Back
2018 Supreme(Kar) 895
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI V. MALIMATH, K. SOMASHEKAR, JJ.
Zakir - Petitioners
Versus
State - Respondents
Criminal Appeal No. 1151 of 2012
Decided On : 29-01-2018
For the Petitioner:Narayan Perdalkar, Advocate.
For the Respondents: Vijayakumar Majage, Additional S.P.P.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 374(2) - Appeal against conviction for murder - Plea of grave provocation and self-defence - Held, The accused came near the house of P.W.1; the deceased picked up a quarrel and the deceased was assaulted. Therefore, the overt acts are attributed against accused 1 as well as accused 2. The present appeal is only insofar as accused 1 is concerned. Therefore, the same with reference to accused 1 alone. The eye-witnesses- P.Ws. 1, 2, 4 and 14 have supported the case of the prosecution and they have clearly indicated the assault committed by the accused 1 on the deceased. The medical report in terms of post-mortem report also supported the case of the prosecution; however, none of the facts are disputed by the appellant. The plea of accused 1 is of self-defence. In his statement recorded under Section 313 of Cr.P.C he contends that is was the deceased who first assaulted him and that as a result of the assault, he has sustained sever injuries, as could be made out form the discharge summary of Dr. Ambedkar Medical College and Hospital. Therefore, the injuries caused by him is well-within his right of private defence…. The case of the prosecution is well supported by the evidence of the eye-witnessess-P.Ws.1,2, 4and 14. Their evidence are consistent and corroborative. They have clearly narrated that the accused P.W.1 and deceased and picked up a quarrel. They had brought weapons along with them in terms of M.Os. 5 and 6. On creating a situation, they have assaulted not only the deceased but also P.W.1. Merely because, a plea has been taken in the 313 statements to the contrary, cannot persuade defence put forth by the accused. There is no material to support the defence put forth by the accused. The evidence of the prosecution being clear and cogent, we are unable to accept his self-defence as propagated by the accused. Even the case registered by the accused herein against the deceased and P.W.1 had ended in an acquittal. The materials thereon would indicate that the allegation against P.W.1 and the deceased of having assaulted the accused herein, was negated and the accused were acquitted, in C.C.No.24610 of 2008 vide order dated 19-3-2012 by the 11th A.C.M.M., Mayo Hall, Bengaluru.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 302 - Murder - Motive - On reconsidering the material evidence or record, the High Court held, Trial Court committed an error in convicting accused 1 for offence punishable under Section 302 of the IPC - Keeping in view charges framed, evidence led in by prosecution, acts of P.W.1 would clearly be attracted under Section 304, Part I of the IPC-Fortified by care of the prosecution itself that the motive, if any, was only against P.W.1 -Therefore, impugned conviction of accused under Section 302 of the IPC was modified to one under Section 304, Part I of the IPC.
RAVI V. MALIMATH, J.
1. The case of the prosecution is that on 15.10.2007 at about 10.00 p.m., the younger brother of the complainant by name Bakhash was going in front of the house of accused Nos. 1, 2 and 4 on his-two wheeler. At that time, the accused picked up a quarrel with Bakhash by saying as to why he was showing off in front of their house. On the next day, on 16.10.2007 at about 11.00 a.m., the accused having an ill-will against the said Bakhash with respect to the said incident, when the said Bakhash was playing in front of the house of the complainant-PW-1, accused Nos. 1, 2 and 4 came with an intention to commit the murder of Bakhash. They picked up a quarrel and with a common intention, accused No. 1 stabbed on the right part of the stomach of Bakhash with a knife, accused No. 2 stabbed on the back of Bakhash and accused No. 4 instigated the accused Nos. 1 and 2 to commit the murder of Bakhash. Due to the injuries sustained, he died on the way to the hospital. Based on these averments, a case was registered against five accused persons. Investigation was taken up. A charge-sheet was filed against accused Nos. 1, 2 and 4 under Section 302 read with Section 34 of Indian Penal Code. Accused Nos. 3 and 5 were not set up for trial.
2. In order to prove its case, the prosecution examined 16 witnesses and marked 22 exhibits along with six material objects. The accused pleaded not guilty and claimed to be tried. By the impugned judgment, the accused No. 2 was convicted and sentenced to pay a fine of Rs. 3,000/- for the offence punishable under section 324 of The Indian Penal Code. Accused No. 1 was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- for the offence punishable under section 302 of The Indian Penal Code. Accused No. 4 was acquitted of all the charges levelled against him. Aggrieved by the same, accused No. 1 has filed the present appeal.
3. Sri Narayan Perdalkar, the learned counsel appearing for the appellant/accused contends that the impugned judgment of the trial court is bad in law and liable to be set-aside. That the trial court has failed to consider the plea of the appellant. That the trial court has misread the evidence on record. That the specific case of the appellant was based on self-defence. Under these circumstances, the trial court has failed to understand the case made out against the appellant/accused No. 1. Hence, he pleads that the appeal be allowed by acquitting accused No. 1. On the other hand, the learned Additional State Public Prosecutor disputes the same. He contends that substantial material has been led in to prove the case of the prosecution. That the case of self-defence set up by the appellant/accused No. 1 was negated by the trial court. That there is no material to indicate that it was the witnesses, who were the aggressors. On the contrary, the entire evidence led in by the prosecution would indicate, that it was all the accused, who came near the house of the deceased, picked up a quarrel and brutally assaulted him. Hence, he pleads that there is no perversity committed by the trial court that calls for any interference.
4. Heard learned counsels and examined the records.
5. (a) PW-1 is the complainant. He is the eyewitness to the incident. He has stated that the deceased is his younger brother. That on 16.10.2007, at about 11.00 a.m., when he was playing with the Bakhash (deceased), Zuber, Saddam and others, all the accused came to the said place and started abusing his younger brother-Bakhash. When he asked the accused as to why they are abusing the Bakhash (deceased), two more persons came to the said place in a two wheeler. At that time, accused No. 4 caught hold of the shirt collar of his brother Bakhash and accused No. 2 assaulted deceased Bakhash with a knife on his back. Accused No. 1 stabbed with a knife on the right side stomach of the deceased. Thereafter, all the accused ran away from the place. Thereafter, he took hi
