High Court dismissed criminal appeal by State against Sessions Court acquittal. Court held prosecution failed to prove nexus between accused assault and deceased death caused by heart attack due to inconsistent witness evidence.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2021
BEFORE:
THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.786 OF 2011
BETWEEN
THE STATE OF KARNATAKA
BY KOTE POLICE STATION … APPELLANT
[BY SMT. RASHMI JADHAV, HCGP]
AND
R/O CHILUR, HONNALI TALUK DAVANAGERE DISTRICT
AGED ABOUT 38 YEARS
AUTO DRIVER
R/O DOODIBEELU
SHIMOGA TALUK AND DISTRICT … RESPONDENTS
[BY SRI R.SHASHIDHAR, ADVOCATE FOR R1 & R2]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DATED 18.03.2011 PASSED BY THE P.O., FTC-II, SHIMOGA IN S.C.NO.65/10 –
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ACQUITTING THE RESPONDENT FOR THE OFFENCES P/U/S 504, 323, 304(2) R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
State has preferred this appeal against the judgment and order of acquittal passed by the Sessions Court in S.C.No.65/2010, acquitting respondents/accused Nos.1 and
2 for the charged offences punishable under Sections 504, 323, 304(2) read with 34 of IPC.
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bus alighted the bus to have their meals in a nearby hotel.
At that time about 3 to 4 auto drivers entered the bus and started to abuse the passengers who were sitting inside the bus. One of them sat down in the driver’s seat and attempted to start the bus. At that time PW.4Shivashakarappa, a passenger in the said bus told him that they are going to Dharmastala to attend a marriage and within a short period they will leave the said place, as some of the passengers have gone to have their meal. Both accused Nos.1 and 2 started assaulting PW.4Shivashankarappa as well as PW.6-Narayana with hands and caused simple injuries to them. When deceasedNarayanaswamy tried to intervene and pacify the quarrel, he was also assaulted by accused with hands, on account of which he collapsed. He was immediately rushed to Mc. Gann Hospital, wherein, the doctor after examining declared him dead.
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the prosecution got examined PWs.1 to 25 and got marked Exs.P1 to P14 and MO’s 1 to 4.
passed by the trial Court, the learned High Court Government Pleader has contended that the trial Court has totally misread the evidence on record and disbelieved the evidence of eye witnesses namely PWs.2 to 6 who have clearly deposed that accused Nos.1 and 2 have assaulted the deceased on account of which he fell down and sustained injuries and consequently died while being shifted to the hospital. She contends that even if there are
minor discrepancies in the evidence of the said witnesses, the same are not sufficient to discard their evidence in entirety as the identity of the accused persons who assaulted the deceased has not been disputed. She
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contends that PWs.4 and 6 are the injured witnesses and in respect of PW.6, the Medical Officer-PW.20 has issued wound certificate as per Ex.P11, which establishes that he was very much present when the incident took place. She contends that the entire approach of the trial Court in acquitting the respondents is not proper and the reasons assigned are not in accordance with law.
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assault made by the accused and therefore, he seeks to dismiss the appeal.
The Post Mortem Report is marked as Ex.P1. As per final opinion, the cause of death is due to Syncope as a result of Myocardial Infarction. It is elicited in the cross examination of PW.1 that the deceased died due to heart attack and as per Histopathology Report, even prior, the deceased had suffered a heart attack. He has admitted in the crossexamination that when a person has suffered a heart attack earlier, then in a frightened mode or in an excitement he could suffer a heart attack. Further, if that person is traveling and if brake is applied suddenly and if that person comes into contact with an object there are chances of suffering heart attack.
were proceeding from Savalanga to Dharmasthala to attend a marriage function. The deceased was also one of
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the passengers in the said bus. At about 10.00 p.m., the said bus stopped near a auto stand at Gopi Circle and some of the passengers got down to have their meals in the nearby hotel. At that time few auto drivers came near the bus and started quarreling with the passengers who were sitting inside the bus. One of the accused sat in the driver’s seat and attempted to start the bus, at that time PW.4 told him that within a short period they will leave the said place. At that time, it is alleged that accused Nos.1 and 2 assaulted both PW.4 and 6 with their hands and when deceased tried to intervene he was also assaulted and pushed on account of which he collapsed and subsequently died.
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auto drivers. He has once again stated that both accused Nos.1 and 2 have assaulted Narayanaswamy.
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evidence on record has observed that, on considering the evidence of the material witnesses, their evidence in examination in chief itself are inconsistent and contradictory to each other. The inconsistencies and contradictions which are elicited have been discussed by the trial Court and it is held that there are material contradictions. Further, according to PW.7, who was one of the passenger in the bus, somebody assaulted Narayanaswamy and he fell down and then the police came to the spot and took Narayanaswamy to the hospital. PW.7 has stated that he has not seen the accused on that day. He was treated hostile and cross examined by the public prosecutor. In the cross examination, he has stated that
he has not seen as to who were quarrelling with the deceased. He has denied that he has seen the accused persons assaulting deceased-Narayanaswamy. He admitted the suggestion made by the prosecution that when the accused pushed Narayanaswamy he fell down and thereafter Narayanaswamy was taken to the hospital in an
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auto rickshaw. The said suggestion made to PW.7 and the admission given by him go to show that the deceased fell down when he was pushed. Considering the medical evidence, wherein PW.1 has stated that deceased died on account of Myocardial infarction and also considering the discrepancies and contradictions in the evidence of prosecution witnesses, the trial Court has extended benefit of doubt to the accused. The reasons assigned by the trial Court cannot be said to be either perverse or illegal. This being an appeal against the judgment of acquittal, appellate Court cannot lose sight of the fact that presumption of innocence is strengthened by the order of acquittal. The finding of the trial Court is based on an appreciation of oral and documentary evidence, which does not call for interference. Hence, the following
ORDER
Appeal is dismissed.
HB/-
Sd/JUDGE
2 issues framed by the court
Whether the prosecution successfully proved that the accused assaulted the deceased causing death due to myocardial infarction.
Whether the trial court correctly extended benefit of doubt due to inconsistencies and contradictions in prosecution witness testimony.
THE STATE OF KARNATAKA
AZGAR BASHA
PUTTASWAMY
MOHAMMAD NAWAZ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
