Karnataka High Court
Bhojaraja @ Raju vs The State Of Karnataka By on 6 July, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No. 501 OF 2014
BETWEEN
Bhojaraja @ Raju
S/o. Ramanna,
Aged about 27 years,
R/o. 113, Behind Anjaneya Temple,
Chaudeshwari Nagara, Ring Road,
Gandhinagara, Davanagere-577001.
Native of Nallur, Channagiri Taluk.
...Appellant
(By Sri.P.B.Umesh, Advocate, for Sri R.B.Deshpande,
Advocate)
AND
The State of Karnataka by
Extension Police Station,
Davanagere-577001.
...Respondent
(By Sri.Mahesh Shetty, HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set aside conviction and sentence dated
2/12.8.2013 passed by the II Additional District and
Sessions Judge, Davanagere, in S.C.No.7/2012 convicting
the appellant/accused for the offences punishable under
sections 341, 504 and 304II of IPC.
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This Criminal Appeal coming on for hearing this day,
through video conferencing the court delivered the
following:
JUDGMENT
The accused in S.C.7/2012 on the file of II Additional District and Sessions Judge, Davanagere, having been convicted and sentenced for the offences under sections 341, 504 and 304(II) of IPC, has preferred this appeal.
2. The prosecution case in brief is that on 10.9.2011 at about 7.30 PM, near Jayadeva Circle, Davanagere, the appellant was going on his motor cycle and his wife was the pillion rider. PW6-Rafiq and the deceased namely Mohammed Rafiq were coming on a bicycle. PW6 was peddling and the deceased was sitting on the backside carrier of the bicycle. The leg of the deceased touched the wife of the appellant and for this reason, the appellant picked up quarrel with PW6 and the deceased and in that course fisted on the 3 nose of the deceased severely. The deceased sustained bleeding injuries on the nose and fell on the ground supinely. He further intimidated them by abusing in vulgar language. PW6 took Mohammed Rafiq to a hospital for treatment and from there to his house. On 14.9.2011, the health condition of Mohammed Rafiq aggravated and therefore he was taken to Bapuji Hospital where he took treatment till 19.9.2011. But, his condition did not improve and therefore his brother, i.e., PW3 got Mohammed Rafiq discharged from Bapuji Hospital for admitting him to S.S.I.M. Hospital. But on the way, Mohammed Rafiq died. Then PW3 again came to Bapuji Hospital where the doctor declared his brother dead.
3. In regard to the above incident, two reports were made to the police. While the deceased was in the hospital, he gave a statement before the police as per Ex.P4 on the basis of which an FIR was registered 4 for the offences punishable under sections 341, 323 and 504 IPC in Cr. No. 153/2011. After the death of Mohammed Rafiq, PW3 made a report as per Ex.P2 on 19.9.2011. The police invoked section 302 IPC in the FIR. After investigation the police filed charge sheet for the offences under section 341, 302 and 504 IPC.
4. The prosecution examined 18 witnesses and produced 20 documents as per Exs.P1 to P20 and two material objects as per MO1 and 2 for proving its case. The trial court ultimately held that the accused could be convicted for the offences under sections 341, 504 and 304 (II) IPC as aforesaid.
5. I have heard the arguments of Sri P.B.Umesh, learned counsel for the appellant and Sri S.Mahesh Shetty, the learned High Court Government Pleader.
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6. Sri P.B.Umesh argued that the deceased himself made a statement as per Ex.P4 in which he did not take the name of the appellant. Even in the statement, he did not mention the registration number of the motor bike. In the FIR also, the registration number of the motor bike is not mentioned. The incident is said to have taken place on 10.9.2011. Immediately after the incident, FIR was not registered. The deceased directly went to a hospital, took treatment and then went to his house. It was on 14.9.2011 that the FIR was registered on the basis of his statement. Delay in making the report to the police is not explained. Therefore there is all possibility that false allegations might have been made against the appellant to be responsible for the death of Mohammed Rafiq.
6.1. He argued that the trial court has mainly relied upon the evidence of PW6 to come to conclusion 6 that the appellant caused hurt to Mohammed Rafiq during the scuffle that took place. In this regard it was his argument that when PW6 took Mohammed Rafiq to hospital, he did not reveal about the incident having taken place at Jayadeva Circle to the doctor. He also did not go to police station to make a report about the incident. In Ex.P4, the name of the appellant is not mentioned, it is just stated that some stranger made an assault. Moreover, in the cross- examination of PW6, it has come that when he gave statement before the police, he stated about an accident. This shows that Mohamed Rafiq sustained injury in an accident and not on account of assault by the appellant. PW3, the brother of Mohammed Rafiq is not an eye witness. Based on the sole testimony of PW6, it cannot be said that the appellant caused injuries to Mohammed Rafiq. There are two more witnesses PW7 and 12 and they have totally turned 7 hostile. Therefore, the evidence as regards the incident is inadequate and that the trial court should not have returned a finding of conviction.
6.2. His last point of argument was that the trial court has totally erred in convicting the appellant for the offence under section 304(II) of IPC. Even assuming that the prosecution case is believable about the incident, it was just a scuffle between the appellant and the deceased Mohammed Rafiq. Both were strangers to each other. Mohammed Rafiq might have sustained injuries, but, he did not die immediately. The evidence of PW3 and 6 shows that the deceased returned to his house after taking treatment. It was on 19.9.2011, he died because of medical complications. The evidence does not disclose that the appellant had the intention to cause death. In these circumstances, the offence under section 304(II) is not at all attracted. According to 8 him, at best, the trial court could have convicted the appellant for an offence under section 323 IPC, if it can be assumed for the argument sake that the prosecution was able to prove its case beyond reasonable doubt. Therefore he pleaded for allowing the appeal and acquitting the appellant; and, alternatively he submitted that in case this court comes to conclusion that the evidence would disclose the taking place of incident, the conviction can be scaled down to offence under section 323 IPC and the appellant may be sentenced to a period already spent by him in the jail.
7. The learned High Court Government Pleader argued that though the incident projected by the prosecution was just a scuffle in the middle of the road, if the testimonies of PW3 and 6 are considered it can be very well said that the appellant voluntarily caused hurt to Mohammed Rafiq and as a result he 9 sustained grievous injuries. He read over the contents of Ex.P4 to submit that it was a statement made by the deceased before the police while taking treatment. It discloses that on account of fisting on the nose of Mohammed Rafiq, he fell down backwards on a hard surface sustaining injuries in the back of his head. The medical evidence clearly corroborates the contents of Ex.P4. It is true that PW3 is not an eye witness, but he is none other the brother of Mohammed Rafiq. His evidence as regards his brother having been admitted to hospital on 14.9.2011 and events that happened thereafter cannot be disbelieved. It was from his brother he came to know about the incident. Then PW6 is an eye witness. He has given a clear account of entire incident and identified the appellant in the court. Just because the name of the assailant was not mentioned in Ex.P4, it cannot be a reason for disbelieving the entire 10 prosecution case. Delay as pointed out by the appellant's counsel is not at all fatal to the prosecution case because it has been suitably explained. Therefore he argued for dismissing the appeal.
8. I have considered the points of arguments and perused the entire evidence, both documentary and oral. There are 3 eye witnesses, PW6, 7 and 12. PW7 is the wife of the appellant and obviously she turned hostile. PW12 is an independent witness. There remains the testimony of PW6 alone. If his testimony is perused, he has clearly stated that on 10.9.2011, he and the deceased were returning to their house on the bicycle. As they came near Jayadeva Circle, the motor cycle ridden by the appellant came across their bicycle and therefore he and the deceased had to tell him that he should ride the motor bike carefully. For this reason the appellant abused them in filthy language and then fisted on the 11 face and head of the deceased. Having sustained injuries, the deceased fell down and sustained bleeding injuries in his nose. Then he took him to hospital for treatment and from there to his house. He has stated that two days after the condition of the deceased became serious and therefore he was admitted to hospital. On 19.9.2011 Mohammed Rafiq died. He has stated that the assault by the appellant was the reason for death of Mohammed Rafiq.
9. The cross-examination of PW6 is not at all effective. But his one answer in the cross- examination needs to be referred to here because the learned counsel for the appellant while arguing referred to it. What is elicited from PW6 is, during inquiry police asked him as to how and where the accident took place. Because of the word 'accident', it was argued by appellant's counsel, actually the incident as has been projected by the prosecution did 12 not take place and the deceased sustained injuries in the accident. This argument is difficult to be accepted. It is not as though PW6 has not given an answer like that. But this answer does not in any way help to arrive at a conclusion that the deceased sustained injury in an accident. The other part of evidence of PW6 is so cogent that he has given a clear account of what happened on 10.9.2011. Ex.P4 is an important piece of evidence because it is statement given by the deceased himself in the hospital. It is found in Ex.P4 that the appellant picked up a quarrel with the deceased and PW6 and gave a heavy blow with his fist on the nose of the deceased. There was bleeding from the nose and again the appellant fisted on his forehead as a result of which he fell down backwards. It is true that in Ex.P4 the deceased has not taken the name of the appellant. This cannot be a good reason for holding that the appellant has been 13 falsely implicated. But the evidence of PW6 shows that he identified the appellant in the court during trial. This identification is enough to believe the contents of Ex.P4 to be true.
10. Now if the evidence of PW6 and the contents of Ex.P4 are subjected to further scrutiny in the background of medical evidence, certain inferences can be drawn. PW8 was the doctor who issued the wound certificate as per Ex.P7. PW8 was not the doctor who treated the deceased. His evidence is that on 14.9.2011, a doctor by name C.J.Shanthakumar examined an injured by name Rafiq (Mohammed Rafiq) son of Chand Peer and treated him. He has stated that as per the records maintained in the hospital, there were no external injuries on the head of the deceased but when he was subjected to CT scan, internal bleeding on the back of the head and a fracture of occipital bone were 14 detected. PW14 was the doctor who conducted post mortem examination after the death of Mohammed Rafiq on 19.9.2011. The evidence of this witness shows that when the body of the deceased was dissected, he noticed presence of linear perpendicular fracture of occipital bone from internal occipital protuberance to posterior margin of foramen magnum, measuring about 6 cms., and hemorrhage over the left frontal lobe. Therefore the testimony of PW14 fully corroborates the evidence of PW8. If medical evidence is assessed, it may be stated that these injuries did occur as a result of fisting on the nose and, the deceased falling down in supine position when he was again fisted for the second time by the appellant. The deceased might not have sustained any external injury on the back of his head but, there was internal injury which occurred due to his falling down on the hard surface on the ground. Therefore, 15 the testimony of PW6 is fully corroborated by the medical evidence. Of course, PW3, the brother of the deceased is not an eye witness. But there are no reasons to disbelieve his evidence as regards aggravation of health condition of the deceased when he was in the house and what happened after he was taken to hospital.
11. The analysis made above clearly discloses that the prosecution has been able to prove its case so far as the incident is concerned. The conclusions drawn by the trial court are correct. But the question is whether the trial court could have convicted the appellant for the offence under section 304(II) IPC along with other offences.
12. The trial court has assigned the reasons that during the scuffle between the deceased and the appellant, there was exchange of words, that the 16 appellant got enraged all of a sudden and fisted on the nose and face of the deceased, that the deceased fell down consequently and this incident would fall within the purview of the offence under section 304(II) IPC. It is not possible to accept this reasoning. To constitute an offence under section 304 IPC the three essential ingredients are, (i) intention to cause death
(ii) intention of causing such bodily injury as is likely to cause death (iii) knowledge on the part of the accused that he is likely by such act causes death of another. These ingredients are found in section 299 of IPC. If the manner of death of the deceased is seen, it is not possible to hold that the above ingredients can be invoked. The evidence does not disclose that the appellant had the intention to cause death or had intention to cause such injury as is likely to cause death or that he had knowledge that by his act death would ensue. Here the deceased and the 17 appellant were strangers, the quarrel took place because of the reason that the appellant's motor cycle came across the bicycle of PW6. It was just an ordinary quarrel. The appellant might have resorted to assaulting the deceased, but it is not at all possible to hold that he had intention to cause death or intention to cause injuries likely to death or knowledge that deceased was likely to meet death on account of injuries. The entire incident can be brought within the scope of section 325 IPC. There is no evidence to hold that the appellant was provoked by the deceased so that the offence under section 335 IPC would constitute. Hence it can be concluded that the trial court has grossly erred in convicting the accused for the offence under section 304(II) IPC. The facts and circumstances are such that the appellant has to be convicted for an offence less graver than 304(II) IPC and he can be convicted for 325 IPC. The conviction 18 of the appellant for two other offences, namely 341 and 504 IPC cannot be disturbed.
13. The incident took place during a scuffle in the road traffic, the personal enemity as such between the deceased and the appellant cannot be made out. Though according to section 325 IPC, the offender can be punished with imprisonment of either description for a term extending up to 7 years, having regard to the facts and circumstances of the case, I am of the opinion, that the appellant may be sentenced to simple imprisonment of one year with fine. Hence, the following :-
ORDER
(a) Appeal is partly allowed.
(b) The judgment of the trial court in
S.C.7/2012 is modified. The appellant is
convicted for the offences under sections 19 325 IPC instead of 304(II) IPC and is directed to undergo simple imprisonment for a period of one year and pay fine of Rs.10,000/-. The appellant shall undergo simple imprisonment for a period of two months in case of default of payment of fine.
(c) The judgment of conviction and sentence passed by the trial court in respect of offences under sections 341 and 504 IPC is confirmed.
(d) If the appellant has already deposited the fine amount in accordance with sentence imposed by the trial court, he shall pay the balance of the fine amount imposed in this appeal in connection with offence under section 325 IPC.
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(e) Out of the fine amount of Rs.10,000/-, Rs.8,000/- shall be paid to the mother towards compensation in accordance with section 357 of IPC.
The trial court shall secure the presence of the appellant and commit him to custody. The appellant is entitled to set off for the period of imprisonment he has already spent in jail.
Sd/-
JUDGE ckl