Karnataka High Court
State By Talakadu Police Station vs P Nagesha on 16 June, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
1. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 167"" DAY OF JUNE 2010 PRESENT: THE HONBLE MR. JUS'l'lCE K.L.MANJUNAfmf AND THE HONBLE MR. JUSTICE K.N.KEsEmvANARAYA§:Ae».'_'"j CRIMINAL APPEAL No.92 OF 2003 ' BETWEEN: State by Talakadu Police Station. .' ; [By Sri. B. Raja Subi"a:v;ia.nya AND: 1. P. 'l_\lagesha" Late" Putta Madish, Aged 40 years..'f, ~ Driver of Shab1il.ingé'shwara. Bus bearihg N;-:). 1"1JIEY 6636, , Residing at VDodda.nayakara Street, a,aa..I§03'€'gEi_L' . .«.T.,._. Mahadeva, /0.' N'-ari'm'adaiah @ Kemmannu, A -..Ager.~i~ years, Coolie and Cleaner by Profession, E T Hiriyur Village, ' Narasipura Taluk. . . Respondents
{By M / s. P.Nataraju & Associates, Advocates] 6/ This Criminal Appeal is filed under Section of the Code of Criminal Procedure, praying this Court to 'grant leave to file an Appeal against the Judgemezitjiiated 7/9/2002 passed by the I Additional Sessions; Mysore in S.C. No. 44/ 1997 -- ,ACq"t:iittil'Vl'gi_"' Respondents/Accused for the offence pu_n.isl1ab1e'Linder__V Sections 364 and 302 r/W section~344 of .lPC," ig " "
This Criminal Appeal co:rn"ingi..'_Aoti'1: for day, Manjunath, J., delivered the"followin,g:*¥-ix'. J U D1\I__:_f_}j_' V A A The State hasvconiei challenging the legality and and order of acquittal Sessions Judge, W 97 for the offences " hei1'euEr'ider:. _ punishable 1v1Vfu1=:ieI€4lt";":§-f."'(3'i.ii:t51'i. 120-13 and 302 of IPC. 'case'-oflsthe prosecution in brief is as if 625.)'.-i'i.i996, deceased Basavaraju as a passenge-tf'w'as traveliing in a private bus by name "Sri ..Shanibnlingeshwara" bearing registration No.l\/IEY 6636 '"?}:?:»J»:!=t-\5~)a.a3.s.i 1*"
"llfrorn -'-Farmi--N~ad-1:1 to his native village Mavinahaili. "Accused No.1 was its driver and accused No.2 was the (ex/' common intention abducted the said Basavaraju in the said Bus without.' allowing him to alight from the bus Mavinahalii Village with an intention' to commit his murder, and Whether A:.1j---- and A-2 have committed an "offence. punishable under Sec_tion__364-'.read'_fWith"' Section 34 ofI.P.C.? ' 3 '1 A
2. Whether prosecution fui-*th'er proves "that": "
on the aforesaid.-_,'Vdate, tirn_e~and_ A-1 and A-2 with intention to'co1nmit the murder of" .B.as»avaraju~... while returning ' --..__"'fror7r1 3. . Heinniige Village intentiona11yV_caus,ed»' grivevous hurt to him by assa1,.1It1ng._h1n1' 'Withj,hands and 1:icking_hi;i:I1 hi_s~.chest":«t)y legs and there3by_whether they ha'Ve"committed an ::'otfence"3'..pun:sh'abIe "under Section 302 read with sectiron' 34 of 1.P.C.'? 2 «of the oral and documentary evidence dulaetiyiiiii parties, the learned Sessions pointWNos. 1 and 2 in the negative and the'-:*'accused of the aforesaid offences. Being d " it appeai is filed.
aggrieVedA«:"'"hy the said order of acquittal, the present <°*/
7. We have heard the Government Pleader for the State and Sri.P.Nataraj, learned counsel appear_i'ng'-for the respondents.
8. Though several grou}r1ds'_:A4are"_ learned Government Plead.er4_in the appealnremo, 'é§.t"the* up time of arguments he canvasse_d the Vfolllowlngilpoints for the consideration of According to PW.2 has not been PW.2 is an eye with Basavaraju and resid'ent-- of When PW.2 has deposed that he" assaulting Basavaraju with handv and ac'cus_e_d,No.2 manhandling Basavaraju and '.3 '£61 6/, (L ' ~ persons not allowing Basavaraju to alight Xe}-;»c'>'t§3 "'"
d' from at Mavinahalli village and taking him to should have Hern.n1:;ge village, learned Judge . V appreciated the evidence of PW.2 in £5 proper $,/ perspective and ought to have held the accused persons 5"' ' guilty for the homicidal death of the said Basavaraju. But on the contrary, the iearned Judge reliance on the medical evidence, has death of deceased Basavaraju was due 'to cardiac' a_rre's_t it and not on account of assault by t'he':accu_s'ed_ Therefore, he requests this~v,:Court.Vto__ re;a'ppi=eciate the"? entire evidence on record and*to reverse the findings of the trial Court and toconvict_.'.tl1e..V'accused for the aforesaid offenc.e}s:--.
c:ont1*a';' .__Vth"e.._._1earned counsel for the respondents contendésr -under:
That'_hthVexVappije'ciation of the evidence by the trial Cvotirt "an_d__pproper. The evidence of PW.2 has ' rejected by the trial Court. According to .'11.ir£i, deposed that there were 50 to 60 passengers in lous and he was also standing along with "if ,Ba's«avaraju when Basavaraju fell on the driver, when he i Hiapplied break suddenly and that the driver assaulted K':/' 8 Basavaraju by hand and accused No.2 manhandled 6/ Basavaraju. Such an evidence cannot be beligd by any court. According to the learned counsel;'~fo1=_g'the respondent, it is not the case of the prosecution"'tlfiadtlizi order to assault Basavaraju, accused the vehicle. He further could not be by the side'~v._:of_yptheV" dri'Ver"v_:sVin:ce"' 5jO-60'"t passengers were trave.l.1ing,Ain Q-sfiicrrnally, the cleaner of the bus would 'h--o_u.V"t1f_1e foot~board of the front or; sid'efido.orl'Therefore, when 50 to 60 pzassengers y{{ere_:'travellirig'Vin the bus 'the accused persons coul'dVg.n.dot'"haVe=" assaulted Basavaraju. He further contends' thatvif such an incident would have Atako11:,,,'p1atep_, either"éPW.2 or the other passengers would W accused Nos.1 and 2 from assaulting B'asaV_ara_fiu.d He further submitted that the defence of nthe accused is that on account of cardiac problem '"."Basavaraju could not get down in Mavinahalli Village "and after returning from fiemmige Village he got down Ya//.
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with the support of others, which is also supported by the medical evidence. According to the Doctor, no external injuries were found on the body of the.«dec_'eased and that the death was on account of cardiac to non--supp1y of blood to the:~iari:eries'_,' he requested the court to dismiss the '~ , a, V'
10. Having heard Vti1.e""'v!earned. £019 the"
parties, the only pointthat"feqi_iires.to considered by this Court is, ' whethertheic,:5der__.§i'--é1g:¢iu_ittai requires to be interfered with?' 'A '~ the records, learned Governrnent P1_eader'fairly"concedes that as per the post mortern report' no injuries were found on the dead body arid itmhas also come on record that no external injuries 'were the body of the deceased. It is also not in dispu.-_i:e' that Basavaraju was a cardiac patient and his he deathyvas due to cardiac arrest as a result of coronary V. artery occlusion. Even if the evidence 6/"
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of PW.2 is accepted for the sake of argument, he has not deposed in the evidence that how accused ._ No.1 assaulted the deceased when he was driving the vehicle which was carrying 50 to 60 passengers andiheéy not stated that how accused.~No.2 the deceased. If really such an overt and 2 were to be there, no passengers' vvoullddailovv the" V driver and cleaner ofxthe'..bus',_jto""assault"a passenger.
Normal conduct of be not to assault a passengeif if passjengeif' falls on him on accouriltllvof by the driver. There was uoccasiori',_lf0r"th'e«.driver to assault the deceased as , there vvas'n'o enrnity between the deceased and passages VN,os.1 2. Further it is the case of the after the deceased was taken from Mavinalialli village to Hernmige village he was assaulted nby accused Nos} and 2. If such assault were to be there, inter alia atleast contusions, abrasions would "have been noticed on the body of the deceased. In view fig/.
.1 .1 of the conclusive medical evidence to the effect that no bodily injuries were found on the dead body and as no other witness have supported the Case_4v»dof_:'f*-.the prosecution to prove assault on the accused persons, we are of the....o_pinion'Vtiiaavt 'theV.Vtriai'V Court is justified in acquitting:"the:._'_Aaccu--sed' appreciating the eVidencVe--.,:;1et_p inffhy vt1{11e.: p:ro'secution;'f' Therefore, the order.' of does'-.not§ call for interference.
Sdfs EUDGE Sd/-= EUDGE V' RS/*