Karnataka High Court
Ravi S/O Ram Bolake vs The State Of Karnataka on 1 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL No.3634/2011
BETWEEN:
1. RAVI S/O RAM BOLAKE
AGE: 25 YEARS OCC: AGRICULTURE
R/O: VILLAGE LOKHANGAON
TQ: BHALKI
2. ROHIDAS S/O RAM BOLAKE
AGE: 22 YEARS OCC: AGRICULTURE
R/O: VILLAGE LAKHANGAON
TQ: BHALKI. ...APPELLANTS
(BY SRI.ANILKUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH POLICEs BHALKI RURAL
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
GULBARGA. ...RESPONDENT
(BY SRI.MALLIKARJUN SAHUKAR, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C., PRAYING TO ALLOW THIS
MEMORANDUM OF CRIMINAL APPEAL AND BE
PLEASED TO SET-ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED:
30.07.2011 PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT-II BIDAR, NOW SITTING AT BHALKI IN
S.C.NO.76 OF 2008 AND ACQUIT THE APPELLANTS/
ACCUSED OF ALL THE CHARGES TO WHICH THEY
WERE TRIED.
THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, K.N.PHANEENDRA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred by the appellants who are the accused Nos.1 and 2 before the trial Court challenging the judgment of conviction and sentence passed by the Presiding Officer, Fast Track Court-II, Bidar sitting at Bhalki in S.C.No.76/2008.
3
2. The trial Court has convicted the accused persons for the offences punishable under Sections 324, 504 and 302 of Indian Penal Code, sentencing the accused persons to undergo imprisonment for life and to pay fine of Rs.5,000/- so far as offence punishable under Section 302 is concerned and both of them were convicted and sentenced for the offence punishable under Section 324 of Indian Penal Code for the period of three months and also for the period of one month for the offence punishable under Section 504 of Indian Penal Code.
3. Before adverting to the grounds, we would like to have the factual matrix of the case. The prosecution in order to prove the guilty of the accused persons examined as many as 13 witnesses PW.1 to PW.13 and got marked 11 documents Exs.P.1 to 11 and marked MOs.No.1 and 2. The accused persons were also called upon to enter into defence after their examination under Section 313 of Criminal Procedure Code. The accused persons except 4 denying the case of the prosecution did not choose to lead any evidence on their part. After considering the over all oral and documentary evidence on record, the trial Court has passed the impugned judgment of conviction and sentenced the accused persons accordingly.
4. In this background the factual matrix of the case of the prosecution play a dominant role. The case of the prosecution in brief is that:- On 14.03.2008 there was some labour work taking place near Ambedkar Bhavan at Lakhangaon village. At 06.30 p.m. the children of accused No.1 were playing near the said Ambedkar Bhavan. They have in fact scattering the sand on the spot. At that time the deceased-Uttam came there and abused the said children, which appears to have enraged the accused persons.
5. In this background on 15.03.2008 at 12.00 p.m. the deceased and others, when doing the labour work, the accused persons came to that spot with clubs in 5 their hands. They abused the complainant and deceased with filthy language and assaulted the deceased-Uttam and CW.1. CW.1 is none-other-than the brother of the deceased. In this context, it is alleged that, the accused No.1 has assaulted on the head and neck of the deceased and accused No.2 assaulted PW.1 (CW.1) and caused injuries to them. Later the deceased was shifted to Hospital, but he succumbed to the grievous injuries after three days i.e., on 17.03.2008. After the death of the deceased, it appears, the case has been registered against the accused persons for the offence punishable under Section 302 of Indian Penal Code, though earlier in the First Information Report as per Ex.P.5 the case was registered for the offences punishable under Sections 324 and 504 of Indian Penal Code.
6. The learned counsel for the appellants strenuously contended before the Court that, all the eyewitnesses in one or the other way related or interested 6 witnesses they say that, there was a case and counter case between the two groups and there was quarrel between the two groups. Therefore, in that melee between the parties the incident had happened. There was no intention on the part of the accused persons to take away the life of anybody. The learned counsel for the appellants at the initial stage of his arguments contended that, the accused persons not at all committed any offences. But in view of the factual aspects that there was a case and counter case and cases have been registered against the two groups. The learned counsel for the appellants confined his arguments so far as sentence of punishment is concerned. He contended that, at any rate the offence under Section 302 has not been made out by the prosecution, at the most it may fall under Section 304 (II) of Indian Penal Code. The learned counsel for the appellants submits that, without prejudice to his claim with regard to the claiming acquittal of the accused, he requested to consider his above said submissions with 7 regard to the proportionality of the punishment imposed by the trial Court.
7. The learned counsel for the appellants also drawn our attention that, in the evidence of the Doctor nothing has been stated in detail with regard to the injuries sustained by the deceased compared to evidence of the eyewitnesses. He further submits that, the evidence of Doctor is very feeble to draw any inference that, the injuries on the deceased were fatal in nature.
8. Per contra the learned High Court Government Pleader supported the case of the prosecution and submitted that, the accused persons had been to the spot fully prepared with weapons like clubs with an intention to commit an offence against the deceased and his brother. The nature of the injuries caused to the vital part of the deceased clearly discloses the intention of the accused persons. Therefore, considering all the above said facts and circumstances of the case, the trial Court has 8 rightly came to a correct conclusion and sentenced the accused persons accordingly. Therefore, there is no room for interference with the judgment of conviction and sentence passed by the trial Court.
9. Having heard the arguments of the learned counsels as noted above, the points that would arise for our consideration are;
1. Whether the prosecution has proved beyond reasonable doubt that, the accused Nos.1 and 2 have committed the offence punishable under Section 302 of Indian Penal Code with an intention to take away the life of the deceased?
2. Whether the trial Court has committed any serious legal error in sentencing the accused persons for the offence punishable under Section 302 of Indian Penal Code?
9
10. In order to appreciate the above said two points, it is just and necessary to re-evaluate the material evidence on record.
11. There is no dispute whatsoever that, there are eyewitnesses to the incident. PW.1 Bharath is the brother of the deceased and eyewitness. He categorically stated about, as to when and how the incident has happened and he has also deposed about the incident that had happened on the previous day i.e., on 14.03.2008. He also stated the fact that, on previous day the deceased has abused the children of the accused No.1 who were scattering the sand near Ambedkar Bhavan in their village.
12. In this context, he further deposed that, the accused Nos.1 and 2 have got enraged, and for taking revenge against the deceased and his brother, on the next day, that was on the day of the incident, the accused persons came to the spot with weapons like clubs. The 10 accused No.1 assaulted the deceased-Uttam with stick on his head and on the neck. In this context, PW.1 went to rescue the deceased and pacify the quarrel, in that context, the accused No.2 assaulted him with a stick on his head and neck. Due to the said impact of blows the deceased-Uttam lost his conscious and the complainant also sustained bleeding injuries to his head. At that time other eyewitnesses PW.3 Keshav cousin of the deceased, PW.4 Smt.Sunita wife of deceased and PW.5 Hussain one of the relative of the deceased and others came to the spot and resolved the quarrel.
13. Thereafter, himself and deceased both of them went to Bhalki Police Station and lodged a complaint as per Ex.P.1. Subsequently, the deceased-Uttam was taken to Government Hospital Bhalki for treatment, but looking to the condition of the said person, the Bhalki Hospital Authorities referred the deceased to Bidar Government Hospital. Thereafter, the deceased was shifted to 11 Hyderabad at Gandhi Hospital for treatment. But he did not respond to the treatment and died on 17.03.2008 due to the injuries sustained by him. This particular evidence of PW.1 is fully corroborated from the evidence of PWs.3, 4 and 5. Though they are in one or the other way relatives of the deceased, but during the course of the cross- examination nothing worth is elicited that, why they have to falsely implicate the accused persons in the case and what is the real reasons to screen the real culprits.
14. As we have already narrated with regard to the submission made by the learned counsel for the appellants that, there was quarrel between the two groups and consequent registration of a case and counter case. There is a suggestion in the cross-examination that, there was quarrel between two groups. It is suggested that, there was quarrel between complainant and accused Nos.1 and 2 in respect of tying the cattles. So, this suggestion clearly goes to show that, the accused persons 12 never made any efforts either before this Court or before the trial Court to totally deny the incident. Therefore, the incident happened between the two groups, that is between PWs.1 to 5 on one side and accused Nos.1 and 2 and others on the other side, is not disputed. But no evidence had been led by accused to explain the genesis of the case as to what exactly happed on that particular day. So far as this aspect is concerned, we have carefully examined the cross-examination of these witnesses. Nothing has been elicited as to how the incident happened and who assaulted the deceased and with regard to the registration of a counter case and investigation of the said case etc., The said facts have not been specifically brought out in the cross-examination of these witnesses, except making bald suggestions. Though lengthy cross- examination is adverted to so far as these eyewitnesses are concerned, nothing worth is elicited so as to totally disbelieve the incident.
13
15. In this background it is worth to refer Para No.5 of the cross-examination of PW.1. It is suggested that, his brother Keshev and Hussain stopped the accused on that day of the incident. It is further suggested that, the complainant, his brother and others restrained the accused persons for enquiring about the previous day's incident, and the complainant and his brother themselves started assaulting the accused as soon as the accused reached the spot. There was no exchange of words between the accused persons and deceased on the spot. It is also stated that, the incident has taken place between the two groups. It is also suggested that, the accused Nos.1 and 2 assaulted the complainant and his brother. With all such denied suggestions, PW.1 consistently reiterated the incident that, the accused persons started assaulting the deceased and they in fact assaulted on the head of the deceased and PW.1, and also on the other parts of their body. Therefore, it is clearly indicates that, in the cross-examination accused persons admitted their 14 presence as well as presence of PW.1 and his brother and other eyewitnesses. The eyewitnesses have also spoken in the cross-examination that, they prevented the accused persons from enquiring with PW.1 and his brother with regard to previous incident. Therefore, there is no need to much to discuss this aspect is concerned, as all the eyewitnesses have been cross examined with similar suggestions, but denied by them.
16. In view of the above said positive evidence by the eyewitnesses it is crystal clear that, the deceased sustained injuries in the hands of the accused persons. PW.1 also sustained injuries in the hands of the accused No.2. There is no dispute with regard to the happening of previous incident. However, this Court has secured the records pertaining to S.C.No.138/2008. Though factual matrix of the case is that, particulars of the entire incident have not been brought in the cross-examination of witnesses. But fact remains that, case has been registered 15 against PW.1 and deceased in S.C.No.138/2008, wherein PW.1 was acquitted in the said case vide order dated 27.01.2012. We can rely upon this judgment only for the purpose of considering the happening of incident on that a particular day, however what exactly happened narrated in S.C.No.138/2008 cannot be taken into consideration by this Court, but what is the evidence placed before the Court in this case (S.C.No.76/2008) has to be considered. Therefore, facts remain that, there was incident happened and deceased and PW.1 had suffered injuries due to the incident and deceased died after three days. Therefore, in view of the above said facts and circumstances, considering the evidence of the eye witnesses and also the evidence of the Doctor, it can be safely said that, prosecution has proved the case against the accused, particularly with regard to commission of the offence in causing injuries to the deceased and PW.1. Therefore, we do not find any strong reasons to deviate from the judgment of the trial Court in convicting the accused 16 persons for the offences. But Court has to see, whether the prosecution has made out the case under Section 302 of Indian Penal Code also and sentence passed by the trial Court for the offence punishable under Section 302 of Indian Penal Code can be safely confirmed.
17. The learned counsel in this regard took us through the evidence of Dr.B.Sriramlu-PW.12. The Doctor who conducted the P.M.E. on the dead body of the deceased has specifically stated that, when the deceased was brought to the Hospital his head portion was already bandaged and deceased had undergone head operation prior to his death. It is also admitted that, the deceased suffered two grievous injuries out of four. As mentioned in the PME report and in the evidence of Doctor the injuries No.1 to 4 are, enumerated as noted below:-
(1) Semi circular surgical sutured wound present over right fronto prietal temparal region of the Head measured 29 cm with 20 suitcheres, 17 (2) Craniotomi done with 5 burrholes (10 cm x 6 cm) on Right side of head and evacution of EDH (Extra Dura Heamotomo) done, (3) Subdural Heamotomo present on Right (FTP) side of brain and (4) Contusion under Scalp in Right Frantal temparal, Parietal region of head.
18. Though Doctor has mentioned four injuries, but he has admitted during the course of cross- examination that, the injuries No.1 and 2 are caused during the course of operation. Therefore, the third injury sub-dural heamotomo present on right side of the brain was the main cause for the death of the deceased. The Doctor admitted that, the injury No.4 is not dangerous to the life. Nevertheless, it can be safely come to the conclusion that, those cumulative injuries No.3 and 4 must be the reason for the death of the deceased. The Doctor also stated that, if a person assaulted with a stick 18 with sufficient force on the head portion, then the injured may sustain the multiple fracture. Therefore, Court can gather what force must have been used by the accused No.1 to cause these injuries, whether that is sufficient to gather the real intention of the accused in committing murder of a person.
19. Looking to the circumstances, the incident had happened between two groups who were gathered on the place of incident, though facts are not brought in the cross-examination, but one can imagine something might have happened between the two groups. However, Court can't rely upon the materials in the counter case if they are not brought on record as evidence in this case. Therefore, the Court has to gather the intention of the accused persons on the basis of weapons they have used and under what circumstances blows given with what force and depth of the injuries and how many blows given in order to take away the life of the deceased-Uttam. 19
20. In this background it is worth to refer a decision of the Hon'ble Apex Court reported in (2014) SCC 316 in the case of Sompal Singh and another /vs/ State of Uttar Pradesh, wherein the Hon'ble Apex Court has observed that, "Common object of unlawful assembly was to attack deceased physically, considering common object of assembly it was not possible to draw an inference that, there was no intention to murder deceased or cause him such bodily injury as was sufficient in ordinary course of nature to cause death, force applied inflicting injury was such that, if it did not make deceased even unconscious and he remained alive for three days prior to his death, victim was in physical and mental condition to dictate an FIR of incident, and therefore it was not a case where conviction of any accused could be affirmed under Section 302/149 IPC, rather it was a case for conviction under Section 304 Part-I IPC simpliciter".
20
21. The said factual aspects and the principle laid down by the Hon'ble Apex Court, if applied to this particular case, it is evident from the evidence of PW.1 that, immediately after sustaining the injuries by the deceased he did not gone unconscious. Both of them gone to Bhalki Police Station and lodged a complaint and then gone to Bhalki Government Hospital for treatment. Thereafter they were referred to Bidar Government Hospital, and thereafter they were referred to Hyderabad Gandhi Hospital. Thereafter, due to the nature of the injuries, the deceased died after three days. It is sufficient to note that, there may not be real intention on the part of the accused Nos.1 and 2 to cause the death of the deceased. They may not be knowing that, the said act may cause the death of a person. Therefore, intention has to be considered by the Court, to ascertain as to whether the accused have committed any offence punishable under Sections 302 or 304 Part-II of the Indian Penal Code. 21
22. In this background it is worth to refer a ruling of the Hon'ble Apex Court reported in 1997 SCC (Crl) 408 in the case of Balaur Singh /vs/ State of Punjab. It is observed by the Hon'ble Apex Court that, "where there was a clash between rival groups resulting in death of one person. Both groups arraigned as accused in respective cross-cases. The sole injury on deceased's head caused by appellant D by a gandasa.
Lower Courts convicting D under section 302 of Indian Penal Code. Accused in both the groups convicted and sentenced according to the individual injuries respectively cross- inflicted on each other. The view of the courts below with regard to free fight and accountability of the appellants other than D to the individual injuries respectively inflicted by them on their rivals was sound and must be uphled. But with regard to D, he could not be convicted for an offence under Section 302 of the Indian Penal Code. In a free fight there is movement of the body of the victim and the assailant and the dimension and sites of the 22 injury, cannot be said to be calculated or targeted by the assailant. It was a single blow and not repeated. Further, the deceased in the present case died only after six days after the assault due to other complications".
23. Therefore, taking into consideration the nature of the case and how the incident had taken place, nature of blow given by the accused persons, injuries sustained by the deceased and as well as he succumbed to injuries after three days of the incident, in our opinion this case also will not fall under Section 302 of Indian Penal Code, so far as accused No.1 is concerned. At the most it falls under Section 304 Part-II of Indian Penal Code. So, far as accused No.2 is concerned, none of the witnesses have stated that, he assaulted the deceased, but he was simply standing at that particular point of time at that place. He did not made attempt to assault PW.1 at the first instance. It is only according to PW.1 that, when the accused No.1 assaulted the deceased, PW.1 went to rescue the deceased, at that time only, perhaps with an intention to 23 prevent PW.1 from rescuing the deceased, the accused No.2 has assaulted PW.1. Though the accused persons came with clubs to a particular spot, which shows that, they planned with a common intention to do some offence, but that should not be understood that they came with an intention of causing the death of the deceased. Their clear intention was to commit some offence. Therefore, we are of the opinion that, the accused No.2 also gone to the particular spot with an intention to support the accused No.1 to do some offence against PW.1 as well as the deceased. Therefore, we are of the opinion that, accused No.2 is also liable to be punished for the offence punishable under Section 304 Part-II of the Indian Penal Code. So for as accused No.2 is concerned he has also assaulted PW.1 and caused injuries to PW.1. In view of the facts and circumstances, we are of the opinion that, so far as offences punishable under Sections 324 and 504 of the Indian Penal Code need not to be disturbed. However, conviction of sentence for the offence punishable under 24 Section 302 of Indian Penal Code required to be modified. Accordingly, sentence is also to be modified to that extent. Hence, the following;
ORDER The appeal is partly allowed.
The judgment of conviction passed by the Presiding Officer F.T.C-II Bidar (Sitting at Bhalki), so far as offences punishable under Sections 324 and 504 of Indian Penal Code are not disturbed.
The accused persons are acquitted for the offence punishable under Section 302 of Indian Penal Code. However, they are convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code.
Considering facts and circumstances of the case and commission of the offence, and the overt act of the accused No.1, he is sentenced to undergo imprisonment 25 for a period of 10 years. However, the accused No.2 is already undergone imprisonment for the period of 07 years, even considering from the date of judgment he has been in judicial custody. We are of the opinion that, the period already undergone by the accused No.2 shall be treated as sentence against him. He shall be released forthwith, if he is not required in any other cases.
The fine amount imposed by the trial Court, if deposited by the accused, it is to be returned to the accused.
Sd/-
JUDGE Sd/-
JUDGE KJJ