Karnataka High Court
Subhash S/O Kashinath Mustapur vs The State Through on 7 July, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3616/2011
Between:
Subhash
S/o Kashinath Mustapur
Age : 28 Years
Occ : Labour
R/o Boudh Nagar,
Outside Shahgunj,
Janwada Road,
Bidar.
... Appellant
(By Sri. Avinash A. Uplaonkar, Advocate)
And:
The State through
Market Police Station
Bidar.
... Respondent
(By Sri. Prakash Yeli, Addl. SPP )
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This Criminal Appeal is filed under Section 374(2)
of Cr.P.C. praying to set aside the judgment passed by
the learned Principal Session's Judge at Bidar,
convicting the accused appellant under Section 304-II of
IPC.
This appeal having been heard on 07.06.2017,
reserved for judgment and coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
This appeal is preferred by the accused by assailing the judgment of conviction passed by the Prl. Sessions Judge, Bidar in S.C. No.2/2010 dated 04.06.2011.
2. The case of the prosecution in nutshell as per the complaint is that, on 23.02.2009, complainant filed the complaint alleging that, her husband Maruti was a construction worker, he had undertaken the shop premises of Nagendra Singode. Further it is alleged that, said Nagendra Singode has engaged the accused for the purpose of curing of the construction work on 3 daily wages of Rs.60/-. It is further alleged that on, 21.02.2009 accused asked her husband-Maruti to get an advance amount from Nagendra Singode, to which her husband Maruti replied he would not ask money from Nagendra Singode. He also told the accused, he can directly asked him for money. To which, accused picked up quarrel with the husband Maruti at about8:30 PM and fisted on his stomach vigorously. The said incident took place infront of a Saloon belonging to one Nagesh. It is further alleged that, when the said incident was going on, complainant heard the same, as she was sitting near her house, she went to that place and saw her husband fallen. She got water to her husband and made him to drink as he recovered, she took him to the house. Further, it is alleged that, as she did not see any external injuries, she did not take her husband to the hospital, but next day, her husband complained severe stomach ache, as such, she took her husband to the hospital of Dr. 4 Rajshekhar Kulkarni, where she was working as a mid- servant. The Compounder of the said hospital in consultation with the doctor given the treatnment, thereafter her husband was sent back. On 22.02.2009 at about 5:00 p.m., her husband again started complaining stomach ache and she noticed swelling on the stomach. Immediately, with the help of neighbours, she took him to Government Hospital, Bidar, there the doctor advised her to take her husband to Hyderabad. When she was taking her husband to Hyderaband in an ambulance, on the way at about 11:30 p.m., her husband died. Thereafter, she brought the body to the Hospital at Bidar and on the basis of the statement of complainant a case was registered. After investigation, the police filed the charge sheet.
3. After filing the charge sheet, the committal Court, by following the procedure laid down under Section 207 of Cr.P.C, committed the case to the 5 Sessions Court. The Sessions Court after taking the cognizance secured the accused, after hearing him about the charge, charges came to be framed. Since, accused denied the charges and claim to be tried, the trial was fixed.
4. In order to prove the case, the prosecution got examined in all fourteen witnesses as P.Ws.1 to 14 and also got marked twelve as per Exs.P-1 to 12. During the course of cross-examination of P.W.1, Ex.D-1 was also got marked. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting the incriminating materials as against him, which he denied and he has not led any evidence on his behalf.
5. Thereafter on hearing the arguments of both the counsels, the impugned judgment came to be passed, whereunder accused was convicted under 6 Section 304-II of IPC. Assailing the said judgment and order, the accused is before this Court.
6. Heard the learned counsel for the appellant and the learned Addl. State Public Prosecutor on behalf of the State.
7. The learned counsel for the appellant Sri. Avinash Uploankar vehemently argued and contended that, the impugned judgment is contrary to law and facts on record. He would further contend that, the Court below has not properly appreciated the evidence on record and has come to a wrong conclusion. He would also contend that, the trial Court slipped into an error and erroneously passed the impugned order, which has resulted into miscarriage of justice. He would further contend that, there is delay in filing the complaint, the said complaint has been filed after two days after the death of her husband. He would also contend that immediately the deceased has not taken 7 any treatment and the doctor P.W.14 has given his opinion stating that death is due to perforation peritonitis as result of blunt abdominal trauma. If that were to be the cause the death could have been occurred due to inhaling of alcohol. The trial Court has not considered the said aspect and has passed the impugned order, which is liable to be set aside. On these grounds, he prayed for allowing the appeal.
8. Per contra, the learned Additional State Public Prosecutor vehemently argued and contended that P.Ws.1 and 10 have clearly and categorically stated that, the accused fisted on the stomach of the deceased and P.W.14, the doctor who has conducted the post mortem examination has clearly stated that death is due to perforation peritonitis as result of blunt abdominal trauma. The said injury clearly indicates that because of the fisting or hardly hitting on the stomach it is going to damage the liver and the deceased 8 has died because of the burst of the liver. The trial Court after considering all the material as there was a corroboration in the evidence of PWs.1, 10 and 14 and as such has rightly convicted the accused, the accused- appellant has not made out any grounds so as to interfere with the judgment of the trial Court and the judgment and order of the trial Court is liable to be confirmed.
9. In the background of the several contentions taken up by the learned counsel for the accused- appellant, now let me consider whether the accused appellant has made out any grounds so as to interfere with the order of the trial Court.
10. P.W.1 is the complainant and she is also the wife of the deceased-Maruti. She has deposed that C.W.13 - Nagendra was constructing the house and her husband was engaged and for the purpose of curing 9 work, the deceased has engaged the accused on daily wages. She has further deposed that about two years back at about 8:30 p.m. when she was in her house, she came to know that, there was a galata near the shop of C.W.8-Nagesh, immediately she also went to the place, therein so many persons gathered and there she noticed her husband has fallen unconsciously. She further deposed that, she immediately provided water, when he recovered she asked her husband, he told that the accused fisted on his stomach till he lost his consciousness. He also informed her that the accused asked him to ask money from Nagendra and when he told to directly ask by himself as he is not giving the money being anguished, he fisted on his stomach till he lost his consciousness and after coming to know he fell down under the impression that he died, he went away from that place. She has further deposed that she took him next day to the doctor as the doctor was not there by consulting the doctor, the Compounder gave the 10 treatment. Thereafter she went to work. She further deposed that, when she came back the condition of her husband was critical, with the help of neighbor she took her husband to Government Hospital, there they took the X-ray of the stomach and the doctor told that the liver has been damaged and asked her to take to Hyderabad and she was taking her husband in a Government Ambulance to Hyderabad, on the way, he died. She has further deposed that it was about 11:20 p.m. she came back to Bidar Government Hospital and filed the complaint.
11. During the course of cross-examination, it has been elicited that, the house of the accused is by the side of the house of the complainant. Many persons will be wandering upto 11 or 12 midnight in the said area. Near the place of incident, there is a saloon of C.W.8 Nagesh and also the shops of Suryakanth and Dilip. Further it has been elicited that, at what distance 11 she saw the assaulting of the accused to her husband. She has answered that there was a crowd and she went there and at that time the accused was fisting and at that time her brother-in-law Pandit and Basawaraj were not there. It has been further elicited that, the accused by sitting on the body of her husband was fisting and by hearing the hue and cry of the complainant he ran away. It has been further elicited that even after her husband become unconscious the accused did not stop fisting.
12. P.W.2 is the inquest mahazar pancha to Ex.P-2. He has deposed that when he saw the dead body that the stomach was swollen and a mahazar was drawn as per Ex.P-2. P.W.3 is the spot mahazar pancha to Ex.P-3. He has deposed that C.W.11 Basawaraj shown the spot and there a spot mahazar was drawn as per Ex.P-3. He has also further deposed that, one day before the death of the deceased, the wife of the 12 deceased and their children took him to the Government Hospital, Bidar as the deceased was not well and he also accompanied and after got him admitted, he came back. This witness has been partly turned hostile but during the course of cross examination nothing has been elicited to substantiate the case of the prosecution.
13. P.W.4 is the spot mahazar pancha to Ex.P-3. P.W.5 is an eye witness to the alleged incident. P.W.6 and 7 are the persons who were working in the barber shop in front of which the alleged incident took place and they are eye witness. P.Ws.4 to 7 have not supported the case of the prosecution and they have been treated as hostile. P.W.8 is the inquest mahazar pancha to Ex.P-2. He has also reiterated the evidence of P.W.2. P.W.9 is the Compounder who is working in the clinic of Dr.Rajshekhar Kulkarni and he has deposed that the complainant brought her husband to the hospital at about 8.30 or 9.00 p.m., and her husband 13 was complaining pain in the stomach and as the Doctor was there he got instructions from Doctor over the phone and treated him. During the course of cross examination, nothing has been elicited from the mouth of this witness.
14. P.W.10 is the father of the deceased. He has deposed that his son was doing the construction work and the accused was working under him. During the said period, his son was constructing the shop of C.W.13 Nagendra and accused was appointed for curing. He has further deposed that at about 7.30 p.m., in front of the saloon shop of C.W.7, the accused fisted on the stomach of the deceased and as a result of the same his son become unconscious and at that time P.W.1 came and gave him water and thereafter took him to the house and he has also further deposed that thereafter there was a pain in the stomach and he was taken to P.W.9 and got him treated and thereafter he 14 was taken to Government Hospital and thereafter he was advised to take him to Hyderabad hospital when he was taken in the ambulance to Hyderabad on the way he died. During the course of cross examination, nothing has been elicited so as to discard the evidence of this witness.
15. P.W.11 is the Forest Guard and owner of the shop whose shop the deceased was constructing and accused was also working under him. P.W.12 is the police sub inspector who recorded the statement of P.W.1, registered the case and issued the FIR. P.W.13 is the police inspector who investigated the cae and filed the charge sheet against the accused.
16. P.W.14 is the Doctor who conducted the post mortem report and issued Ex.P-12. In his evidence, he has deposed that the police officer gave the history of assault. On the abdomen portion when the deceased was examined he was alive and no external injuries 15 were present. He has further deposed that, the injuries he noticed in the abdomen portion was ante mortem in nature, the death was due to perforation peritonities as a result of blunt abdominal trauma, he preserved the viscera for chemical analysis, issued the post mortem report as Ex.P-11, time since death was 12 to 24 hours before he commenced the post mortem examination. He received the chemical analysis report on 2.7.2008. On the basis of that report, he gave his final opinion regarding the cause of death once again as "Perforation peritonitis as result of blunt abdominal trauma". He has further deposed that, the injury which he noticed in the abdomen portion was anti mortem in nature and he has also further deposed that, he has given his opinion on the basis of the chemical analysis report stating that the cause of death once again as "Perforation peritonitis as result of blunt abdominal trauma".
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17. During the course of cross examination, he has admitted that generally the liver of an alcohol addict gets damaged. He has also further admitted that generally the spleen gets damaged if there is continuos assault on the abdomen portion. He has also further deposed that, the spleen is movable inside the abdomen and if at the time of assault the spleen comes in contact with external force, then only it gets damaged. He has also further admitted that generally if a person knocks down and sits on his stomach and gives the blows on chest the ribs will be fractured but he has further deposed that it depends on the force of the assault. Except that, nothing has been elicited from the mouth of this witness.
18. As could be seen from the evidence of P.W.14, as discussed above and on perusal of Ex.P-12, the post mortem report and also the evidence of P.W.2 and 8 and also on perusal of Ex.P-2, the death of the 17 deceased Maruti is because of the injury sustained by him to the spleen. The doctor has also deposed that if a person sits on the stomach and assaults or fists then under such circumstances if it comes in contact with the external force, at that time, the spleen is going to be damaged. All these evidence clearly indicates that the death of deceased Maruti is unnatural death. The only question now remains for my consideration is that who is responsible for the death of deceased Maruti ? .
19. As could be seen from the testimony recorded in respect of P.W.1 and 10 they have clearly deposed that the accused was working under the deceased in the construction work of P.W.11 Nagendra where they were constructing the shop and therein the accused was working as a coolie and used to do the curing work.
20. P.Ws.1 and 10 have clearly deposed that when they went and saw that the accused was sitting 18 on the body of the deceased and he was fisting on the stomach. On perusal of the cross examination of P.W.1 surprisingly it has been elicited at internal page no.4, that after hearing she went to the place and the people have gathered and she saw it and at that time she saw the accused assaulting the deceased by sitting on the body of the deceased. In this behalf, there is a corroboration in the evidence of P.W.1 and 10. No doubt, it is well established principle of law that the testimony of the interested and related witnesses has to be carefully considered and the Court has to cautiously scrutinize the evidence and thereafter it has to come to a right conclusion. It has been also held by the Apex Court that merely because the witnesses are related and interested, their testimony cannot be discarded. In that backdrop, if evidence of P.W.1 and 10 coupled with the evidence of P.W.14 is perused, there is a consistency and corroboration to the alleged incident. P.W.1 and 10 are the eye witnesses who have actually seen the 19 accused fisting on the stomach of the deceased when he asked the deceased to ask and advance amount from P.W.11 and when the deceased told the accused that, he himself can ask him. Being anguished that he quarreled and abused the deceased then thereafter sat on the deceased and fisted on the stomach. P.W.14 has clearly deposed that the death of the deceased is due to "Perforation peritonitis as result of blunt abdominal trauma" and he has also further deposed that, the spleen gets damaged if there is a continuos assault on the abdomen. When the accused was sitting on the deceased and fisting on the stomach and immediately thereafter he become unconscious and on the same day night he was taken to P.W.9 and he treated, then thereafter on the next day, he went to the Government Hospital, Bidar and there the Doctor took x.ray and advised them to take him to Hyderabad on the way he died. All the evidence which has been led, it directly points out that, because of the assault caused by the 20 accused, the spleen has damaged and ultimately the deceased died for the said injuries. Nothing note worthy is elicited in the cross examination of either P.W.1, 10 or 14 to show that the deceased died for any other reason. Though during the course of cross examination it has been suggested to P.W.14 that if a person falls such injury may occur or if he continuously consumes the alcohol. Under such circumstances, the spleen gets damaged. But, when there are eye witnesses to the alleged incident and the Doctor has also opined then under such circumstances the contention of the accused cannot be acceptable in law. On perusal of the evidence of P.W.14 and on perusal of Ex.P-12 it is clear that the death is due to unnatural perforation as a result of blunt abdominal trauma caused by use of force by blunt object, not a force like accidental fall. In this behalf, the prosecution has clearly established the case as against the accused - appellant and even the trial Court after considering all the aspects and even by 21 referring to the Medical Jurisprudence has rightly come to a right conclusion. There is no perversity or erroneousness or mis-interpretation of any of the facts and it does not require any interference at the hands of this Court.
21. Though the learned counsel for the appellant would contend that there is a delay in filing the complaint and immediately the treatment was also not taken but the evidence which has been produced before the Court clearly indicates that P.W.1 immediately after coming to know that he is having pain in the abdomen, she has taken him to P.W.11 to the clinic of Doctor Dr.Rajshekhar Kulkarni and there as the Doctor was not there, P.W.9 in consultation with the Doctor over the phone, has given the treatment and on next day, again the deceased complained the abdominal pain immediately P.W.1 and 3 have taken him to Government Hospital and as per the advice of the 22 Doctor they were going to Hyderabad in an ambulance on the way he succumbed to the injury. Under the circumstances, there is no delay in filing the complaint by P.W.1. Be that as it may, even it is evident from the evidence of P.Ws.1, 10 and 14 that there were no external injuries on the abdomen. When there were no external injuries, then no body will suspect and immediately go and file the complaint. Only after the death of the deceased Maruti the ill-treated rustic woman has gone to the police station and there the police recorded her statement and registered the case. Under the circumstances, the contention taken by the learned counsel for the appellant does not appears to be acceptable in law and the same is liable to be rejected.
22. I have carefully gone into the judgment and order of the trial Court. The trial Court after considering the fact that though the accused has committed the alleged offence by fisting on the stomach of the 23 deceased, since the accused was not having any intention or knowledge that such act of the accused is likely to cause death has rightly came to the conclusion that the accused has committed an offence under Section 304 Part II of IPC. The said conviction and sentence also appears to be just and proper. Even the State has not preferred any appeal against the sentence which has been passed by the trial Court. Under the circumstances, I feel that there is no need to interfere with the order of the trial Court and same is liable to be confirmed.
23. In view of the above discussion, I pass the following :-
ORDER The appeal is dismissed.
Sd/-
JUDGE BL/SGS