Karnataka High Court
Basayya S/O Mallayya Chikkamath vs The State Of Karnataka on 20 October, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.A. No. 2540 OF 2013
BETWEEN:
1. BASAYYA S/O MALLAYYA CHIKKAMATH
AGE: 56 YEARS, OCC: AGRICULTURE,
2. JAGADISH @ JAGGISH
S/O.BASAYYA CHIKKAMATH
AGE: 23 YEARS, OCC: AGRICULTURE,
BOTH ARE
R/O.KOTTANADA ONI DHARWAD
...APPELLANTS
(BY SRI. K M SHIRALLI, ADV.)
AND
THE STATE OF KARNATAKA
BY DHARWAD TOWN P.S.
R/BY S.P.P.
HIGH COURT OF KARNATAKA
CIRCUIT BENCH DHARWAD.
...RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
2
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2)
OF CR.PC. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 22.01.2013 AND
23.01.2013 PASSED IN S.C.NO.100/2012 BY THE PRL.
DISTRICT AND SESSIONS JUDGE, DHARWAD AND
ACQUIT THE APPELLANTS/ACCUSED OF THE
OFFENCE WITH WHICH THEY HAVE BEEN
CONVICTED AND SENTENCED.
THIS APPEAL COMING ON FOR DICTATING
JUDGMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
JUDGMENT
This appeal is preferred by accused Nos.1 and 2 challenging their conviction and sentence passed in Sessions Case No.100/2012 by the Court of Prl. District and Sessions Judge at Dharwad, wherein, they are convicted and sentenced for the offence punishable under Sections 304 Part-II and 504 read with Section 34 of IPC.
2. I have heard the learned counsel Sri.K.M.Shiralli appearing for the appellants and 3 Smt.Seema Shiva Naik learned HCGP for the respondent - State.
3. Brief facts: Accused No.1 is the father of accused No.2. Father of accused No.1 has two wives namely Shantavva and Champavati. Accused No.1 is the son of Shantavva. Deceased Rudrayya is the son of Champavati and in other words accused No.1 and deceased Rudrayya are step brothers. Deceased was demanding his legitimate share in the ancestral properties from accused No.1. In this behalf, there were frequent quarrels between them. On 07.11.2011 the complainant and her husband Rudrayya approached PW.7 Basavaraj, the elder of the village to intervene in the matter and to settle the dispute. Thereafter, at about 11 a.m. on that day they were returning home in the auto rickshaw. When they were near their house in Kottanada Oni, both accused Nos.1 and 2 4 intercepted the auto rickshaw and dragged the deceased out of the auto rickshaw and abused him. Accused No.2 held him tightly and accused No.1 with an intention to commit his murder assaulted him with hands and kicked on his stomach. The people who gathered at the spot pacified the quarrel. Thereafter the complainant and her husband went to the police station and narrated the incident to the PSI- PW10. The injured Rudrayya was sent to the hospital for treatment. On that day no complaint was lodged as they wanted to settle the dispute amicably. On 12.11.2011 deceased Rudrayya complained of severe stomach pain. Hence, the complainant took him to the District Hospital, Dharwad.
4. Doctor at District Hospital referred the husband of the complainant to KIMS Hubli, 5 wherein he was operated on the same day on account of perforation of small intestine. On 13/11/2011 the complainant went to the police station and lodged a complaint against the accused as per Ex.P1. A case was registered against both the accused in crime No.225/2011 at Dharwad town police station for offences punishable under Sections 323, 325, 504, 341, and 506 of IPC. On 16/11/2011 at about 11.50 am, Rudrayya died in KIMS, Hubli. After his death, Section 302 IPC was incorporated. On completion of investigation, charge sheet was filed against the accused-appellants under Sections 323, 504, 506, 341 and 302 r/w 34 of IPC.
5. Charges were framed against the accused for the offences punishable under Sections 504 and 302 r/w 34 of IPC. The 6 accused pleaded not guilty and claimed to be tried. In order to establish its case, the prosecution in all examined PWs.1 to 11 and got marked Exs.P1 to P22.
6. The learned Sessions Judge by judgment and order dated 22-23/1/2013 passed in SC No.100/2012, convicted accused Nos.1 and 2 for the offences punishable under Sections 304(2) and 504 r/w 34 of IPC. They were sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for one year for the offence punishable under Section 304(2) r/w 34 of IPC. They were further sentenced to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for three months for the offence punishable under Section 504 of IPC. 7
7. Assailing the impugned judgment and order of conviction and sentence passed by the trial Court, the learned counsel appearing for the appellants has contended as under:-
The prosecution has suppressed the true genesis of the case. Death is due to septicemia on account of perforation of small intestine. The prosecution has failed to prove that the deceased died consequent of injuries sustained by him on 7/11/2011 and there is no nexus between the injury sustained by the deceased on 7/11/2011 and his death. The injuries said to have been caused by the accused are not sufficient to cause his death so as to convict them for an offence punishable under Section 304(2) of IPC. Insofar as the incident occurred on 7/11/2011, the accused were produced before the Court after registering a petty case 8 against them under Section 96(r) of Karnataka Police Act. They have paid the fine and the case was closed. Thereafter, the deceased was hale and healthy. Subsequently, the deceased was admitted to the hospital on 12/11/2011 with a history of assault on that day which is evident from Ex.P7. The accused persons are not responsible for the incident which took place on 12/11/2011. The deceased died on 16/11/2011 due to septicemia as a result of perforation of small intestine. The deceased did not sustain any such injury on 7/11/2011. Therefore, the prosecution has failed to prove that the death was on account of any injury sustained by the deceased in the incident which occurred on 7/11/2011.
8. The learned counsel for the appellants has further contended that the independent 9 witnesses namely, PWs.7 and 9 have not supported the case of prosecution. PWs.2 to 8 are the relatives of the deceased and they are hearsay witnesses. PW1 is none other than the wife of the deceased. She is an interested witness. Her evidence alone is not sufficient to convict the accused in view of the history furnished by her that the deceased sustained injury in the incident occurred on 12/11/2011.
9. The learned counsel for the appellants would also contend that there was an illicit relationship between PWs.1 and 3. The deceased became suspicious and he was quarrelling with PW1. In this connection, on 12/11/2011, there was a tussle between the deceased and PW3 and in the said fight, PW3 has assaulted the deceased and caused injuries. Knowing well that the deceased was 10 unconscious, PW1 has lodged a false complaint against the accused.
10. The learned counsel for the appellants has submitted that the trial Court has not at all appreciated the above aspect and failed to notice several discrepancies in the evidence of prosecution witnesses and therefore, the impugned judgment has resulted in miscarriage of justice. Accordingly, he seeks to allow the appeal by setting aside the impugned judgment and order of conviction and sentence passed by the trial Court.
11. Per contra, the learned HCGP has contended that the deceased and accused No.1 are step brothers. The deceased was demanding his legitimate share in the ancestral properties and accused No.1 had refused to give the share. In this regard, on 7/11/2011 a quarrel arose. 11 Both the accused have dragged the deceased out of the auto rickshaw and accused No.1 has assaulted him with hands and kicked on his stomach. Initially, no complaint was lodged since, they wanted to settle the matter amicably. However, since complication arose on account of the internal injuries sustained by the deceased, he was admitted to the hospital on 12/11/2011 and got operated. However he succumbed to the injuries on 16/11/2011. She contends that PW1 is an eye witness to the incident and her evidence does not suffer from any discrepancy. PW1 has not admitted that there was another incident of assault on 12/11/2011. She contends that, from the evidence of PW4, it is evident that a person who sustains injury and develop septicemia can attend his normal work. Further PW5 has stated that the delayed perforation has not occurred within 48 hours of 12 sustaining injuries, hence the death is on account of the injury sustained on 7/11/2011.
12. The learned HCGP has further contended that the prosecution has established that the deceased died on account of the injuries sustained by him on 7/11/2011 which was caused by the accused. The defence on the other hand has failed to prove that there was any incident occurred on 12/11/2011. She contends that the illicit relationship between PWs.1 and 3 has not been proved by the defence by leading any defence evidence. Hence, she submits that the trial Court has rightly convicted the accused and therefore the impugned judgment does not suffer from any illegality and it is in accordance with law. Accordingly, she seeks to dismiss the appeal. 13
13. The specific case of the prosecution is that the deceased Rudrayya and accused No.1 are step brothers. The deceased was demanding his legitimate share in the ancestral properties which was refused by accused No.1. On 7/11/2011, the complainant - PW1 and her husband Rudrayya approached PW7 to intervene and settle the dispute. While they were returning to their house in the auto rickshaw, both the accused intercepted the auto rickshaw. Accused No.2 dragged the deceased outside and held him tightly. Accused No.1 assaulted him with hands and kicked on his stomach.
14. PW1 is the complainant. She is the wife of the deceased. She has stated that few people gathered at the spot of the incident. She informed the matter to CW6 (PW7) and CW7 (PW9). They all pacified the quarrel. CW4 (PW3) 14 Maruti also came to the spot. Thereafter, she went to the police station to lodge a complaint. The police secured the accused persons. At about 3.00pm. when the pain escalated, her husband was taken to the hospital and again he was brought back to the police station. Thereafter, they were advised not to quarrel and settle the dispute among themselves. Hence, they went back to their house. She has further stated that on 12/11/2011 since her husband complained of stomach pain, he was taken to the district hospital, wherein he was given treatment. From there, he was taken to KIMS Hospital. He was operated on the same day. Next day, i.e. 13/11/2011 she went to the police station and lodged a complaint as per Ex.P1.
15. PW2 is the mother of the deceased and PW8 is the sister of PW1. They are not the eye 15 witnesses to the incident in question. They have stated that there was no partition of the properties between accused No.1 and the deceased. They are hearsay witnesses insofar as the incident which occurred on 7/11/2011.
16. The prosecution has projected PWs.7 and 9 as eye witnesses to the incident. But both of them have turned hostile. According to them, they came to know about the incident from others. Even PW1 in her evidence has stated that she informed PWs.7 and 9 about the incident. Hence, PWs.7 and 9 cannot be said to be the eye witnesses.
17. PW7 in his evidence has stated that on 7/11/2011 at about 10.00 am or 11.00am, PW1 and Rudrayya came to his house to intervene and settle the dispute. Thereafter, they went 16 back to their house. After some, time he came to know about the quarrel between the accused and deceased and the lodging of the complaint on the next day.
18. PW3 is a panch witness to the inquest Mahazar Ex.P2. According to him on 7/11/2011, the accused picked up a quarrel with Rudrayya. He has stated that when he went to the spot hearing the same, few persons had already gathered at the spot.
19. From the above evidence on record, it can be seen that there was a property dispute between the accused and deceased Rudrayya and on 7/11/2011, deceased went along with the complainant to the house of PW7 to request him to intervene in the matter. Thereafter, they were returning to their house in an auto rickshaw and when they were near their house, 17 both the accused picked up a quarrel with them. According to PW1, accused No.1 dragged the deceased out of the auto rickshaw. Accused No.2 held him and accused No.1 assaulted him with hands and kicked him with legs on his abdomen and caused internal injuries.
20. PW10 is the PSI of Dharwad town police station. He has stated that on 7/11/2011 when he was in the police station, at about 2.30pm, PW1 and her husband Rudrayya along with two others came to the police station and informed about the quarrel. He has stated that there was no external injuries on the person of Rudrayya. He sent them to the hospital and they came back after some time. He has stated that some of the villagers also came to the police station. PW1 did not lodge any complaint stating that they will settle the dispute 18 amicably. However, a case was registered against the accused under Section 92(r) of the Karnataka Police Act. On the next date, i.e. on 8/11/2011, the accused appeared before the Court and paid a fine of Rs.100/- and the case was closed. The same has been mentioned in the Station house diary. He has further stated that on 13/11/2011 at about 6.30 pm, again PW1 appeared at the police station with a written complaint against the accused persons, on the basis of which he registered a case and issued FIR-Ex.12 to the jurisdictional Court.
21. Ex.P15 is the extract of the Station house diary. A perusal of the same go to show that at about 2.30 pm on 7/11/2011 both the parties had been to the police station in connection with a quarrel which took place on that day. Thereafter they agreed to compromise 19 the matter in the presence of elders. Perusal of the entry made in the station house diary discloses that cases were registered against both the parties under the K.P. Act for disturbing peace. Be that as it may, in the incident which occurred on 7/11/2011, as per the evidence of PW6 and the wound certificate marked as Ex.P9, the deceased did not sustain any such injury which was sufficient in the ordinary course of nature to cause death. From the evidence of PW1 and from the medical evidence, it cannot be said that the injury inflicted to the deceased on 7/11/2011 were so imminently dangerous or that such injury was caused by the accused with an intention or knowledge of causing such bodily injury which is likely to cause death.
22. According to the prosecution, accused No.1 dragged the deceased from the auto 20 rickshaw and assaulted him with hands and accused No.2 held the deceased tightly. As noticed from the station house diary marked as Ex.P15 and the evidence of PW10, since the accused had quarreled with Rudrayya, a case was registered under Section 92(r) of K.P.Act against both the accused and they were produced before the Court on 8/11/2011. The accused paid a fine of Rs.100/- and the case was closed.
23. In Ex.P9 there are no external injuries noticed except the injured complaining of body ache and chest pain. Therefore, it is the contention of the learned counsel for the appellant that in the incident occurred on 7/11/2011, the deceased did not sustain any internal injuries to his abdomen, on the other hand the deceased was admitted to the hospital 21 on 12/11/2011 with a history of assault on that day and thereafter, due to complication and due to septicemia consequent upon perforation of small intestine, he died in the hospital on 16/11/2011. Therefore, it is his contention that the cause of death has nothing to do with the incident which occurred on 7/11/2011, but it was on account of the incident which occurred on 12/11/2011 which has been suppressed by the prosecution.
24. PW4 is the medical officer who conducted the post mortem examination over the dead body. Ex.P3 is the post mortem report. The following external injuries are noticed as per the post mortem report:-
i. Surgically sutured wound measuring 16 cm in length with 11 sutures present over front of abdomen ii. A Surgically made drainage wound measuring 1cmsX0.5cms.Xabdominal cavity deep present over left side of front 22 of abdomen, situated 11 cms above left hip bone (anterior superior iliac spine) iii. A surgically made drainage wound measuring 1cms.0.5cms. x abdominal cavity deep present over right side of front of abdomen, situated 13 cms above right hip bone (anterior superior iliac spine) iv. Contusion measuring 4 cm X 4cm present over right groin v. Contusion measuring 4cm X 4cm present over left groin and front of upper part of left thigh.
According to Ex.P3 and the final opinion furnished by PW4 as per Ex.P4, death is due to septicemia as a result of perforation consequent upon perforation of small intestine.
25. PW4 has opined that it is possible to sustain such type of external and internal injuries of abdomen, i.e. perforation of small intestine mentioned in the post mortem report and hospital case sheet, when a person comes in contact with blunt forced impact like punching, kicking etc. and such type of perforation of 23 small intestine is possible to cause peritonitis and cause death due to septicemia. His opinion dated 4/6/2012 has been marked as Ex.P5. He has stated that while giving opinion regarding manner of injuries, he has verified the hospital records from KIMS Hospital Hubli and wound certificate from the District Hospital, Dharwad. He has stated that normally after perforation a person can do his normal day to day work even after receiving such kick or punching and it depends upon the force which was used. Delay in perforation of small intestine can occur after few days or a week after receipt of punching or kicking. He has stated that perforation of small intestine can occur even after a week and that the person can do his normal day to day work even after he was assaulted.
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26. The learned HCGP has contended that in view of the evidence of PW4, it is clear that the death in the instant case occurred on account of the punching and kicking by the accused on 7/11/2011 and therefore she has contended that there is nexus between the injury sustained by the deceased on 7/11/2011 and the cause of death.
27. It is relevant to see that according to PW4, while giving opinion regarding manner of injuries he verified the hospital records from KIMS Hubli. In his cross examination he has stated that as per the case sheet-Ex.P7, the case was referred from Government Hospital, Dharwad with the alleged history of assault on 12/11/2011 at 11.00 am. PW6 is the medical officer at District hospital, Dharwad who examined the injured on 7/11/2011 at about 25 3.40pm. PW6 has stated that on examination of the injured nothing abnormal was detected. No external injuries were noticed and vitals were normal. He referred the patient to surgery department. He has stated that the patient did not go to surgical ward and not attended and thereafter he did not see the patient.
28. From the evidence of PW6-the Senior Specialist in District Hospital, Dharwad, it is clear that the injured was not referred to any major hospital on 7/11/2011. PW6 has not stated about referring the injured to KIMS on 7/11/2011. Therefore, it is clear that with regard to the incident and assault which occurred on 7/11/2011, the injured was treated by PW6 at District Hospital, Dharwad, and he was not referred to any higher hospital for taking treatment. The case sheet maintained at 26 KIMS does not indicate that the patient was referred from the District Hospital with the history of assault on 7/11/2011. On the other hand, from the evidence of PW4 and as per the case sheet-Ex.P7, the case was referred from Government Hospital, Dharwad, with the alleged history of assault on 12/11/2011 at 11.00am. Hence, a doubt arises in the mind of the Court as to whether the cause of death was on account of any injury suffered by the deceased on 7/11/2011 or on account of any incident which took place on 12/11/2011.
29. A careful perusal of the case sheet of KIMS Hubli, discloses that on 12/11/2011, the injured was referred to the said Hospital from Government Hospital, Dharwad, with the alleged history of assault on 12/11/2011 at 11.00am. It is mentioned that the patient developed pain in 27 abdomen on 12/11/2011. The patient is conscious. It is seen that the injured was brought to the said hospital by PW1 with the above history. PW1 has put her signature in Ex.P7. The prosecution has failed to clarify as to how the said endorsement was made in Ex.P7. Hence, this Court has no other option to accept the history furnished in Ex.P7 that the patient was brought to KIMS with a history of assault which took place on 12/11/2011. It is not the case of the prosecution that either of these accused have assaulted the deceased on 12/11/2011. To come to the said conclusion, other evidence on record are also relevant and assumes importance.
30. PW1 in her cross examination has admitted that her husband, an auto driver by profession was taking the children to school till 28 12/11/2011 even after the incident which occurred on 7/11/2011. She has stated that her husband was in a position to speak when he was in the hospital. Even PW3 has stated in his cross examination that the victim was taking the children to school in his auto rickshaw from 7/11/2011 to 12/11/2011. As already observed, in Ex.P9, it is stated that the injured had complained of body ache and chest pain and there was no injuries to the vital organs or there was no external injuries. In PM report which is marked as Ex.P3, apart from surgical injuries, contusion of right and left groin and front of upper part of left thigh are also noticed. When Ex.P9 does not mention about those injuries, then it is not forthcoming as to how the deceased sustained those injuries. Admittedly, it is not the case of prosecution that in the incident which occurred on 7/11/2011, the 29 deceased sustained those injuries. There is no medical record forthcoming with regard to those injuries prior to 12/11/2011. Hence, there is some force in the defence taken by the accused that there is no nexus between the incident of assault which took place on 7/11/2011 and the cause of death. It is further fortified by the alleged history furnished at KIMS Hubli by PW1 that the assault was on 12/11/2011 at 11.00 am.
31. Insofar as the incident occurred on 7/11/2011, the cross examination of PW6 goes to show that on 7/11/2011 even the accused were also brought to the hospital with the history of assault and he gave treatment to the said accused. After the first aid, he referred them to the surgery department. This goes to show that on 7/11/2011, it is not only the 30 deceased but these two accused also sustained some injuries which has been suppressed by the prosecution.
32. According to the defence, PW1 had illicit relationship with PW3 and in this connection, on 12/11/2011 there was a quarrel between the deceased and PW3 and in the said quarrel, the deceased received some injuries. The defence has not examined any witness to probabalise the said theory. However, the prosecution must stand on its own legs and it cannot derive its strength from the weakness of the defence. In the instant case, the prosecution has failed to establish beyond all shadows of reasonable doubts that the victim died on account of the injuries suffered by him on 7/11/2011 due to the assault by the accused.
31
33. In view of the above discussion and for the forgoing reasons, it cannot be said that the prosecution has established its case against the accused beyond reasonable doubt. The trial Court has failed to take into account Ex.P7 and the history furnished therein and proceeded to convict the accused without considering the discrepancy in the evidence of prosecution witnesses. The materials placed on record are not sufficient to convict the accused for offences punishable under Sections 304(2) and 504 of IPC.
34. Hence, the following:
ORDER
i) Appeal is allowed.
ii) The impugned judgment and order dated 22/23.1.2013 passed in S.C.No.100/2012 on the file of the 32 Principal District and Sessions Judge, Dharwad is hereby set-aside.
iii) Appellant-Accused Nos.1 and 2 are acquitted of the offence punishable under Section 304(2) r/w 34 of IPC and under Section 504 of IPC.
iv) Their bail bonds shall stand
cancelled.
Sd/-
JUDGE
Lad/Vmb