Karnataka High Court
Nagaraj vs The State Of Karnataka By Vidhana Soudha ... on 10 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1301/2006
BETWEEN:
NAGARAJ,
S/O.RANGAIAH,
AGED ABOUT 48 YEARS,
RESIDING AT NO 1437,
2ND CROSS,CHANDRA LAYOUT,
BANGALORE CITY. ... APPELLANT
(BY SRI.HASMATH PASHA, ADV.,)
AND:
THE STATE OF KARNATAKA,
BY VIDHANA SOUDHA
POLICE. ... RESPONDENT
(BY SRI.DORE RAJU, SPP)
THIS CRL.A FILED U/S 374(2) CR.P.C AGAINST
THE JUDGEMNT DT. 19.6.06 PASSED BY XXXIII
ADDL.CC.,& SJ., & SPL. JUDGE (NDPS), B'LORE IN
S.C.NO.45/98 CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 304 II IPC. AND
SENTENCING HIM TO UNDERGO SI FOR 3 YEARS &
TO PAY A FINE OF RS.5,000/- (RUPEES FIVE
THOUSAND) AND ID., TO UNDERGO IMPRISONMENT
FOR 3 MONTHS. THE APPELLANT/ACCUSED PRAYS
THAT THE ABOVE ORDERS MAY BE SET ASIDE.
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THIS CRIMINAL APPEAL COMING ON FOR
CONTINUATION OF ARGUMENTS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed challenging the Judgment dated 19.06.2006 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bangalore in SC No.45/1998 convicting the appellant/accused for the offence under Section 304-Part-II of IPC and sentencing him to undergo simple imprisonment for three years and to pay fine of `.5,000/-, in default to undergo imprisonment for three months.
2. It is the case of the prosecution that, on 09.10.1997, at about 5.30 p.m. within the compound of Multi-storied Building near Vidhanasoudha within the limits of Vidhanasoudha police station, accused committed murder of the deceased-Manjunatha intentionally by assaulting him with a club and kicking him on his stomach and thereby, he is alleged to have committed an offence under Section 302 of IPC. 3
3. The prosecution in order to prove the case has examined in all 15 witnesses and got marked Exs.P1 to 15 and produced Mos.1 to 7. The defence of the accused was one of total denial. However, by the impugned Judgment the learned Sessions Judge was pleased to convict the appellant and sentence him as herein above mentioned. It is this judgment of conviction and sentence for the offence under Section 304-Part-II of IPC which has been challenged by the appellant in this appeal.
4. The deceased-Manjunatha approached the Sub-Inspector of Police, Vidhanasoudha police station on 09.10.1997 and lodged the complaint stating that, he is working as a group 'D' employee in the Accountant General Office. On 09.10.1997, at about 5.30 p.m, he completed his work and when he was going in front of M.S.Building, his brother-in-law by name Nagaraja came to the spot and with previous enimity assaulted him by means of a club on his nose, as a result of which he sustained bleeding injuries and lost his conscience and fell down. At that time, his friend by name 4 Ramamurthy came near the spot and with his help, he went to the police station and thereafter, he was taken to the hospital and there he has taken the treatment. Hence, he has requested for taking suitable action against Nagaraja. He has also produced the blood stained shirt before the police station. The police on receipt of the said complaint registered the case in Crime No.144/1997 for the offence under Section 324 of IPC and transmitted the FIR to the jurisdictional Court.
5. It is the case of the prosecution that, the said injured-Manjunatha had been taken to the Manipal Hospital after being taken to Maruthi Hospital and PW.13-Dr.Srikanth has stated that, on 10.10.1997, the injured-Manjunatha was brought to the hospital at about 10.20 a.m with a history of alleged assault. Prior to his coming to the hospital injured Manjunatha was treated in two other hospitals namely Bowring Hospital and Maruthi Nursing Home. At the time of admission of the said person was observed to have features suggestive of peritonitis and septicemia. However, there were no obvious evidence of external injuries on the 5 person of the patient. It is stated by PW.13-Dr.Srikanth that an emergency operation was conducted on the injured-Manjunatha. Thereafter, though proper treatment was given to the injured, on 20.10.1997, Manjunatha died at about 7.50 a.m. Thereafter, a case for an offence under Section 302 of IPC was registered by the police and after completion of the investigation by the police, charge sheet came to be filed.
6. PW-1 -Ramamurthy is the Account Assistant cum Cashier in Allied Publishers Limited. He has deposed before the Court that, he is working in Allied Publishers Limited which is situated in Gandhinagar and he knows deceased-Manjunatha. He is the childhood friend and that he is residing in Domlur. He has stated that, on the date of the incident, himself and one Chandrashekhara left the office at about 5.25 or 5.30 p.m. to go to the office of Manjunatha. It is in his evidence that, when he went near the gate of M.S.Building, Venkatesh was also waiting for them and they had gone there in order to discuss about tour for Dasara holidays. All three of them proceeded towards 6 the office of the said Manjunatha. Near a turn in between S.K.S.J.T workshop compound and M.S.Building lane, Manjunatha was coming from the opposite direction towards them and when Manjunatha was so coming, accused/appellant assaulted him with club on his face and forehead in an oblique way. He also abused the injured-Manjunatha and the latter fell down and then the accused kicked him with his shoe-leg on the stomach for about four to five times. On seeing it, they raised cries and they ran towards Manjunatha and went near the accused. But accused fled away. Thereafter, they took the injured-Manjunatha to the police station. The injured was thereafter taken to Bowring Hospital. PW.1 has been thoroughly cross- examined by the defence and it is suggested that, he is deposing falsely at the instance of the relatives and one Padmavathi-PW.4.
7. PW-2 -Venkatesh has also stated that, on the date of the incident, he had also seen some body assaulting the deceased-Manjuntha by club on his nose. The said incident took place in 'kaludaari' towards 7 M.S.Building and S.K.S.J.T workshop compound. He has also identified MO.3-club by which the assailant had assaulted on the injured-Manjunatha. There is evidence of PW.2-Venkatesh that it is the accused before the Court who had assaulted the victim.
8. PW-3 -Thimmaiah.T has stated that he is a watchman in the Department of Personal Administration in Vidhanasoudha and that he has seen accused assaulting the deceased. He has also stated that near the gate on the road by the side of M.S.Building, accused was assaulting a person on his forehead. He has identified PWs.1 and 2 and the persons who were present on the date of the incident. PW.3 has also stated that the injured fell down. Thereafter he was taken to the Vidhanasoudha police station. He has stated that, he had seen the occurrence from about 300 feet away from the scene of occurrence where there is a tamarind tree.
9. PW-4 -Padmavathi is the wife of the deceased. She is not an eye witness to the incident. She has spoken about the motive for the incident. 8
10. PW-5 -Kutti has turned hostile to the case of the prosecution and has not supported the prosecution case.
11. PW-6 -Bhaskar is the Assistant Executive Engineer of PWD who has drawn the sketch of the scene of occurrence.
12. PW-7 - Dr. B.R.S.Kashyap is the retired Senior Specialist at Victoria Hospital. He has stated that he has conducted the postmortem examination on the dead body of the deceased-Manjuntha and has issued certificate as per Ex.P5.
13. PW-8 -Krishnamurthy is the brother of the injured-Manjunatha. He has stated that, on 09.10.1997, at about 5.00 p.m, he came to know from his brother that accused had assaulted him. However, he is not an eye witness to the incident.
14. PW-9-Suersh Narayana Gaonkar is the Scientific Officer, Forensic Science Laboratory, Madiwala who has stated that, he has tested the clothes of the deceased and has found the blood stains in them. 9 However he could not identify the blood group as the blood had disintegrated.
15. PW-10 -P.B.Paranjape, Senior Auditor of the Accountant General Office has stated that, the deceased was working as a group 'D' employee of his office.
16. PW-11 -Krishnamurthy is also an attendar in the Accountant General Office.
17. PW-12 -N.Munirajaiah is the Assistant Writer in the Vidhanasoudha police station. He has stated that, on 11.10.1997, on receipt of the memo from the Airport police station, he went to the Airport police station and after collecting the memo, he went to the Manipal Hospital. However, the injured-Manjunatha was not in a position to talk. Hence he returned to the police station. Thereafter, on receipt of an intimation regarding the death of the injured-Manjunatha on 20.10.1997, he assisted the Inspector during the inquest proceedings on the dead body of the deceased.
18. PW-13 is Dr. Srikanth about whose evidence a mention is made in the earlier part of this Judgment. 10
19. PW-14 -Nataraj is a pancha witness who has turned hostile to the case of the prosecution and has not supported the case of the prosecution.
20. PW-15 - Dr. Prakash is the Medical Officer of Bowring Hospital. He has stated that, on 09.10.1997, at about 7.30 p.m. a person by name Manjunatha aged about 33 years was brought by Police Constable 6775 of Vidhanasoudha Police station with history of assault by one Nagaraja with hands and sticks. It is in the evidence of PW.15 that the history given by the police was confirmed by patient also.
21. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has found accused guilty of the offence under Section 304-Part-II of IPC and convicted and sentenced him as aforestated.
22. Heard Sri.Hasmath Pasha, learned Counsel appearing for the appellant and Sri.S.Dore Raju, learned SPP appearing for the State.
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23. Learned Counsel for the appellant submits that, except complaint given by Manjunatha stating therein that he was assaulted on his face by the appellant, there is no other material connecting the accused regarding the commission of the offence either for the offence under Section 302 of IPC or for the offence under Section 304-Part-II of IPC against him. The injured was taken to the hospital by the police constable bearing No.6775 and the said constable has not been examined before the Court. He further submits that, PWs.1 to 3 have been implanted as witnesses subsequently because the chance of PWs.1 to 3 being present at the scene of occurrence is very remote, since PWs.1 to 3 are working near Anand Rao circle and it is in their cross-examination that, the time on which they are supposed to have seen the incident is a busy shopping time and neither the shop keeper or any other person has been examined to prove that the shop was closed by 5.00 p.m., which is an improbability in the normal course of business.
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24. It is further submitted by him that, the presence of PWs.1 to 3 is doubtful. It is further submitted by him that, they have narrated the incident of alleged kicking for the injured. But the complaint- Ex.P1 does not contain any allegation regarding kicking of the deceased by accused. However, both of them have stated that, they had seen the incident from the distance of 100-150 meters, whereas the road or lane in front of M.S.Building is a very busy road in the evening hours, since the employees of Vidhana Soudha and other Government Officials would move towards bus stand situated either at K.R.Circle or at High Court through the said road. Therefore the possibility of PWs.1 and 3 observing the said incident is too remote in this case. It is further submitted by him that, PW.3 is working in Vidhanasoudha which building is facing towards High Court and therefore, the scene of occurrence is never in the vicinity of PW.3. Therefore, he submits that, in the absence of any credible or cogent evidence, the chance of eye witnesses present at the 13 scene of occurrence is very remote and therefore, the order of conviction is not sustainable.
25. It is also further submitted by him that, the deceased was discharged from Bowring Hospital after being treated on the same day. There is absolutely no evidence as to how the deceased reached Manipal Hospital and no person has been examined to prove that the deceased was discharged from Bowring Hospital and was taken to Manipal Hospital. Under the circumstances, the prosecution has not proved the case against the appellant beyond all reasonable doubt. Hence, he submits that, the appellant is entitled to an order of acquittal and the appeal be allowed.
26. Sri.Dore Raju, learned SPP on the other hand submits that, Ex.P1 is registered on the basis of the complaint of injured-Manjunatha. In the said complaint, deceased-Manjunatha has stated that, he was assaulted by accused by means of club on his nose on 09.10.1997 in front of M.S.Building. This statement of PW.1 is further corroborated by the evidence of PW.15-Medical Officer of Bowring Hospital. Hence, he 14 submits that, the prosecution has proved the case against the appellant beyond all reasonable doubt in view of the evidence of the eye witnesses PWs.1 to 3. Hence, he submits that, the order of conviction be sustained and the appeal be dismissed.
27. I have gone through the evidence of the prosecution witnesses and also other documents produced in this case carefully. It is seen that the incident had taken place in the busy road towards S.K.S.J.T. workshop compound and M.S.Building at about 5.30 p.m., Necessarily it is a very busy road. Therefore, the visibility of any person to see the occurrence is very remote. PWs.1 to 3 have given eye witnesses account stating that the accused had assaulted the injured-Manjunatha by means of a club and when he fell down, accused kicked him on his stomach. If at all these versions are true, when Manjunatha was taken to the Vidhanasoudha police station, nothing prevented PWs.1 and 2 from explaining the incident as to what had happened. However, Ex.P1 does not make a mention of kicking on the stomach. 15 But, only mentions about the assault on the nose. Therefore, PWs.1 and 2 cannot be believed as against document-Ex.P1. Further, the Head constable Somalingappa who has received the complaint from the deceased-Manjunatha and the constable P.C.6775 who has taken him to Bowring Hospital has not been examined in this case. It is also seen that there is total blank insofar as the evidence is concerned regarding the injured being found in the Bowring Hospital and on the next day being found in the Manipal Hospital. Nobody has spoken regarding the fact as to how the injured Manjunatha was shifted from that hospital to the Manipal Hospital. It is the case of PW.13-Dr.Srikanth that, before the patient was brought to the Manipal Hospital, injured was taken to two other hospitals and there is no evidence to show as to who has treated the said injured or what is the treatment given to the injured in the said hospitals. The opinion of PW.13 is that, the deceased had died of peritonitis and septicemia and the date of the death is 20.10.1997. PW.13 has clearly admitted that the name of accused 16 has been inserted subsequently in Ex.P11, the memo sent to the police. Hence it is clear that the name of accused was added subsequently. Since none of the police officials are examined to prove the authenticity of the original complaint given by deceased himself as per Ex.P1, the very complaint Ex.P1 is not proved beyond doubt. Under the circumstances, the prosecution has not proved the case against the appellant beyond all reasonable doubt, insofar as the involvement of the appellant in the death of the deceased is concerned.
28. On considering the totality of circumstances in this case as discussed above, I am of the considered opinion that the appellant is entitled for an order of acquittal. Accordingly, the following order is passed:
ORDER The appeal is allowed. The order of conviction and sentence passed by the learned Sessions Judge against the appellant is set aside and he is acquitted of the offence charged against him. Bail bond executed by him 17 stands discharged. Fine amount, if any deposited shall be refunded to him.
Sd/-
JUDGE KSR