Dismissed

State of Karnataka v. Basavaraju

Karnataka HC4 Jan 2022CRL.A/250/2017

Case brief

AI extract

What is this about?

Appeal by accused No.1 against conviction under Section 304 Part II IPC for slapping the deceased, who fell and died of head injury, and State appeal against acquittal of the other accused under Section 302 IPC. The High Court held the act fell under Exception 4 of Section 300 IPC, found the sentence proportionate, and dismissed both appeals.

What did the court decide?

Both criminal appeals dismissed; impugned judgment of conviction dated 25.6.2016 and order of sentence dated 30.6.2016 confirmed; accused No.1 entitled to set-off under Section 428 CrPC.

State of Karnataka Vs Basavaraju — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE M.G. UMA

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CRL.A.NO.1114 OF 2016

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C/W

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CRL.A.NO.250 OF 2017

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IN CRL.A.NO.1114 OF 2016

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BETWEEN:

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BASAVARAJU S/O NAGAIAH, AGED ABOUT 37 YEARS, R/O. 173, 2^ND CROSS, RAJENDRANAGARA, KESARE, MYSURU-570 007. ...APPELLANT

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(BY SRI. CHANDRASHEKARA K.A, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY THE POLICE OF T. NARASIPURA POLICE STATION, MYSURU DISTRICT - 571 124 REPRESENTED BY

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STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001. …RESPONDENT

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(BY SRI. VIJAYKUMAR MAJAGE, ADDL SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 25.6.2016 AND SENTENCE DATED 30.06.2016 PASSED BY I ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.75/2014 - CONVICTIG APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 304 -II OF IPC.

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IN CRL.A.NO.250 OF 2017

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BETWEEN:

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STATE OF KARNATAKA BY T. NARASIPURA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING,

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BENGALURU-560 001. ...APPELLANT

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(BY SRI. VIJAYKUMAR MAJAGE, ADDL. SPP)

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AND:

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BASAVARAJU, S/O. NAGAIAH AGED ABOUT38 YEARS, R/AT NO.173, 2^ND CROSS, RAJENDRANAGAR, KESARE, MYSURU-570 001.

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KUMARA @ MAHESHA, S/O. NANJAIAH, AGED ABOUT 30 YEARS, R/AT. KALIKUNDA VILLAGE, BILAGERE HOBLI, NANJANAGUD TALUK,

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NAGAIAH @ DANDINA MARI NAGAIAH, S/O. LATE SUGREEVAIAH, AGED ABOUT 63 YEARS, R/AT. KALKUNDA VILLAGE, NANJANAGUD TALUK.

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NANJAIAH, S/O. PIKKE BASAVAIAH, AGED ABOUT 58 YEARS, R/AT KALKUNDA VILLAGE, BILIGERE HOBLI, NANJANGUD TALUK-571 301.

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RAJAMMA, W/O. NANJAIAH, AGED ABOUT 48 YEARS, R/AT. KALKUNDA, NANJANGUD TALUK-571 301. …RESPONDENTS

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(BY SRI. K.A. CHANDRASHEKARA, ADVOCATE FOR R1 TO R5) ****

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. BY THE STATE TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25.06.2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.75/2014, ACQUITTING THE ACCUSED/RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143 AND 302 READ WITH 149 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING, THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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Criminal appeal No.1114/2016 is filed by accused No.1 to acquit him or in the alternatively to reduce the sentence; and

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Criminal Appeal No.250/2017 is filed by the State against acquittal of accused Nos.1 to 5 under the provisions of Section 302 of Indian Penal Code.

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These two appeals are filed by accused No.1 and State against the impugned judgment of conviction dated 25.6.2016 and order of sentence dated 30.6.2016 made in S.C.No.75/2014 by the learned I Additional Sessions Judge, Mysuru convicting him for the offence punishable under Section 304-II of the Indian Penal Code (for short, hereinafter referred to as the 'IPC') and sentencing him to undergo rigorous imprisonment for five years with fine of Rs.25,000/-. In default of payment of fine amount, accused No.1 to undergo simple imprisonment for a period of three months and acquittal of accused Nos. 2 to 5 for the offences punishable under Sections 143, 302 read with Section 149 of Indian Penal Code.

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The gist of the prosecution case is that on 19.05.2013,

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when PW-14 - Shankarappa was riding his Motorcycle, suddenly a child came across the road and the motor cycle dashed against the child and as a result, the child suffered certain minor injuries. Hence, accused Nos.3 and 4 started quarrelling with PW-14 by stopping his Motorcycle. Having come to know about the accident, PW.1 - Shekara and Mahadevaswamy came to the spot and consoled accused Nos.3 and 4 and took the injured child to T. Narasipura Government Hospital for treatment. Since the injuries sustained by the victim were only simple in nature, the Medical Officer, who examined the child, prescribed certain medicines and ointment. Therefore, when the deceased Mahadevaswamy had been to the medical shop for bringing the medicines and while returning to the Hospital to deliver the medicines, all the accused gathered in the premises of the Government Hospital, T. Narasipura, with a common object to commit the offence against the deceased Mahadevaswamy and accused No.1 holding the shirt collar of Mahadevaswamy, slapped on his face, due to which, Mahadevaswamy fell down on the ground with severe trauma and became unconscious. All the accused kicked and assaulted him by

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using their hands, as a result, Mahadevaswamy suffered fatal injury. P.W.1 and PW.2 gathered and took Mahadevaswamy to the hospital. The doctor, who gave first aid to Mahadevaswamy, advised them to take Mahadevaswamy to the major hospital. Accordingly, Mahadevasamy was shifted to K.R. Hospital of Mysuru for further treatment where, on the next day i.e., 20.05.2013, he succumbed to the injuries. It is alleged that the accused with their common intention that Mahadevaswamy had intervened in the matter of road traffic accident caused by P.W.14, committed his murder. As such, all the accused were charge-sheeted for the offences punishable under the provisions of Sections 143, 302, 323 and 149 of IPC. The learned Magistrate after taking cognizance of the offence, committed the case to the Sessions Court as contemplated under the provisions of Section 209 of Code of Criminal Procedure.

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After the committal, the learned Sessions Judge secured the presence of accused Nos.1 to 5; framed the charges against them for the offences punishable under Sections 143, 302 read with Section 149 of IPC and read over the same to the accused persons

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in the language known to them, to which, the accused persons pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution in all examined 16 witnesses as PWs.1 to 16 and got marked the documents as Exs.P.1 to 23 and material object as M.O.No.1. After completion of the prosecution evidence, voluntary statement of the accused as contemplated under Section 313 of Cr.P.C was recorded and the incriminating circumstances appearing against them were explained. Though all the accused persons denied the incriminating circumstances appearing against them in toto, have not put forth any defence evidence.

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The learned Sessions judge based on the aforesaid pleadings framed two points for consideration and after considering both the oral and documentary evidence on record, recorded a finding that, the prosecution has failed to prove beyond all reasonable doubts that on 19.05.2013 at about 6.00 p.m., all the accused keeping in mind that Mahadevaswamy had intervened in connection with road traffic accident said to have been caused by PW.14 to the son of accused No.1, formed an unlawful assembly to

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commit an offence against Mahadevaswamy in the premises of Government Hospital, T.Narasipura, Mysuru. The learned Sessions Judge further recorded a finding that the prosecution has not proved the guilt of the accused persons for the offence punishable under Section 302 of IPC, but however, proved the guilt of accused No.1, who assaulted the deceased and thereby held that accused No.1 is guilty of the offence punishable under Section 304-II of IPC. Accordingly, by the impugned judgment convicted accused No.1 for the said offence and sentenced him to undergo imprisonment for five years with fine of Rs.25,000/- and acquitted accused Nos.2 to 5 of the charges framed against them. Hence, the present criminal appeal is filed by the accused No.1 (Criminal Appeal No.1114/2016) for total acquittal or for reduction of sentence and the State has filed Criminal Appeal No.250/2017 against the acquittal of all accused persons under Section 302 of IPC.

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We have heard the learned Counsel for the parties.

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Sri. Chandrashekar K.A, learned Counsel for the appellant/accused No.1 in Criminal Appeal No.1114/2016 vehemently contended that since the impugned judgment of

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conviction and order of sentence passed by the Sessions Court convicting the accused for the offence punishable under Section 304-II of IPC is erroneous, it cannot be sustained and hence, the same is liable to be set aside. He further contended that though the prosecution examined 16 witnesses, out of whom, PWs.1, 2 and 4 are the material witnesses, interested and partisan witnesses, their evidence does not corroborate with the medical evidence of the doctors - P.Ws. 9 to 11 with regard to alleged assault said to have been committed by the appellant-accused No.1 and the injuries sustained by the deceased, but still the conviction of accused No.1 for the offence punishable under Section 304-II of IPC and sentencing him for a period of five years with fine of Rs.25,000/- by the learned Sessions Judge cannot be sustained. He further contended that with regard to the assault committed by accused No.1 to the deceased, the evidence of PWs.1, 2 and 4 is inconsistent with the evidence of the doctors - PWs. 9 to 11 since they have deposed that the deceased sustained injuries on left forehead and the cause of death was due to complications associated with diffuse cerebral edema, consequent to head injury sustained, which fact, is totally ignored by the learned Sessions

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Judge. He further contended that, the presence of the accused Nos.2 to 5 on the date of the incident is not proved though the evidence of PWs.1, 2 and 4 corroborates with each other that accused Nos.2 to 5 along with accused No.1 kicked the deceased and also assaulted the deceased using their hands, but no evidence is produced to prove that accused Nos.2 to 5 were involved in causing homicidal death of the deceased. Thereby, the learned Sessions Judge was justified in acquitting accused Nos.2 to 5 for the offence punishable under Section 302 of IPC.

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Learned Counsel for the appellant further contended that

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Ex.P.13 - Admission record and OPD Slip, and the evidence of P.W.1 clearly depicts that he is not an eye witness to the incident and thereby conviction based on the evidence of PWs.1 and 2 and Ex.P13 by trial Court convicting accused No.1 under provisions of Section 304-II is not just and proper and cannot be sustained. He further contended that, it is the specific case of the accused persons that, the deceased himself falls down and died and as admitted by the doctor in his cross-examination that, if a person falls down on the hard surface of the earth, there will be a possibility of cause

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diffuse cerebral edema resulting in death. He further contended that evidence of P.W.1 clearly depicts that accused No.1 assaulted on the left temporal region of the deceased and whereas the evidence of Doctor -P.W.10 depicts lacerated wound over the right temporal bone of skull region is affected. As such, as there is inconsistency in the evidence of P.W.1 and P.W.10, the Sessions Court ought not to have convicted accused No.1 for the offence punishable under Section 304-II of IPC., and at the most, the incident attracts provisions under Section 323 or 325 of IPC. Therefore, he sought to allow the appeal or in the alternative to convict and punish accused No.1 under provisions of Section 323 or 325 of IPC and not under the provision of 304-II of IPC. Therefore, he sought to allow the appeal filed by the accused and dismiss the appeal filed by the State.

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Per contra, Sri Vijay Kumar Majage, learned Additional State Public Prosecutor for the State contended that the impugned judgment and order of acquittal passed by the trial Court, acquitting accused Nos.2 to 5 for the offences punishable under Sections 143, 302 read with Section 149 of IPC is erroneous and

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cannot be sustained. He further contended that the Sessions Court ought to have convicted accused No.1 for the offence punishable under Section 302 of IPC, who had slapped the deceased on his left cheek causing fatal injuries. Even accused Nos.2 to 5, who have also kicked the deceased and assaulted him with their hands, were also involved in the alleged offence and therefore, the impugned judgment and order, acquitting accused Nos.2 to 5 cannot be sustained since the evidence of PWs.1, 2 and 4 clearly depicts the involvement of accused Nos.1 to 5 in the homicidal death of the deceased. The evidence of PWs.10 and 11, who are doctors, clearly depicts that the cause of the death of the deceased was due to assault by accused No.1 and the same is corroborated with the report of Post mortem examination. Therefore, he sought to allow the appeal filed by the State by convicting all the accused persons for the offence punishable under provisions of Section 302 and dismiss the appeal filed by accused No.1.

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In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the points that would arise for our consideration are:-

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1. Whether accused No.1 has made out a case to interfere with the Judgment of conviction and order of sentence in so far as his conviction under the provisions of Section 304Part II of IPC., or in the alternative to reduce the sentence in the facts and circumstances of present case?

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2. Whether the State has made out a case to interfere with impugned judgment and order of acquittal of accused Nos.1 to 5 under the provisions of Section 302 of IPC., in the facts and circumstances of the present case?

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We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records carefully.

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It is the specific case of the complainant -PW.1 as per Ex.P1 that, on 19.05.2013 when PW-14 was riding his Motorcycle, the son of accused No.1 suddenly came across the road and at that time the Motorcycle dashed against the child, due to which, the child had suffered certain minor injuries. Accused Nos.3 and 4

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started quarrelling with PW.14 by stopping his Motorcycle. Having coming to know about the same, PW1 - complainant and the deceased Mahadevaswamy came to the spot and pacified accused Nos.3, 4 and P.W.14 and took the child to the hospital. The Medical Officer, who treated the child, prescribed certain medicines and ointment as the child had suffered minor injuries. When the deceased Mahadevaswamy was bringing the medicines to the hospital, at that time, all the accused persons gathered in the premises of the hospital and accused No.1 holding the shirt collar of the deceased Mahadevaswamy, slapped on the left side of his face, as a result, Mahadevaswamy fell down and became unconscious and all the accused persons kicked and assaulted him with their hands and subsequently, during the course of his treatment in K.R. Hospital, on the next day of the said incident, the deceased succumbed to injuries. Accordingly, the jurisdictional police registered a case in Crime No.139/2013 against the accused persons for the offences punishable under Sections 143, 302 and 323 read with Section 149 of IPC. It is also not in dispute that after investigation charge sheet was filed against the accused persons for

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the offences punishable under Section 143, 302 and 323 read with Section 149 of IPC.

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This Court being the Appellate Court, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon:-

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(i) P.W.1 - Sri Shekara, who is the complainant, reiterating the complaint averments stated that on the date of incident he and deceased went to the spot as there was a quarrel going on between accused Nos.3, 4 and P.W.14 and as such, they consoled them. Thereafter, they took the child to the Government Hospital at T. Narasipura for treatment at 5.30 p.m. Since there were minor injuries to the child, the doctor prescribed some medicines and ointment and when Mahadevasamy had been to bring the medicines and while he was returning, at that time, accused No.1 slapped on the left cheek of the deceased, thereby the deceased fell down and all other accused persons kicked and assaulted him by their hands, as a result, Mahadevaswamy suffered fatal injuries. Thereafter, PWs. 1 and 2 and other people gathered and took Mahadevaswamy to T.Narasipura Government Hospital and the doctor advised them

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to take him to Major Hospital. Therefore, he was taken to K.R. Hospital in Mysuru, and on the next day i.e., 20.05.2013 at about 3.30 p.m., the deceased succumbed to the injuries he sustained. Nothing has been elicited in his cross-examination to disprove that accused No.1 assaulted the deceased.

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(ii) P.W.2 - Sri Prasanna Kumar is the maternal uncle of the deceased. He has given his evidence corroborating with the evidence of P.W.1 that accused No.1 held the shirt collar of the deceased Mahadevaswamy and slapped on his face. As a result, the Mahadevaswamy fell down on the ground with severe trauma and became unconscious and at that time, all the accused kicked and assaulted him by their hands, due to which, Mahadevaswamy suffered fatal injury. Nothing has been elicited in his crossexamination to disprove that accused No.1 has not assaulted the deceased.

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(iii) P.W.3 - Sri Rajanna, who is the independent witness to the inquest mahazar - Ex.P.3 has supported the prosecution case, but he has not been cross-examined.

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(iv) P.W.4 - Sri K.S. Mahadeva Swamy, another eye witness to the incident has partially supported the case of the prosecution.

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(v) P.W.5 - Sri Prakash, who had acquaintance with the deceased has not supported the case of the prosecution and as such, he has been treated as hostile to the prosecution case.

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(vi) P.W.6 - Sri Suresh, who is a witness to the seizure mahazar - Ex.P.6 has been treated as hostile since he had not supported the prosecution case.

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(vii) P.W.7 - Sri K.S. Nagaraju, is another eye witness for the seizure mahazar - Ex.P.6 for seizing the motorcycle as per the photographs Exs.P.7 and 8, but he has not been cross-examined with respect to the said seizure.

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(viii) P.W.8 - Sri Rachappaswamy, witness to the sport mahazar - Ex.P.2 has supported the prosecution case.

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(ix) P.W.9 - Dr. Mukundh M.B., Senior Skin Specialist at the Government Hospital, T. Narasipur at the relevant time, had treated Mohith, S/o Basavaraju, aged about 3 years, who was brought to

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the hospital with the history of road traffic accident. On examination, he found an abrasion over the left back 2 in numbers measuring 2 cms. x 0.5 cms. and 1 cm. x 0.5 cms. and lacerated injury on left forehead (horizontal in nature) measuring 1 cm x 0.5 cm. which were simple in nature. He further deposed that his pulse rate was 58/minute and BP 90/60. He was brought unconscious and was not responding to the oral commands. He found injuries viz., tenderness on abdomen and as such, he gave first aid to the patient. In his cross-examination, he has deposed that, according to him, the patients was responding while touching though he was unconscious. The text referred to by him was 'Surgery'. He has denied the suggestion that the patient was not responding to the oral commands as well as physical touching when he was unconscious. He did not find any external injuries over the body of Shivappa @ K.S. Mahadevaswamy.

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(x) P.W.10 - Dr. Purushotham K.R., Causualty Medical Officer, K.R. Hospital, Mysuru, has deposed that he examined the patient by name Mahadevaswamy @ Shivappa at the K.R. Hospital with an history of assault around 7.00 p.m. on 19.5.2013 in the

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hospital compound of General Hospital, T. Narasipura, who was also referred from that hospital. He found one lacerated wound over right temporal bone of skull regional measuring 1 - 2 cms; an abrasion over right forearm above right elbow join measuring 1 x 1 cm. He got admitted the patient and referred the patient to Surgery Department. He verified the original MLC with the extract of the same as per Ex.P.11. He further has deposed that on 20.5.2013 at about 3.15 p.m. the patient-Mahadevaswamy @ Shivappa died and as such, he issued MLC intimation to the police as per Ex.P.12. The extracts of Admission Record, OPD Chit and Case Sheet were marked together as Ex.P.13. Nothing has been elicited in his cross-examination to disprove the case of the prosecution.

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(xi) P.W.11 - Dr. M.P. Kumar, Professor and Head of the Department of Forensic Medicine, MMC, Mysuru, has deposed that on 21.5.2013, he received a requisition from the Circle Inspector of Police, T. Narasipura to conduct postmortem on the deceased Mahadevaswamy, aged about 42 years. On receipt the same, he conducted postmortem on the dead body at the Collect Mortuary

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between 11.35 a.m. and 12.35 p.m., and on external examination, he found that the dead body of the male, aged 42 years, measuring 180 cms. in length, moderately built and nourished, rigor mortis present all over the body, post mortem staining present over the back, nail beds cyanosed. On internal examination, the scalp was intact, on reflection blood extravasated over an area of 6 cms. x 5 cms. over the left temporal region, membranes, brain and spinal cord were intact. Heart weighed 400 gms., coronaries normal and patent and all other internal organs unremarkable. Head injury was ante-mortem in nature, Blood and viscera was sent for chemical analysis to the Regional Forensic Science Laboratory, Mysuru. He gave his final opinion on 30.7.2013 opining that the 'Death was due to complications associated with diffuse cerebral edema consequent to head injury sustained". He further has deposed that on receiving the letter dated 14.9.2013 from the CPI., T. Narasipura Circle, as to the probable cause of such head injury, he had given his opinion on page-4 of postmortem report as 'Injury sustained to head can be caused by blunt injury to the head with significant force and has resulted in death. He further has deposed that the blunt injury can be caused by hand. Nothing has been elicited in his cross-

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examination to disprove the involvement of accused No.1 in the offence.

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(xii) P.W.12 - Sri M.N. Murthy, Head Constable, T. Narasipura Police Station, who apprehended the accused has supported the case of the prosecution and he has not been crossexamined.

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(xiii) P.W.13 - Sri Mahendrakumar M., who was working as driver of the car at T. Narasipura was examined as eye witness to the incident, but as he has not supported the case of the prosecution, and as such, he has been treated as hostile.

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(xiv) P.W.14 Sri Shankarappa, brother-in-law of Mahadevaswamy @ Shivappa, who caused the accident of the minor child has deposed that there was quarrel at T. Narasipura Government Hospital with regard to the accident. His brother-inlaw P.W.1 - Shekhar and deceased Mahadevaswamy @ Shivappa were taken to the hospital. He did not go to the hospital. It was informed by his brother-in-law - Shekharappa that Mahadevaswamy

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was taken to the Hospital at Mysuru and the police did not enquire him. He has not been cross-examined.

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(xv) P.W.15 - Sri Gopikrishna K. R., the then PSI at T.Narasipura Police Station has deposed that he registered a case in Crime No.139/2013 on the basis of the complaint and transmitted the FIR as per Ex.P.17 to the Court and handed over the further investigation to P.W.16 - Sri K.A. Sundarraj.

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(xvi) P.W.16 - Sri K.A. Sundarraj, who was the CIP of T.Narasipur Circle, has deposed that after he took up further investigation, he went to the mortuary of K.R. Hospital and conducted the mahazar as per Ex.P.2; subjected the dead body for postmortem examination; recorded the statement of the mahazar witnesses, seized the motor vehicle, apprehended accused No.3; received the postmortem report - Ex.P.14 and on the same day, he arrested accused No.1 - Basava @ Basavaraj; filed the charge sheet to the Committal Court.

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Based on the aforesaid evidence on record, the trial Court acquitted accused Nos.2 to 5 for the offences punishable

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under Sections 143, 302 r/w 149 of the Indian Penal Code and convicted accused No.1 for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) with default sentence.

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On careful perusal of the evidence of the prosecution witnesses, P.Ws.1, 2 and 4 in categorical terms have deposed about the involvement of the accused No.1, who slapped left cheek of the deceased Mahadevaswamy, as a result of which, Mahadevaswamy fell down unconscious . They have further deposed that the other accused i.e., accused Nos.2 to 5 also have kicked and assaulted the deceased with hands, with regard to which, no material documents are produced, except the evidence of the doctor that the injuries sustained by the deceased was on account of slap by accused No.1 on the cheek. The evidence of P.W.10, the doctor who examined the patient and referred to him by the General Hospital at T. Narasipura, has deposed that on examination, he found the following injuries:

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"(i) Lacerated wound over right temporal bone of skull region measuring 1 - 2 cms;

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(ii) An abrasion over right forearm above right elbow joint 1 x 1 cm."

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P.W.11 - Dr. M.P. Kumar, Professor and Head of the Department of Forensic Medicine, MMC Mysuru, who conducted the postmortem examination on the dead body of the deceased has deposed at paragraphs-4, 5, 10, 11 and 13 of his evidence as under:

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"4. On external examination: The dead body that of a male, aged 42 years, measuring 180 cms in length, Moderately built and nourished, rigor mortis present all over the body. Post Mortem staining present over the back. Nail beds cyanosed.

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5. On internal examination: Scalp intact, on reflection blood extravasated over an area of 6 cms x 5 cms over the left temporal region. Skull intact. Membranes intact. Brain & Spinal Cord intact.

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10. After perusal of Case sheet records of K.R. Hospital, FSL Report I gave final opinion on 30.07.2013 as "Death was due to complications associated with diffuse cerebral edema, consequent to head injury sustained". In this regard I have issued Post Mortem Report. Now I see the same. Post Mortem Report is marked as Ex.P14 and signature of the witness is marked as Ex.P14(a).

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11. Later dated 14.09.2013 was received from CPI, T. Narasipura Circle enquiring about the probable cause of such head injury, for which, I gave opinion on the page 4 of Post Mortem Report as "Injury sustained to head can be caused by blunt injury to the head with significant force and has resulted in death". The opinion dated 25.09.2013 on Page 4 of the Post Mortem Report with signature is marked Ex. P14(b).

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13. Blunt injury can be caused by hand"

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Nothing has been elicited in the cross-examination of P.Ws.1, 2, 4, 10 and 11 to disprove the case of the prosecution about

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involvement of accused No.1 in the homicidal death of the deceased, who slapped the deceased on his left cheek, as a result of which, the deceased fell down and subsequently died in the hospital. The said oral evidence of the doctor is supported by the material documents - Exs.P.11 to 14, MLC extract of the deceased Mahadevaswamy, death intimation to the police, case sheet with OPD Slip in respect of Shivappa @ Mahadevaswamy and postmortem report clearly depicts that the death was due to the injuries sustained to head which can be caused by blunt injury to the head with significant force and has resulted in death.

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Though the learned Counsel for accused No.1 contended that this is not a fit case to impose punishment under Section 304 Part-II of IPC., but at the most, it attracts the provisions of Section 323 or 325 of IPC., the said contention cannot be accepted for the simple reason that except the evidence of the doctor in the crossexamination that the deceased himself fell on the road and died, with regard to which, there is absolutely no explanation offered by accused No.1 in the voluntary statement recorded under Section 313 of the Code of Criminal Procedure. In the absence of specific

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denial by accused No.1 in his statement recorded under Section 313 of the Code of Criminal Procedure and in the absence of any explanation forthcoming in his statement, that he is not involved in the homicidal death of the deceased, an adverse inference has to be drawn against accused No.1 as held by the Hon'ble Supreme Court in the case of Prahlad v. State of Rajasthan reported in (2019)14 SCC 438 particularly at paragraph-11 which reads as under:

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" 11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

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As already stated supra, the alleged prosecution witnesses including eye witnesses have not deposed about involvement of accused Nos.2 to 5 except the glaring evidence that

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they kicked and assaulted the deceased after he fell down. No medical evidence is also produced to prove with regard to

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involvement of accused Nos.2 to 5 in the homicidal death of the deceased. P.W.11 has specifically deposed that the cause of death of the deceased was because of assault by accused No.1.

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With regard to the contentions urged by the learned Additional SPP that the evidence of P.Ws.1, 2, 4, 10 and 11 and material documents Ex.P.11 - MLC register and Ex.P.14 - Postmortem report depict that accused Nos.1 to 5 are involved in the commission of offence attracting the provisions of Section 302 of IPC, the same cannot be accepted, in the absence of any specific evidence putforth or material documents produced including medical evidence by the prosecution witnesses to prove the involvement of accused Nos.2 to 5 in the homicidal death. The trial Court considering the material on record has come to the conclusion that the deceased died due to the assault of accused No.1 As such, the facts and circumstances of the present case would attract the provisions of Exception (4) of Section 300 of IPC., which reads as under:

¶131

“Section 300-Murder: xxxx

¶132

Exception 1: xxxxx Exception 2:xxxxx

¶133

¶134

Exception 3:xxxxx

¶135

Exception 4: Culpable Homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

¶136

A careful reading of the aforesaid provision, makes clear that to invoke said provision, four requisites must be satisfied, namely;

¶137

i) It must be a sudden fight;

¶138

ii) There should be no premeditation;

¶139

iii) The act must be done in a heat of passion; and

¶140

iv) the assailant should not have taken any undue advantage or acted in a cruel manner.

¶141

In the present case, when P.W.14 has caused the

¶142

accident to the son of accused No.1, there was a quarrel between

¶143

accused Nos.3, 4 and P.W.14; and when P.W.1 and deceased, came to know about the road accident, intervened and pacified the

¶144

¶145

accused and shifted the child to the General Hospital at T. Narasipura. While the deceased had been to purchase medicine and was returning to the hospital, at that time, accused No.1 (father of the child) alleged to have slapped on the left cheek of the deceased in a sudden fight without any premeditation and in the heat of passion, the said act has resulted in the death of the deceased, wherein the accused ought not to have taken any undue advantage or acted in a cruel manner. Therefore, in the facts and circumstances of the present case, the offence clearly falls under Exception 4 of Section 300 of IPC and not under Section 302 of IPC as contended by the learned Additional SPP., since the accused has slapped the deceased on the left cheek without any intention to cause the death, and the said act of the accused is punishable under Section 304 Part II of IPC as rightly held by the learned Sessions Judge.

¶146

A reliance was also placed by Sri Chandrashekara K.A., learned Counsel for appellant-accused No.1 in Criminal Appeal No.1114/2016 on the dictum of the Hon'ble Supreme Court in the case of from Lakshmi Chand v. State of U.P.,reported in (2018) 9

¶147

¶148

SCC 704 to the effect that the Hon'ble Supreme Court has reduced the sentence imposed on the accused for the offence punishable under Section 304 Part II IPC from eight years to three years.

¶149

The said judgment relied upon by the learned Counsel for the appellant-accused No.1, to reduce the sentence, it was a case where the incidence has taken place on 15.4.1980 and the judgment was delivered on 24.8.2018 and the Hon'ble Supreme Court at paragraph-9 of the said judgment has held that the deceased is stated to have succumbed to the injury on the thigh leading to the cut of the femoral artery. The injury was attributable to Appellant 2. The absence of any common intention makes him individually answerable. His conviction under Section 304 Part II IPC, therefore, calls for no interference. But considering that the occurrence took place on the spur of the moment, the assault was not made on a vital part of the body, that the assailant ran away upon being challenged, the genesis of the assault lay in a dispute between neighbours with regard to strayed cattle, and that the occurrence had taken place long ago in 1980, and thereby reduced the sentence of Appellant 2 to a period of two years.

¶150

¶151

Admittedly in the present case, the material on record including medical evidence clearly depicts that accused No.1 assaulted the deceased on the left cheek of the deceased which is a vital part and the doctors especially P.W.11 has stated that the injury sustained to the head can be caused by blunt injury with significant force and has resulted in death. Further at paragraph-13 of his evidence, he has deposed that the blunt injury can be caused by hand. When the accused had slapped on the left cheek of the deceased, as a result of which, the deceased fell down and became unconscious and on the next day, he died, clearly depicts that the injury caused by accused No.1 is on the vital party of the deceased. Therefore, the judgment relied upon by the learned Counsel for the appellant-accused No.1 has no application to the facts and circumstances of the present case.

¶152

With regard to the contention urged by the learned Counsel for the appellant-accused No.1 to reduce the sentence either under Section 323 or 325 of IPC., even if we consider the provisions of Section 325 of IPC., the punishment for voluntarily causing grievous hurt shall be punished with imprisonment of either

¶153

¶154

description for a term which may extend to seven years, and shall also be liable to fine. Considering the entire material on record, we are of the considered opinion that, the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting accused No.1 for five years with fine of Rs.25,000/- is proportionate to the gravity of offence and is just and proper and does not call for any interference.

¶155

On re-appreciation of the entire material including oral and documentary evidence on record, the learned Sessions Judge is justified in convicting accused No.1 for the offence punishable under Section 304 Part II of IPC and sentencing him to undergo rigorous imprisonment for five years with fine of Rs.25,000/- and acquitting accused Nos.2 to 5 since the prosecution has failed to prove its case against them and the same is in accordance with law.

¶156

For the reasons stated above, the first point raised in the present criminal appeals is answered in the negative holding that the accused No.1 (in Criminal Appeal No. 1114/2016) has not made any case to interfere with the impugned judgment of conviction and order of sentence in so far as his conviction under

¶157

¶158

the provisions of Section 304 Part-II of IPC or in the alternative to reduce the sentence imposed on him and the second point is also answered in the negative holding that the State has not made out any ground to interfere with the impugned judgment of acquittal of accused Nos.1 to 5 for the offence punishable under Section 302 of IPC in the facts and circumstances of the present case.

¶159

Accordingly, we pass the following:

¶160

ORDER

¶161

i) Criminal Appeal No.1114/2016 filed by accused No.1 is dismissed as being devoid of merits;

¶162

ii) Criminal Appeal 250/2017 filed by the State is also dismissed;

¶163

iii) Criminal Appeal No.250/2017 stands abated against respondent No.4/accused No.4 as per the order dated 21.9.2021 passed by this Court;

¶164

iv) The impugned judgment of conviction dated 25.6.2016 and order of sentence dated 30.6.2016 is hereby confirmed; and

¶165

v) However, it is needless to observe that appellant/accused No.1 is entitled to the benefit of

¶166

¶167

set off for the period of sentence already undergone by him in the judicial custody as contemplated under the provisions of Section 428 of the Code of Criminal Procedure as held by the learned Sessions Judge in the impugned judgment of conviction and order of sentence.

¶168

Sd/Judge

¶169

Sd/Judge

¶170

Ag-1 to 19 & Nsu-20 to end

State of Karnataka v. Basavaraju

Case brief

What is this about?

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State of Karnataka v. Basavaraju

Case brief

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