(Prayer: This Crl.Appeal is filed under Section 377 CR.P.C praying to modify the order of sentence Dated 09.04.2012 passed by the P.O., F.T.C., Bhadravathi in S.C.No.185/2011 and impose appropriate and adequate sentence against the respondent for the Offence P/U/S 307 of IPC. The Respondent/Accused is sentenced to undergo R.I. for 2 years and to pay a fine of Rs.500/-, in default to pay the fine, he shall undergo S.I. for 3 months, for the offence P/U/S 307 of IPC and the SPP prays that the above order of conviction may be enhanced suitably.
This Crl.Appeal is filed under Section 378 CR.P.C. praying to set aside the judgment in S.C.No.185/2011 passed by the Presiding Officer, Fast Track Court, Bhadravathi Dated 9/12.04.2012 convicting the Appellant/Accused for the Offence P/U/S 307 of IPC and the Appellant /Accused is sentenced to undergo R.I. for two years and to pay fine of Rs.500/- in default of payment of fine amount to undergo simple imprisonment for three months.)
R.B. Budihal, J.
1. Since these two appeals are against the same Judgment and Order passed by the Trial Court and since both the appeals are connected, they were taken together to dispose of them by this common Judgment.
2. Crl.A.998/2012 is preferred by the State and the connected appeal No.521/2012 is preferred by the appellant - accused. In the appeal preferred by the State, sentence aspect has been challenged stating that it is totally inadequate and in the connected appeal, the accused has challenged the conviction of the appellant.
3. Brief facts of the prosecution case before the Trial Court are as follows:
Complaint came to be filed by PW-1 as per Ex.P1 wherein he has stated that he is staying in the address as mentioned in the complaint and he is the Vice President of the Sadat Mosque. The appellant - accused wanted to give talaq to his wife and he made a request to assist him in getting the talaq and to marry with another girl. For that the complainant informed that after consulting the Committee Members of the Mosque and the elders, they can take a decision. He informed the accused person like that about five years back. Complainant was thinking that the accused person was having children. Therefore they wanted to avoid the giving of talaq and unite the wife and children with the accused. Therefore whenever the accused was asking the complainant, the complainant postponed it stating that it will be done. On 10.10.2010 at 1.30 p.m. when the complainant went to the Mosque for the purpose of Namaz and wanted to wash his limbs he went to the said place. When he was washing the upper and lower limbs, the accused person came from behind all of a sudden and stating that a number of times he requested the complainant to get talaq for him but same was not done and giving false opinions the complainant is postponing the same, assaulted the complainant on the neck portion with an intention to commit his murder. The complainant pushed himself towards a side. By that time, the persons who came to perform namaz namely, Peer Mohammed, Obedulla and others came there and the accused person ran away from the place by holding the machchu in his hand. Thereafter one Rahath Hasan the Member of the Municipality and one Sharfuddin Khan the relative of the complainant shifted him to the Government hospital at Bhadravathi for treatment. Therefore he requested to take action against the accused who made an attempt to commit the murder of the complainant.
4. On the basis of the said complaint, FIR came to be registered in Crime No.308/2010 for the offence punishable under S.307 of IPC. After completing the investigation, charge-sheet came to be filed by the I.O. for the offence punishable under S.307 of IPC.
5. After hearing both sides, the learned Sessions Judge framed the charge against the appellant - accused for the said offence and when it was read over to the appellant - accused he denied the charge and claimed that he may be tried.
6. To prove its case, the prosecution examined in all twelve witnesses and got marked nine documents with sub-markings and four material objects. On the side of the defence no witness was examined nor got any document marked. After hearing the arguments of both sides and considering the materials placed before it both oral and documentary the learned Sessions Judge held that the prosecution proved the case against the appellant - accused herein for the offence under S.307 of IPC and convicted him for the said offence. After hearing on the sentence, the learned Sessions Judge sentenced the appellant - accused to undergo Rigorous Imprisonment for two years and to pay fine of Rs.500/- and in default of payment of fine amount, to further undergo Simple Imprisonment for three months. Therefore there are two cross appeals against the same Judgment. The appellants in the respective appeals challenge the legality and correctness of the order of the Trial Court on the grounds as mentioned in the respective appeal memorandums.
7. Heard Sri Vijayakumar Majage, the learned Additional State Public Prosecutor on behalf of the State, so also Sri Nataraja Ballal, the learned counsel appearing for the respondent - accused in the first appeal and also the arguments in respect of the second connected appeal preferred by the accused person.
8. Learned ASPP during the course of arguments submitted that though the learned Sessions Judge held that prosecution was able to prove its case beyond all reasonable doubts for the offence under S.307 IPC but while imposing the sentence the learned Sessions Judge showed leniency to the appellant - accused and imposed only two years' Rigourous Imprisonment with fine of Rs.500/-. He made the submission that looking to the prosecution material placed before the Trial Court that the accused person came to the said place holding the machchu in his hand and he assaulted the complainant with machchu on the neck portion and other parts of the body and caused the injuries thereby made an attempt to commit the murder of the complainant, the intention of the accused person is very clear that he wanted to commit the murder of the complainant. Hence, learned SPP made the submission that the sentence imposed by the Court below is totally inadequate and it is not proportionate to the alleged offence and the seriousness of the offence. He drew our attention to the entire materials i.e. the charge and the deposition of the witnesses, mahzars and referring to the same and also wound certificate of the complainant, PW-7 - doctor's evidence, he made the submission that all these materials sufficiently establish the ill-will of the accused person, the intention on the part of the accused in making an attempt to commit the murder of the complainant. Hence it is his contention that the appeal preferred by the State be allowed and sentence imposed by the Trial Court to be enhanced reasonably. It is also his submission that so far as the appeal preferred by the accused is concerned there is no merit in the said appeal. The Trial Court rightly appreciated the entire material both oral and documentary and rightly came to the conclusion in convicting the accused person. Hence he submitted to dismiss the appeal preferred by the accused.
9. Learned counsel appearing for the accused in the connected appeal during the course of his arguments made the submission that the charge leveled against the accused person was not established with cogent and satisfactory material against the accused. Learned counsel made the submission that the panch witness PW-8 for the seizure of the machchu turned hostile and he has not supported the case of the prosecution for the said seizure mahazar. Hence he submitted that the very seizure of the machchu MO-1 is not at all established by the prosecution with cogent material. It is also the further submission made by the learned counsel for the accused that though the contention of the prosecution is that the accused person made an attempt to assault the complainant with the object MO-1 the same was not referred to Forensic Science Lab to ascertain whether there were any blood stain marks on MO-1 and whether the blood stains if found, were of human blood. Hence learned counsel submitted that unless and until these things are done, it cannot be said that MO-1 has been used as alleged by the prosecution. Learned counsel further made the submission that as per the complaint averments the motive attributed by the prosecution against the accused person is, that he made a request for getting talaq from his wife and thereby facilitate him to have another marriage. As the accused is a Mohammedan by religion, he is permitted to marry four wives and in that view of the matter, there was no necessity for the accused person to make such a request with the complainant for getting help in giving talaq to his wife. Hence he submitted that the motive itself is not established by the prosecution with satisfactory evidence.
10. Learned counsel also drew the attention of this Court to the wound certificate and also the evidence of doctor PW-7 and submitted that the injuries sustained are simple in nature. Therefore when injuries are simple in nature there cannot be an offence under S.307 of IPC. Hence on that ground also learned counsel made the submission that these aspects of the matter were not at all properly considered and appreciated by the Court below. Hence the Judgment and Order of conviction passed by the Court below suffers from serious legal infirmities. Learned counsel submitted that the Judgment and Order of conviction passed by the Court below is not sustainable in law. Therefore the appeal may be allowed and the Judgment and Order of conviction passed against the accused for the offence under S.307 of IPC be set aside.
11. We have perused the grounds in the appeal memorandum in both the appeals, the Judgment and Order of conviction dated the 9th day of April, 2012 passed by the Fast Tract Court at Bhadravati in S.C. No.185/2011 and also perused the oral evidence of prosecution witnesses PWs 1 to 12, documents Exs.P1 to P9. We have also considered the oral submissions made by the learned counsel on both sides at the Bar.
12. Let us examine the evidence adduced in the case before the Trial Court. Complainant has been examined as PW-1. He has deposed in his oral evidence that in the Sadat Colony he was serving as a Vice President in the Sadat Mosque since three years. He knows the accused person. There was a quarrel between the accused and his wife and they were separated. The accused made a request before the Mosque Committee for getting talaq. But as the Committee people were told that the accused is having one male and one female child, they advised him to adjust with his wife and children and not to move for talaq. Two to three days thereafter the accused person met the complainant and again made a request that he should be given talaq as he wanted to marry another lady. Complainant opposed for the same. He further deposed that on 10.10.2010 on Sunday, he went to the Mosque at 1.30 p.m. to offer his prayer. Before offering the prayer when he was involved in washing his upper and lower limbs, the accused person appeared all of a sudden and questioning the complainant whether he will assist him in getting the talaq or not assaulted the complainant on the right side of the head with a machchu and also on the hind portion of the head with machchu. When the complainant made an attempt to escape from the place he sustained injuries to his three fingers. At that time, his cap, jubba and towel were blood stained. Complainant also fell down and at that time the accused person made an attempt even to assault other persons and thereafter he ran away from that place. In the said place one Peer Sab, Elias, Rahath Hasan, Mukbul and other four to five persons were present and those persons shifted the complainant to the Government Hospital at Bhadravati in an auto and later shifted to Mcgann Hospital, Shivamogga according to the complainant if he had not been admitted to Mc.gann hospital he would have died. He also deposed that he has given the complaint as per Ex.P1. He identified the chopper as MO-1, his cap as MO-2 and jubba as MO-3 and towel as MO-4. In the cross-examination, he denied the suggestion that accused was not having the knowledge that complainant is the Vice President of the Mosque. According to the custom in the Muslim religion it is not necessary to get talaq from the first wife for the other marriage. If they receive any application same will be placed before the Committee and the decision will be taken. He admitted that the Vice President alone will not take the decision. He denied the suggestion that accused never approached the complainant and never insisted him for the said work. The Committee has not received any application from the wife of the accused. He denied the suggestion that he is giving false evidence as having not assisted the accused person for getting talaq to the accused on account of enmity he assaulted the complainant. The accused assaulted the Committee people also but they have not reported the same. He does not know the father of the accused as a School Teacher. He denied the further suggestion that he is giving false evidence that accused came from behind at 1.30 p.m. and assaulted him. The Mosque is having three doors and there is one door to the compound wall of the said Mosque. As per his knowledge about twenty to thirty persons are going there for offering the prayer. He denied the suggestion that at 1.30 p.m. when he was washing his upper and lower limbs nobody was present at the said place. He denied the suggestion that accused has not assaulted him with the machchu. He denied the further suggestion that the persons whom the complainant named in the complaint were not at all present there. He also denied the suggestion that at the place where one has to wash limbs the said place will not be visible at the place where namaz is going to be performed. He denied the suggestion that he is giving false evidence that accused came there and assaulted him with machchu and he denied the further suggestion that the Mosque people themselves brought a machchu to the Mosque and gave it to the police. He denied the suggestion as the police are well acquainted to the complainant a false case is filed against the accused person. The complainant has stated about what are the allegations made in the complaint and in the cross-examination suggestions were made that neither the accused has come to the said place nor has he assaulted the complainant with machchu which suggestions were denied by PW-1 and nothing has been elicited from the mouth of PW-1 to show that he is giving a false evidence before the Court.
13. The other witness examined on the side of the prosecution who claimed to be the eye witness to the incident PW-5 - Sharfuddin Khan. Perused his evidence and examination-in-chief. He also deposed that on 10.10.2010 at 1.20 p.m. he went to Sadat Mosque to offer his prayer and before the prayer he was performing vazu (cleaning the upper and lower limbs). He was performing vazu on the left side and at a little distance the complainant was also washing his limbs. He heard the sound and when he turned around, he saw the accused person holding the machchu and assaulting the complainant on the neck, head and hand fingers. Then the accused person ran away. Then PW-5 along with others shifted the complainant to the Meena Nursing Home and then to Government hospital at Bhadravati and thereafter he was shifted to Mcgann Hospital at Shivamogga. He has also deposed about the Mahazar Ex.P4 and identified his signature as P4(a). He deposed that he put his signature in the Police Station. To that extent this witness is considered as hostile and at the request of the learned State Public Prosecutor and when S.P.P. cross examined he further deposed that on 10.10.2010 in the presence of himself and Mohammed Athik the Police seized one machchu in the Police Station and they conducted mahazar in between 4 to 4.30 P.M. In the cross examination learned counsel for the accused he denied the suggestion that on 10.10.2010 he was not at all present at Bhadravathi and he has gone to some other place in connection with his elder brother's financial transaction. He denied further suggestion that he is falsely deposing that on 10.10.2010 at 1.30 p.m. the accused person came and he has assaulted the complainant with machchu and he has seen the same. He denied further suggestion that he is falsely deposing that accused person ran away from the said place.
14. Another witness P.W.6, one Maqbul Alam who also said to be the eye-witness of prosecution in his examination in chief he has deposed that he knows complainant and accused of this case and on 10.10.2010 he went to Sadat Mosque to offer his prayer at about 1.30. P.M. and before offering prayer he was doing vazu i.e. washing lower limbs. There was katte to perform vazu and other persons were also present there. The complainant of this case was also present there and performing vazu sitting in 8th row and he heard some sound and when turned back the accused was assaulting the complainant on his neck and head and when complainant brought his hands to prevent the same the complainant sustained injuries to his fingers. P.W.6 and others shifted the injured to the Government Hospital, Bhadravathi. In the cross examination he denied the suggestion the he has not gone to offer Namaz because of that reason he does not know that in the namaz 4 Inam namaz will be performed. He does not know how many types of namaz were performed. He further denies the suggestions that he has given false evidence that he went to the Mosque and also given false evidence that the accused person assaulted the complainant. He denies the suggestion that accused has not at all assaulted complainant and he is deposing falsely.
15. We have also perused the evidence of P.W.7. the Dr. Umesh Upadyaya. M wherein he has stated that he has worked in the Government Hospital at Bhadravati as Specialist doctor since last 5 years on 10.10.2010 at about 1.50 p.m., one Mujamill Khan came to Hospital for treatment with the history of assault at Sadath Colony by Mujahid. i.e. accused herein in his cross examination the patient he notes three injuries at 2 and 3 which are mentioned in detail in his examination in chief. He further deposed that after giving first aid he referred the patient to Mc.Gann Hospital, Shivamogga. He was admitted on 10.10.2010 and discharged on 11.10.2010. In his opinion the above mentioned injures are simple in nature. He issued wound certificate as per Ex.P.5 and his signature is Ex.P.5(a). He has seen M.O.1-chopper. If a person is assaulted with chopper, the injuries mentioned above can occur. In the cross examination he deposed that it is true that in scuffle if a person is pushed by another person and if the said person falls on any sharp edged material, first injury can occur. It is true, if a person falls in some gutter, injury Nos.2 and 3 can occur. He has mentioned about the history as per the statement given by the patient. He denies the suggestion that injures were not fresh in nature and further denies the suggestion that purposely the person accompanying the injured has got written these injuries. He denies suggestion that he has not examined the injured and patient is not taken treatment in Mc.Gann Hospital. He denied the suggestion that he is giving false evidence to support the complainant.
16. The Investigating Officer PW-11 in his examination in chief has deposed in detail about the investigation he has done in the case and in the cross- examination he denies the suggestion that he has given the false evidence stating that on 10.10.2010, as per the information received from the Government Hospital he went to the Hospital and recorded the statement of the complainant. He admits that he mentioned in the HMR that the incident took place in Sadat colony and denies the suggestion that the incident took place near the Mosque. He denies the suggestion that he has not recorded the statement of Ubedulla and other witnesses. He denies further suggestion that even though Peer Moideen was not present he has referred and written his name as Moulana. He denies further suggestion that on the date the incident took place Moulana was not in the Mosque. He denies further suggestion that he did not visit the scene of occurrence, he has not conducted mahazar, he has not forwarded blood stained objects to FSL, Davanagere. He denies the suggestion that police have created that the incident took place in the mosque. He denies further suggestion that he did not send any staff person to arrest accused person. He denies that the accused person was not arrested by the staff and produced before him. He denies the suggestion that accused person was taken from his house. He denies suggestion that he has not seized machchu from the accused person nor he has conducted any mahazar. He denies further suggestion that the accused was not connected to the alleged incident. He has not made any attempt to know from the expert with regard to the finger impression of the accused on the machchu but witnesses deposed that he has recorded voluntary statement of the accused. He denies suggestion that there is no connection of the accused with the machchu.
17. We have also perused the deposition of other witnesses. Looking to the oral evidence of P.W.1 and appreciating the oral evidence and contents in Ex.P.1 there is consistency in the oral evidence of P.W.1 about the averments made in Ex.P.1. complaint of the prosecution such incident has taken place in the mosque and the accused assaulted the complainant is also spoken to by independent witnesses P.W.5 and P.W.6. They have consistently deposed about the said incident and assault made by the accused person on the complainant.
18. So far as the contention of the learned counsel for the accused herein that motive is not established by the prosecution and there was no motive for the accused to make request/ to the complainant to help him getting talaq from his wife as he wanted to marry another girl. We have referred to Section 8 of Indian Evidence Act which deals with the motive aspect. When the case of the prosecution totally rests on the circumstantial evidence, motive becomes totally relevant in the case on hand. Complainant, P.W.5 and P.W.6 are direct witnesses to the incident. Therefore, for what motive or purpose the accused persons has assaulted the complainant is totally immaterial, when the prosecution, with the material has proved the fact that there was an assault made on the complainant that too with specific intention to commit murder of the complainant. Even with regard to the injuries said to have been sustained, it is the argument of the learned counsel for the accused person that the injuries are simple in nature. The offence of attempting to commit murder not depends upon the injuries whether they are simple or grievous in nature. What are the main criteria and the guiding factor to consider the alleged offence under section 307 of I.P.C. is the intension of the accused person. When accused is making an attempt with a deadly weapon aiming at vital parts of the human body, the person at other end he may escape the blow. Therefore there is no requirement that there should be injuries also. The intention is guiding factor in appreciating the material. In this case he came to the said place with machchu and looking to the place he has made attempt to cause injuries to vital parts and other parts of the body, these aspects put together and appreciated the cumulative effect, intention to cause death of the complainant is apparent. Therefore only on the basis that injuries sustained are simple in nature as deposed by doctor P.W.7 so also in the injury certificate it cannot be said that there is no offence under section 307 of Indian Penal Code the intention is very clear that he wanted to eliminate the complainant.
19. It is also contended by the learned counsel appearing for the accused person that machchu which is said to have been used was not at all sent to Forensic Laboratory for examination and to submit the report. It is no doubt true, the investigation Officer P.W.11 clearly admitted in his cross examination that he has not sent MO.1 to FSL at Davanagere. These contentions are observed that when there are eye-witnesses to the incident, even if the incriminating material is not sent for FSL for examination it will not come in the way of the prosecution's case and it is not fatal to the case of the prosecution because direct witnesses the injured himself and another independent witness P.W.6 also consistently deposed about the assault made by the accused on the complainant with the said machchu. When such acceptable evidence is placed before the Court, we are of the opinion that even if the incriminating material is not sent to FSL examination it is not fatal to the prosecution's case and even otherwise evidence of witnesses on the prosecution side is acceptable and it is worth believable.
20. Apart from that we have also made observation that when the investigating officer seized machchu, no doubt he was suppose to send the same to FSL examination to ascertain whether there was any blood stains and if the blood stain is there, then about blood grouping which he has not done in this case and to that extent it is defective investigation. If the court opined that investigation is defective, whether such defective investigation leads the Court to give benefit of acquittal to the accused or if there are some other materials it is upon that court to consider and pass order. In this connection, We refer to the decision of the Apex Court reported in AIR 2001 SC 142 and relevant paragraph is para 9 in the case of State of Uttar Pradesh vs. Harimohan & others
"9. Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating Officer appears to have left no stone unturned to help the accused-respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P.Tiwari (P.W.7) was even noticed by the trial Court. On 30th October, 1978 while recording his statement, the trial Court observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that respondent No.1 was possessed of a licensed gun which was stated to have been used by him on 15-03-1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the P.W.1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against the IO at this stage who, in all probabilities, must have retired by now."
Para No.11 of the said decision is relevant and which reads as under:
11. While dealing with circumstances 1 to 5, the trial Court relied upon the testimony of P.W.3 and held:
"Accused Hari Mohan is the elder brother of accused Shyam Mohan. Their father was not alive at the time of the alleged murder. As such Hari Mohan was to discharge the duties and obligations of the head of the family. Somehow, the matter of dowry had taken an evil turn and since there is evidence that Smt. Roop Devi was not pulling with his mother-in-law and there was constant conflict and dispute, every possibility borders on certainty that Hari Mohan took the law into his hands and committed this murder callously and brutally."
21. In the said reported decision though investigating Officer has seized the gun but it was not sent to ballistic expert to ascertain whether there is discharge of bullets through barrel of the said gun or not. Therefore, it is held that not such defect and failure of investigation and even otherwise when the case is made out against the accused person, the benefit will not be given to the accused person for his acquittal. Therefore, even looking to principles enunciated in the said decision the contention of the learned counsel for the accused that the machchu not sent for FSL examination, only on that ground when all other materials clearly establishes the case of the prosecuti
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on that benefit will not be given to the accused person for his acquittal. Perusing the judgment and order of conviction passed by the court below, the learned Sessions judge has taken all these aspects into consideration and considering both oral and documentary evidence placed on record and ultimately comes to the conclusion that prosecution has proved its case beyond all reasonable doubt. 22. Looking to the materials placed on record we are of the opinion that, there is no illegality, perversity or capricious view taken by the learned Sessions judge who comes to the conclusion and such conclusion is based on valid and justifiable grounds. Therefore, we hereby dismiss the appeal preferred by the accused in Criminal Appeal No.521/2012. 23. Crl.A.998/2012 is preferred by the State seeking enhancement of sentence imposed by the learned Sessions Judge. 24. At this stage we have heard the learned counsel appearing for the accused and also learned Additional S.P.P on the quantum of sentence. 25. Learned counsel for the accused made the submission that the accused has to lead the life with his wife and he has also made the submission that lenient view may be taken while imposing the sentence. He made further submission that looking to the order of the sentence passed by the learned Session Judge, he has taken into consideration all these aspects of the matter and rightly imposed sentence of rigorous imprisonment for two years and fine of Rs.500/- Hence he submitted that the sentence imposed by the learned Sessions Judge is proportionate and is reasonable. 26. Per contra, learned Additional S.P.P made his submission that the materials establish the fact that complainant was assaulted on the neck portion with the deadly weapon and it was with an intention to commit his murder but somehow he survived. Hence, looking to the nature and seriousness of the offence, sentence imposed by the Court below is inadequate and it is not proportionate to the said offence. Hence, he made the submission that matter requires consideration for enhancement of the sentence imposed by the Court below. 27. We have perused the materials placed on record and also considering the nature and gravity of the offence and material evidence placed in the said case by the prosecution and place of injuries i.e. on the vital part of the body, neck portion and also on the other parts of the body, We are of the opinion that the sentence imposed by the learned Sessions Judge is inadequate and it is not proportionate to the seriousness of the alleged offences and which is proved by the prosecution. Hence accused is sentenced to three years' R.I. from two years rigorous imprisonment and fine of Rs.25,000/- in place of Rs.500/-. In case of default to pay the fine amount, the accused has to further undergo simple imprisonment for one more year. If the fine amount is realised, out of the fine amount Rs.20,000/- is to be paid to P.W.1, the complainant by way of compensation as per Section 357 of Cr.P.C. and remaining Rs.5,000/-is to be remitted to the State. Therefore, we hereby allow the appeal preferred by the State in Crl. Appeal No.998/2012.