Karnataka High Court
Mogalappa vs The State on 29 May, 2024
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NC: 2024:KHC-K:3492
CRL.A No. 200159 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO. 200159 OF 2018
BETWEEN:
MOGALAPPA,
S/O SANNA BUGGAPPA METKU,
AGED ABOUT 22 YEARS,
OCC: AGRICULTURE,
R/O NANDEPALLI,
TQ & DIST. YADGIRI-585 102.
...APPELLANT
(BY SRI BABURAO MANGANE, ADVOCATE)
AND:
THE STATE,
THROUGH SAIDAPUR POLICE STATION,
Digitally signed by
KHAJAAMEEN L TQ. & DIST.YADGIRI.
MALAGHAN THROUGH ADDL. SPP,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF KALABURAGI BENCH - 585 107.
KARNATAKA
...RESPONDENT
(BY SMT. ANITA M REDDY, HCGP)
THIS CRL.A IS FILED U/S.374 (2) OF CR.P.C., PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION & SENTENCE
DATED 25/29.10.2018 PASSED BY THE SESSIONS JUDGE,
YADGIRI, IN S.C.No.17/2013 CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES P/U/S 304(ii)
OF IPC.
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NC: 2024:KHC-K:3492
CRL.A No. 200159 of 2018
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
02.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT BENGALURU
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment in SC No.17/2013 by District and Sessions Judge, Yadgiri, dated 25-10-2018, whereby the appellant/accused No.1 was convicted for the offence under Section 304 (ii) of IPC and sentenced to RI for 07 years and a fine of Rs.10,000/- with adequate default sentence and acquitted the other accused.
2. The facts in brief germane for the purpose of this appeal are as below:
On 22-6-2012 the brother of the complainant i.e., accused No.5-Sannabuggappa, was sitting infront of his house beneath a Neem Tree, CW4-Jayamma with the help of a stick chased a Hen in order to drive the Hen into the hencoop. The Hen flied and hit on the body of accused No.5 -Sannabuggappa and that accused No.5 and his wife -3- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 accused No.4-Narasamma, came and abused CW4 Jayamma, who was daughter-in-law of the complainant in filthy language alleging that she has intentionally caused the Hen to fly on accused No.5. Even though CW4- Jayamma told that she had no intention to cause such an incident and the Hen had flied on its own and she could not control the said Hen, the accused did not listen to the same. The son of accused No.5 i.e., accused No.1 - Mogalappa, came out of the house and abused CW4 - Jayamma in filthy words and alleged that she had intentionally done it and is now giving evasive answers. In the meanwhile, the son of the complainant, who is also Mogalappa and husband of Jayamma came out of the house and questioned accused No.1 as to why he is quarreling with the ladies. In the meanwhile, accused Nos. 2 and 3 who are relatives of accused No.1 also came and joined the quarrel. It was alleged that accused No.2 Mahalinga caught hold of the neck of the victim Mogalappa and accused No.3 caught hold of the waist of Mogalappa and accused No.1 gave a fist blow to the victim on his face -4- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 and then kicked at the groin with folded right knee. Meanwhile, the victim Mogalappa collapsed and fell down. It was at about 8.30 p.m., CWs.5, 6 and 7 came and pacified the quarrel and found that the victim Mogalappa had died and they carried him to a private hospital for examination who confirmed the death. Thereafter, the complainant Doddabugganna lodged the complaint at about 2.00 a.m., and it was registered in Crime No.53/2012 for the offence under Section 302 read with Section 149 of IPC of Saidapur Police Station.
3. The Investigating Officer visited the spot, conducted the mahazar, subjected the dead body to the inquest and postmortem and after completion of the investigation filed a chargesheet to the Court. On committal, the trial Court secured the accused. On framing the charges, the accused claimed to be tried and as such, the prosecution examined 16 witnesses as PWs 1 to 16, Exs.P1 to P14 and MOs 1 to 5 were marked in evidence. After recording the statement of the accused -5- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 under Section 313 of Cr.P.C., accused No.5 died during the trial and therefore, the case against him abated. The accused were on bail during trial.
4. The trial Court after hearing both the sides framed the following points for consideration:
1. Whether the prosecution proves that on 22.06.2012 at 8-30 p.m. in Nandepalli village accused Nos. 1 to 4 along-
with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, abused the PW.5 Jayamma in filthy language as "Bosadi Randi" in-respect of a hen flying over accused No.5 Sannabugganna due to her chase over it to keep it in the hencoop and thereby gave provocation to her intending or knowing it to be likely that such provocation will cause her to break the public peace, or to commit any other offences and thereby committed an offence punishable under Section 504 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?
2. Whether the prosecution further proves that on the alleged date, time and place accused Nos. 1 to 4 along-with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, committed criminal intimidation by giving threat to the life of victim Mogalappa and thereby committed an offence punishable under Section 506 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?
3. Whether the prosecution further proves that on the alleged date, time and place accused Nos. 1 to 4 along-with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, accused No.2 Mahalinga @ Mahalingappa caught had of neck of victim Mogalappa and accused No.3 Raghavendra caught hold of victim Mogalappa's waist and accused No.1 Mogalappa gave fist blow to the victim Mogalappa on his face, chest and stomach and then kicked -6- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 on testicles with folded right knee and committed his murder intentionally and thereby committed an offence punishable under Section 302 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?
4. What order?
5. Answering point Nos. 1 and 2 in the negative and point No.3 partly in the affirmative, convicted accused No.1 for offence under Section 304 (ii) of IPC and acquitted accused Nos. 2 to 4. Accused No.1 was sentenced to RI for 07 years with a fine of Rs.10,000/- and default sentence of 03 months.
6. The learned High Court Government Pleader has appeared for the respondent/State. The appeal was admitted and the trial Court records have been secured.
7. This Court had suspended the sentence subject to conditions as per order dated 10-12-2018.
8. The arguments by learned counsel for the appellant/accused No.1 and the learned HCGP for respondent /State are heard.
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 Arguments:
9. The learned counsel appearing for the appellant/accused No.1 has contended that the trial Court has erred in holding that accused No.1 was the cause for the death of the deceased. He submits that the prosecution witnesses have not fully supported the case of the prosecution. It is contended that the evidence of PWs.2, 3, 4 and 10 is of vital importance to the prosecution case. The other witnesses are only the witnesses who participated in the investigation and therefore, it is not of any relevance. He has drawn the attention of this Court to the Post Mortem report which shows that there was an abrasion on the arm and there were no injuries to the testicles of the deceased and therefore, accused No.1 cannot be held to be responsible for the neurogenic shock. It is contended that the neurogenic shock or vasovagal shock was due to the kick by accused No.1 is not proved. Such a shock is not spoken to by the Doctor who had conducted the Post -8- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 Mortem, i.e., PW12. Therefore, the conclusion reached by the trial Court that the neurogenic shock was due to the 'kick in a light way' is not sustainable in law. The nexus between the kick and the death due to vasovagal shock was not established by the prosecution and therefore, it cannot be held that the accused committed the homicide not amounting to murder. It cannot be inferred from the evidence on record that accused No.1 had the knowledge that such kick may result in vasovagal shock that may cause the death. He points out that the evidence of PW12 does not show which injury caused the neurogenic shock. Therefore, he contends that the prosecution had failed to prove that the death was caused by accused No.1.
10. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of N. Ramkumar Vs. The State represented by Inspector1.
1 Crl.A.No.2006/2023 DD 6-9-2023 -9- NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018
11. Per contra, the learned HCGP appearing for the respondent/State has submitted that the neurogenic shock may be caused by the kick to the testicles. It is submitted that the evidence on record by PWs 2 to 7 clearly show that after the kick the deceased had fallen down and died. It is submitted that no other assault could have caused the shock and therefore, it was the kick alone which caused the death. It is contended that accused No.1 knew that such kick may cause death but he had no intention to cause death. Hence, the trial Court has come to a proper conclusion that the prosecution has proved the guilt of the accused No.1 for the offence punishable under Section 304 (ii) of IPC. Hence, she has prayed for dismissal of the appeal.
12. The points that arise for consideration are:
1. Whether the trial Court is justified in coming to the conclusion that the act of the accused No.1, in kicking the deceased at the groin has resulted in the death of the deceased?
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2. Whether the trial Court is justified in holding that accused had the knowledge that such a kick may cause the death, but he had no intention? If so, Whether the sentence imposed by the trial Court is adequate? Evidence:
13. PW1-Suresh happens to be the witness of the Inquest Mahazar as well as the Spot Mahazar. He has turned hostile to the prosecution case and cross-
examination has not yielded any fruitful result.
14. PW2-Ashappa happens to be an eye witness and brother of the deceased. He has spoken about the incident and states that the house of the accused is adjoining their house. He says that accused No.3 Mogalappa (Mogalappa happens to be accused No.1) had kicked the testicles of the deceased and the deceased Mogalappa fell down and died. In the cross-examination which took place nearly after two years of the examination- in- chief, he has stated that after deceased Mogalappa fell down he came and saw him and says that Jayamma, the wife of the deceased had told him about the
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 incident. It is pertinent to note that there is no suggestion that accused No.1 had not kicked the deceased.
15. PW3-Tayappa, is another eye witness and neighbour of accused as well as the complainant. He speaks about the quarrel and that accused No.1 had fisted the deceased and has kicked the deceased at the groin. In the cross-examination, it is elicited that police has not enquired him and he denies the suggestion that accused No.1 has not fisted the deceased and had not kicked him.
16. PW4-Nallareddy is another neighbhour of the accused and the deceased. He says that he only came to the spot after the victim Mogalappa had died. Therefore, he cannot be termed to be an eye witness and he is a hearsay witness.
17. PW5-Jayamma, happens to be the wife of the deceased Mogalappa. She speaks about the cause of the incident and the quarrel. She stated that when accused No.4 had picked up quarrel with her, accused No.1 also came and had picked up the quarrel. The deceased came
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 and questioned accused No.1 as to why he is quarrelling with the ladies. Then other accused also came to the spot. She has spoken to the fact that accused No.1 kicked the deceased at his groin and immediately he fell down and died. She states that there is a dispute between the accused and the family of the deceased for about 30 years.
18. In the cross-examination, the details of the incident were elicited and the suggestion that the deceased died by falling from a katta was denied by her. She denies that accused No1. had not kicked the deceased.
19. PW6-Srinivas happens to be the another eye witness and the neighbour of the accused as well as the deceased. He is the son of PW3 and has also spoken on the same lines as stated by PW3 Tayappa.
20. PW7-Gouramma happens to be the wife of the complainant. Her evidence is also on the same lines as stated by PW2-Ashappa. She categorically states that
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 accused No.1 had kicked at the groin of the deceased and therefore, he fell down and died. She also speaks about the quarrel, the scuffle which ensued the quarrel.
21. PW8-Antappa and PW9-Sharanamma are hearsay witnesses and their evidence is not of much relevance.
22. PW10-Siddappagouda is an Engineer of the PWD, who prepared the sketch of the spot at the request of the Investigating Officer.
23. PW11-Nagappa is an Engineer of KEB and he states that electricity supply was uninterrupted at the time of the incident and had issued certificate as per Ex.P10.
24. PW12-Dr. Devakar conducted the postmortem and had issued the PM report as per Ex.P11. He states that there was an abrasion, ante mortem in nature present over the right iliac fossa and the cause of death was due to neurogenic shock. In the cross-examination, there is
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 nothing elicited as to what would be the cause of the neurogenic shock. However, it was elicited that the abrasion can be caused if a person falls on a stone while walking. Ex.P11 also does not mention anything about the injury to the testicles of the deceased. The only injury mentioned in Ex.P11 is that there was an abrasion over the right iliac fossa.
25. PW13-Siddanna, PW15-Pulakeshi and PW16- Vijayakumar are the Investigating Officers of the case. PW14-Sannaningappa is a hearsay witness. Re.Point Nos. 1 and 2
26. From the above evidence on record, it is clear that the medical evidence does not show that there was any injury which caused the neurogenic shock. However, it only show that there was an abrasion on the right iliac fossa and the death was due to neurogenic shock. Evidently, the nexus between the abrasion and the neurogenic shock is not made out.
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27. The ocular evidence of PWs.2,3 and 4 and PW6 would show that they are the neighbours and they had heard the quarrel and came to the spot to pacify the quarrel. All these witnesses have stated that during the scuffle, accused No.1 had kicked the deceased at the groin. Evidently, the reason for the quarrel was that the Hen had sat on the accused No.5 and there was a quarrel which ensued between PW5 and accused No.4. Then the other accused joined the quarrel and in the melee, accused No.1 kicked the deceased at the groin. Therefore, the trial Court has come to the conclusion that the kick by accused No.1 at the groin of deceased Mogalappa was not intentional, but he had the knowledge that such kick may cause the death of the deceased.
28. Learned counsel appearing for the appellant/accused No.1 submit that the neurogenic shock or vesavagal shock cannot be linked to the kick at the groin since there is no medical evidence linking the same. He points out that PW12 did not mention the reason for
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 neurogenic shock. He points out from Lyon's Medical Jurisprudence and Toxicology, that only severe contusions may cause death or severe compression of the testicles may prove fatal from shock. He submits that the trial Court observes in para 50 that the prosecution has established beyond reasonable doubt that the quarrel took place in front of the house of the accused on 22-6-2012 at 8.00 p.m., and while the quarrel was going on deceased Mogalappa came out of his house to intervene and he was kicked by accused No.1 on his testicles in 'light way'. Therefore, when such an observation was made by the trial Court, it could not have been a reason to hold that it caused neurogenic shock. Therefore, he submits that the conclusion of the trial Court that the kick by accused No.1 caused the neurogenic shock is not proper.
29. From the evidence on record, it is clear that accused No.1 did not have any intention to commit the murder. Now the question is, whether accused No.1 had
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 the knowledge that his kick would have caused the death of the deceased?
30. A kick to the vital part of the body may result in severe injury. There is no evidence to show that except the kick, there was any act which caused the neurogenic shock. Medical jurisprudence shows that compression of testicles may cause the shock. Obviously, the accused No.1 had kicked at the groin with folded knee. Therefore, it cannot be said that he was oblivious to the knowledge that it would have caused death.
31. The Apex Court in the case of N.Ramkumar Vs. State represented by Inspector referred supra, by relying on catena of decisions lays down that, when the incident had taken place in the spur of the moment, without premeditation and in the fit of furry, invoking of the offence under Section 304 (ii) of IPC was proper. By holding so, the Apex Court held that the sentence has to be adjusted towards the period of imprisonment already undergone by the accused.
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32. In the case on hand also, even though there is no medical evidence, the oral evidence of independent eye witnesses show that accused No.1 had kicked the deceased at the groin and he died at the spot. There is nothing on record which would discredit the testimony of the eye witnesses. They were neighbhours and there is no reason to discard their evidence. Therefore, the trial Court was justified in coming to the conclusion that the cause of death viz., neurogenic shock was due to the kick at the testicles of the deceased. Obviously, there is no other injury as could be seen from the Post Mortem Report and the testimony of PW12 which was the cause of death. The arguments of the learned counsel for the appellant/accused No.1 that the medical evidence do not support the case of the prosecution cannot be accepted.
33. The next contention by learned counsel for the appellant/accused No.1 is that the sentence imposed upon the appellant is disproportionate to the offence. It is relevant to note that the incident had taken place on a
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 trivial dispute that the Hen driven by PW5-Jayamma flew and sat on accused No.5. Considering the triviality of the cause of the quarrel and that the incident had taken place at the spur of the moment and fit of furry, the imposition of sentence of RI for 07 years appears to be severe.
34. In the case of Syed Javed Ahamad Vs. State of Karnataka2 this Court had an occasion to deal with a similar case. In a similar circumstance, in fit of furry the appellant had fisted on the chest of the deceased and due to carodiogenic shock the deceased had died. This Court while confirming the conviction for the offence under Section 304 (ii) of IPC, sentenced the accused to pay a fine of Rs.1,00,000/- and set off the imprisonment of 04 months which he had undergone by that time.
35. The offence under Section 304 (ii) of IPC is punishable with imprisonment of either description for a term which may extend to 10 years or with fine or with both. Thus, the sentence of imprisonment is not 2 Crl.A.No.2420/2005 DD 21-08-2012
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NC: 2024:KHC-K:3492 CRL.A No. 200159 of 2018 mandatory. Nevertheless, having regard to the facts and circumstances of the case and in view of the fact that accused No.1/appellant has undergone nearly 05 months of imprisonment, in the opinion of this Court, interest of justice would be met, if he is sentenced to the period already spent in custody and also to pay a substantial fine so that the wife of the deceased (PW5-Jayamma) would be adequately compensated. In that view of the matter, the sentence ordered by the trial Court requires modification.
36. For the aforesaid reasons, point No.1 is answered in the affirmative and point No.2 partly in the affirmative. Consequently, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The judgment of conviction passed by the trial Court in SC No.17/2013 dated 25-10-2018 convicting the appellant/accused No.1 for offence under Section 304 (ii) of IPC is confirmed.
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(iii) In modification of the order of sentence, accused No.1/appellant herein is sentenced to the period of custody already undergone and also sentenced to pay a fine of Rs.1,10,000/- (inclusive of the fine amount imposed by the trial Court) for the offence punishable under Section 304(ii) of IPC.
(iv) Upon deposit of the balance of the fine amount by accused No.1/appellant within eight weeks before the trial Court, a sum of Rs.1,00,000/- be paid to PW5-Jayamma, as compensation.
(v) Send a copy of this judgment to the trial Court along with the TCRs.
Sd/-
JUDGE tsn* Sl No.: 2