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2020 Supreme(Kar) 52
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.B. Prabhakara Sastry, J.
Ekbal Pasha, S/o Jama Sabru & Ors. - Appellants
Versus
State of Karnataka, Represented by Nanjanagud Police - Respondent
Criminal Appeal No.30 of 2014
Decided On : 18-03-2020
For the Appellant :Sri Rakshit R., Advocate
For the Respondent: Sri Showri H.R., HCGP)
Headnote:
Indian Penal Code, 1860 - Sections 307, 324, 302 and 34 - Demand of dowry – Appeal against conviction – Offence of murder - Whether prosecution has proved beyond reasonable doubt that near house of appellants at Nagar in Town within limits of respondent Police Station appellants in furtherance of their common intention voluntarily caused hurt to PW1 to PW4 and by assaulting and causing injuries to PW4, PW1 and PW2 with machetes attempted to murder them and thereby have committed offences punishable under Sections 324, 307 read with Section 34 of IPC - Whether judgment of conviction and order on sentence impugned in this appeal deserves any interference at hands of this Court - Whether said act of accused more particularly present appellants who are accused Nos.1 and 2 would constitute an offence punishable under Section 307 of IPC - Summary of case of prosecution is that elder sister of complainant PW4, PW5 - She is wife of accused No.2/appellant No.2 herein and was married to him about one year prior to date of incident - Since she was subjected to cruelty for demand of dowry and was deserted by her husband while she was pregnant she was living in her parents’ house where she gave birth to a baby girl - In order to enter name of said baby girl in Below Poverty Line Ration Card maintained in family of said which was required to avail benefit under Scheme launched by State Government PW5 and mother cousin brother aunt younger brother of said PW5 went to house of accused which was also matrimonial home of PW5 and requested for BPL card - Accused who were three in number including present appellants at abetment of accused No.4 apart from refusing to give Ration Card also abused PWs.1 to 5 in filthy language assaulted them making use of two machetes and inflicted multiple injuries and attempted to kill them – Held, Material witness who speaks about alleged incident are PWs.1 to 5, PW6 and PW11 - As already observed above PWs.1 to 5 are inter se relatives - All these witnesses PWs.1 to 5 in their evidence have uniformly stated that in order to request and collect BPL Ration Card from father-in-law of PW5 all five of them went to house of accused - Among them PW1 asked accused No.1 who is father-in-law of PW5 to give them Ration Card to include name of newly born child in it to avail benefit of Scheme Bond - However accused No.1 apart from refusing to give Ration Card abused them in filthy language and after telephoning to accused No.4 and getting some instructions from him joined by accused Nos.2 and 3 who were also present in said house assaulted these five persons who had gone to their house - In said assault accused made use of two machetes and inflicted injuries upon these five persons - PW-1 has stated that in process of assaulting them accused No.1/appellant No.1assaulted on her right hand with machete and he also assaulted her son on his head and near neck with same machete - Accused No.3 joined them and attempted to assault her - However these people could able to escape from them and went to Government Hospital - After taking treatment there as referred by doctor they went to K.R. Hospital for higher treatment - She also stated that in said incident clothes worn by her son sustained with blood - Witness has identified two machetes at MO1 and MO2 and her veil at MO3 - She stated that she was inpatient in hospital for about twelve days and her son was inpatient for fifteen days - These witnesses have stated that when these people through PW1 asked for delivery of said Ration Card said accused No.1 did not only refused to deliver Ration Card but also proceeded to assault them joined by other accused – Thus motive behind alleged commission of crime has been uniformly attributed by each of material witnesses - Said evidence regarding motive has not been categorically or specifically denied in cross-examination of those witnesses from accused side – Thus motive behind alleged commission of crime also stands proved - Defense of accused is multifold - First defense is that PWs.1 to 5 when they had been to house of accused in quarrel they themselves fell and sustained injuries - They also took second defense stating that since accused more particularly accused No.2 who is husband of PW5 did not fulfill unreasonable demands of his wife PW5 her family members with an intention to perform her marriage with another person lodged a false complaint against accused - Suggestions in this regard were made to PW1 in her cross-examination however said witness has not admitted same as true - Accused took one more defense that in push and pull in a mob PW2 sustained injuries - Said suggestion was made to PW2 in his cross-examination however witness has not admitted same as true – Thus analysis of evidence of prosecution witnesses as made above clearly would go to show that prosecution has proved beyond reasonable doubt that appellants as accused Nos.1 and 2 joined by other accused in furtherance of their common intention have voluntarily assaulted and caused hurt to PWs.2, 3 and 4 by using two machetes which are at MO1 and MO2 and thereby have committed alleged offence punishable under Section 324 of IPC – However act of accused had fallen short of an offence attracting Section 307 of IPC – Still trial Court by its erroneous appreciation of evidence placed before it has held the accused No.1 and 2 even guilty for offence punishable under Section 307 read with Section 34 of IPC - As such to extent of setting aside said finding of trial Court with respect to holding appellants/accused Nos.1 and 2 guilty of offence punishable under Section 307 read with Section 34 of IPC judgment of conviction and order on sentence deserves to be interfered with - Appeal is allowed
JUDGMENT :
The appellants were convicted by the learned I Addl. Sessions Judge, Mysuru, (hereinafter for brevity referred to as “trial Court”) in S.C.No.302/2012, by the judgment of conviction dated 9.12.2013 and order on sentence dated 10.12.2013, for the offences punishable under Sections 307 and 324 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as ‘IPC’).
2. The summary of the case of the prosecution is that the elder sister of the complainant (PW4) Imran, is PW5–Apsari. She is the wife of accused No.2/appellant No.2 herein and was married to him about one year prior to the date of the incident. Since she was subjected to cruelty for demand of dowry and was deserted by her husband while she was pregnant, she was living in her parents’ house, where she gave birth to a baby girl. In order to enter the name of the said baby girl in the Below Poverty Line (BPL) Ration Card maintained in the family of said Apsari, which was required to avail the benefit under Bhagyalakshmi Scheme launched by the State Government, on 16.12.2011, at about 8.00 p.m., PW5 – Apsari and mother, cousin brother, aunt, younger brother of said PW5 Apsari, went to the house of the accused, which was also the matrimonial home of PW5 and requested for the BPL card. The accused who were three in number, including the present appellants, at the abetment of accused No.4, apart from refusing to give the Ration Card, also abused PWs.1 to 5 in filthy language, assaulted them making use of two machetes and inflicted multiple injuries and attempted to kill them. However, PWs.1 to 5 could able to escape from them and went to the hospital. In that connection, PW4 (CW1) Imran lodged a complaint with the respondent Police on 16.12.2011, in the night at about 11.45 p.m., which was registered in the respondent Police Station Crime No.189/2011, against the four accused for the offences punishable under Sections 323, 324, 504, 114, 307 read with Section 34 of IPC.
3. After completion of the investigation, the police filed the charge sheet against all the four accused for the offences punishable under Sections 324, 504, 114, 307 read with Section 34 of IPC. Since the accused pleaded not guilty, in order to prove the alleged guilt against the accused, the prosecution examined twelve witnesses from PW.1 to PW12 and got marked documents from Exs.P1 to P11 and material objects from MO1 to MO10 were marked. From the accused side, neither any witness was examined nor any documents were marked as exhibits.
4. After hearing the arguments from both side, the trial Court by its impugned judgment of conviction dated 9.12.2013 and order on sentence dated 10.12.2013, convicted accused Nos.1 and 2 for the offence punishable under Section 324 and 307 read with Section 34 of IPC and sentenced them accordingly, however, acquitted them of the offence punishable under Sections 504 read with Section 34 of IPC. It acquitted accused No.3 for the offence punishable under Sections 324, 504, 307 read with Section 34 of IPC and acquitted accused No.4 for the offence punishable under Sections 307, 324 and 114 of IPC. It is challenging their conviction, the accused Nos.1 and 2 have preferred this appeal.
5. The respondent – State is being represented by learned High Court Government Pleader.
6. The records from the trial Court were called for and the same are placed before this Court.
7. The appellants/accused earlier were being represented by their counsel. However, when the matter was listed for final hearing, the said learned counsel for the appellants had remained absent. Considering the fact that the appeal was of the year 2014 and causing further delay in disposing of the matter was not in the best interest of justice, this Court by its detailed order dated 06.03.2020 appointed learned counsel Sri Rakshith R., as an Amicus Curiae to appear on behalf of the appellants and conduct the case of the appellants in this matter. Accordingly, the said learned Amicus Curiae
