Karnataka High Court
State Of Karnataka By The Police ... vs R. Raju S/O Late Mahadevanaika, ... on 15 September, 2006
Equivalent citations: 2007CRILJ920, 2007(1)KARLJ189, 2007 CRI. L. J. 920, 2007 (1) AIR KAR R 178, (2007) 1 KANT LJ 189, (2007) 2 CRIMES 203, (2007) 2 ALLCRILR 107
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT
1. The State is in appeal questioning the legality of the judgment and order of acquittal passed by the learned Sessions Judge, Mysore, acquitting the respondents herein of the offence punishable under Sections 341 and 302 read with Section 34 of the IPC.
2. The case of the prosecution in brief is as under:
One Jawarapa the deceased was residing along with his wife Lalithamma (PW4) and daughter Rekha (PW5) at Muneshwaranagara, Mysore, and his house was amidst a number of houses together called as vatara and the houses of one Gowramma, accused Raju and Ravi were also situated in the same premises and on 10.2.1996 at about 8 p.m. when Jawarappa returned home, he heard some verbal quarrel going on in the house of one Mahadevi in connection with some loan transaction and Jawarappa went up the stairs and pacified the quarrel by advising the parties to come after Mahadevi's husband returns home. After this incident, around 9.20 p.m. Mahadevi's husband came there and again a quarrel took place in the house of Mahadevi and once again Jawarappa went to settle the quarrel. After this incident, Jawarappa told the quarrelling parties to talk to Maniamma (A2 wife of A1) when Maniamma returns home. This advice given by Jawarappa upset the accused Raju and he questioned Jawarappa as to why he told the quarrelling parties to call Maniamma and following this, Jawarappa was assaulted by A1, A2 as well as A3 and they pushed Jawarappa down the staircase and A2 squeezed the testicles of Jawarappa. After this incident, Jawarappa came to his house and then decided to go to the police station to lodge the complaint against the accused persons and at about 11p.m. when Jawarappa went out of the house through the back door of the house of Gowramma and when he was followed by his wife (PW4) and daughter (PW5), the accused persons restrained Jawarappa and questioned him for deciding to go to the police station to lodge complaint against them and thereafter, the accused Maniamma caught hold of the tuft of Jawarappa and pulled it and this was followed by accused Raju kicking on the testicles of Jawarappa and again the accused Ravi assaulted on the chest of Jawarappa with hands. Unable to bear the pain, Jawarappa fell down and by the time PW4 and 5 went near him, Jawarappa had died at the spot. A complaint to the above effect was given by Lalithamma PW4 and it was lodged on 11/12.2.1996 at 00.30 hours and a case was registered in Cr.No. 38/96 against the accused persons.
3. PW17 Satyanarayana the PSI received the complaint given orally by PW4 and reduced the same into writing as per Ex.P-5 and thereafter, the Circle Inspector took over the investigation. PW19 Ismail Sheriff after taking over the investigation held the spot panchnama as per Ex.P-3 and the inquest was conducted as per Ex.P-4. The clothes of the deceased were seized and after the arrest of the accused, their voluntary statements were recorded. Sketch map of the scene of offence was also obtained through PWD Engineer as per Ex.P-17. The postmortem examination was conducted by PW18 and as the doctor was not very sure of the cause of death, the viscera was sent for chemical examination and subsequently, the final opinion was given by the doctor based on circumstantial evidence furnished by the I.O. and the doctor opined that the cause of death was due to vagal inhibition consequent to non-demonstrable blunt injury to the trigger zone of the body in the form of fisting and kicking. Ex.P-16 is the P.M. report given by the said doctor. On completion of the investigation, the charge sheet was submitted.
4. The prosecution in order to bring home the guilt of the accused examined PWs. 1 to 19 and documents Exs.P-1 to P-21 got marked. MOs. 1 to 4 are the material objects produced and on behalf of the defence Ex.D-1 was marked. When questioned under Section 313 of Cr.P.C, the accused took a stand of total denial. They led no evidence in their defence.
5. The trial judge after appreciating the evidence on record came to the conclusion that the prosecution had failed to establish the basic ingredients of the offence of murder inasmuch as the death of Jawarappa was not proved to be one coming under the category of homicidal death. As the prosecution had failed to establish homicidal death of Jawarappa, the trial court held that the offence under Section 302 of the IPC was not made out and so also the offence under Section 341 of the IPC. Apart from this, the trial court also found several defects in the evidence of the material witnesses PWs.4 and 5 and as their testimony contains several improvements, the trial court did not accept their testimony as reliable. Thus, the order of acquittal was passed.
6. Aggrieved by the order of acquittal, the State has preferred this appeal and we have heard the arguments advanced by the learned Counsel Sri. Nawaz for State and learned Counsel Sri. Rameshchandra for the respondents and with their assistance, we have carefully examined the entire material on record as well as the reasoning given by the trial court for the acquittal of the accused.
7. Learned Government Pleader submitted that the entire case of the prosecution rests on the testimony of PWs.4 and 5 in so far as proving the assault committed by the accused persons on the deceased and their evidence is supported by the medical evidence of PW18 and the postmortem report Ex.P-16. Though there are some contradictions and inconsistencies in the testimony of the material witnesses, in so far as the core of the prosecution case is concerned, there is ring of truth in what the material witnesses have deposed before the court. As such, the appreciation of evidence by the trial court is incorrect and contrary to the well established principles of law governing this aspect of the matter.
8. Hence, the learned Government Pleader submitted that the order of acquittal passed by the trial court requires to be interfered with by this Court in this appeal and the accused are liable to be convicted.
9. On the other hand learned Counsel Sri. Rameshchandra for respondents at the outset submitted that the prosecution has failed to prove that Jawarappa died a homicidal death. The evidence of the doctor examined as PW18 coupled with P.M. report Ex.P-16 itself go to establish the fact that the accused persons are not responsible for the death of Jawarappa. Even assuming for argument sake that accused No. 1 did give a kick on the testicles of the deceased. Yet, it cannot be inferred from that act alone that the accused had the intention to cause the death of Jawarappa or for that matter, the knowledge that the said act would led to death of Jawarappa. Referring to the sketch map Ex.P-17 and the evidence on record, it was submitted that Jawarappa fell down on a heap of stones and therefore, if the death had taken place on account of "vagal inhibition", the accused cannot be held responsible for the death having been caused on account of the above factor. Referring to the medical evidence, it was submitted by the learned Counsel that in the instant case, the doctor admits that autopsy is negative and as such, even the doctor himself was not able to arrive at the decision for the cause of death and only after concurring with I.O., taking into consideration overall circumstances, the doctor gave a final opinion. In this connection, our attention was also drawn to the opinion of the learned author Dr. K.S. Narayan Reddy who in his medical jurisprudence and toxicology (I edition) at page NO. 135 and 140 and submitted that the cause of death could not have been due to the act of the accused No. 1 kicking the deceased. Therefore, the trial court has rightly come to the conclusion that the prosecution has failed to prove the cause of death and even otherwise in the instant case, it cannot be said that the death of Jawarappa was homicidal in nature.
As regards the testimony of PWs.4 and 5 is concerned, learned Counsel for the respondents submitted that their evidence is not consistent with the complaint allegations and it is rather unbelievable that the accused would have been able to catch hold of the deceased after removing the tiles of their house and jumping from the backside and therefore, the testimony of PWs.4 and 5 who are the close relatives of the deceased cannot be given much credence. Hence, it was submitted that the view taken by the trial court is just and proper requiring no interference by this Court in so far as the order of acquittal is concerned and in this connection, learned Counsel also referred to several decisions of this Court dealing with the power of the appellate court with regard to appreciation of the evidence and interference with the order of acquittal.
10. Having heard both sides, the only point for consideration is, whether the State has made a case for us to interfere in this appeal against the order of acquittal?
11. Since the very aspect of the cause of death of the deceased itself is in dispute between the parties and as the trial court has recorded a finding that the prosecution had failed to prove the homicidal death of deceased Jawarappa, we deem it proper to discuss this aspect of the matter at the outset itself before going to consider the evidence of PWs.4 and 5.
12. PW18 Dr. J. Durgesh has deposed in his evidence that he conducted the postmortem examination on the body of the deceased and noticed the following external injuries:
i) Scratch seen over the right dorsum of the hand over the base of the third metacarpal bone, length about 0.25 cm.
ii) Transverse scratch seen over the left second metacarpal bone middle one-third size about 1/4 cm. and abrasion seen over the left second finger, base of the middle Phalanx size about 0.2 x 0.25 cm. and left second finger nail has cut. on lateral side and 3/4 of nail with blood clot surrounding the nail present, length about 0.75 cm.
Ail the above injuries were antemortem in nature.
13. The doctor has further deposed in the course of his evidence that on dissection, he found all the organs intact and normal and he gave a provisional opinion to the effect that there is no demonstrable evidence of trauma, pathology or poisoning sufficient to cause death and on perusal of the circumstantial evidence furnished by the I.O., the investigation may be continued on the line of death by vagal inhibition, awaiting chemical examiners report. The doctor has stated that on 30.4.96, received the 'C' report as per Ex.P-14 and the said report was negative. Therefore, the doctor gave his final opinion as under:
After perusal of the P.M. Report No. 104/96 dated 11.2.96 and P.S.L. Report No. T.S.511/96 dated 14.3.96 which is negative and based on the circumstantial evidence furnished by the Investigation Officer, I am of the opinion that the death was due to vagal inhibition. Consequent to non-demonstrable blunt injury to the trigger zone of body in the form of fisting and kicking.
14. Thus, from the very medical evidence of the doctor, it becomes clear that the cause of death was due to vagal inhibition.
15. According to the medical jurisprudence, negative autopsy means, when the laboratory investigation fail to reveal the cause of death, in such cases, the autopsy is considered to be negative. Two to 5% of all autopsies are negative. Majority of obscure autopsies are in young adults. A negative autopsy may be due to:
i) Inadequate examination.
ii) Inadequate external examination.
iii) Inadequate or improper internal examination.
iv) Insufficient laboratory examinations.
v) Lack of toxicological analysis.
vi) Lack of training of the doctor.
The case of vagal inhibition comes in the first category of inadequate history.
16. According to Dr. K.S. Narayan Reddy, vagal inhibition means, sudden death occurring within a second or minute or two due to minor trauma or relatively simple and harmless peripheral stimulation are caused by vagal inhibition.
17. The commonest cause of such inhibition is pressure on the neck particularly on the carotid sinuses as in hanging or strangulation. Unexpected blows to the larynx, chest, abdomen and genital organs. The said author has also opined in his work that there is a great variation in the individual susceptibility. Death from inhibition is accidental and caused by microtrauma. Therefore, in the instant case, even assuming for argument sake that A1 kicked on the testicles of Jawarappa, one cannot infer from the said act that Al did intend to cause the death of Jawarappa or for that matter A1 had the knowledge that the said act led to death of Jawarappa. In this connection, we also place reliance on a division bench ruling of the Kerala High Court firstly in Thomas v. State of Kerala 1992 Criminal Law Journal 581 wherein the court found that the death was due to subdural haematoma and taking note of the fact of the case, the court opined that following a fist blow, subdural haematoma was caused leading to the death of the victim. It could not be said that by such act the accused caused the death of the deceased. Therefore, in the case on hand, even accepting the medical evidence of PW18 and the postmortem report Ex.P-16, one cannot arrive at the conclusion that accused No. 1 had neither the intention nor knowledge that his act of kicking the deceased would lead to the death of Jawarappa. In our opinion, having regard to the medical jurisprudence, this is a case, which falls under accidental death and cannot be termed as homicidal death. Therefore, the question of accused committing the offence under Section 302 of the IPC has to be ruled out as one of the basic ingredients of intention to murder has not been established. Consequently, no offence under Section 304 part I or II also can be said to have been made out in this case.
18. Now coming to the evidence of PWs.4 and 5, who are the material witnesses and also the eye witnesses for the incident, we have carefully examined their evidence and we find that both the witnesses though being the close relatives of the deceased have spoken to consistently with regard to the entire incident of assault taking place in the house of Mahadevi at 8.00 p.m. leading to a sequence of event culminating the accused restraining Javarappa and assaulting him when he was going to the police station to lodge his complaint. So far as this aspect of the prosecution case is concerned, PW.4 - Lalithamma, who is the wife of deceased and also the complainant, has deposed in her evidence with great detail about the entire consequence of events that started at 8.00 p.m. on 10.2.1996 governing a petty matter of loan transaction with regard to which the complainant's family had no connection whatsoever. But only because Javarappa went to pacify the quarreling group, the sequence of events took place.
19. PW.4 has deposed in her evidence that accused No. 1 took up the quarrel with the husband of PW.4 over the issue of Javarappa telling the quarreling group to call accused No. 1's wife (accused No. 2) and sort out the matter. She has deposed that accused Nos. 1 and 2 caught hold of her husband and dragged him downwards from the stair case and accused Nos. 2 and 3 also joined and they beat Javarappa and accused No. 2 caught hold of the testicles of the husband of PW.4 and squeezed it. This was seen by PW.4 and her daughter - PW.5 through the window of their house. Thereafter, the husband of PW.4 came home and then started to go to the police station and he went to the rear side of their house through the house of Gowramma and was followed PWs.4 and 5 and at that time, the accused persons were there at the spot and after they came to know that the husband of PW.4 was going to the police station, they climbed the stair case and jumped on the vacant plot, they caught hold of PW.4's husband and assaulted him. PW.4 also deposes that accused No. 1 beaten her husband with hands and kicked with legs and accused No. 2 held the testicles of her husband as well as accused No. 3 was also joined in the assault. She further deposes that accused Nos. 1 and 2 also assaulted on her husband's chest and her husband fell down and died. This evidence of PW.4 has not been seriously challenged in the entire cross-examination and in fact PW.4 was examined at great length as could be seen from the number of pages of her cross-examination. Nevertheless, she has withstood her cross-examination and came out successfully in so far as the assault on her husband is concerned.
20. PW.5 - Rekha was 11 years old at the time of evidence and she fully corroborates the version of PW.4 in all material particulars. This witness also deposes to the effect that the accused persons forcibly brought her father down from the staircase to the ground floor and thereafter when her father was going to lodge a complaint with the police, accused No. 1 gave fist blows on the stomach and kicked with legs on his testicles of her father and this was followed by accused No. 3 assaulting with the hands on the chest and accused No. 2 caught hold of the tuft of her father. This witness was also cross-examined at great length. She has withstood her cross-examination, without any dent being made with the core of her evidence.
21. The rest of the evidence let in by the prosecution concerns, the various aspects of investigation like conducting panchanama, seizure of clothes of the deceased and the accused being arrested on the voluntary statement being recorded etc. The other evidence on record completes the circle in so far as the prosecution establishing the charge leveled against the accused persons with regard to the accused persons assaulting the deceased in the manner as deposed by PWs.4 and 5; The said two witnesses have deposed consistently and their evidence is credible. Therefore, in our view, the prosecution has successfully proved the allegations made in the complaint by PW.4 with regard to the accused persons restrained Javarappa and assaulted in the manner spoken to by PWs.4 and 5.
22. We, therefore, hold that the trial court was in error in placing and reliance on the insignificant omissions and contradictions in the prosecution case and has erroneously rejected the testimony of PWs.4 and 5, and in fact, it has made a mountain out of mole by discussing at great length the discrepancy in the evidence with regard to the button on the shirt of the deceased being found intact. We fail to understand as to how the trial court could have ignored the substantial part of evidence of the prosecution witnesses - PWs.4 and 5 with regard to the charge leveled against the accused persons and when there is no delay in lodging the complaint and there being no delay in FIR reaching the court, the trial could not have disbelieved the cogent, consistent and credible testimony of PWs.4 and 5. The minor contradictions and inconsistencies in the testimony of eye witnesses cannot be given much importance and unless the said discrepancies go to the root of the prosecution cause, they have to be ignored.
23. We therefore hold that the appreciation of evidence of the trial court is contrary to the established principles of law laid down by the Supreme Court and as such, the finding of the trial court is not only erroneous, but unreasonable. In our view, the prosecution has clearly made out the case against the accused persons so far as the assault committed by them on Javarappa is concerned.
24. Now the question is as to the nature of offence committed by the accused persons. Since we have already taken the view that the death of Javarappa was not homicidal, but accidental in nature. The question of Section 302 or Section 304 Part I or II coming into operation has to be ruled out. Then the question arises as to what offence has been committed by the accused persons.
25. Having regard to the entire facts and circumstances of this case and the accused persons not using any deadly weapons in causing the assault on the deceased, the only inference that can be drawn from the manner in which the accused assaulted the deceased is that the case under Section 323 of IPC has been made against the accused persons. In arriving at this conclusion we also draw support from the Division Bench ruling of the Kerala High Court referred as above, wherein the view taken by the Court is that where the fist blow was given and the death took place due to subdural haematoma, the case would fall under Section 323 of IPC and not under Section 302 of IPC. Even in the instant case, as we see, mere an intention or knowledge can be attributed to the accused persons to cause the death of Javarappa. Therefore, the act of either giving a fist blow on the chest or kicking on the testicles cannot be construed as an act on the part of the accused with an intention or knowledge to cause the death of Javarappa. We are therefore of the view that in so far as the accused persons are concerned, a case under Section 323 of IPC is made out and not under Section 302 of IPC.
26. Since the evidence is also very clear to the effect that all the accused persons restrained Javarappa and assaulted him in the manner deposed by PWs.4 and 5, it is obvious that all the ingredients of Section 34 of IPC stands established beyond all reasonable doubt. The accused persons therefore will be liable for the offence punishable under Section 341 of IPC in addition to Section 323 of IPC.
27. We have stated that all the accused persons are liable for the above two offences, because the common intention on the part of the accused persons stand established beyond all reasonable doubt. In this connection, we place reliance on the decision of the Supreme Court reported in 2005 SCC (Cri) 123 in the case of State Of Madhya Pradesh v. Deshraj and Ors., wherein dealing with Section 34 of IPC, the Apex Court has observed thus:
5. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true content of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
6. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
28. Therefore, we hold that all the accused persons are liable to be convicted as the prosecution has made out the case against them for the offence punishable under Sections 323, and 341 read with Section 34 of IPC. Accordingly, we set aside the order of acquittal passed by the trial court.
29. We have heard the learned Counsel for the parties on the question of sentence. The learned Counsel for the respondents submitted that the accused persons were in custody for 6, 3 and 7 months respectively during the trial. Therefore, he submitted that the period already undergone is sufficient for the sentence imposed on all the accused persons for the aforesaid offence.
30. On the otherhand, the learned Government Pleader submitted that the accused be sentenced in accordance with law for the offence committed by them.
31. Having thus heard the submission made by both sides that by taking note of the facts and circumstances of the case and the incident having taken place in the year 1996 and more than ten years having elapsed and also taking into consideration of the maximum period of imprisonment imposed for the offence punishable under Sections 323 and 341 of IPC, in our considered opinion, the sentence already undergone by the accused persons can be held to be sufficient for the purpose of substantial sentence be imposed upon them for the offence proved against them. Accordingly, we proceed to pass the following order:
1. State appeal is allowed in part.
2. The judgment and order of acquittal passed by the trial court is set aside.
3. All the accused persons are convicted for the offence punishable under Sections 323 and 341 read with Section 34 of IPC.
4. The period of custody undergone by each of the accused persons as mentioned above is held to be sufficient, for the purpose of substantial sentence to be imposed on each one of them for the offence punishable under Section 323 readwith Section 34 of IPC and consequently no further direction is necessary in this regard.