Dismissed

State of Karnataka v. Mallappa Fakirappa Chalavadi

Karnataka HC13 Sept 2024CRL.A/100516/2021

Case brief

AI extract

What is this about?

State appeal against acquittal of respondents for murder and related offences; the sessions court had convicted them only under Section 355 IPC for assaulting the deceased with chappals. The High Court found no nexus between the assault and the skull injury, noting inconsistent medical evidence and an alternative explanation for the fall, and rejected the appeal.

What the court decided

AI extract

State of Karnataka Vs Mallappa Fakirappa… — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC-D:13142-DB CRL.A No. 100516 of 2021

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI CRIMINAL APPEAL NO.100516 OF 2021 (A)

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BETWEEN:

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.26 10:30:19 +0530

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STATE OF KARNATAKA REPRESENTED BY THE CIRCLE POLICE INSPECTOR, KATKOL POLICE STATION, RAMADURGA CIRCLE, DISTRICT: BELAGAVI, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)

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…PETITIONER

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AND:

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MALLAPPA FAKIRAPPA CHALAVADI AGE: 63 YEARS, OCC: COOLIE.

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FAKIRAPPA MALLAPPA CHALAVADI AGE: 61 YEARS, OCC: COOLIE.

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HANAMANT SABAPPA MADAR AGE: 63 YEARS, OCC: GRAZING CATTLE,

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ALL ARE R/O. KHANPETH, TQ: RAMDURG, DIST: BELAGAVI-591 123.

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…RESPONDENTS

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(BY SRI. T.R.PATIL, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.12.2019 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI AT BELAGAVI IN SESSIONS CASE NO.26/2017, AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.12.2019 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI AT BELAGAVI IN SESSIONS CASE NO.26/2017 SO FAR IT RELATES TO ACQUITTAL OF RESPONDENTS/ACCUSED U/S 341, 323, 324 AND 302 R/W 34 OF IPC AND CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE U/S 341, 323, 324, 302 R/W SECTION 34 OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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NC: 2024:KHC-D:13142-DB CRL.A No. 100516 of 2021

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)

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This appeal is by the State as against the judgment dated 02.12.2019 in Sessions Case No.26/2017 on the file of the Principal Sessions Judge, Belagavi [for short, ‘the sessions Court’ ]. The respondents have stood trial in the above case for the offences punishable under Sections 341, 323, 324, 355 and 302 read with Section 34 of IPC, but the sessions Court has convicted the respondents only for the offence punishable under Section 355 read with Section 34 of IPC acquitting the respondents of the other offences.

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The sessions Court has clarified that the respondents are acquitted of all the offences including Section 355 as against one of the witnesses, but the conviction is as against the deceased. The respondents are sentenced to imprisonment for the term that they have spent in pre-trial custody sentencing the first respondent to pay a fine of Rs.1,000/- and the other two respondents to pay Rs.500/- or to undergo default imprisonment for 15 days.

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The respondents have not challenged this conviction and sentence.

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The prosecution’s case is because of the complaint filed by Sri Balavant Basappa Pujer [PW1]. The prosecution’s case is that on 12.08.2016, the complainant and his uncle Sri Yallappa Maruti Pujer [the deceased] were returning on a motorcycle from Khanpet to Basaragi Village. When they were within the limits of Khanpet Village and on Katkol-Ramdurg road, they saw the respondents trying to harass a couple who had fallen down from a motorcycle after hitting a stray dog for money. The complainant and his uncle intervened, and therefore, the respondents assaulted the complainant and the deceased with their chappals with some of the respondents even snatching the key of the complainant’s motorcycle.

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The prosecution contends that the deceased was assaulted so badly with chappals that he suffered a fracture on the left side of the skull and died on 18.08.2016 after being hospitalized for a period about 3-4 days. The

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Investigating Officer, who has continued the investigation after the FIR was registered in Crime No.204/2016 by another officer, has completed the investigation and filed charge sheet against the respondents for the offences as aforesaid. The sessions Court has framed charges against the respondents for the offences as stated above with they pleading not guilty.

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The prosecution to prove its case against the respondents has examined the complainant and witnesses such as panch witnesses to the inquest [PWs.2 and 3], drawing up mahazar of the alleged place of occurrence [PWs.4 and 5], for recovery of the chappals used by the respondents to assault the deceased [PWs.8 and 10] and official witnesses. The prosecution has examined the Doctor who has allegedly given the first treatment to the deceased as PW21 and the Doctor who conducted the postmortem report as PW19. The prosecution has also examined certain alleged eyewitnesses to the incident, but these witnesses have turned hostile.

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The sessions Court, on considering the evidence, has acquitted the respondents of the offences other than the offence under Section 355 of IPC opining that the prosecution has failed to establish that the deceased suffered injuries as a result of the alleged assault; that the deceased has breathed his last five days after the incident and there is nothing on record to establish what transpired between 12.08.2016 [the date of occurrence] and the date of death. The sessions Court has opined that assaulting any person with chappals in public would amount to dishonouring him / her and because it is shown that the respondents have assaulted the deceased with chappals they must be found guilty of the offence punishable under Section 355 of IPC.

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The State’s appeal as against the respondents being acquitted of the offences under Section 302 of IPC and other offences is considered upon hearing Sri M. B. Gundawade, the learned Additional State Public Prosecutor, and on perusal of records. The complainant [PW1], while reiterating the occurrence as stated in his

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complaint, is categorical about the following. The respondents have assaulted the deceased but one of the bypassers pacified them and he and his uncle returned home. On the next date, the deceased was taken to the hospital and he was admitted as an in-patient with KLE Hospital, Belagavi where he underwent a CT Scan. The doctors at the hospital, after the CT Scan, informed the family members that the deceased was not in a good health condition and therefore, no purpose would be served if he is continued in the hospital as an in-patient and they returned to Katkol. He thereafter reported the incident to the Police.

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The complainant has further stated that his uncle was taken to KIMS Hospital, Hubballi and even there the family was informed that there would be no use and his uncle has breathed his last on 18.08.2016 i.e., six days after the date of incident. This evidence of the complainant will have to be seen in conjunction with the medical evidence because none of the other witnesses have supported the prosecution.

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Dr. R. S. Banti, Medical Officer, Primary

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Health Centre, Katkol is examined as PW21. This Doctor has deposed that the deceased was brought to his Primary Health Centre by the Police on 12.08.2016 in an unconscious stage with history of assault. He has further stated that he administered first aid treatment and referred the deceased to KLE Hospital because the deceased was unconscious and he has opined, in terms of Endorsement Ex.P22, that the deceased was unable to make a statement.

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If this evidence is to be accepted, the Endorsement ought to have been dated 12.08.2016 but it is dated 17.08.2016 viz., five days after the incident. The records pertaining to the first aid treatment purportedly administered to the deceased by this Doctor on 12.08.2016 is not produced. At this stage, the Court must place in juxtaposition the complainant’s testimony that after the incident on 12.08.2016, he and his uncle returned home and only on the next day another relative took the deceased to a hospital because he was complaining of headache. The witness has also stated that the deceased was shifted from

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such hospital to KLE Hospital, Belagavi. The records in this regard are not produced, and this undermines the doctor’s evidence that the deceased was taken in an unconscious stage to the Primary Health Centre accompanied by the Police on the date of occurrence.

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Dr. Santosh Patil, a Radiologist with KLE Hospital, Belagavi, is examined as PW19. The medical records with the KLE Hospital are not produced. However, the Doctor has deposed that the deceased was brought to the KLE Hospital on 17.08.2016 and that the CT Scan report is suggestive of subacute infarct [a small localized areas of dead tissue resulting from failure of blood supply]. The Doctor, to the Court’s question on whether chappals [MOs.1 to 3] could cause injuries as aforesaid, has categorically stated in the negative and he has further stated in the crossexamination that the injury resulting in subacute infarct could be caused when there is contact with hard surface like rock. The postmortem report is produced as Ex.P23 and the concerned Doctor has opined that there was a fracture on the left side of the skull. .

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These circumstances, in this Court’s

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considered view, do not establish nexus between the alleged assault and the injury; crucially, fracture on the left of the skull. The first respondent’s statement under Section 313 of Cr.P.C. in this context acquires significance. This respondent has stated the deceased, who had stepped out of a liquor bar under the influence of alcohol, fell down and he cannot say how many times he must have fallen down before reaching his home. In the circumstances, this Court cannot take any exception with the sessions Court acquitting the respondents of the different offences for which the charges were framed against them.

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Hence, the appeal stands rejected.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C.M.JOSHI) JUDGE

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RSH / Ct: VH List No.: 1 Sl No.: 28

State of Karnataka v. Mallappa Fakirappa Chalavadi

Case brief

What is this about?

What the court decided

State of Karnataka v. Mallappa Fakirappa Chalavadi

Case brief

What is this about?

What the court decided

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