Umar and Others vs The State

K.N. Phaneendra, J.—1. The appellants are arraigned as accused Nos. 1 and 2 in Sessions Case No. 46/2009 on the file of Presiding Officer, Fast Track Court-I at Yadgir. The said Court has convicted the accused persons for the offences punishable under Sections 304-II and 504 r/w Section 34 of IPC respectively.

Accused No. 1 was sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs. 3,000/- with default sentence of simple imprisonment for a period of six months for the offence punishable under Section 304-II of IPC. Further, accused Nos. 1 and 2 were sentenced to pay fine of Rs. 1,000/- each in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 504 r/w Section 34 of IPC. It appears, State has not preferred any appeal against the judgment of the Trial Court.

For the purpose of convenience and to avoid repetition and for easy understanding, the ranks of the parties as per their rankings before the Trial Court is retained.

The factual matrix of the case briefly stated are as follows:

The Yadgiri Town Police have laid a charge sheet against accused persons for the offence under Section 302 read with Section 34 of IPC. The accused persons are the residents of Khari Bowli village in Yadgiri district.

It is alleged that on 08.03.2009 at about 8:30 p.m. the complainant by name Mohd. Jafar and his brother by name Shaikh Mohd. Ali had been to the house of accused No. 1 in order to inform the mother of the accused that accused No. 1 has no respect to seniors and he uses vulgar language against CWs. 1 and 4 etc. At that time, accused No. 1 was enraged himself due to the complaint made by CWs. 1 and 4 against him with his mother. At that time, it appears some verbal altercations taken place and CW.4-Shaikh Mohd. Ali has assaulted accused No. 1 and in turn accused No. 1 abused and attempted to assault CW. 1. In that context, it is alleged that the son of CW. 1 by name Mohd. Jani came to the rescue of his father and uncle. In the quarrel accused Nos. 1 and 2 with a common intention to kill the said Mohd. Jani, particularly accused No. 1 has caught hold the hair of Mohd. Jani and dashed his head against the house wall of Khadar which caused head injury to the said person and it appears subsequently he succumbed to the said injury. It is also alleged that at that particular point of time accused Nos. 1 and 2 have abused CWs.1 and 4 in filthy language with an intention to provoke CWs. 1 and 4 and thereby they have also committed offence under Section 504 read with Section 34 of IPC.

After filing of the charge sheet and committal proceedings the learned Sessions Judge in S.C. No. 46/2009 secured the presence of the accused and framed charges against them under Sections 302 and 504 read with Section 34 of IPC and put the accused persons on trial. In order to bring home the guilt of the accused, the prosecution has examined as many as 19 witnesses as PWs.1 to 19 and got marked Exs.P1 to P15 and also got marked MOs.1 to 3. The learned trial Judge after analysing the oral and documentary evidence on record has come to the conclusion that the prosecution was able to establish the offence under Section 304-II and 504 of IPC and convicted accused No. 1 for the offence under Section 304-II of IPC and accused Nos. 1 and 2 for the offence under Section 504 read with Section 34 of IPC as noted supra.

I have heard the arguments of the learned counsel for the appellants and also learned High Court Government Pleader appearing for the respondent-State.

The learned counsel for the appellants has strenuously contended before this Court that the Trial Court has not properly appreciated the oral and documentary evidence. It is contended that so called eyewitnesses examined in this case are close relatives therefore their evidence is not reliable. The witnesses have not stated about the existence of any light at the time of incident. On the other hand, they have admitted that it was too dark to witness any incident, etc. It is contended that the independent eye witnesses have turned hostile to the prosecution. The prosecution has also not established the homicidal death of the deceased. There are contradictions and omissions in the evidence of PW. 1 and other material witnesses. The prosecution has also not proved the existence of any light on the spot at that time. It is alternatively contended by the learned counsel that the imposition of five years imprisonment to accused No. 1 for the offence under Section 304-II is too harsh and considering his age and other mitigating circumstances the Trial Court ought not to have punished the accused No. 1 with such harsh punishment. Hence, he prayed for acquittal of the accused or in the alternative to reduce the punishment imposed on accused No. 1.

The learned High Court Government Pleader has submitted that the Trial Court has meticulously considered the facts and circumstances of the case and after properly appreciating the evidence of the witnesses has come to the conclusion that the prosecution has only established a lesser offence under Section 304-II of IPC though the charges were framed under Section 302 of IPC. The sentence passed by the Trial Court is also commensurate with the offence committed by the accused persons. Therefore, there is no room for interference at the hands of this Court. Hence, he pleaded for dismissal of the appeal.

I have carefully perused the entire material evidence and re-evaluated the materials on record. On overall analysis of the case on record, the points that arise for consideration of this Court are:

1) Whether the Trial Court has committed any serious error in appreciating the oral and documentary evidence on record and in convicting and sentencing accused Nos. 1 and 2?

2) What order?

If the evidence of PW. 1 Mohd. Jafar is properly looked into it gives little bit different version as that of other eye witnesses. He deposed before the Court that, on 08.03.2009 at about 7:30 p.m. he himself and his brother Mohd. Ali had been to the house of the accused No. 1 in order to complain against him to his mother that he is not giving respect to elders and also he is using vulgar language etc. In that context, PW.4 Shaikh Mohd. Ali has assaulted accused No. 1 and in that context it is stated that accused Nos. 1 and 2 started assaulting PW1 and PW.4. At that time, the son of PW.1 by name Mohd. Jani (deceased) came to resolve the dispute. At that time, being enraged with the act of Mohd. Jani in coming to resolve the dispute, accused No. 2 assaulted Mohd. Jani, holding his head and dashed the head of the deceased to a wall, due to which he suffered severe injuries and fell down. Thereafter the said Mohd. Jani was taken to the hospital, but by the time they reached the hospital he breathed his lost.

PWs.2 and 3 are the panch witnesses to Exs.P2, P3 and P4. Ex.P2 is a spot panchanama, Ex.P3 is a seizure panchanama under which clothes of deceased were seized. Ex.P4 is inquest panchanama. These two witnesses have turned hostile to the case of prosecution and nothing has been elicited in the course of their cross-examination. However, the evidence of these two witnesses have become insignificant because of the simple reason that the death of the deceased is not in dispute and cloths of deceased no where connect the accused as such, the place of incident is also not disputed by the accused persons. But they have taken different contentions with regard to the existence of light and other things. Therefore, the discussion with regard to Exs.P2 to P4 as well as the evidence of PWs.2 and 3 is unnecessary.

PW.4-Shaik Mohd. Ali, PW.5-Mohammed Jilani, PW.6-Smt. Moulana Begum, PW.7-Smt. Sadikunnis Begum and PW.8 Smt. Abeda Begum are said to be the eye witnesses in the case. Though these witnesses have stated before the Court with regard to the incident, but they have categorically implicated accused No. 1 as assailant of the deceased. Learned counsel strenuously contended that there is serious contradictions between PW.1 and other eye witnesses. PWs. 1 and 4 have not stated the presence of the other eye witnesses on the spot. Therefore, the evidence of other eye witnesses cannot be relied upon. The evidence of PW. 1 shows that he implicated accused No. 2 therefore his evidence cannot be relied upon for the purpose to convicting accused No. 1. In this background, as noted above, all the eye witnesses have categorically stated that on that particular day at about 8:30 p.m., PW.1-Mohd. Jafar and PW.4-Shaik Mohd. Ali went to the house of accused No. 1 and there some verbal altercations taken place between them. When the son of PW. 1 came to the spot, accused No. 1 actually assaulted the deceased, caught hold the said person and dashed his head against a wall and because of that he died. Invariably, in the course of cross-examination of all these witnesses, it is suggested and in fact some of the witnesses have admitted that there was no light at that particular point of time. In this context, the evidence of PW.15 who is the Assistant Engineer in GESCOM has issued Ex.P11. He has also stated that, at that particular point of time, there was no supply of electricity to that particular area. This in fact supports the case of the accused. But what has to be looked into by the Court is whether there was totally lightlessness on that particular day and persons could not have seen each another. It should be borne in mind by the Court that all the witnesses are related to each other. It is not that they were not earlier known to each other and they were strangers that it is very difficult to identify each other at that particular point of time. Apart from that, strange suggestions have been made to all these witnesses to the effect that, on that particular day the deceased came to the spot in a fully drunken state and due to the influence of liquor, he fell down on the ground on that day and sustained injuries and due to which he might have died. These strange suggestions eradicated the elucidation of the fact that there was no light at all and nobody could have seen the incident. It can be very safely concluded that when these witnesses could see the deceased coming to the spot in a drunken state and he was wobbling and due to the influence of alcohol he fell down on the ground and sustained injury to his head. When these witnesses could see such an incident could it still be said that they could not have seen the incident which has been projected by the prosecution. The evidence elicited from these witnesses that, it was darkness one could not have seen another etc., falls to the ground. Therefore, it can be safely said that these witnesses were present at that particular point of time and saw either the incident projected by the prosecution or the incident projected by the accused. Therefore, when the presence of these witnesses is not doubted and it is established beyond all reasonable doubt their version is whether believable has to be looked into.

It is the case of the prosecution that on that particular day accused No. 1 has assaulted the deceased pushing the head of the deceased to a wall. Of-course there is a contradiction elicited from the mouth of PW. 1 and other witnesses. All other witnesses have stated that accused No. 1 has done that particular act. PW. 1 has stated that accused No. 2 is the persons who has done that particular act. When it is not suggested to other witnesses that it is not the overt-act of accused No. 1 in order to contradict the other witnesses, in my opinion, the evidence of other eyewitnesses who have consistently stated about the involvement of accused No. 1 has to be preferred by the Court compared to the evidence of PW.1. The consistency between the statements of the witnesses play a dominant role. There is no reason as to why these witnesses should tell lie before the Court. There is no suggestion made to these witnesses that they have got any specific reason to falsely implicate accused No. 1 or accused No. 2 in the case. Except putting suggestions to the witnesses that the deceased himself has sustained injury by falling on the ground, no other substantial materials have been elicited in the course of cross-examination as to why these witnesses should not be believed. Therefore, under the above circumstances, I am of the opinion that the evidence of so-called eyewitnesses cannot be disbelieved.

Of-course, PWs.9 and 10 who are the independent witnesses have turned hostile to the case of the prosecution. Nevertheless, there is no hard and fast rule as to why related witnesses should not be believed. As I have already noted above, even earlier to the incident there was some quarrel between PW. 1 and his brother with accused No. 1 and accused No. 1 has abused PW.1 in vulgar language. PW.1 is none other than brother of accused No. 1''s mother. Therefore, it shows that they are closely related to each other and all the witnesses also closely related to each other. Mere relationship without elucidating any fact in the course of cross-examination as to why they should lie before the Court their evidence cannot be discarded.

PWs.11, 12, and 13 are the police witnesses who have assisted the investigation of the case. PW.14 is a Junior Engineer, PWD, Yadgir who has drawn the sketch of scene of offence which is also not so relevant to be considered by this Court.

On overall analysis of the entire materials on record, it shows that some verbal altercation has been taken place between PW.1 and PW.4 on one side and accused Nos. 1 and 2 on the other side. Unfortunate fellow the deceased who was nowhere connected with the quarrel between these persons abruptly came in order to resolve the dispute amongst PWs. 1 and 4 and accused Nos. 1 and 2. Unfortunately, accused No. 1 being enraged with the intervention of the deceased has done that particular act which has taken away the life of the deceased. Considering the mutual altercations between the parties and the deceased coming abruptly to the spot and being enraged by the act of the deceased accused No. 1 has done that act, the Trial Court has rightly came to a conclusion that offence does not fall under Section 302 of IPC and rightly convicted accused No. 1 for the offence punishable under Section 304-II of IPC and convicted accused Nos. 1 and 2 for the offences punishable under Section 504 of IPC. Absolutely, I do not find any strong reasons to differ from the opinion expressed by the Trial Court.

Last but not the least, Sri Liyaqat Fareed Ustad, learned counsel for the appellants alternatively argued before the Court that considering the age of the accused and he being married person and he has got his aged mother to be maintained by him and also absolutely there is no bad antecedents to his credit, a lenient view may be taken and the sentence passed by the Trial Court may be reduced. So far as this aspect is concerned, learned High Court Government Pleader has argued that all these factors have already been considered by the Trial Court and the Trial Court has properly sentenced the accused which also does not require re-consideration by this Court.

However, as could be seen from the above surrounding circumstances, accused No. 1 had absolutely no intention to kill the deceased it is a sudden decision taken by accused No. 1 in a spur of moment. Therefore, when the intention is absent to commit any offence against the deceased and circumstances show that the incident has happened abruptly, in my opinion, considering the age of the accused and surrounding background that all are related to each other and the accused being a married person and has old aged mother to be maintained, if he is sent behind the gallows for five years, it would cause lot of inconvenience and injustice to the family members of the accused. Therefore, in my opinion, awarding three years imprisonment for the offence punishable under Section 304-II of IPC reducing the same from five years would meet the ends of justice.

Hence, I proceed to pass the following:

ORDER

The appeal is partly allowed. The judgment of conviction passed by the Trial Court convicting accused No. 1 for the offence punishable under Section 304-II of IPC and convicting accused Nos. 1 and 2 for the offence punishable under Section 504 r/w Section 34 of IPC is hereby confirmed.

However, the sentence passed by the Trial Court against accused No. 1 for the offence punishable under Section 304-II of IPC is reduced to three years as against five years imposed by the Trial Court. Accused No. 1 is also entitled to set off under Section 428 of Cr.P.C.