Sri. H. Hussainpeer vs The State of Karnataka

B.V. Pinto, J.—This appeal is filed by the Appellant challenging the judgment dated 25.10.2004 passed by the Addl. Sessions Judge, Fast Track Court-II, Davangere in S.C. No. 34/2003 convicting the Appellant for the offence under Sections 307, 504 IPC and sentencing him to pay a fine of Rs. 1000/- for the offence u/s 504 IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5000/- for the offence u/s 307 IPC with default clauses.

The case of the prosecution is that on 11.12.2002 at about 6 p.m. on Panchayath road, in front of the house of one Honnur Sab at Hanumanthapura village of Jagalur taluk, the accused intentionally insulted one H.K. Khasim and thereby, he gave provocation to him intending that such provocation would cause him to commit breach of peace, thereby he is alleged to have committed an offence u/s 504 IPC.

It is further alleged that on the same date, time and place with an intention to cause the death of CW-2 (PW-5), the accused assaulted him with an axe on front side of his head, on his back and on the middle of his anus and caused grievous injuries to him, with such intention or knowledge that if by that act, he had caused his death, he would have been guilty of murder, thereby he is alleged to have committed an of fence u/s 307 IPC.

The prosecution in order to prove the case has examined in all 13 witnesses and has got marked Ex.P-1 to P.11 and has produced MOs-1 to 3. The defence of the accused was one of total denial and he has got marked Ex.D-1 being the statement of PW-3. After hearing the prosecution and the defence, the learned Sessions Judge has convicted and sentenced him as herein before mentioned. The convicted accused has filed this appeal.

Heard Sri Y.S. Shivaprasad, learned Counsel for the Appellant and Sri Vijayakumar Majage, learned HCGP for the State.

The learned Counsel for the Appellant submits that PW-5 in this case is injured and PWs.1, 3 and 7 are the eye witnesses to the incident. He submits that there art glaring discrepancies in the evidence of PWs.1, 2, 3, 5 and 7. There is also discrepancy between the complaint and oral evidence before the court. He further submits that the evidence of the doctors P.Ws.11 and 13 is inconsistent with the evidence of eye witnesses, tie also submits that there is a delay of 3 hours in registering the complaint which is fatal to the case of the prosecution. The learned Counsel also submits that the Appellant is aged below 21 years and therefore, he is entitled for release under the Probation of Offenders'' Act. He has relied on the decision of the Supreme Court reported in Mohammad alias Biliya Vs. State of Rajasthan,

The learned HCGP, on the other hand, submits that the evidence of PW-5 the injured is cogent and clear. The eye witnesses viz., PWs.1 to 3 and 7 have corroborated the version of PW-5 regarding the weapons and the injuries and the discrepancy, if any are minor in nature and did not go to the root of the prosecution case. He further submits that the evidence of PW-11 and PW-13 doctors also further substantiates the evidence of the injured and other eye witnesses and the finding of the learned Sessions Judge does not call for interference in this case and hence, he submits that the appeal may be dismissed.

The prosecution in this case commenced with the filing of complaint by PW-1 Mehaboob who is the son-in-law of injured PW-5, on 11.12.02 at about 7.30 p.m., before Jagalur police station. In the complaint, it is stated that Khasim Ali the injured is his son-in-law. His brother''s daughter has been married to Khasim Ali and Khasim Ali has begotten four male children and is residing in Jagalur. The said Khasim Ali has got five brothers, out of whom two brothers have died and Khasim Ali is the eldest among them. Khasim Ali is aged about 64 years. There is a dispute between Khasim Ali and his brother Honnur Ali since about 15 years regarding the share of the property. The case which was pending in the court was decided in favour of Khasim Ali and in this connection, there was quarrel in the family. On 11.12.02 at about 6 p.m., when himself and his father-in-law were going in front of the house of Honnur sab. Hussain Peer, the son of Honnur Ali came from the side of his house holding axe in his hand and addressed Khasim Ali in vulgar language saying that he had grabbed the property in the court, and that he will finish him and would see as to how he receives the property. So saying, the accused tried to assault Khasim Ali on his head by means of axe. Khasim Ali escaped the assault, the accused again assaulted Khasim Ali on his head and on his back and also below his waist and caused serious injuries. Khasim Ali fell down. Immediately the complainant and one Raja, Hanumanthappa @ Anjanappa and others came near the scene of occurrence and lifted the injured and Look him to the hospital. The complainant further states that he has snatched axe from the hands of the accused. On the basis of the above complaint. Jagalur Police registered a case in Crime No. 211/02 for the offence under Sections 504, 307 IPC and commenced investigation. On completion of investigation, charge sheet for the aforesaid offences came to be filed.

The complainant Mohammed Ali has been examined as PW-1 in the court and lie has stated that the injured Khasim Ali has married the daughter of his uncle. Khasim Ali is carrying on business by running a kirana shop in Jagalur. He has also got landed property in Hanumanthapura village. There was enmity between Honnur Ali and Khasim All regarding the property. The case was decreed in favour of Khasim Ali in the Civil Court. He has further stated that on 11.12.02 at about 6.30 p.m., when he and the injured Khasim Ali were talking in front of the house of Honnur sab, the accused came by holding an axe in his hand and addressed Khasim Ali in filthy language and told that he would kill him and assaulted him on his head by means of axe. The injured sustained bleeding injuries. The complainant snatched the axe from the hands of the accused and the people who gathered there, lifted the injured Khasim Ali and shifted him to the hospital. Thereafter, he went to the Police Station and gave complaint as per Ex.P-1. He has stated that P-2 is the mahazar drawn by the Police at the scene of occurrence. He has identified the axe used for the commission of the offence. In the cross examination, he has admitted that he does not know the survey number of the property or the name of the court where the litigation Ls pending. He also does not know whether the judgment was passed in the said case. He is a witness to the incident from a distance of 10-12 feet. From the place where himself was standing, the house of the accused is visible. He has attempted to shop the accused when he saw him at a distance of 10 feet but by then the accused has already assaulted the injured. The injured has sustained severe injuries on his head and also injuries on his waist. When they reached the hospital, it was 8 p.m., and he reached the Police Station before 8.30 p.m. It is suggested to him that in order to favour PW-5, he is deposing falsely before the court. This has been denied by him.

PW-2 is examined by the prosecution as an eye witness. He has stated that when he saw first time PWs1 and 5, they were talking to each other. The accused brought an axe from his house and abused Khasim Ali thereafter, assaulted him on his head, back and anus. Khasim Ali sustained injuries and fell down. All of them lifted the injured to the hospital. He has identified the axe MO-1 used by the accused to assault the injured. In the cross examination, he has stated that Khasim Ali sustained injuries on his head. Again, he says that he has not seen the assault but the persons gathered there, were talking about the incident, he came to know about the assault on Khasim Ali. When it is suggested that the accused has not assaulted Khasim Ali, he answers that the accused has assaulted and the people were talking about the same.

PW-3 is another eye witness. He has also corroborated the version of PWs. 1 and 2 regarding the assault, by the accused on Khasim Ali PW-5 by means of axe. In the cross examination, he has stated that. 10-12 people had gathered before he reached the spot. However, he says that the accused was beating Khasim Ali and he was not talking. He has stated that he was 15 feet away from the place of incident when he saw the same. He has identified MO-1 the axe used by the accused to assault PW-5.

PW-4 has turned hostile to the ease of the prosecution.

PW-5 Khasim Ali is the injured in this case. He has stated that the accused is his brother''s son. He has stated that his property is situated in Hanumanthapura village 4 kms away from Jagalur. His parents had kept six acres of land for their maintenance and after the death of his parents, his brother Honnur Ali was looking after the entire six acres of land. When he asked for his share, Honnur Ali did not give any share to him. Therefore, he filed a case for partition and the court decreed in favour of all four brothers. However, Honnur Ali did not give the property. Thinking that he (PW-5) would take away the property, the accused and his father nurtured grudge and on 11.12.02, the accused has assaulted him. He has categorically stated that on the date of offence at about 6 p.m., when he was talking with PW-1 in front of the house of Honnur Sab. the accused came and abused him and thereafter, assaulted him with an axe on his head which caused bleeding injury. PW-1 snatched the axe from the hand of the accused. Thereafter, the other persons came and removed him to the hospital at Jagalur. He has stilted that he was treated in Bapuji hospital at Davangere. In the cross examination, it is suggested that he is deposing falsely due to the enmity arising out of the property dispute and that a false complaint is filed in order to harass the accused. The said suggestions are denied.

PW-6 Chaman is a witness to Ex.P-2 under which the Police has seized axe MO-1 from the spot. PW-7 is another eye witness who has also stated regarding the presence of PWs. 1 and 5 and the accused and also identified MO-1 the axe used by the accused. PW-8 Mohan is the Head Constable who has recorded the statement of Khasim Ali on 13.12.02 and seized the blood stained clothes worn by the injured PW-5. PW-9 is the Asst. Sub-Inspector of Police who has registered the case and transmitted FIR to the court, arrested the accused and subjected him to judicial custody, drawn panchanama Ex.P-2 and seized MO-1 the - axe. Further, he has recorded the statement of the witnesses and thereafter, handed over the investigation to the PSI. PW10 is the witness to Ex.P-2 mahazar under which clothes of the injured were seized. PW-11 Dr. Ravikumar has examined PW-5 at 7 p.m., on 11.12.02. He has stated that the injured suffered three injuries out of which injuries No. 1 and 3 were grievous in nature and injury No. 2 was simple in nature as per Ex.P-5 the wound certificate issued by him. He was questioned as to whether the death would have ensued by means of MO-1 the axe with the nature of injuries suffered by PW-5. He has given opinion as per Ex.P-6 and P-7. It. is seen in Ex.P-6 that the injuries mentioned in Ex.P-5 are possible with the weapon MO-1 and in Ex.P-7 he has answered the question Nos. 2 to 4 in the positive meaning thereby that the death would have ensued from the injuries mentioned in Ex.P-5.

PW-12 is the PSI and he has conducted investigation in this case and filed charge sheet against the accused on the basis of Ex.P-8 FSL report which states that article No. 1 axe the weapon was stained with blood.

PW-13 is the doctor working at Bapuji hospital, Davangere who has produced the case sheet of PW-5 according to which, the history given is that PW 5 has sustained injuries due to assault.

It is from the above evidence of the prosecution witnesses, the trial court has convicted the accused and sentenced him as mentioned above.

On a careful consideration of the evidence of PWs.1 to 3 PWs.5 and 7, it is seen that their evidence is consistent and does not suffer from any discrepancy of any nature. It is seen that there are very minor discrepancies in the evidence of these witnesses which should not go to the root of the very prosecution case. The accused is none other than the brother''s son of PW-5. No where in the prosecution case, it is denied that there was dispute regarding the property and no strong motive is attributed to PW-5 and other witnesses to falsely implicate his own brother''s son, the accused, in a case of such grievous nature. Under the circumstances, I am of the opinion that the prosecution has established that the accused has caused injuries on PW-5 by means of the axe on 11.12.02. The prosecution has further proved from the evidence of PW-11 Dr. Ravikumar and Exs.P-5 to P-7 that the death would have ensued from the injuries sustained by PW-5 by means of MO-1. Under the circumstances. I am of the view that the finding of the trial court so far as commission of the offence and the nature of offence does not call for interference.

The learned Counsel for the Appellant submits that the Appellant was aged about 20 years at the time of offence and out of sudden provocation, he had assaulted on his uncle PW-5 without thinking. Having regard to his age, he may be exonerated under the provision of the Probation of Offenders'' Act applying the ruling of the Supreme Court (cited above). The decision relied on is very cryptic in nature and it does not mention the manner in which the incident has happened. However there is also no dispute regarding the principle of law enunciated by the Supreme Court. Particularly in view of the fact that the accused in the present case is none other than the brother''s son of PW-5 the victim and that the accused has to go a long way in life, lenient view may be taken. It is also submitted by the learned Counsel that the Appellant was in custody for about one year two months. Under the circumstances, in view of close relationship between PW 5 and the accused there are possibilities that the two families may unite again and live a harmonious life in the society. On the other hand, if the accused is sent to prison, there would be no chance of the family re-uniting together, even if the civil dispute is settled either in the court or outside the court. In view of the above submission, having regard to the tender age of the accused, I am not inclined to commit him to custody again. On the other hand, under the special circumstances existing in this case. I hold the period already undergone by the accused would meet, the ends of justice and accordingly, sentence is imposed.

In view of what has been discussed above, the appeal is partly allowed. The order of conviction passed by the trial court for the offence u/s 307 IPC is hereby confirmed and the order of sentence is modified to the period already undergone and he is directed to pay a fine of Rs. 5000/-, in default of payment of fine, the accused shall undergo further imprisonment of six months. A sum of Rs. 4000/- out of the fine amount, shall be paid as compensation to PW-5 u/s 357 of Code of Criminal Procedure.

The appeal is accordingly disposed of.