Karnataka High Court
State Of Karnataka vs Shivanand S/O. Muniyappa Patroti on 1 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2512 of 2013
Between:
State of Karnataka,
Represented by Circle Police Inspector,
Bagalkot Rural Circle. ... Appellant
(By Shri V. M. Banakar, Additional State Public Prosecutor)
And
1. Shivanand son of Muniyappa Patroti,
Age: 34 Years,
2. Anand son of Muniyappa Patroti,
Age: 30 Years,
Both are resident of Benakatti,
Taluk and district: Bagalkot. ... Respondents
(By Shri B.V.Somapur,
Shri C.B.Shakunavalli and
Shri Nandini B. Somapur, Advocates)
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This Criminal Appeal is filed under Section 378(1) & (3)
Of the Code of Criminal Procedure seeking to grant leave to
appeal against the judgment and order of acquittal dated
27.07.2012 passed by the Sessions Judge, Bagalkot, in
S.C.No.96 of 2010 and set aside the judgment and order of
acquittal by allowing this appeal and convict and sentence the
respondents/accused for the offences punishable under Sections
323, 324, 504 & 302 of the Indian Penal Code.
This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned Additional State Public Prosecutor and the learned counsel for the respondents.
2. The appeal is preferred against the acquittal of the accused for the offences punishable under Sections 323, 324, 504 and 302 read with Section 34 of the Indian Penal Code, 1860(hereinafter referred to as the 'IPC' for brevity). The facts as stated by the prosecution are as follows:
3. The complainant was stated to be residing along with his father Gopal, mother-Shantavva, elder brother :3: Hanamant and elder sister-Lagamavva in Benakatti Village.
There was a vacant site beside their house which stood in the name of Hanamant and next to the vacant space, the accused had their house. It transpires that there was a claim lodged over the vacant land by accused Nos.1 and 2. There were said to be constant quarrels between the parties on account of this and a civil dispute was raised before a Court of law and the same was pending. Following the animosity, the accused were said to be in the habit of throwing garbage on the open site, allowing drainage water to flow on to the open site and in respect of this there were said to be frequent quarrels. On one such occasion, namely, on 16.07.2010 at about 7.00 p.m. when the father of the complainant-Gopal saw that again garbage was being dumped by the accused on the open space, he had raised a protest and asked accusedNo.1 as to why he was throwing garbage in the area, at which, accused No.1 is said to have attacked and had physically kicked him and threw him down on the ground. As a result of which, Gopal's head is said to have struck against a stone at which the accused No.2 had joined accused No.1 and :4: had kicked Gopal on his mouth and face and it is further alleged that accused No.1 also assaulted him further with a stone. As a result of these injuries and attack, Gopal is said to have fallen unconscious. The complainant and his sister-Lagamavva are said to have rushed to the rescue of Gopal and at which accused Nos.1 and 2 are said to have abused them in foul language. Since other persons intervened they had stopped any further mishap. Gopal was said to have been rushed to the Government hospital, Bagalkot in an ambulance. The doctors who treated him were not able to diagnose his condition, as the hospital did not possess a CT Scan facility. He was referred to a larger hospital and it appears that he was shifted to Dr. Duggani Hospital- a private hospital, where he was said to have been under treatment for a month. Since there was no progress noticed, he was then shifted to the District Hospital Bagalkot. It transpires that even in the District Hospital, Bagalkot, he did not fully recover. He was then shifted to Vivekananda Hospital, Hubli for Neurological treatment. But still, though he regained conscious, it transpires that the was not able to speak :5: and did not recover physical movement and later he was referred to SDM hospital, Dharwad and then again was shifted to Dr. Duggani hospital where he is ultimately, said to have died, 54 days after the incident. It is in this background that a case which was initially registered for offences including under Section 307 of IPC, on his death, Section 302 of IPC was also invoked and the accused stood trial. At the trial, the accused pleaded not guilty and claimed to be tried. At which the prosecution had tendered the evidence of 19 witnesses and marked several exhibits and material objects. The Court below had framed the following points for consideration:
1. Whether the prosecution proves that deceased Gopalappa died homicidal death?
2. Whether the prosecution proves beyond reasonable doubt that on 16.07.2010 at about 7.00 p.m. in front of the house of complainant on public road situated at Benakatti village within the limits of complainant police station, the accused No.1 and 2 with common intention picked up quarrel with deceased Gopal and accused No.2 kicked and assaulted him with hands causing simple injuries and thereby committed offence punishable u/s 323 read with 34 of the Indian Penal Code?:6:
3. Whether the prosecution further proves beyond reasonable doubt that the accused on the above said date, time and place with common intention picked up quarrel with deceased Gopal and accused No.1 assaulted him with stone on his neck causing simple injuries and thereby committed offence punishable under Section 324 r/w 34 of the Indian Penal Code?
4. Whether the prosecution further proves beyond reasonable doubt that the accused on the above said date, time and place with common intention picked up quarrel with deceased Gopal and abused him in filthy language so as to insult him and such insult may likely to cause him to break public peace or to commit any other offence and committed offence punishable under Section 504 read with 34 of the Indian Penal Code?
5. Whether the prosecution further proves beyond reasonable doubt that the accused on the above said date, time and place picked up quarrel with deceased Gopal and with an intention to commit his murder accused No.1 lifted him and by making his head down smashed on the stone erected on the ground and also assaulted with stone on his neck and caused grievous head injuries. Due to the said injuries deceased Gopal died on 07.09.2010 at about 6.00 a.m. while taking treatment at Dr. Suresh Duggani Hospital, Hubli and thereby the accused committed the murder of deceased Gopal and committed offence punishable under Section 302 read with 34 of the Indian Penal Code?
6. What order?:7:
The trial court has held the same in the negative and has acquitted the accused. It is that which is under challenge in the present appeal.
4. The learned Additional State Public Prosecutor while taking this Court through the record would point out that the court below has failed to appreciate the evidence in its right perspective. There were eyewitnesses to the incident namely PW-1 and PWs.6 to 8 who have all categorically narrated the manner in which the incident is said to have occurred and the manner in which the deceased was assaulted whereby his head had struck against a stone as a result of which he had suffered hemorrhage to the brain and has ultimately resulted in his death. This having been seconded by several medical opinions as to the injury caused by such a fall and at the instance of the accused, Gopal having suffered the injury and ultimately having died, the Court below, has yet acquitted the accused which has resulted in a miscarriage of justice. In this regard, it is pointed out that the Court below has laid emphasis on the evidence of PW-19-a Neuro Surgeon whereas there were medical opinions :8: namely of PWs.11-13 and 18, who had treated the deceased and who had categorically opined that the death was on account of an internal injury suffered and the Court below having chosen to accept the minority opinion of PW-19, has resulted in a miscarriage of justice. Therefore, the learned Additional State Public Prosecutor takes this Court in great detail to the testimony of PWs.1,4 and 6 to 8 whose evidence has been trashed by the Court below on the footing that they are interested witnesses. The learned Additional State Public Prosecutor would point out that they were the only witnesses and the fact that they were related to the deceased would not make any difference and it would be unfair to characterise them as interested witnesses and negate their evidence. The seriousness of the matter has been diluted by such an approach and therefore, he would seek that the judgment of the Court below be set aside and the accused be convicted appropriately.
5. The Learned counsel for the accused, on the other hand, would seek to justify the judgment and he would submit that it is wrong on the part of the learned Additional State :9: Public Prosecutor to contend that there is a "majority" medical opinion and a "minority" medical opinion. On the other hand, the opinion of all the medical practitioners is also ambivalent that it is difficult to discern whether death was on account of any internal injury or on account of any other cause as it is quite possible that it was a coincidence that deceased had suffered a paralytic stroke and had ultimately died. There is no nexus between the alleged injury and the death that might have been caused. In this regard, he would seek to point out from the evidence of the very medical practitioner, whose opinion is characterized as a majority opinion that there is no categorical opinion as to the injury being caused in the manner as alleged and the same having resulted in the death of Gopal. The alleged injury and the cause of death are too remote and cannot be attributed to the accused. It is in this fashion, the learned counsel seeks to justify the judgment of the Court below.
6. On an examination of the record, it is evident that the complainant was examined as PW-1. However, there is total inconsistency as regards the presence of all the accused in : 10 : the manner as stated by PWs.4 and 6 to 8 vis-a-vis the evidence of the complainant himself. The complainant has spoken only about the presence of accused No.1 and none else. Whereas it is sought to be improved upon by PWs-4, 6 and 7. PW-8, as well, has also spoken only about the presence of accused No.1. Therefore, the allegation of, all the accused having attacked deceased Gopal and having caused injuries is not borne out by any material evidence. On the other hand, the only injury found was a small cut on the lip of the deceased and a contusion. There were no external injuries. It is also noticed that the medical opinion is consistent insofar as suggesting that in order to cause the severe internal injury, the head of the deceased has been struck against a hard surface with much force and it could have resulted in a fracture to the skull. In the absence of any such indication, even to assume that there was an internal injury which would have manifested itself by way of a contusion on the skull at least for sometime before it would disappear since the deceased was under treatment for long period of 54 days for such an injury, which was namely internal but which had been : 11 : caused to the head of the deceased being struck against a stone would have left some traces of such injury being caused external as well which was not forthcoming and from the medical records, the deceased having examined by more than one doctor in the first few days of his treatment. Therefore, the inconsistency in the very manner, the incident is alleged to have taken place. When the complainant's evidence is inconsistent with the evidence of other witnesses, who have sought to implicate the other accused, even though they were not present, has rightly prompted the Court below to negate their evidence as not being true and faithful. Apart from this, insofar as the nature of injury that Gopal had suffered and whether it might have been the cause for his death would require a closer examination of the medical opinion of several doctors who have examined and treated the deceased.
7. The first medical practitioner who has examined and provided first aid treatment to the deceased was PW-13 Dr. Suvarnalata Pattanshetti, Medical Officer, District Hopsital, Bagalkot. According to this medical practitioner, Gopal was : 12 : said to be semi conscious and was responding to pain stimulation. He was not responding to other commands. He had a small abrasion over the left side of his upper lip. Except that there was no other external injury. She suspected head injury and as there was no CT scan facility in the hospital, she had referred the patient to a better hospital at about 11.00 p.m. on 16.07.2010. He had been brought to the next hospital at about 9.20 p.m. on the same day. He was then admitted in the Kerudi Hospital, Bagalkot and a General Surgeon, Dr. Narayan- PW-11, had stated that Gopal had been brought to the hospital at about 11.20 p.m. on 16.07.2010 after being referred from the Government Hospital, Bagalkot. Gopal continued to be unconscious and the Doctor had noticed that there was weakness on the right side of the whole body. There was contusion on the occipital region and abrasion below the lip and on chin was also noticed. He was subjected to CT Scan and on the basis of the CT scan, a 3x2.4 cm acute hemorrhage adjacent tiny hemorrhagic foci in capsuloganglionic region and left thalamus with surrounding vasogenic edema exhibiting mild : 13 : mass effect was said to have been found and therefore he was continued to be treated and since he was not showing any improvement, he was referred to Vivekanand Hospital, Hubli for Neurological treatment. He was said to have been admitted to Vivekanand Hospital on 01.08.2010 and it was opined by Dr. Sanjeev Kalasur-PW-12 who was the visiting doctor of that hospital, on examining Gopal that he had right side Hemiplegia and motoraphasia. CT scan of the brain being again repeated which showed sub acute infarct in the left ganglia capsular region and carona radiate causing mild appeasement of left lateral ventricle. The patient was said to be conscious but not speaking. He was responding to verbal commands. He was said to be under treatment up to 12.08.2010. He was discharged on 12.08.2010. The status of the patient was stable and improvement was minimal. He was advised medicines and physiotherapy. Since he was not showing improvement, Gopal is said to be admitted to SDM Medical College and Hospital, Dharwad and Dr. B.B. Jayashankar-PW-18, Professor of Medicine, who treated Gopal has stated that Gopal was under : 14 :
treatment for 13 days from 01.08.2010 to 13.08.2010. He confirmed the observations made earlier as referred to above and that he was paralysed on the right side of the face and he was asphasic i.e. he was not able to talk. It was opined that, It was due to blockage of blood vessels in brain. It transpires that another Neurosurgeon Dr. Satish of the same hospital was consulted and he also confirmed the observations made by this witness and he has further opined that because of the old age and hypertension, hemiplegia could occur. Thereafter, he has been admitted in another private hospital namely Shivakrupa Hospital, Hubli and he was under treatment of Neurosurgeon Dr. Suresh Dugani-PW-19. He has opined that the condition of the patient could be caused due to assault on the head. It could also be caused if head comes in contact with hard substance like stone and that the patient died ultimately on 07.09.2010 as a result of heart attack and that there was no connection between the injury sustained by the patient and the heart attack and that the patient had died on account of heart attack. Autopsy was conducted by PW-9 Dr. Shivananad Talewad. It is found that : 15 : there were no external injuries and on dissection, the following injuries were noticed:
1. Skull, vertebra, membrane were intact and congested.
2. Brain Oedematous, cut section of brain shows areas of cavitation and necrosis of the left basal ganglia region.
3. The thorax, abdomen and genetio urinary organs intact.
Stomach empty.
Injuries were noticed to be ante mortem in nature and the time of death could not be assessed and he has further opined that death was due to respiratory failure as a result of internal cerebral hemorrhage. The Court has, thereafter, posed several questions, which are answered as follows:
Qus: Whether internal cerebral hemorrhage can be caused if a person comes in contact with stone on his head? Ans: Possible provided there must be contributing external or internal injuries.
If a person falls on a stone or thrown on a stone if his head touches stone the injuries stated in P.M. report cannot be caused. Brain oedematous may happen due to injury or also by natural.
Qus: Brain oedematous whether it could be caused by head coming in contact with stone?
Ans: Not possible.: 16 :
Qus: by what brain oedematous can be caused? Ans: in case of accidents, if there is fracture of skull, then brain oedematous can be caused.
There was no fracture of skull of deceased but there was brain oedematous. Brain oedematous may also can be caused due to hipertensive changes.
Qus: Intra cerebral hemorrhage can be caused if particular portion of head comes in contact with hard substance like stone.
Ans: Not in usual course.
In case of history of fall from height it can be caused. Now I see Ex.P-5 and it is issued by me and it bears my signature and it is marked as Ex.P-5(a).
and in cross-examination it is pointed out that Cerebral Hemorrhage can be caused due to old age hypertension and other diseases. And that particularly M.O.1 which was the stone on which the deceased said to be struck his head was not a plain stone and if using M.O.1, the following statement in cross-examination is significant:
"M.O-1 is not a plain stone. If by using M.O-1 one is pounded or assaulted on head with force or little force there will be external injuries. There were no external injuries on the head of deceased.": 17 :
8. Therefore, in the light of the opinion expressed by several Medical Practitioners and specialists, in the absence of any external injury and the stone against which the head apparently would have been struck with much force resulting in internal injuries would also cause external injuries. It is mysterious that the deceased Gopal did not show any signs of any external injuries, this would certainly place the case of the prosecution in serious doubt and the further fact that there was inconsistency as to the manner in which the incident is unfolded as stated by the complainant himself and supported by the evidence of PWs.6 to 8, the other witnesses having given a different version and if the other witnesses are also eye witnesses, this leads to serious inconsistency which cannot be reconciled and therefore, the Court below having acquitted the accused cannot be faulted. The deceased Gopal was 65 and it was apparently a coincidence that he had died. There was no injury caused on account of accused having attacked him, as there are serious doubts, and hence it could only be written off : 18 : as a co-incidence that he had ultimately died of cardiac arrest and not directly on account of any injury.
Hence, the appeal lacks merit and is dismissed.
Sd/-
JUDGE Sd/-
JUDGE kmv