IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JANUARY, 2018
PRESENT
THE HON’BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON’BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL NO.673 OF 2012
BETWEEN:
1. KARIM @ ABDUL KARIM
S/O MOHAMMED,
AGED ABOUT 35 YEARS,
R/AT NO.23, J.K. PURA,
ADUGODI POST,
BANGALORE.
2. RAHIM @ ABDUL RAHIM
S/O MOHAMMED,
AGED ABOUT 38 YEARS,
R/AT NO.23, J.K. PURA,
ADUGODI POST,
BANGALORE.
3. RAFEEQ @ ABDUL RAFEEQ,
S/O. ABDUL REHMAN,
AGED ABOUT 27 YEARS,
R/AT NO.48, J.K.PURA,
MASJID ROAD,
BANGALORE.
4. RIZWAN @ LONG RIZWAN,
S/O. ABDUL REHMAN,
AGED ABOUT 27 YEARS,
R/AT NO.48, J.K.PURA,
MASJID ROAD,
BANGALORE.
5. GAS SADIQ @ SADIQ @
SYED SADIQ,
S/O. SYED ANWAR,
AGED ABOUT 30 YEARS,
R/AT NO.98, J.K.PURA,
MASJID ROAD, ADUGODI POST,
BANGALORE.
6. TIPPU @ TIPPU MUJAEED KHAN
S/O. SHOUKATH ALI KHAN,
AGED ABOUT 23 YEARS,
R/AT NO.234, J.K.PURA,
MASJID ROAD,
BANGALORE.
7. APPU
S/O IMAM SAB,
AGED ABOUT 22 YEARS,
R/AT NO.228, J.K.PURA,
MASJID ROAD,
BANGALORE.
8. CHAN @ CHOWDRI
S/O SIMICHAND,
AGED ABOUT 24 YEARS,
R/AT NO.48, 1ST CROSS,
VINAYAK NAGAR,
BANGALORE.
(NOW ALL ARE IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE) … APPELLANTS
(BY SRI. HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY WILSON GARDEN POLICE STATION,
BANGALORE CITY.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) …RESPONDENT
(BY SRI. CHETHAN DESAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF THE Cr.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.03.2012 AND SENTENCES DATED 2.4.2012 PASSED BY THE FAST TRACK SESSIONS COURT XVII, BANGALORE CITY IN S.C.NO.719 OF 2006, S.C.NO.511 OF 2006, S.C.NO.902 OF 2007 AND S.C.NO.961 OF 2006 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 147, 148, 341, 427, 307, 302 READ WITH SECTION 149 OF IPC AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.01.2018 AND PRONOUNCED THIS DAY Dr. H B PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:-
JUDGMENT
The present appellants were accused No.1, 2, 6, 7, 8, 9, 10 and 11 before Fast Track Sessions Court -XVII, Bengaluru City (hence forth for brevity referred to as the ‘Sessions Court’ here afterwards). The respondent police had filed main charge sheet in S.C. No.511/2006 against accused No.5 to 10. Thereafter split up charge sheet was filed against accused Nos.1 and 2 in S.C. No.719/2006 and against accused No.3 in S.C. No.902/2007 and against accused No.11 in S.C. No.961/2006. All the charge sheets against the accused were filed for the offence punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal Code. Since the accused No.4 was said to be absconding no split up charge sheet was filed against him. As such, the Sessions Court proceeded as against accused Nos.1 to 3 and 5 to 11 and after recording the evidence led before it by its common judgment dated 30.03.2012 found accused No.1 and 2 in S.C. No.719/2006, accused No.5 to 10 in S.C. No.511/2006 and accused No.11 in S.C. No.961/2006 guilty of the offences punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal Code. However, accused No.3 in S.C. No.902/2007 was acquitted for the alleged offences. The Sessions Court further sentenced accused No.1, 2 and 6 to 11 to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo further simple imprisonment for a period of two months for the offence punishable under Section 147 read with Section 149 of the Indian Penal Code. It sentenced accused No.1, 2 and 6 to 11 to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,500/- each and in default of fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 148 read with Section 149 of the Indian Penal Code. It also sentenced accused No.1, 2, 6 to 11 to pay a fine of Rs.500/- each and in default of fine to undergo simple imprisonment for a period of one month for offence punishable under Section 341 read with Section 149 of the Indian Penal Code. It further sentenced accused No.1, 2, 6 to 11 to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- each and in default of fine to undergo simple imprisonment for a period of four months for the offence punishable under Section 427 read with Section 149 of the Indian Penal Code. Accused No.1, 2, 6 to 11 also sentenced to undergo simple imprisonment for a period of 7 years and also to pay a fine of Rs.5,000/- each and in default of fine to undergo simple imprisonment for a period of six months for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. Lastly, the Sessions Court also sentenced accused No.1, 2, 6 to 11 to undergo life imprisonment and also to pay a fine of Rs.10,000/- each and in default of fine to undergo simple imprisonment for a period of 9 months for the offence punishable under Section 302 read with Section 149 of the Indian Penal code. It is against the said judgment and conviction and order on sentence the appellants have preferred this appeal.
2. In their memorandum of appeal the appellants have taken contention that the Sessions Court has committed serious error in recording conviction against the appellants in the absence of reliable and credible evidence on record. It ignored the fact that there were many persons who were inimical to deceased K.G.P.Z. Hussain because of his criminal bad conduct. The Sessions Court failed to scrutinize the evidence of eye witnesses with utmost care to rule out the possibility of false implication of appellants. It also ignored the fact that at the first instance while narrating the history of the alleged incident before the doctor, the family members of the deceased and more particularly, the complainant has stated and got recorded in MLC register that the deceased was assaulted by only six persons with iron rod and knife. Further the name or identity of the assailants were also not disclosed. This aspect the Sessions Court did not appreciate in its proper perspective. It is also contended in the memorandum of appeal that the EX.P.1 is not the FIR and it is hit by Section 162 of the Criminal Procedure Code because it has come into existence during investigation. Further contending that the Sessions Court failed to appreciate the evidence in its proper perspective and has arrived at a erroneous conclusion, the appellants have prayed for setting aside of the judgment of conviction and order on sentence challenged in this appeal, by allowing the present appeal.
3. The respondent is being represented by High Court Government Pleader. Lower court records were called for and the same are placed before this Court.
4. Heard the arguments from both side. Learned counsel for the appellant in his argument vehemently submitted that the alleged motive put forth by the prosecution in the case is not a strong motive to hold that the same would lead for the commission of alleged offence by the accused. The complainant who is the daughter of the deceased and claiming herself to be the eye witness to the alleged incident has not stated the names or identity of the alleged assailants before the doctor who examined the injured and that even in her alleged complaint before the police also she has not explained the overt act of each of the accused in detail. He also submitted that in the circumstances of the case the lodging of the alleged complaint is to be considered as a delayed lodging of FIR.
5. Learned counsel reiterated the contention taken up by the appellants in their memorandum of appeal to the effect that EX.P1 FIR is not the FIR in its strict sense for the reason that the same has come into existence during the course of investigation. While giving more emphasis on the appreciation of evidence of PW.1, PW.2 and PW.3, the learned counsel also submitted that there is no consistence in the evidence of these three alleged eye witnesses since the description of the event as narrated by them does not go in harmony and their evidence suffers from lot of inconsistencies. He also submitted that no separate charge was framed for the offence under Section 142 of the Indian Penal Code and that the alleged act of accused No.1, 2, 3 and 4 being an act of abetment of the alleged offence, the same would constitute a separate offence punishable under Section 114 of the Indian Penal Code. As such, a separate charge ought to have been framed for the offence punishable under Section 114 of the Indian Penal Code and that they should not have been held guilty as the member of alleged unlawful assembly under Section 149 of the Indian Penal Code.
6. Learned counsel further submitted that the Court below did not appreciate the defence evidence led before it to prove that accused No.1, 2 and 9 were also not present at the scene of offence at the time of alleged offence. As such, their evidence of proving the stand of alibi taken by them has not been considered properly by the Sessions Court.
7. In support of his argument the learned counsel for the appellants relied upon three judgments of the Hon’ble Supreme Court reported in 1999 AIR SCW 4694, AIR 1974 SC 45 and in 2001 (2) Supreme (Crimes) 618 which will be considered at the relevant stage hereafter words.
8. Learned High Court Government Pleader in his argument submitted that the evidence of PW.1, PW.2 and PW.3 to the effect that there was a dispute between the committee members of the masjid and the deceased with respect to a passage existing in between the masjid and the house of the deceased and previous life threats given by the committee members of the masjid who includes some of the accused herein and the fact of the deceased lodging several complaints against them before the jurisdictional police station for the life threat given by the committee members and the accused to the deceased clearly establishes the motive behind the act of the accused in the case. He also submitted that within 1½ hours of the incident the FIR came to be lodged giving priority to the medical treatment to be secured to the injured and without wasting any time the complainant has lodged the complaint. As such, no delay can be noticed in the lodging of FIR.
9. Regarding the identity of the accused is concerned, learned High Court Government Pleader submitted that the statement and evidence of PW.1, PW.2 and PW.3 to the effect that all the accused persons were known to them even prior to the incident is not in dispute and that naming of the accused with the overt act committed by them clearly establishes their identity. He also submitted that eye witnesses have alleged overt act against the accused and also explained the manner of occurrence of incident which inspires confidence in the Court to accept their evidence. He further submitted that all the accused since had predetermined to take away the life of the deceased Hussain and in the execution of their common object they have chased, attacked and assaulted him with deadly weapons, the unlawful assembly and its common object and also committing the alleged offensive act in furtherance of the common object of the said unlawful assembly has stood proved beyond reasonable doubt. In support of his argument he relied upon the judgments of the Hon’ble Supreme Court reported in 2015 (4) SCC 749 and 2014 (5) SCC 753.
10. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and the order on sentence.
11. In the light of the above the points that arise for our consideration are:
(1) Whether the prosecution has proved beyond reasonable doubt that on 25.02.2006 at about 9.10 p.m. in front of Hulichikkamma Brahmins Association Building on public road, 8th Cross, Wilson Garden, Bengaluru, the present appellants were the members of an unlawful assembly having common object of murdering Sri KGPF Hussain, the father of CW.1 and thereby has committed an offence punishable under Section 147 of the Indian Penal Code ?
(2) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the present appellants were armed with deadly weapons like, iron longs and knife and thereby committed an offence punishable under Section 148 of the Indian Penal Code ?
(3) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the present appellants as accused, in furtherance of their common object of their unlawful assembly wrongfully restrained deceased KGPZ Hussain while he was traveling in auto rickshaw bearing No. KA 03 6600 and thereby have committed an offence punishable under Section 341 read with Section 149 of the Indian Penal Code ?
(4) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, all the appellants being the members of an unlawful assembly in furtherance of their common object of unlawful assembly committed mischief by committing wrongful loss or damage to the auto rickshaw bearing No.KA 03 6600 and thereby have committed an offence punishable under Section 427 read with Section 149 of the Indian Penal Code ?
(5) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the appellants being the members of an unlawful assembly and in prosecution of their common object of such assembly assaulted CW.1 Mrs.K Tameen Tabaras Ansani with deadly weapons with an intention and under such circumstances that by their act if the death of CW.1 had caused, they would have been guilty of murder and thereby have committed an offence punishable under Section 307 read with Section 149 of the Indian Penal Code ?
(6) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, all the appellants in prosecution of common object of their unlawful assembly committed murder of K.G.P.Z. Hussain by assaulting him with deadly weapons and thereby have committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code?
(7) Whether the judgment and conviction of order on sentence impugned in this appeal deserves an interference at the hands of this Court?
12. The summary of the case of the prosecution in the court below was that on 25.02.2006 at about 9.10 p.m. one Sri K.G.P.Z. Hussain the deceased was returning home in his auto rickshaw bearing registration No.KA 03 6600 along with his wife and children. At that time when the deceased was driving his auto rickshaw in front of Hulichikkamma Society at 8th Cross, Wilson Garden, accused Nos.1 to 11 forming an unlawful assembly and duly armed with deadly weapons like choppers. Long, stone, knife, button knife, etc., came there in an auto rickshaw bearing registration No.KA 01 B 831 and other vehicles and wrongfully restrained the auto rickshaw being driven by the deceased Sri Hussain and caused damage to the said auto rickshaw and threw chilly powder into his eyes and assaulted him with the deadly weapons on his head, chest, abdomen, back and on his hands causing severe bleeding injuries to him and committed his murder intentionally. The accused also assaulted CW.1 Mrs. K Tameen Tabaras Ansani, the daughter of the deceased Hussain, who rushed to the rescue of her father and attempted to commit her murder. The deceased and the accused had dispute in respect of building constructed nearby J K Pura Mosque. Thus, the accused 1 to 11 who were belonging to the committee of said Noorani Mosque had decided to commit murder of said K.G.P.Z. Hussain. Thus the accused have committed the offence punishable under Sections, 143, 144, 145, 146, 147, 148, 341, 427, 307, 302 read with Section 149 of the Indian Penal Code. Excluding accused No.4 against whom the case was split up, as against the remaining accused, the Sessions Court framed the charges for the offence punishable under Sections 147, 148, 341, 427, 307 and 302 read with Section 149 of the Indian Penal code.
13. In order to prove its case the prosecution examined 20 witnesses from PW.1 to PW.20 and got marked documents from Exhibits P.1 to P.28 and material objects at MO.1 to MO.45 and closed its side.
14. From the accused side accused No.1 to 3 and 9 who had set up a plea of alibi examined 17 witnesses from DW.1 to DW.17 and got marked exhibits D1 to D7. No defence evidence was lead on behalf of accused No.5 to 8, 10 and 11.
15. Among the 20 witnesses examined by the prosecution PW.1, PW.2 and PW.3 are projected as eye witnesses to the incident. PW.1 is the complainant in the case who is also the daughter of deceased Hussain. The summary of the evidence of PW.1 is that she knows accused No.1 to 3 and 5 to 11. Her house is adjacent to masjid. The accused has raised objection while the deceased was putting up the construction of the house.
In that regard her father had lodged a case against the accused. After filing of the case the accused started harassing her father and was pestering him to withdraw the said case. They were also threatening of putting the deceased into trouble if he failed to withdraw his case. Accused No.1 Karim, accused No.2 Rahim, accused No.3 Samiulla, accused No.5 Manju, accused No.6 Raffiq the members of the committee of the mosque and that they were pestering to withdraw the complaint and threatening the deceased. They had blocked the passage adjoining the house of the deceased. In addition to this every day accused No.6 Raffiq and accused No.7 Rijwan were also going to the house of the deceased and troubling him to vacate the house and to pay them money. That being the case on the date 25.02.2006 the deceased Hussain along with his wife, complainant and three brothers of the complainant had been to a darga and were returning home in the night. While they were on K H Road, BTS double road all the accused following them in auto rickshaw were shouting to catch them. At that time one auto came and dashed to the auto rickshaw in which the deceased and his family were moving. While the deceased Hussain got down and was trying to set the auto rickshaw in the correct position which had inclined on a side, the accused armed with hockey bat, long, broken the glasses of the auto rickshaw, threw chilly powder on her father. At that time accused No.6 Raffiq and accused No.8 Gas Sadique assaulted Hussain on his right hand with a long. They were also telling that despite their advise the deceased was not yielding to their words. Accused No.1 Karim, accused No.3 Samiulla were instigating other accused to assault the deceased. Accused No.5 Manju, accused No.6 Raffiq and accused No.7 Rijwan assaulted the deceased on different parts of his body. When PW.1 tried to rescue her father the accused stating that they would not spare Hussain, assaulted PW.1 also. The injured Hussain fell down. PW.1 and her mother rescued him. By that time police rushed to the spot in Hoysala motor vehicle and shifted the injured to Agadi Nursing Home. Since no doctor was available at that time, the injured was shifted to Sanjay Gandhi Hospital. However, while on way to the hospital injured Hussain succumbed to the injuries. The doctor at Sanjay Gandhi hospital declared Hussain as ‘brought dead’.
16. It is also the evidence of PW.1 that thereafter she went to the complaint police station and lodged a complaint, which she has identified at EX.P1 and her signatures therein are at EX.P1(a) and P1(b). The police visited the spot of the offence after the complaint was registered and drew a scene of offence panchanama which PW.1 has identified as EX.P2 and her signature therein at EX.P2(a). She also stated that the police seized broken glasses of auto rickshaw, cap and slippers of the deceased, stick and stones from the spot under the panchanama. The witness has identified chappals at MO.1 and MO.2 and three other chappals at MOs.3 to 5. She has also identified the stones and broken glass pieces at MO.6 and MO.7 respectively. She identified a piece of cloth as the scarf used by her father at MO.8 and the cap of the deceased at MO.9. She also identified blood stained mud said to have been collected from the spot at MO.10. She identified cloth seizure panchanama of the injured at EX.P3. The witness has further stated that the incident took place at 9.10 p.m. There were five to six persons holding long (a type of weapon resembling sword). Accused Karim, Rahim, Samiulla and Ansar were standing. The said witness was subjected to a detailed and searching cross examination from the accused side wherein she adhered to her original version.
17. PW.2 Mrs.Haseena Begum, the wife of the deceased has also spoken on the lines as stated by her daughter PW.1 in her examination in chief. She has also stated about the dispute said to have been existing between the deceased and committee members of the masjid which masjid was situated by the side of her house. About the incident she has stated that on the date of incident while they were returning from darga her husband was driving the auto, herself and her children were sitting in the back seat. At that time accused Sadiq, Rafiq, Mujju along with Samiulla, Rahim and Karim intervened their way and instigated other accused to finish her husband at which accused Rafiq assaulted her husband on legs, accused Mujju dragged her husband Karim assaulted on the head of her husband, Rahim assaulted on the neck of her husband, finally all the accused cut the throat of her husband. Thereafter the police arrived to the spot. All the accused ran away by seeing the arrival of the police. She identified four longs at MOs.13 to 16 stating that they were used by accused Karim, Rahim and Samiulla who cut the throat of her husband. She was also subjected to a detailed and searching cross examination from the accused side wherein she adhered to her original version.
18. PW.3 Altamas the younger brother of PW.1 and the son of the deceased also lead his evidence on the lines of the evidence of PW.1 and PW.2. He has also spoken about the existence of the dispute between his father and the accused who were the members of the committee of the masjid, with respect to an open passage and accused Samiulla, Karim and Rahim being the committee members of the masjid threatening his father and forcing him to withdraw the complaint filed by him. About the incident the witness has stated that on 25.02.2006 while he along with his father, mother and sister returning from darga to their house at 8th Cross in Wilson Garden all the accused came in an auto rickshaw and dashed to the auto in which these people were traveling. Accused Appu threw chilly power on the face of his father and other accused attacked his father with longs, knife and baku (a type of weapon). Accused Samiulla, Rahim and Karim instigated the other accused to finish his father. This witness also stated that his sister i.e., PW.1 who rushed to the rescue of his father also sustained injuries in the incident. The police took the injured in Hoysala jeep to Agadi Nursing Home from thereto Sanjay Gandhi Hospital, where his father was declared as ‘dead’. He was also subjected to a detailed and searching cross examination from the accused side wherein he adhered to his original version.
19. Thus, regarding the incident it is three witnesses i.e. P.W.1, P.W.2 and P.W.3 who have given a detailed account claiming themselves to be the eye witnesses. Even though all these three witnesses were subjected to a detailed and searching cross examination from the accused side, but their evidence to the effect that on the alleged date of incident along with the deceased they were also traveling in the very same authrickshaw and they were eye witnesses to the alleged incident could not be shaken. In her cross-examination, P.W.1 has given some more details regarding the incident as answers to the questions put to her. She has stated that there were seven inmates in the autorickshaw including their father and that they had been to Darga near Vidhana Soudha at Bengaluru. According to her, by the time they reached the said Darga it was about 7.30 p.m and after completing Namaz when they left the Darga, it was 8.30 p.m. She has also stated that the place of incident was not far away from the police station. However, that time on that day there was no public movement on the road except about 5 -6 persons. The denial suggestion made to her was not admitted as true by her. She has also stated that accused Nos.5 and 6 assaulted her and injured her.
20. P.W.2 has also given a detailed account of overt acts said to have been committed by each of the accused against her husband. She has also stated that while accused were chasing them in their autorickshaw near the spot, she heard their yelling as ‘pakado pakado’ at that time, the autorikshaw in which the accused were traveling dashed to their auto in which these people were going, due to which, the auto in which she was traveling leaned on one side which his father was setting at right, at that time accused Nos.1 and 2 approached him. It was accused Nos.6, 8 and 5 who assaulted his father at first and accused Nos.1 and accused No.2 assaulted him at the end. Apart from stating that since there was electricity light in that area, she could identify the accused. She has also given a detailed count of overt acts of the participants/accused in the crime. She has stated that accused Nos.6 and 8 assaulted her father on his right hand, accused No.3 assaulted on the shoulder. Accused Nos.1 and 2 also assaulted her father. In addition, accused No.1 was also telling others to assault her father and not to leave him. Accused Nos.5, 6 and 7 assaulted on the head of the deceased. Accused Nos.2, 3 and 4 were standing there in support of the other accused. Accused No.10 threw chilly powder on the face of his husband. Thus, except accused Nos.9 and 11, with respect to all other accused she has given a detailed account of overt acts said to have been committed by them. Though she has stated she was an illiterate lady and not gone to school, except Urdu language she does not know any other language, she has given a detailed account as to the incident. By using translator to translate her evidence from Urdu language to Kannada language, her evidence was recorded by the Sessions Court. She has categorically stated that accused Nos.1, 2 and 3 instigated the other accused by telling them to assault her husband completely and not to leave him. Accused Nos.5, 6 and 8 were telling to cut the hands and legs of her husband. Apart from that, accused No.5 caught hold of the deceased, dragged him and accused No.6 assaulted the deceased on his leg, accused No.1 hit on the head of the deceased, while accused No.2 hit on the neck of the deceased. Accused No.1 hit on the back of the head of the deceased and accused No.5 again hit on the head of the deceased.
21. Thus, both P.W.1 and P.W.2 have given a detailed account of the overt acts of the accused also stated that while assaulting the deceased on his head and leg, accused assaulted on the respective parts of the body of the deceased by using long and chopper by them. Even P.W.2 has also stated that accused had followed them in autorickshaw and they made to stop the autorickshaw in which P.W.2 and her family members were traveling, brought them out and assaulted. At one breath in the cross-examination, P.W.2 has stated that it took half an hour for them to come out of the autorickshaw which had fallen, the accused making use of the statement have suggested that since they were in the said autorickshaw nearly for about half an hour, they could not see the incident clearly, P.W.2 has not admitted the said suggestion as true. However, by making such suggestion, the accused have admitted that P.W.2 was present in the scene of offence and was an eye witness. The said evidence of P.W.2 also could not be shaken in her cross- examination by the accused side.
22. The evidence of P.W.3 has also come in consonance with the evidence of P.W.1 and P.W.2. He has also withstood the cross-examination of the accused successfully. He has also stated that all the accused assaulted his father in the incident. Giving details of the overt acts, he has stated that accused Nos.1, 2 and 3 were telling other accused not to leave the deceased and assault on the head, chest, neck hand and legs of the deceased. Accused No.10 threw chilly powder on the face of the deceased. Accused No.3, 6 and 8 stood around the deceased and covered him. According to him, all the accused were present at the scene of offence at the time of accident. He has also given a detailed account as to the holding of the weapon by the accused. Thus, P.W.1, P.W.2 and P.W.3 have not only mentioned about the presence of the accused in the place of offence, but also have given a detailed account of the accused holding deadly weapons by them and the overt acts committed by them. Therefore, there is no reason to disbelieve that they were not present at the scene of offence at the time of incident and that they were not eye witnesses. Therefore, even though they are family members of the deceased, their evidence has come out in a very natural way and cannot be disbelieved merely by calling them interested witnesses. Even though, P.W.1 has not given details of the overt acts with respect to accused Nos.9 and 11, but she has categorically stated that all the accused followed them in an autorickshaw. Thus, though she has not specifically named accused Nos.9 and 11 in her evidence, but she has included them stating that all the accused followed them. It also cannot be ignored that in her complaint at the first instance itself she has named that even accused No.9- Tippu, was also one among the accused who also participated in the commission of crime. P.W.3 has categorically stated that all the accused have assaulted his father.
23. Even when the accused are in large number of more than 10 persons, it cannot be expected that an eye witness is required to explain the individual overt act of each of the accused in detail. More particularly, under the present circumstances of the case, wherein being the wife and children of the person under attack (deceased) it was more required and necessitated for these three eye witnesses to rescue their father (husband of P.W.2), rather stand watching as to which accused assaults in which order and with which weapon in a detailed manner. However, what a normal person can observe and memorise in a similar circumstance, the same has been done by P.Ws.1, 2 and 3 also. Therefore, their evidence is reliable and appears to be trustworthy. As such, it is established that the present appellants joined by others have committed the acts as alleged.
24. It is at this juncture the first leg of the argument of the learned counsel for the appellants is to be considered. It is his argument that unless a specific charge is framed for the offence under section 143 of IPC for the offence punishable under Section 142 of the IPC, the accused cannot be held as members of an unlawful assembly. No doubt, it is true that no specific charge under Section 143 of the IPC has been framed in the instant case, but it cannot be forgotten that it is the case of the complainant that all the accused have jointly committed the alleged offences and the material witnesses i.e. P.Ws. 1, 2 and 3 have uniformly stated that all the accused have followed and chased them in autorickshaw and restrained these people from proceeding further and thereafter as a group they have attacked and assaulted mainly the deceased Hussain and also P.W.1, who rushed to the rescue of the deceased. Further, they have also stated that the accused were armed with deadly weapons like long, chopper and button knife which they used in the commission of the crime. The said evidence cannot be ignored. Thus, considering the facts and circumstances of the case and the overt acts attributed against the accused and also expression of their determination while committing the offence that they would finish of the deceased would all go to clearly establish that they had formed an unlawful assembly with the object of taking away the life of the deceased and armed with deadly weapons, they had attacked the deceased. Therefore, merely non- framing of a specific charge under Section 143 of the IPC in the instant case would not take away the case of the prosecution or make the other offences committed by the accused as members of an unlawful assembly is unbelievable or to be discarded.
25. It was also the argument of the learned counsel for the appellants that accused Nos.1, 2, 3 and 4 are said to be standing near the place of the offence and were instigating others to assault the deceased. As such, their act attracts Section 114 of IPC and as such, they ought to have been charged and tried only for the offence punishable under Section 114 of the IPC stating that their act amounts to abatement.
26. Learned counsel relied upon three judgments of the Hon’ble Supreme Court in his support in Jainul Haque v.State of Bihar, AIR 1974 SC 45, the Hon’ble Supreme Court while dealing with Section 323 of the IPC in a criminal appeal was pleased to observe that conviction for abetment cannot be recorded without clear, cogent and reliable evidence in this respect.
In Wakil Yadav and another v. State of Bihar, 1999 AIR SCW 4694, the Hon’ble Supreme Court in a case of murder by a group of persons attracting the offence under Section 302, 149 of the IPC, observing that appellants were convicted for offence punishable under section 302 IPC read with 109 IPC, it observed that no charge was framed against the appellant with the aid of Section 109 of the IPC. Section 109 of the IPC is a distinct offence. It observed that the appellants before it having faced trial for being a member of unlawful assembly which achieved the common object of killing the deceased, could in no event be substitutedly convicted for the offence under Section 302 of IPC with the aid of Section 109 of the IPC. It further held that there was obviously not only a legal flaw but also a great prejudice to the appellant in projecting his defence.
27. In the case on hand, the entire case of the prosecution is that all the accused have actively participated in the commission of crime. P.W.1 in her complaint itself has given the names of nine accused describing their role in the commission of the offence. Further, P.W.1, P.W.2 and P.W.3 have clearly and categorically stated that the accused followed them and thereafter dragging the deceased from autorickshaw, assaulted them with deadly weapons. Thus, there is active involvement of the every accused in committing the offence apart from assaulting. If they instigated other accused by asking them to finish of the deceased, it cannot be called that they are only abettors at the first instance in the commission of the crime. In the instant case, accused Nos.1, 2, 3 and 4 apart from abetting them also committed the crime by themselves assaulting the deceased. As such, the question of they becoming a mere abettor would not arise, but they are actual participants in the commission and as such, the arguments of the learned counsel for the appellants is not acceptable.
28. Learned counsel for the appellants in his argument submitted that there is no consistency between the evidence of P.Ws.1, 2 and 3 and as such, their evidence is not reliable. He also relied upon the judgment of the Hon’ble Supreme Court in Chandra Shekhar Bind & Ors v. State of Bihar, 2001(2) Supreme (Cr.)
618. In the said judgment at paragraph – 9, the Hon’ble Apex Court was referring to its previous judgment in the case of Masalti v. State of U.P., AIR 1965 SC 202, held that where a criminal court has to deal with evidence pertaining to the commission of offence involving large number of offenders it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was also held that in a sense, the test may be described a mechanical, but it cannot held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test.
29. In the instant case, about the occurrence of the incident and the manner how the deceased was handled, assaulted by the accused, Pws.1, 2 and 3, as already observed above, have uniformly stated in their evidence that the accused following them in an autorickshaw have restrained them and targeting the deceased, the father of the complainant have brutally assaulted him with deadly weapons. Regarding the description of the weapons used by the accused and the major assaults inflicted upon the deceased by the particular accused, there is uniformity and consistency in the evidence of P.Ws.1, 2 and 3, as such, not only in number of witnesses, but also in their quality of evidence P.Ws.1, 2 and 3 have to be taken as withstood the test and their evidence is trustworthy and reliable. As such, the judgment of the Hon’ble Supreme Court in Chandra Shekhar Bind’s case (supra) also would be of no help to the appellants.
30. According to P.Ws.1, 2 and 3 by the time they shifted the injured to St. John’s Hospital, Bengaluru for treatment, he was examined by the doctor and declared as brought dead.
P.W.19, the investigating officer has also given his evidence to the same effect. The investigating officer conducted the inquest panchanama of the deceased on the next day i.e on 27.2.2006 in the mortuary at St.Johns Hospital in the presence of the panchas as per Ex.P.16. The said panchanama shows that the panchas after seeing the dead body and the injuries found on the dead body have opined that the death was homicidal and a murder. According to the investigating officer, he got the autopsy of the dead body done by Dr. P.K. Devadas (P.W.8). The said witness in his evidence has stated that he conducted post-mortem examination of the deceased and has given the details of the external injuries found on the dead body which is said to have been recorded by him as below;
” 1. Chop injury, glancing, above dowawrds present over fore head meag. 5 cms x 5 cms x skin thickness.
2. Cut injury, glancing, present over upper part of frontal region meag. 2.5 cms x 2.5 cms x skin thickness.
3. Chop injury meag. 9 cms x 1 cms x bone deep situated left side top of head, anterior and situated above outer end of eye brow underneath bone is cut.
4. Chop injury meag. 6 cms x 2 cms x bone deep situated right side top of head mid point is 11 cms above right ear underneath the bone is cut.
5. Chop injury meag. 8cms x 2 cms bone deep situated 11 cms above left ear, back underneath bone is cut.
6. Chop injury, glancing meag. 8 cms x 2 cms x bone deep, 7 cms above and behind left ear.
7. Chop injury meag. 5 cms x 7 cms x bone deep situated above external occipital, perotuberance underneath bone is cut obliquely.
8. Penetrating injury 8.5 cms x 3 cms situated just above the left stemoclavicular joint, transverse trailing outwards. On dissection left sterol clido mastoid muscle is cut and the depth of the injury is 4 cms. Edges of the injury show abrasion.
9. Abrasion meag. 11 cms x 1.5 cms almost transverse situated below neck.
10. Abrasion measuring 8 cms x 1.5 cms almost vertical situated left supra scapular region. Incise injury 7 cms x 1 cm muscle deep vertical situated right supra scapular region.
11. Penetrating injury meag. 4 cms x 1 cm muscle deep 3 cms between muscle and skin tailing outwards meag. 6 cms, edges clean cut situated right intra scapular.
12. Penetrating injury meag. 2.5 cms x 1 cm muscle deep situated 4 cms below left intra scapular region. Edges clean cut.
13. Stab Injury measuring 4 cms x 1 cm x chest cavity deep oblige upper outer sharp, lower inner edge is blunt, edges are clean cut situated just below inferior cavity of left scapular.
14. Abrasion meag. 2 cms x 2 cms situated left side of chest.
15. Incise injury, transverse situated lower back of abdomen meag. 2 cms x 1 cm muscle deep.
16. Superficial incise injury meag. 6 cms x 05 cms 0.5 cms situated back of left forearm.
17. Chop injury meag. 2 cms x 2 cms x bone deep situated back of left ring finger, glancing.
18. Chop injury meag. 3.5 cms x 0.5 cms bone deep situated back of left middle finger.
19. Abrasion meag. 4 cms x 0.5 cms situated over outer side of left wrist.
20. Abrasion meag. 2 cms x 2 cms situated over front of left knee cap.
21. Abrasion meag. 6 cms x 4 cms situated on upper part of left foot.
22. Penetrating injury 7 cms x 1 cm situated right side of chest tranverse on left side of nipple.
23. Abrasion 3 cms x 0.5 cms, 7 x 11 cms x 0.5 cms present over outer side of left arm.
24. Abrasion 4 cms x 0.5cms, 4cms x 0.5 cms present over back of right forearm.
25. Chop injury, glancing meag. 10 cms x 6 cms tenon deep present over wrist. ”
On dissection the doctor has noticed scalp -chop injury described skull showing cut fractures corresponding to external chop injuries. Membranes lacerated at the fracture side. Chest left 8th rib and 8th intercostal space is cut corresponding to external injury Left cavity contains blood and blood clot 1.5 ltrs. The doctor has opined that the death was due to shock and haemmorage as a result of multiple chop and stab injuries sustained. The doctor has also stated that he was shown by the complainant/ police six weapons which included two chops, two swords and two knives. After examining those weapons, he came to an opinion that it was possible to sustain such chop injuries found on the dead body of the deceased by the type of choppers and swords. Penetrating injury found on the deceased could be able to cause by tip of choppers. The said injury found on the chest of the cavity of the deceased was possible to be caused by the type of weapon knife shown to him. The said doctor identified and got marked post-mortem report at Ex.P.7 issued by him and also identified the weapons at M.O.11 and M.Os.13 to 16 shown to him. His evidence regarding the injuries found on the deceased is caused due to the relating injuries by the weapon shown to him, could not be shaken in his cross-examination. As such, the evidence of P.W.1, 2 and 3 who have stated that the accused assaulted the deceased with deadly weapons and caused his death, coupled with medical evidence establishes that the death of the deceased was not only homicidal, but it was culpable homicide.
31. Thus, the act of the accused in assaulting the deceased Husain and killing him being in prosecution of their common object to kill him and since they had motive to cause his death, the homicidal death of the deceased Hussein amounts to culpable homicide amounting to murder.
32. The evidence of P.W.4 is that the place of incident was in Wilson garden and that the panchanama about the scene of offence is drawn in his presence as per Ex.P.2 corroborates the evidence of P.W.19, the investigating officer. The said panchanama shows that the place of offence tallies with the place of offence as collected by P.Ws.1, 2 and 3, who also have stated about the presence of electricity light in that place at the time of incident. As such, the place of incident is also established.
33. The evidence of P.W.10 that he drew the sketch of the scene of offence as per Ex.P.10 corresponds with the place of offence described in Ex.P.2.
34. Regarding the weapon used in the commission of the crime is concerned, according to P.Ws.1, 2 and 3, the eye witnesses, those weapons were four longs and knives. P.W.1 has identified them at M.O.13 to M.O.16 in her evidence stating that they were with the accused. She has also identified the knife at M.O.11. Similarly, P.W.2 another eye witness has also identified the weapons at M.O.13 to M.O.16 and specifically stated that which of the weapon among M.O.13 to M.O.15 were with which accused. She has stated about the weapon called ‘Bichava’ as one of the weapon used by the accused and P.W.3. The son of the deceased, who is also an eye witness to the incident has called the said weapon as ‘Baku’ (a type of knife) and stated that it was accused No.9-Tippu, who was holding it. Thus, apart from identifying the weapons, P.W.3 has also shown that even accused No.9 was also holding the weapon and it is his evidence that all the accused have assaulted his father.
35. According to the investigating officer, six weapons identified by the witnesses were recovered at the instance of the accused. He has stated that accused Nos.5, 6, 8 and 10 have given their voluntary statements before him, wherein they have stated that the weapons used by them in the commission of crime have been kept in a bush near gutter/drainage at 8th Mile, Hesaraghatta and the autorickshaw used by them was at Tumkur. Based on the said voluntary statements he (investigating officer) on 1.3.2006 summoned the witnesses P.W.12 and P.W.13 and in their presence at the place shown by the accused, has seized those weapons which were iron rod, long, chopper, from the spot under panchanama Ex.P.11. It is the evidence of P.W.12 and P.W.13 that those weapons were seized in their presence through the accused from a drainage at Hesaraghatta, who have also stated that the investigating officer had summoned them to the police station on 1.3.2006 and shown them four accused who took them along with the police at 8th Mile, Tumkur Road and from near a gutter they took out a gunny bag and from the gunny bag they took out four longs (sword, chopper like weapon). They have identified six weapons at M.O.13 to M.O.16 and also recovered panchanama at Ex.P.11 and their signatures therein.
36. Learned counsel for the appellant in his arguments also submitted that the investigating officer who has stated that he has recorded voluntary statements and based on that recovered all weapons. But he has not stated as to what statement the accused gave before him, as such the recovery does not to be taken as proved. When the evidence of P.W.19, the investigating officer is perused, it goes to show that the investigating officer apart from stating that accused Nos.5, 6, 8 and 10 have stated before him in their voluntary statement that they had kept the weapons used for commission of crime near 8th Mile, Hesaraghatta in a car and autorickshaw to Tumkur. Thus the investigating officer has produced what the accused are said to have stated before him in their voluntary statement regarding the weapons used in the commission of crime. As such, the argument of the learned counsel for the appellant that the recovery cannot be taken as proved, cannot be accepted.
37. On the other hand, the evidence of the investigating officer about the recovery is further corroborated by the evidence of P.W.12 and P.W.13 and the weapons have been identified by both recoveries to the panchas, investigating officers as well P.Ws.1 to 3, the alleged eye witnesses.
38. Lastly, the evidence of P.Ws.1, 2 and 3 is to the effect that P.W.1 who rushed to the rescue of her father while the accused were assaulted her also and she sustained injuries, has been corroborated by the evidence of the doctor i.e. P.W.7 who in his evidence has stated that on the alleged night of the incident he has examined P.W.1, who had come to his hospital with the history of assault on 25.2.2006 around 9 p.m. The doctor has noticed the lacerated wound on the left arm measuring 5 x4 cms, lacerated wound over right leg located on the lateral aspect and measuring 2 cm x 1 cms over the right knee of the injured P.W.1 and has issued wound certificate in that regard. The doctor has identified the same at Ex.P.6 and his signature therein at Ex.P.6(a). The said evidence could not be shaken in his cross examination. On the other hand, a suggestion was made to him to the effect that while mentioning the history of the incident of assault at 9 p.m. with knife and other weapons, it was stated that the same was caused by six persons. By making the said suggestion, the accused however supported that P.W.1 was examined and treated by the doctor (P.W.7) for the alleged injuries on that night. Thus, the evidence of P.W.1 coupled with the medical evidence that she was assaulted by the accused with the deadly weapons corroborated by the evidence of P.Ws.2 and 3 and the medical evidence of P.W.7 to establish that in the incident P.W.1 also was assaulted by the accused with the deadly weapons causing bleeding injuries upon her.
39. The above aspect of the trustworthiness of the evidence of the witnesses i.e. P.Ws.1, 2 and 3 coupled with the evidence of panchas regarding the place of offence. The medical evidence regarding injury and the nature of death, recovery of weapons in the presence of panchas and their supporting evidence as P.W.12 and P.W.13, identification of the weapons, recovery of the blood stained cloths and supporting evidence of P.W.9 and P.W.13, identification of those cloths by P.W.1 corroborates the evidence of the investigating officer that the death of the deceased was a murder and his investigation revealed that it was the accused and accused alone who forming an unlawful assembly, in prosecution, their common object caused the death of the deceased- Hussian and assaulted P.W.1 causing injuries to her.
40. The evidence of P.W.9 and P.W.13 that the panchanama at Ex.P.4 was drawn in their presence and the cloths of the injured – P.W.1 seized in their presence establishes the seizure of the cloths. The evidence of P.W.5 coupled with the evidence of the investigating officer shows that a button knife was recovered at the instance of accused No.7 – Rizwan. P.W.5 has identified the said weapon at M.O.11.
41. Though learned counsel for the appellants in his argument submitted that it is impossible to expect the culprit to retain the weapon with him for six days after the commission of the crime, but there is no reason to suspect that accused No.7 was in possession of the said knife for about six days after the commission of crime. Since the said weapon being a knife and can be kept in the pocket, it is not impossible for a person to keep that small article/weapon for a small period of about six days.
42. Learned counsel for the appellant in his argument also submitted that there is a delay in lodging the complaint, as such, the incident as narrated by the complainant cannot be believed. There is a correction of time in the complaint at Ex.P.1, as such, the said complaint also cannot be believed. According to the prosecution, the incident has occurred on 25.2.2006 at about 9.10 p.m. The complaint at Ex.P.1 goes to show that it was lodged at about 11.00 p.m. on that night. One hour 50 minutes after the incident the complaint has been lodged.
43. As analysed above, the incident of assault and killing of a person(the deceased) and the complainant (daughter of the deceased) is by a group of people. In such a situation, when her father is assaulted by a group of people, the first thing the family members of the injured/deceased are expected to do is to get necessary medical assistance to the injured. P.Ws.1, 2 and 3 have also done the same. They have shifted the injured to nearby Agadi Hospital and from there they shifted him to St. Johns Hospital. It is thereafter the daughter of the deceased has lodged a complaint with the police. Thus, in a city like Bengaluru shifting a person from one place to another place would obviously takes some time. It is in that process, about 1 hour 50 minutes has been taken, which time cannot be considered as a delay, to arrive at such a conclusion. We rely upon the judgment of the Hon’ble Supreme Court in Omprakash v. State of Haryana, (2014) 5 SCC 753, which judgment was relied on by the learned High Court Government Pleader in his argument. In the said case, the incident had taken place at about 3.00 p.m. and thereafter the deceased was carried in a mechanised cart to the Primary Health Centre, where he was administered some treatment, but he succumbed to the injuries. On being informed by the hospital staff, the police arrived at the hospital and recorded the statement of the informant, P.W.l3 and thereafter, First Information Report was registered at 7.45 p.m. The Hon’ble Supreme Court observed that from the sequence of event which include consumption of time in carrying the injured to the hospital, treatment availed of by Prabhu Dayal, information given by the authority concerned of the primary health centre and arrival of police and also taking note of the incident i.e. 24 k.m. from the place of occurrence, it cannot be taken that there was any delay in lodging the FIR. In the case on hand also for the reason noticed above, we do not consider that time of 1 hour 50 minutes taken in lodging the complaint to the police is to be considered as a delay in lodging the FIR.
44. With respect to alteration in the complaint, with regard to the time of registration of the complaint is concerned, there appears to be some alteration in the timings, but the accused could not able to succeed to imbibe any suspicion in that regard either in the cross- examination of the complainant (P.W.1) or in the cross- examination of P.W.19, the investigating officer. Merely because there is a small correction in the timings which could not be suspected that there is some ulterior motive and it cannot be presumed that the said correction showing the time which shows a false timing, as such, it is fatal to the case of prosecution.
45. One more argument of the learned counsel for the appellant was that the complainant at the very first instance before the doctor has stated that the history of incident was assault by six persons, whereas in the charge sheet the prosecution has projected 11 persons, one accused is acquitted, as such there remains 10 persons. Thus, the said discrepancy between information given to the doctor and what was shown in the charge sheet raises a great suspicion. In that regard we are required to see at the first instance the first information report. In the said first information report the complainant has clearly and categorically stated the accused were in a group and followed them in autotickshas. She has named 9 among them specifically and stated few more were accompanying them.
Therefore, at the first instance before the police in the complaint the complainant has stated that accused were nine plus. No doubt, P.W.7, the doctor who treated P.W.1 in the night of the incident has stated in his examination chief that the patient had come to him with the history of assault by some persons. He has not named as to how many were there. However, in his cross-examination he admitted to a suggestion as true that while mentioning the history of incident as assault, it was mentioned as six persons. The MLC report sent by the said hospital to police at Ex.P.27 also shows that the patient claims that she was assaulted near Wilson garden while she was going in an autorickshaw by six persons using knife and rod.
46. Here it cannot be forgotten that the history given to P.W.7 the doctor as true, but not with respect to the assault of the deceased -Hussain by the accused, but it is only with respect to the assault on P.W.1 by the accused. Neither by the evidence of P.W.7 nor by Ex.P.6- wound certificate Ex.P.27- the MLC report, it cannot be inferred that the total number of accused participated in the commission of crime were only six in number. As already observed, those six persons are stated to be the persons who assaulted P.W.1, the injured, but not the deceased as such, at no stretch of imagination it can be taken that it was only six persons who constituted total number of accused in the crime.
47. On the other hand, as already observed above, the very same complainant in her complaint before the police not only has given the total number of accused as nine plus, but also has named specifically nine accused among them. As such, the contention of the learned counsel for the appellants that there is discrepancy in mentioning total number of accused by the complainant and as such, the entire complaint is suspectable, is not acceptable.
48. It is also the argument of the learned counsel for the appellants that Ex.P.1, the complaint/First Information Report is not a complaint and it was prepared after the information received by the investigating officer, as such it has come during the course of investigation. Except making the said argument, no materials to substantiate the same were placed before the court. On the other hand, when the evidence of the complainant and the investigating officer (P.W.1 and P.W.19) are read together, it can be noticed that Ex.P.1 has stated that while they were in the place of the incident after the deceased was assaulted by the accused, the police came to the place in their Hoysala van and shifted the injured to hospital. According to her, the police station was within a distance of 5 minutes walk from the said place. The said aspect has not been denied or disputed from the accused side. According to the investigating officer (P.W.19) on the night of incident at 9.15 p.m, while he was in the police station, he received a telephone call by some body stating that some galata (disturbance) is going on at 8th Cross, Wilson garden. Immediately, he went there only to see that some people had already fled away by assaulting a person and that he was informed that the injured was shifted to a nearby Agadi Hospital. Then he went there and saw the injured person in an unconscious stage. At the request of the family members of the deceased, he shifted the injured to the St.Jhons Hospital and thereafter he took the complaint of C.W.1 and registered it in their police station Crime No.42/2006. Thus the information said to have been received by the investigating officer over the phone was not a clear information of the incident of assault of a person, but it was a mere information about some disturbance in that place. It is only after he went there and enquired C.W.1 he came to know the details of the incident which he promptly and without any delay reduced into writing and registered it as First Information Report in their station Crime No.42/2006. As such, the said argument of the learned counsel for the appellants that the complaint was not an FIR and that it is a statement during the course of investigation, is also not acceptable.
49. Lastly, the argument of the learned counsel for the appellants was with regard to the defence of alibi taken by the accused in the court below. According to the learned counsel for the appellant, accused Nos.1, 2, 3 and 9 have taken the defence of alibi and in that regard they had examined the witnesses from D.W.1 to D.W.15. However, their evidence was not believed by the court below, as such non-acceptance of alibi with respect to accused Nos.1, 2 and 9 was an erroneous finding on the part of the Sessions Court.
50. D.W.1 has stated in his evidence that he carries on a business in chocolates by running a shop and accused No.1 was running an optical shop. On the date of the incident, the accused had been to D.W.1’s house at about 10.45 p.m. and left by 12.30 p.m. However, in his cross-examination, he could not give more details about the nature of business of the accused No.1 and the timing of his business. His examination-in- chief itself also shows that accused No.1 had not been to his house before 10.45 p.m. On the other hand, the case of the prosecution is that the incident has occurred at 9.10 p.m. Thus, there was a time gap of more than 1 hour 30 minutes between the accused No.1 present in the place of incident participating in the crime and said to have been found in the house of D.W.1. Further, D.W.1 has also not produced any material to show that he had the function of 48th day ceremony of his mother in his house on that day, as such the evidence of D.W.1 is not believable.
51. D.W.2 has also given the evidence to the same effect stating that he also runs a shop near to the shop of accused No.1 and that on the night of the incident the accused had gone to his house. The evidence of D.W.2 – Sirajuddin is also not acceptable for the reason that according to D.W.1 when accused No.1 is said to have visited his house on that day night, he was accompanied by Sirajuddin (D.W.2) and the said Sirajuddin, D.W.2 in his evidence no where stated that on the night he joined by the accused had been to the house of D.W.1. Thus the evidence of these witnesses contradicts to each other, as such not believable.
52. D.W.3 has stated that on the date of incident, the accused had not opened his shop. On the other hand, D.W.2 has stated that accused No.1 opened his shop on the said day and there is a discrepancy in the evidence of D.W.2 and D.W.3, as such the evidence of D.W.3 is also not believable.
53. The evidence of D.W.4 is that accused No.1 who was running his shop had not opened his shop one day, but he came to know that due to the death of some person in his area, he did not open the shop. The said evidence takes no where to conclude that accused was not at the place of incident on the alleged night.
54. D.W.5 has categorically stated that he did not know where accused No.1 was on the night of 25.2.2006 when K.P.Z. Hussain died. Thus the evidence of none of the witnesses from D.Ws.1 to 5 could able to establish that accused No.1 was not at the place of incident on the ill-fated night i.e. 25.2.2006 at about 9.10 p.m.
55. D.W.15 was examined to establish that accused No.2 was not at Bengaluru, but at a different place on the date of the alleged incident. The said D.W.15 claiming himself to be a medical practitioner has stated that he is working as a medical officer in a hospital called National Clinic at Bhatkal. In the year 2006, he was working as a Government doctor. After his resignation to the said post in August 2006, he started private practice. In the very same breath, he has also stated that from 24.2.2006 to 26.2.2006, accused No.2 visited his clinic and took treatment under him and that he referred him to Government Hospital, Bhatkal. The statement of the said doctor is contrary to each other. If he were to be in Government service in August 2006 and thereafter started private practice, then he cannot run a clinic as National Clinic in his name and treat the accused No.2 on 24.2.2006 which was nearly six months prior to his retirement and establishing the clinic. Secondly, in his evidence he says that his clinic is at Bhatkal, whereas the document at Ex.D2 shows that it has been issued in the name of primary health centre, Shirali. However, had he given a certificate after treating the injured in his National Clinic as a private practitioner why he should issue a medical certificate in the capacity of a Government Medical Officer of a primary health centre, that too at a different place called Shirali. Thirdly, the medical prescription said to have been issued by him and marked at Ex.P.3 apart from not bearing the signature of the doctor also shows that the said National Clinic is at Shirali, but not at Bhatkal. Admittedly, Shirali and Bhatkal are two different places with different pincodes. As could be seen in the very same Ex.P.3 which also bears a medical bill in the name of accused No.2 issued by Khazi Medicals at Bhatkal. Therefore, the evidence of D.W.2 is also totally unbelievable. Thus the defence of accused No.2 pleading alibi cannot be accepted.
56. With respect to accused No.9 to prove the alibi, he has examined D.Ws.10 to D.W.13. D.W.10 who is the elder sister of accused No.9 has stated that accused was visiting her house to give tuitions to her children, but in her cross-examination, she could not able to give any details about her place of residence and the place of residence of accused No.9. As such, her evidence is also not believable.
57. D.W.11 though has stated that he had been to the house of D.W.10 on the night of incident and that he was with accused No.9 playing Carom Board, is also not believable for the reason that according to D.W.11 the house of sister of accused No.9 i.e. D.W.10 was at Bommanahlli, whereas according to D.W.10 her house was at Jayanagar. As such, regarding the place of residence of D.W.10 there is no uniformity between D.Ws. 10 and 11, as such his evidence is also not trustworthy.
58. D.W.12 and D.W.13 have stated that one day in February 2006 accused No.9 had gone out to attend the obsequies ceremony of a person, but they were unable to tell the exact date and time whey they had been to the house of accused No.9. As such, in the absence of specific date and time, a mere general statement that accused was not found in his house on a particular day cannot be considered as accused was not in the place of incident on that night. Further, non-presence of accused No.9 in his house on that night does not mean that he was not present in the place of incident, which is a totally different place. Thus, the evidence of any of these witnesses could not able to establish the defence of alibi in favour of accused Nos.1, 2 and 9.
59. In a judgment relied upon by the learned HCGP in the case of Vijay Pal v. State ( Govt. of NCT) Delhi, 2015(4) SCC 749, the Hon’ble Apex Court has explained the concept of alibi as below;
” We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant, Illustration (a) given under the provision is worth reproducing in this context:
‘(a)The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.’
23. The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, he entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.”
The Hon’ble Apex Court was pleased to observe that when a plea of alibi is taken by the accused, the burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In that context, the Hon’ble Apex Court also relied upon a few paragraphs from Binay Kumar Singh v. State of Bihar 12 (1997) 1 SCC 283.
60. We must bear in mind the alibi is not an exception for establishing the plea of alibi. Following the said principle in the case on hand also as analysed above, the prosecution could able to satisfactorily established the presence of accused Nos.1, 2 and 9 along with other appellants herein at the scene of offence when the said offence was committed in prosecution of their common object. Therefore, the said accused Nos.1, 2, 9 who have taken the defence of alibi were required to establish their defence of alibi which could over come the evidence put forth by the prosecution and pursue the court to believe that the presence of that particular accused who has taken the defence of alibi, at the scene of offence was highly suspectable. In the instant case, as analysed above, though accused Nos.1, 2 and 9 examined the witnesses on their behalf from D.W.1 to D.W.15, but their evidence was proved to be not trustworthy and cannot be believed to the effect that the accused to whom they are referring to in their evidence could not be shown to have been at a different place at the time of commission of offence than what the prosecution had alleged and established. Therefore, the defence of alibi embraced by accused Nos.1, 2 and 9 has not been established satisfactorily, as such, the arguments of the learned counsel for the appellants that the court below did not appreciate the evidence of the defence side and did not consider the defence of alibi in a proper perspective is not acceptable.
61. Barring this, the accused have not taken any other specific defence that they have made suggestion to P.W.1, P.W.2 and P.W.9 in their cross-examinations that the deceased was assaulted by somebody else, which was the only general defence taken by them without any proof or support in that regard. As such, the defence taken by the accused is in no way can able to introduce any element of suspicion in the case of prosecution.
62. Regarding the motive behind the offence is concerned, it is the argument of the learned counsel for the appellants that the motive which is with respect to the passage between house of the deceased and Masjid is not a strong motive leading any one to commit the alleged offence.
63. On the other hand, learned High Court Government Pleader in his argument submitted that it is not in dispute that the accused are the members of the Masjid. There was a 4 feet passage. The Masjid Committee had blocked the air and light to the said passage and its Committee members were pressurising and threatening the deceased compelling him to quit the premises and also to pay them money. It is in this regard, the deceased had also filed couple of complaints before the police. As such, the appellants decided to take away the life of the deceased and the said motive is at any stretch of imagination cannot be considered as a weak motive in the commission of crime.
64. P.W.1 both in her complaint at the first instance and also in her evidence has stated about the existence of dispute between the Masjid Committee and her father with respect to a passage behind the house of the deceased. She has clearly stated that while the deceased was putting up the construction of the house, the accused had objected to the same stating that the space belongs to the Masjid. It is in that regard, his father had filed a case against them. The accused started troubling the deceased and forcing him to withdraw the complaint lodged by him. According to P.W.1, accused were threatening her father with dire consequences, if he does not withdraw the complaint lodged by him. P.W.1 has stated that the accused were members of the Committee of the said Masjid, they had put up construction without leaving any set back or space and obstructing free flow of light and air to the house of the deceased. At that time, the deceased had lodged a second complaint against them. On that occasion also, the accused more particularly, accused No.1 had threatened the deceased with dire consequences.
65. The same motive also has been attributed by P.W.2 and P.W.3 also in their evidence. P.W.3 has also stated with respect to the said dispute that the accused had frequently visiting their house during day and night and was threatening the deceased of finishing him in case if he failed to withdraw the complaint. Except making denial suggestions in the cross-examination of these three witnesses, nothing could be elicited in their cross- examinations to weaken the statement of P.Ws.1, 2 and 3 regarding the motive behind the crime. The oral evidence of P.Ws.1, 2 and 3 regarding the motive is also corroborated by Ex.P.23, Ex.P.24 and Ex.P.25 which are the complaints given by the deceased to the complainant/ police in the month of September and October 2005 against the Committee members of Noorani Masjid, which is to be adjacent to the house of the complaint/deceased. In those complaints, the deceased has specifically stated that he has been put to life threat by the Committee members of the said Masjid who are obstructing to put up illegal construction in the 4 feet wide passage adjacent to the house of the deceased. Therefore, the prosecution has been able to establish the motive behind the crime. Therefore, it has to be necessary held that the court below in no manner committed any error in pronouncing the verdict of conviction against the present appellants for the offence punishable under sections. 147, 148, 341, 427, 307, 302 read with Section 149 of the IPC.
66. With regard to the sentence part of the impugned judgment, even though the overt act alleged against some of the accused and no such serious overt acts has been alleged against few others, but the court below has considered the liability of each member of the unlawful assembly and they prosecuting the common object of their assembly in the commission of the proven offence, as such, the uniform sentence has been imposed upon all the appellants/accused for a particular offence proven against them. The minimum imprisonment for the offence punishable under Section 302 being the life imprisonment, the court below has imposed the said minimum sentence with sentence to pay fine. Even though the maximum sentence that can be imposed to an offence punishable under section 307 of the IPC, is imprisonment for life which may extend to 10 years and fine, the Sessions Court has imposed a simple imprisonment for a period of 7 years and a fine of Rs.5,000/- each to the appellants/accused. The rest of the proven offences have also been sentenced with a reasonable sentence, as such, the sentence imposed by the Sessions Court for all the appellants/accused herein with respect to the offences for which they were found guilty are in no way be considered as excess and it is in proportion compared to the offences proved.
67. In the circumstances, we do not find any reason to interfere with the judgment of conviction and quantum of sentence imposed by the Sessions Court.
68. Accordingly, we pass the following;
ORDER The appeal is dismissed. The judgment of conviction dated 30.3.2012 and order of sentence dated 2.4.2012 imposed by the Fast Track Sessions Court XVIII, Bangalore City, in S.C.No.719/2006, S.C.No.511/2006, S.C.No.902/2007 and S.C.No.961/2006, are confirmed.
Sd/-
JUDGE Sd/-
JUDGE ykl/MSU
