to evidence of P.W.2, on

22.7.2002, after completing his work of collecting money from different hotels to which he had supplied beef, he came near his house about 11.05 P.M. or

11.10 P.M. and when he was about to press the calling bell button, all the four persons came near him and by holding him dragged him and took him infront of the shop of P.W.6. He has further stated that after taking him near the shop of P.W.6, accused persons pushed him down as a result, he fell down and thereafter accused No.1 took out the talwar which he had hidden in his back and with the said talwar accused No.1 assaulted on the head of P.W.2. According to P.W.2, at that time accused No.3 held his left hand while accused No.4 held his right hand. - 14 - He has further stated that accused No.2 assaulted him with an iron pipe on the right shoulder and on both the legs. It is his further say that on seeing this, P.W.6 Abdulla who was in his shop shouted and fearing danger, he pulled down the shutters of the shop. In this process, a chocolate bottle fell down and broke. He has further stated when he was assaulted, his brother P.W.1 Ismail came there but the accused pushed him away from the place and assaulted him also and then ran away from the place along with the weapons. He has further stated about his brother P.W.4 Hyder taking him and P.W.1 to the hospital. According to P.W.2, accused were under impression that at his instance, one Faisal and one Hameed and his associates had assaulted accused No.2 about an year ago and in that background, the accused committed acts of assault on him to do away with his life. The witness has been cross-examined at length. P.W.1 in his oral evidence has corroborated the evidence of P.W.2 with regard to the incident. - 15 - P.W.4-Hyder, brother of P.Ws.1 and 2 has also corroborated the evidence of P.Ws.1 and 2. According to him, on that day, he was also inside the house and after hearing the screaming sound, he came out and saw the acts of assault on P.Ws.1 and 2 by accused persons. P.W.3 is a neighbour of P.Ws.1 and 2 and he has also corroborated the evidence of P.Ws.1 and 2.

9. P.W.10 - the doctor who treated P.Ws.1 and 2 in his evidence has stated that in the midnight of

22.07.2012, P.W.2- Ummer Farooq was brought by his brother Ismail with the History of alleged assault by a group of people and on examination, he noticed a lacerated wound on the scalp of P.W.2 with profuse bleeding. According to him, C.T. scan of brain was taken and it revealed that P.W.2 had suffered depressed fracture of left parietal bone. He has further stated that on examination of P.W.1- Mohammed Ismail, he noticed one abrasion over medial aspect of left elbow, abrasion over medial - 16 - aspect of right elbow, contusion over right scapular region and abrasion on the left side of the scalp. According to this witness, subsequently, police sought his opinion by sending the weapons namely M.O.4- talwar, M.O.5- iron rod and after examining them he has furnished his opinion as per Ex.P14 to the effect that injury found on person of P.W.1 could be caused with iron rod while injury found on person of P.W.2 could be caused either by a talwar or by iron rod. In the cross-examination, P.W.10 has stated that after examination of the injured he sent the injured for treatment and subsequently x-ray and other things were done in the concerned department. He has admitted the suggestion mere lacerated wound over the scalp with profuse bleeding would be simple injury. It is further elicited from him that if a blow were to be given by a pipe like M.O.5, definitely, lacerations and contusions would be caused. He has also admitted the suggestion that any sharp edged - 17 - weapon is used for assault, it would cause incised injury.

10. In the light of the above evidence, let me proceed to consider as to whether the appellants are guilty of any of the offences alleged. In order to attract the offence under section 307 IPC, the act of assault must have been done with an intention to do away with the life of the person. The intention being mental state of a person, rarely direct evidence would be available to establish the intention. Therefore, intention on the part of a person will have to be gathered from the attending circumstances such as motive if any, the utterances if any, made at the time of assault denoting the intention, the nature of the weapon used for the assault, the part of the body chosen for assault etc. In the case on hand, according prosecution, the accused had a strong motive for doing away with the life of P.W.2. Motive projected was that there was an incident of assault by C.W.11 Ashraf, Hamed and others on accused No.2 about an - 18 - year prior to the incident in question and accused were under the impression that the said incident of assault was at the instance of P.W.2. Except a say by P.W.2 in this regard, there is absolutely no other circumstance brought about in the evidence to establish that there was an incident of assault on accused No.2 and that the accused were under an impression that the incident was at the instance of P.W.2. It is not the say of P.W.2 that at any point of time earlier to the incident in question, any of the accused had disclosed this fact nor it is the say of P.W.2 at the time of incident in question, the accused disclosed this fact as the cause for assault on him. Therefore, it is not forthcoming as to how P.W.2 could gather this information. In this view of the matter, it is highly difficult to believe the evidence of P.W.2 in this regard. Learned Sessions Judge in the light of the evidence of PW.1 has held that there is a hidden motive on the part of the accused. If the motive is hidden, there cannot be any evidence in that regard. - 19 - In the absence of any acceptable evidence, in my opinion, learned Sessions Judge is not justified in holding that there was any motive on the part of the accused. Thus, absence of motive on the part of the accused is a strong circumstance which would negate the theory that the act of assault was with an intention to do away with the life of P.W.2. Even according to P.Ws 1 to 4, there were four assailants and out of them two were armed with deadly weapons like talwar and iron rod. According to these witnesses, P.W.2 was assaulted with a talwar on the head. it is not the say of any of the witnesses that the blunter side of the talwar was used for assault. Therefore, it has to be presumed that sharper side of the talwar must have been used. As noticed supra, according to the evidence of P.W.10, if a sharp edged weapon like talwar is used for assault, it would invariably result in incised injury. Admittedly, P.W.1 has not suffered any incised injury, but on the other hand, he had suffered only a lacerated wound. - 20 - According to P.W.10, C.T. scan revealed depressed fracture. This can be due to particular portion of the head coming in contact with blunt object. Therefore, user of Talwar is highly doubtful. If really four assailants held P.W.2 and dragged him to a distance, intended to take away his life, it was certain on the part of the assailants to have assaulted him severely on vital parts with the weapons held by two of them. It s not the say of P.Ws 1 to 4 that at the time of the assault, any of the accused uttered any word denoting their intention. Having regard to all these factors, I am of the considered opinion that the acts complained of against the appellants cannot be construed as an act done with an intention to take away the life of P.W.2 to attract the offence punishable under section 307 of IPC. Learned Sessions Judge, in my opinion, has not properly appreciated the above circumstance before finding the appellants guilty for the offence punishable under section 307 of IPC. In the light of the discussions made above, I am of the considered - 21 - opinion that conviction recorded for the offence punishable under section 307 of IPC is highly perverse and cannot be sustained.

11. As noticed supra, even according to the evidence of PWs 1 to 4, P.W.2 was assaulted only once by accused No.1 with talwar while accused No.2 said to have been assaulted P.W.2 with iron pipe on the shoulder and on both the legs. However, medical evidence does not show any injury on the shoulder or any of the legs of P.W.2. Thus, there were no corresponding injuries found on the person of P.W.2 in relation to the overt-acts attributed against accused No.2. Injuries suffered by P.W.1 as spoken to by P.W.10 was a lacerated wound over scalp. The nature of injuries suffered by P.W.2 indicates that said injury occurred as a result of portion of the head coming in contact with blunt force. It is not the say of any of P.Ws 1 to 4 that P.W.2 was assaulted with iron rod. According to P.W.2, after he was dragged from near the house to the front of the shop of P.W.6, he - 22 - was pushed down as a result he fell down. If that is so, possibility of the head of P.W.2 hitting against any stone or hard object at that place cannot be completely ruled out. If user of talwar as stated by P.W.2 is doubtful and when it is not the say of P.Ws.1 to 4 that P.W.2 was assaulted by any blunt object, the only other possibility for P.W.2 having sustained such injury was his head coming in contact with blunt object when he was pushed down infront of the shop of P.W.6. Therefore, the complicity of accused No.1 for the injury suffered by P.W.2 is highly doubtful. According to P.W.1, when he went to the rescue of P.W.2, he was pushed down and thereafter, he was assaulted by accused No.2 with an iron pipe. As accused No.2 is not before the Court, it is not necessary for this Court to consider the role assigned to him.

12. Of course, P.W.10 has described injury suffered by P.W.2 as grievous in nature. The basis for such an opinion was the C.T.scan report. However, the C.T. - 23 - scan report is not produced before the Court. Even according to P.W.10 after examining the injured, he was admitted as an in-patient and he was sent for treatment to the concerned department and in the concerned department, the specialist would prescribe for necessary investigation. Therefore, it is not clear from the evidence of P.W.10 as to whether he had seen the C.T. scan report. It was not at the instance of P.W.10 C.T. scan was done, on the other hand, it was at the instance of doctor in the concerned department. The case sheet maintained in the hospital in respect of the treatment of P.W.2 is also not produced. Therefore, the description of injury as grievous cannot be accepted in the absence C.T. scan report. Nevertheless, having regard to the findings recorded above that the possibility of P.W.2 having sustained such injury as a result of that particular portion of the head coming in contact with hard object like stone, etc. when he was pushed down cannot be ruled out, even if P.W.2 had sustained blunt injury, it - 24 - cannot be attributed to accused No.1 or to any other accused. However, having regard to the consistent evidence of P.Ws.1 to 4 about these appellants coming near the house of P.W.2, dragging him to the front side of the shop of P.W.6 and pushing him down, certainly attract the offences punishable under section 323 of IPC. Therefore, having regard to the discussions made above, I am of the considered opinion that the appellants are liable to be convicted for the offence punishable under section 323 read with section 34 of IPC and they are entitled for acquittal of other charges. Offence under section 323 of IPC is punishable with imprisonment which may extend to one year or by levying a fine of Rs.1,000/- or both. Having regard to the fact that incident said to have occurred about 10 years ago, and since the learned Counsel for the appellants submitted that the matter has been amicably settled between the parties, I am of the opinion that interest of justice would be met if the appellants are sentenced to pay fine only. - 25 -

13. In view of the above discussions, the appeals are allowed in part. In modification of the judgment of conviction passed by the trial Court convicting the appellants for the offences punishable under sections 323, 307, 341 and 324 read with section 34 of IPC, the appellants are convicted the offence punishable under section 323 r/w 34 IPC and they are acquitted of the other charges. Each of the appellants are sentenced to pay a fine of Rs.1,000/-. As the appellants have already deposited the fine before the trial Court, the excess fine amount deposited by them is ordered to be refunded to them. Sd/- JUDGE Yn.