Vasim and Jafru vs State of Karnataka

K. Bhakthavatsala, J.—These two Appeals filed u/s 374(2) of the Code of Criminal Procedure, are directed against the judgment dated

21.3.2011 passed in SC No. 312/2005 on the file of Presiding Officer, Fast Track Court-V at Bangalore Rural District, Bangalore. In other

words, appellant Nos. 1 and 2 in Crl.A No. 363/2011 are accused Nos. 2 and 3 in SC No. 312/2005; whereas appellant in Crl.A No. 406/2011

is the accused No. 4 in SC No. 312/2005. Brief facts of the case leading to the filing of the Appeals may be stated as under:

It is case of prosecution that all the accused persons had involved in a murder and dacoity cases at Bangalore and they were absconding and a

team was formed to apprehend the accused. The Police came to know that 3/4 days prior to 7.5.2005, the accused were residing in the house

belonging to C.W-22 situated at Anekal Weavers'' Colony. On 7.5.2005 at about 2.45 am, Police personnel went to their house and told the

accused to surrender, but the Accused persons, used criminal force, caused grievous hurt and assaulted them with deadly weapons with an

intention to kill the Police personnel and prevented the Police personnel from discharging their official duties. P.W-3/Rathnakara Shetty sustained

grievous injures, P.W-4/Rudra Murthy and P.W-6/Hanumanthaiah sustained a simple injury and P.W-5/Nagarmagowda sustained a grievous

injury. In the Police encounter, accused No. 1 succumbed to bullet shot injury and died at the spot; whereas accused Nos. 2, 3 and 4 sustained

injuries as per wound certificates at Exs. P14, 15 and 16. Accused Nos. 3 and 4 were caught. Anekal Police laid a charge sheet against four

accused persons including the accused No. 1, who died at the spot due to bullet shot injury in the Police encounter. Accused Nos. 2 to 4 faced

trial in SC No. 312/2005 for the offences punishable under Sections 333, 353 and 307 r/w Section 34 of IPC.

The accused pleaded not guilty and claimed to be tried. The prosecution went to trial by examining as many as 23 witnesses and got marked Exs.

P1 to P22 and 34 M.Os. Statement of accused u/s 313 of Cr.P.C., was recorded. Accused have not adduced any defense evidence. Trial Court,

after hearing arguments, perusing evidence and documents on record, came to a conclusion that the prosecution brought home the guilt to the

accused Nos. 2 to 4 and convicted them for the offences punishable under Sections 333, 353 and 307 r/w Section 34 of IPC. After hearing the

accused on the point of sentence, the trial Court sentenced the accused Nos. 2, 3 and 4 to undergo 10 years rigorous imprisonment, on two

counts, for the offence punishable under Sections 307 and 333 r/w Section 34 of IPC. Further, accused were sentenced to undergo rigorous

imprisonment for 2 years for the offence punishable u/s 353 r/w Section 34 of IPC. This is impugned in these two cases.

Learned Counsel for the appellants (accused Nos. 2 and 3) in Crl. Appeal No. 363/2011 submitted that the Police have foisted a false case

against the accused though they were taken to their custody on the previous day of incident itself; there are no independent eye witnesses to the

alleged incident and the trial Court erred in convicting the accused solely on the basis of evidence of Police witnesses. He further submitted that the

trial Court erred in awarding harsh punishment of R I for 10 years for the alleged offences u/s 337/ 307 of IPC.

Learned Counsel for the appellant in Crl.A No. 406/2011 (accused No. 4) submitted that trial Court has awarded harsh punishment of rigorous

imprisonment for a period of 10 years for the offences u/s 333/ 307 of IPC and the appellant/accused has been in Jail for more than 8 years and

the sentence may be reduced to the period of imprisonment undergone by the accused and set him at liberty. He has cited the following decisions:

(i) Ram Kumar Vs. State (NCT) of Delhi,

(ii) Sadha Singh and Another Vs. State of Punjab,

(iii) Gurmail Singh and Others Vs. State of Punjab,

(iv) Mayaram Yadav Vs. State of C.G., and

(v) Jangubhai Bhotiabhai Rathva Vs. State of Gujarat

On the other hand, learned Government Pleader appearing for the State submits that on proper appreciation of evidence on record, the trial

Court has convicted the accused for the offences alleged against them and awarded adequate sentence for the offences punishable under Sections

333, 353 and 307 r/w. Section 34 of IPC, and there is no good ground to interfere with the impugned judgment of conviction and order of

sentence. He further submits that when the appellant/accused No. 4 in Crl.A. No. 406/2011 was released on bail, he has committed crimes and

there is no good ground made out for modifying the sentence.

In view of the grounds urged by the learned Counsel for the parties, I formulate the following points for my consideration:

(i) Whether the trial Court is justified in convicting the accused for the offences under Sections 333, 353 and 307 r/w Section 34 of IPC?

(ii) Whether the impugned order of sentence calls for interference?

(iii) What order?

Out of the 23 witnesses examined by the prosecution, P.Ws. 1 to 7, 16, 19, 22 and 23 are Police witnesses; P.Ws. 14, 15, 17 are official

witnesses. P.Ws. 8, 9 and 12 are mahazar witnesses. P.W.-10 is the land lady of the premises, where the accused were staying at the time of

incident. P.W.-11 is the son of P.W.-10. P.Ws. 13, 18, 20 and 21 are Medical Officers.

Reg. Point No. (i):

Admittedly, there are no independent eye witnesses to the alleged incident. According to P.Ws. 10 and 11, they came out of their house after

hearing galata and saw the incident. In the decision reported in Ram Kumar Vs. State (NCT) of Delhi, Hon''ble Apex Court has held that the

evidence of the Police Officers cannot be discarded when it is found to be reliable. It is the case of prosecution that as the accused persons in a

Criminal Case, viz., Crime No. 226/2005 of MICO Layout Police Station were absconding, a team was formed, which was headed by P.W-

1/Shivaram, who was then working in the City Crime Branch as Assistant Commissioner of Police. The Police came to know that the accused

persons were residing in the premises belonging to PW-10. The Police team came to the house of accused at about 2.45 am on the intervening

night of 6th and 7th of May 2005. The Police told the accused to surrender, but they used criminal force and started attacking the Police. As a

result of which there was a Police encounter and in that incident accused No. 1 sustained bullet injury and died at the spot; whereas P.W-3/Police

Inspector (Rathnakara Shetty), P.W-4/ASI (Rudra Murthy), P.W-5/Police Inspector (Nagannagowda) and P.W-6/ASI (Hanumanthaiah)

sustained injuries; whereas accused Nos. 4, 3 and 2 also sustained injuries. Accused Nos. 1 to 3 are brothers. Accused No. 4/Prem is the friend

of the accused. It is alleged that they were residing together in the house of P.W-10. P.W-7/Police Inspector has deposed that he took the injured

persons to Hospital. P.W-13/Dr. C.B. Mohan has deposed that he gave first aid to the injured persons and made arrangement for shifting the

injured to Hospital. P.W-18/Dr. Chandrashekar has deposed that he has treated accused No. 4 and Accused No. 3, who had sustained simple

injuries, and issued wound certificate as per Exs. P-14 and 15, respectively. P.W-20/Dr. Shashidhar Buggi has deposed that he has treated

accused No. 2/Vasim, who had sustained three grievous injuries and two simple injuries and issued wound certificate as per Ex. P16. P.W-21/Dr.

Anand has deposed that he treated the injured Police Officers. Exs. P18, 19, 20 and 21 are wound certificates of Police Officers. Viz., P.Ws. 3,

4, 6 and 5, respectively. P.W-14 is the Tahsildar, who has deposed that he conducted inquest over the deceased in the presence of P.W-12.

P.W-15 is the official of the Municipality. He has issued house list extract in respect of the house of P.W-10. P.W-17 is the official of BESCOM,

who has issued a certificate stating that at the time of incident, there was electricity supply in the area. P.Ws. 8 and 9 are panch witnesses regarding

spot and seizure of the articles. As per Ex. P18/wound certificate, P.W-3/Police Inspector had sustained three lacerated grievous injuries; whereas

P.W-4/ASI-Rudramurthy and P.W-6/Hanumanthaiah had sustained a simple injury (vide wound certificate at Exs. P19 and 20); whereas

P.W5/Naganna Gowda (vide wound certificate at Ex. P-21) had sustained bullet (grievous) injury in the distal 1/3rd of left femur. Copy of FIR

registered in Crime No. 226/2005 of MICO Layout Police Station registered against accused persons Nasru and others, but it is not placed on

record. There is no independent eye witness, but there is no good ground to reject the evidence of Police witnesses, out of whom P.Ws. 3 to 6 are

injured in the incident. The trial Court, on proper appreciation of evidence on record, has come to a conclusion that the prosecution brought home

the guilt to the accused for the offence punishable u/s 333, 353 and 307 r/w Section 34 of IPC. I see no illegality or infirmity in the impugned

judgment, in so far as convicting the accused for the offences under Sections 333, 353 and 307 r/w. Section 34 of IPC. Accordingly, I answer

point No. (i) in the negative.

Reg. Point No. (ii):

Offence u/s 333 of IPC is an offence of voluntarily causing grievous hurt to deter public servant from his duty. It is punishable with imprisonment of

either description for a term which may extend to ten years, and shall also be liable to fine; whereas offence u/s 353 of IPC is an offence of assault

or criminal force to deter public servant from discharging his duty and the offence is punishable with imprisonment of either description for a term

which may extend to two years, or fine or with both. Offence u/s 307 of IPC is an attempt to murder. It is punishable with imprisonment of either

description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender

shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. The trial Court has imposed rigorous

imprisonment for 10 years for the offence punishable under Sections 333/ 307 of IPC, but erred in not imposing fine for the said offences. State

has not challenged the same.

In the decisions cited by the learned Counsel for the appellant in Crl.A No. 406/2011, ten years rigorous imprisonment awarded for the offence

u/s 307 of IPC was reduced to 7 years. Keeping in view that the appellants/accused are aged about 24 years, 23 years and 19 years, it would

meet the ends of justice if the sentence of rigorous imprisonment imposed for the offence under Sections 307 and 333 is reduced to 7 years.

Accordingly, point No. (ii) is also answered in the affirmative.

In the result, I pass the following order:

(i) Appeals are partly allowed;

(ii) Judgment of conviction dated 21.3.2011 passed in S.C. No. 312/2005 on the file of Presiding Officer, Fast Track Court-V, Bangalore Rural

District, convicting the accused Nos. 2, 3 and 4 for the offence punishable under Sections 333, 353 and 307 r/w Section 34 of IPC is confirmed.

(iii) The appellants/accused are sentenced to undergo RI for 7 years instead of 10 years for the offence punishable under Sections 307 and 333

r/w Section 34 of IPC.

(iv) Sentence imposed for the offence punishable u/s 353 of IPC is maintained.

Accordingly, the impugned order of sentence is modified.