Karnataka High Court
S N Kumara @ Theerthakumara S/O Ningappa vs State Of Karnataka By Nonavinakere ... on 2 March, 2016
Equivalent citations: 2016 (4) AKR 569
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL APPEAL NO.223/2010
BETWEEN:
1. S.N. KUMARA @ THEERTHAKUMARA
S/O. NINGAPPA
AGED 22 YEARS.
2. MANJUNATHA S/O NINGAPPA
AGED ABOUT 19 YEARS
APPELLANT NOS.1 AND 2 ARE
RESIDENTS OF SHIVAPURA VILLAGE
KIBBANAHALLI HOBLI
TIPTUR TALUK.
... APPELLANTS
(BY SRI A.H. BHAGAVAN, ADV.)
AND:
STATE OF KARNATAKA
BY NONAVINAKERE POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE.
... RESPONDENT
(BY SRI B. VISWESWARAIAH, HCGP)
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THIS CRL.A. IS FILED UNDER S.374(2) CR.P.C., PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 18/20.1.2010 PASSED BY THE PRL. SESSIONS JUDGE,
TUMKUR, IN S.C.NO.20/2007, CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
S.304 R/W S.34 OF IPC. THE APPELLANTS/ACCUSED
SENTENCED TO UNDERGO R.I. FOR THREE YEARS AND TO PAY
A FINE OF `5,000/- EACH AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO FURTHER R.I. FOR A PERIOD OF FIVE
MONTHS, FOR THE OFFENCE PUNISHABLE UNDER S.304 R/W
S.34 OF IPC.
THIS CRL.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants faced prosecution for the offences punishable under Ss.302 and 323 read with S.34 of IPC and after trial in S.C. No.20/2007, on the file of the Prl. Sessions Judge at Tumkur and were found guilty as per the Judgment dated 18/20.01.2010 and convicted under the latter part of S.304 read with S.34 of IPC and sentenced to undergo R.I. for three years and pay fine of `5,000/- each and in default of payment of fine, to undergo further R.I. for a period of five months.
2. The facts of the prosecution case are that, on 10.11.2016, a new pumpset had been installed in the old 3 borewell at Shivapura Village and CW-4 - Shivalingaiah, S/o CW-1 - Yellamma, told CW-7/Puttaraju, that "hale borige hosa motor bittiddare neeru chennagi barutte". Accused No.1 / Kumara, overheard the said words and mistaking that the said words had reference to the fact of the recent marriage of one Kamalamma, Sister-in-law of CW-9/Beeralingaiah, conveyed the same to CW-9, who enquired with CW-1/Yellamma and her son CW-4, about the matter and they in turn questioned accused No.1, as to why he had carried tales and that accused No.1 tried to manhandle him. When the message reached CW-1's husband Kappuraiah (since deceased), on 13.11.2006 at about 8.00 p.m., the deceased went near the house of the accused to ask about the aforesaid matter and that accused Nos.1 and 2 picked up a quarrel with him and threatened that they would kill him and that accused No.1 kicked with his patella on the testicles of Kuppuraiah, who fell down bawling out "aiyayappo". Then, accused No.1 stamped the victim and accused No.2, saying "Ee nanmaga innu sayalilla", slapped and fisted him. The pain being 4 unbearable, Kappuraiah got treated in a Hospital at Tiptur and was taken back to his house. At about 4.30 a.m., since the pain increased, Kappuraiah was taken to the hospital and when he was about to be admitted in the hospital at Tiptur, at 6.30 a.m., breathed his last.
3. Yallamma/PW.1, wife of the deceased Kuppuraiah, lodged the complaint vide Ex.P-1. Thimmegowda/PW.16, registered the crime and dispatched the FIR/Ex.P-16. Investigation was taken over by G.B. Manjunath/PW.17. Medical examination was done and the inquest mahazar/Ex.P-5 was drawn.
4. After completion of investigation, charge sheet was submitted to the JMFC, Tiptur. The case was committed to the Court of Sessions, under S.209 Cr.P.C., since the offences alleged were exclusively triable by the court of Sessions. In response to the summons, the accused appeared. The charges were prepared for the offences under Ss.302 and 323 r/w 34 IPC. The accused having pleaded not guilty and claimed to be tried, their 5 plea was recorded. In order to prove the case of the prosecution, 17 witnesses were examined and 19 documents were marked. Accused were examined under S.313 Cr.P.C. and it is a case of complete denial. No defence evidence has been adduced. However, Ex.D-1, inconsistent portion in the previous statement of PW.10, was marked. After hearing the learned Public Prosecutor and the learned advocate for the accused, the following points were raised by the Trial Judge for consideration:
"1) Is it established that Kuppuraiah met with a homicidal death?
2) Is it proved that A-1 Kumara caused hurt in the scrotal region of the victim by kicking him on his testes with his (A-1's) knee joint?
3) Is it established that A-2 Manjunatha caused hurt to the deceased by kicking and stamping him?
4) Is it made out that the death of the victim Kuppuraiah was the result of the hurt caused by the two accused?
5) Is it further proved that both the accused committed the said acts in furtherance of their common intention?"
5. Learned Trial Judge by taking note of the rival contentions and finding the presence of both accused persons at the scene of occurrence and manhandling of the deceased, as having been established by unimpeachable evidence and having arrived at the conclusion that the 6 accused cannot be held guilty of murder and they should be held guilty of a lesser offence and by finding that the accused do not appear to have acted with the knowledge that it was likely to cause death or with any intention to cause death or to cause such bodily injury as was likely to cause death, were held guilty of the offence of culpable homicide, not amounting to murder and punishable under the latter part of S.304 IPC. Both accused were convicted for the said offence. By a separate order, the sentence of imprisonment and payment of fine, as above, was directed.
6. Sri A.H. Bhagavan, learned advocate, contended that there being material contradictions in the testimony of PWs.1, 4 and 13, i.e., both in the ocular evidence and medical evidence, the benefit should go to the accused. He submitted that PWs.2 and 3 have not supported the prosecution case. Learned counsel submitted that PW.1 and PW.4 are mother and son respectively of the deceased and they being highly 7 interested witnesses, their evidence has not been scrutinized with care and that there is also enormous delay in the matter of lodging the complaint/Ex.P-1. Learned counsel submitted that the eye witness having testified that there was assault on the penis with knee by accused No.1 and PW.5/Dr.C.L. Prahalad, having not noticed any external or internal injury, over the private organ (penis) of the deceased, the evidence has not been correctly appreciated by the learned Trial Judge. He submitted that the prosecution having failed to establish its case beyond all reasonable doubts, the finding of guilt recorded and the sentence imposed being erroneous is liable to be set aside.
7. Alternatively, learned counsel submitted that the injury to the testicles was not direct cause of death and that the deceased having come back from the hospital and later having developed pain and passed away, the offence held as proved, only amounts to one punishable under S.323 IPC and the conviction of the appellants, under the latter part of S.304 IPC is liable to be set aside. 8 Reliance was placed on the decisions in (i) PIRTHI vs. STATE OF HARYANA, 1994 SCC (Crime) 402 and (ii) STATE OF KARNATAKA vs. SHIVLINGAIAH, AIR 1988 SC 115.
8. Sri B. Visweswaraiah, learned HCGP, on the other hand submitted that despite the obtaining of medical treatment, Kuppuraiah having died, the Trial Judge is justified in holding the accused guilty of the offence of culpable homicide not amounting to murder but punishable under latter part of S.304 IPC. Learned counsel made submissions in support of the finding of guilt recorded by the Trial Court and sought dismissal of the appeal.
9. Learned Trial Judge has made reference to the testimonies of the prosecution witnesses and the documents. He has arrived at the conclusion that there was a common intention to cause hurt to Kuppuraiah. He has further held that the accused have not acted in a cruel or unusual manner and hence, they should be held guilty of a lesser offence than the one under S.302 IPC. Learned Trial Judge has found that the accused did not had the 9 knowledge that their act was likely to cause death or that they acted with any intention to cause death or to cause such bodily injury as was likely to cause death.
10. From the record it is clear that, the prosecution has firmly established the presence of both accused at the scene of occurrence and they having manhandled the deceased. Without any premeditation and in a sudden fight, in the heat of passion, hurt has been caused to Sri Kuppuraiah. From the evidence of the prosecution witnesses, it is clear that due to sudden provocation and heat of the movement, accused No.1 has kicked the deceased on the testicles. Treatment was taken and Kuppuraiah returned home immediately. Later, Kuppuraiah having developed pain was taken to the hospital. On the way, Kuppuraiah has died. In the circumstances, in my opinion, the offence only amounts to one punishable under S.325 IPC. The Trial Court has committed error in convicting the accused under S.304 Part II IPC. 10
11. Having regard to the record of the case and there being possibility of death, when testicles are kicked, yet there being no external injuries found on Sri Kuppuraiah, it has to be held that the prosecution has established that the accused attacked Kuppuraiah and caused the grievous hurt. The said offence, in the circumstances of the case, will not attract S.304 Part II IPC. Instead, the accused can be held guilty under S.325 IPC. Consequently, the conviction ordered by the Trial Court has to be modified accordingly.
12. In State of Karnataka vs. Shivlingaiah (supra), the accused squeezed the testicles of the victim, resulting in his death, almost instantaneously and the incident had taken place all of a sudden and on the spur of the moment. The death was as a result of cardiac arrest resulting from shock due to the injuries to the testis. In the circumstance of the case, Apex Court modified the conviction of the accused from under S.323 to one under S. 325 IPC.
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13. In the present case, Kuppuraiah, after the occurrence of the incident of kicking over the testicles, obtained treatment. After his return from the hospital and after a few hours, Kuppuraiah has died. In the circumstances, the offence falls under S.325 IPC and not under S.304 Part II IPC.
14. The accused were arrested on 20.11.2006 and were in custody for about 7 months.
In view of the foregoing discussion, the appeal is allowed in part. The accused stand convicted for the offence under S.325 IPC, instead of under S.304 Part II IPC. With regard to the sentence of imprisonment is concerned, I am of the view that the period already undergone by the accused would be sufficient and accordingly the sentence is reduced to the period of imprisonment already undergone. However, the accused shall pay fine of `25,000/- each, within two months period from today. The appellants having deposited the fine amount of `5,000/- each, shall deposit the remaining 12 amount. The fine amount, including the one already deposited, shall be paid to Smt. Yallamma/PW.1, wife of the deceased, as compensation, under S.357 Cr.P.C. In default of payment of fine amount, the accused shall undergo R.I. for a period of 3 months. With the said modification of the judgment of conviction and order of sentence, appeal stands allowed in part.
Sd/-
JUDGE ca