Abrad @ Abar Damodi and Shahid Hussain Hakkuddin vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel Shri S.G. Bhagavan appearing for the appellants and the learned State Public Prosecutor. The present appeal is filed by the accused 1 and 2 who stood trial, in the following circumstances:

The complainant one Mahammed Sayyad Saleem and his friend Imad were close friends of the present appellants, namely Abrad @ Abrar Damodi and Shahid Hussain Hakkuddin and they were all residents of Bhatkal. The complainant and Imad were businessmen and they had their independent shops at Barma Bazaar in Bhatkal. They were dealing in imported goods in their shops. In order to replenish their goods, they would often go to Mumbai by train from Mangalore. On 11.05 2002, the complainant and his friend intended to catch a train to Mumbai from Mangalore. On 10.05.2002, they had met Accused No. 1 and had disclosed inadvertently that they were proceeding to Mumbai to make their usual purchases. It is then that Accused No. 1 had proposed that he was also going to Mumbai on 11.05.2002 in a car and that the complainant and his friend could join him and that he would be glad to drop them off at Mangalore. It was therefore decided that the complainant and his friend would join the accused. On 11.05.2002, Accused Nos. 1 and 2 had, with an intention to do away with the complainant and his friend if necessary, and to rob the money that they would be carrying for their purchases, did bring a car belonging to one Sheik Razak bearing Registration No. KA-30/M-2070 at about 7.00 a.m. and picked up the complainant and his friend Imad and proceeded towards Mangalore. It is stated that the complainant was carrying a sum of Rs. 2 lakhs with him and Imad was carrying a sum of Rs. 25,000/- for the purpose of making purchases at Mumbai. It transpires that when the car reached Trasi near Kundapura, Accused No. 1 stopped the car and bought some drinks and "offered the same to the complainant and his friend. The complainant refused and did not partake of the drink. However, his friend consumed it and promptly fell asleep in the car. Thereafterwards, when the vehicle reached near Kaup at about 9.00 a.m., it is alleged that Accused No. 1 drew out a revolver from his pocket and fired at the complainant who was sitting at the rear seat, even as he was driving the car and Accused No. 2 stabbed the complainant with a knife. On account of the complainant raising a hue and cry, his friend who was asleep beside him woke up, and he was in turn assaulted, both by Accused Nos. 1 and 2. The accused had repeatedly assaulted both the complainant and his friend. The Accused No. 1 also shot at the friend of the complainant and Accused No. 2 had stabbed him several times and caused severe injuries. While this was in process, the car being driven at some speed in a rash and negligent manner, dashed against a person walking along the road with his moped and the car lost control and capsized. The man pushing his moped along, succumbed to injuries. It is alleged that immediately after the accident, Accused Nos. 1 and 2 are said to have taken away the cash carried by the complainant and his friend and fled the scene. It is on the basis of that information provided by the complainant in retrospect, that the police had registered a case for offences punishable under Sections 392, 394, 397 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity), and Sections 3 and 25 of the Indian Arms Act, 1959. The complainant and his friend having been provided medical aid, on the basis of the information provided by the complainant, the accused were taken into custody promptly, and after further proceedings, charges were framed. The matter being committed to the Sessions Court, since there were two independent cases registered, i.e., S.C. No. 48/2002 for the commission of offences punishable as aforesaid and another S.C. No. 53/2002, for an offence punishable u/s 304 Part-II of the IPC in having caused the death of a passerby who was moving along the road with his moped and the same having been clubbed by the Sessions Court, the Court framed charges and recorded the pleas of the accused. Since the accused pleaded not guilty and claimed to be tried, the prosecution tendered evidence through 24 witnesses and marked Exhibits P1 to P35 and Material objects 1 to 34. After recording the statement of the accused u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C.'', for brevity), and after hearing both the sides, the court below had framed the following points for consideration:

In S.C. No. 48/2002

Whether the prosecution proves beyond reasonable doubt that on 11.5.2002, accused nos. 1 and 2, with an intention to kill the complainant Mohammed Sayyad Salim and his friend Imad and also to rob the amount of Rs. 2,25,000.00 which were in the possession of the complainant and his friend while going to Mangalore from Batkal in a Maruthi Esteemed Car bearing Registration No. KA.30/M-2070, when the said Car reached near Kaup, robbed the amount from the complainant and his friend and at that time, accused no. 1 taking out his revolver, shot at the complainant and in turn, accused no. 2 stabbed to the complainant Mahammed Sayyad Salim, and when the complainant''s friend Imad raised voice, accused No. 1 also shot at said Imad and accused No. 2 stabbed him on the head, chest and other parts of the body and attempted to kill them, and while doing so, the Car was upset and dashed against a person on the road and capsized on the road and thereby, the accused persons, have committed the offences punishable under Sections 392, 394, 395 read with Section 34 of Indian Penal Code and also Sections 3 and 25 of the Indian Arms Act?

In S.C. No. 53/2002:

Whether the prosecution proves beyond all reasonable doubt that on 11-5-2002 at about 9-15 A.M., accused No. 1 Abrad @ Abar Damodi drove the car bearing Registration No. KA.30/M-2070 near Kaup on N.H.17, in a rash or negligent manner so as to endanger human life knowing fully well that his act would cause the death of any person and hit against a person, who was using the road by name Varadaraya Nayak and who died in the hospital due to the injuries sustained by him and thereby the accused No. 1 has committed an offence punishable u/s 304 part II of I.P.C.?

What order?

The Trial Court answered Point No. 1 in S.C. No. 48/2002 in the affirmative and the point in S.C. No. 53/2002 also in the affirmative holding that Accused No. 1 had committed an offence punishable u/s 304A of the IPC and not u/s 304 Part II of the IPC.

In respect of S.C. No. 48/2002 is concerned, Accused Nos. 1 and 2 were convicted and were sentenced them to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 25,000/- each and in default, to undergo simple imprisonment for a further period of six months for the offences punishable under Sections 392 and 397 read with Section 397 IPC. Further, Accused No. 1 was convicted to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- for the offence punishable u/s 3 of the Indian Arms Act.

In respect of S.C. No. 53/2002 is concerned, Accused No. 1 was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- for the offence punishable u/s 304A of the IPC. Further, that the imprisonment imposed on Accused Nos. 1 and 2 was to run concurrently and that the fine amount was to run consecutively.

It is that which is under challenge in the present appeal.

Shri S.G. Bhagavan, learned counsel would seek to contend in support of the grounds raised in the appeal that the court below has failed to give due weight to the evidence of DW-1 Dr. Rajagopal Shenoy who has deposed as regards the physical examination of PWs 1 and 6 and the Wound Certificate issued in respect of the injuries suffered by them. It is sought to be highlighted that the said Medical Practitioner had clearly stated that he did not notice any bullet injuries on the person of the above patient during examination in respect of not only PW-1, but also in respect of PW-6. Therefore, the injuries having been caused possibly in a road accident or due to fall on rough surface or fall on sharp objects could not be ruled out. Hence, the commission of the offence as alleged by the prosecution is only on the basis of the statements of PW-1 and PW-6. When the same is not supported by medical evidence to indicate that the injuries had indeed been caused by bullet and a physical impossibility of accused No. 1 while in the process of driving his car also being able to turn around and fire at the complainant when the car was moving at a speed, is also glossed over by the Trial Court. Hence, if the evidence of the Medical Practitioner coupled with the impossibility of physical act of commission of offence as alleged by the prosecution is taken into account, there is serious doubt created insofar as the alleged commission of the offence is concerned. It is also contended that as seen from the evidence of the Police Sub-Inspector who has been examined as PW-12, that as on 11.05.2002, he had learnt about the accident on the National Highway and on reaching the place of the accident, he learnt that the injured had been taken to KMC Hospital, Manipal for treatment. That the injured complainant and his friend were travelling in a car and at 12.00 noon, they were admitted to the said hospital. This however, is inconsistent with the other evidence, namely the First Information Report.

The learned counsel would also seek to highlight other inconsistencies from the material on record and would contend that the prosecution has not proved beyond all reasonable doubt that on 11.05.2002, with an intention to kill PW-1 and 6 and to rob the cash carried by them, the Appellant No. 1 had shot PW-1 and PW-6 with a revolver and Appellant No. 2 stabbed both PWs 1 and 6 on their head, chest and other parts of the body and attempted to kill them. The learned counsel would also draw attention to the very observations made by the court below in several portions of its judgment where it has expressed misgivings about the sequence of events, but yet has proceeded to hold that the prosecution has established its case beyond all reasonable doubt. In this regard, the relevant portions of the judgment which are sought to be highlighted are as follows:

(r) Having observed;

Even though it is not conclusively stated, but it can strengthen the case of the prosecution that there items were inside the car used for commission of the offence, i.e., "revolver and knife", the Court below ought to have found that the said items were not recovered from inside the car and that the car was not used for the commission of the alleged offences.

(s) Having observed; "I am of the opinion that there is some discrepancy with regard to the mentioning of the history of the case in both the hospitals and admissions of P.Ws.1 and 6 by some other persons by name Sadique and Abdul Muben", the court below has erred in giving the benefit to the prosecution instead of to the appellants, as, in law, it ought to have given, by observing; "But those all minor discrepancies cannot be made much for the purpose of totally discarding medical evidence". The entire approach of the Court below in giving the benefit to the prosecution vitiates its judgment.

(t) Having observed; "...Looking to the evidence of P.Ws.1 and 6 and surrounding circumstances, there are certain infirmities, contradictions and omissions to explaining the incident", the Court below has erred in concluding; "But the totality of the evidence placed before the Court substantially corroborates the evidence of P.Ws.1 and 6" and in making use of the purported statement of one Ashwak, who is not examined in Court, by stating; "The police in fact recorded the statement of the said Ashwak and he has stated that he gave the vehicle to one Abrad Dawodi, i.e., accused No. 1.

Therefore, the learned counsel would submit that the case of the prosecution" being ridden with such inconsistencies and infirmities, the court below was not justified in holding that the prosecution had established its case beyond all reasonable doubt. Therefore, he seeks acquittal of the accused.

While the learned State Public Prosecutor would seek to justify the judgment of the court below.

On a consideration of these rival contentions and the material on record, it is to be firstly observed that the impugned judgment is a detailed and considered judgment which has addressed all aspects of the matter, more particularly the primary contentions raised in the present appeal is with reference to the evidence of the Medical Practitioner DW-1. Though the said witness was examined as a witness for the prosecution, he was treated as a hostile witness and therefore, he is shown as a witness for the defence. The reason for such a volte-face on the part of the said witness was the fact that the witness chose to negate the injuries found on the complainant PW-1 and his friend PW-6 were not as a result of injuries caused by Accused No. 1 who had shot at both PW-1 and PW-6. It is in this respect that he has been cross-examined at length by the Public Prosecutor. However, even though the said witness chose to skirt around the issue that the injuries suffered were not stated to be bullet injuries, it is elicited in cross-examination that the said injuries could also be caused by a bullet being fired from a gun or could be caused by such other weapon like a knife and therefore, there is no denial of the injuries having been caused on PW-1 and PW-6, which could also be characterized as bullet injuries, even by a witness who had not supported the case of the prosecution. Therefore, there is not much material which could be gone with reference to the said evidence in seeking to negate the case of the prosecution. For otherwise, it is not seriously denied that the complainant, his friend and the accused appellants were all friends residing in the same town. Therefore, a false case being foisted against the appellants, and the complainant seeking to bring a false case on the basis of self-inflicted injuries can be safely ruled out in which event, the sequence of events as narrated by the several witnesses cannot be trashed as sought to be canvassed by the learned counsel for the appellant.

Therefore, in view of categorical findings that are arrived at by the Trial Court on the basis of detailed and thorough examination of the material on record, there is no substance in the present appeal and therefore, the same is dismissed. One incidental contention that the offence punishable u/s 304A which was also the subject matter of Sessions Case No. 53/2002 also having been tried along with S.C. No. 48/2002 which was in respect of the offence punishable under Sections 392, 394 and 397 read with Section 34 IPC and also Sections 3 and 25 of the Indian Arms Act, was irregular as the Sessions Court has ultimately found that the case in S.C. No. 53/2002 was only restricted to an offence punishable u/s 304A and not u/s 304A Part 2. It was a case exclusively triable by the Court of Magistrate and therefore, there was a serious error of jurisdiction in the court having proceeded to deal with the same as a contention that could not also advance the case of the appellants. Since it is not however the case of the appellants that the Sessions Court would have no jurisdiction to try the same and in any event, appellants have not been in a position to demonstrate that any injustice has been caused by virtue of the proceedings having culminated in conviction for an offence punishable u/s 304A before the Court of Sessions notwithstanding that it was a case which was exclusively triable by a Court of Magistrate. Therefore, there is no substance in that incidental ground that is canvassed.

Hence, the appeal stands dismissed. The bail bonds furnished stand cancelled.