Nataraju Vs State by Kuderu Police

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 11.07.2018, PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) IN S.C.NO.17/2014, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.

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HC-KAR

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THIS APPEAL, COMING ON FOR DICTATING JUDGMEDNT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ and HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

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The appellant/accused has preferred this appeal

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praying to set aside the judgment and order dated 11.07.2018 passed by the Court of Additional District and Sessions Judge, Chamarajanagar (Sitting at Kollegala) in SC.No.17/2014 whereby the learned Sessions Judge has convicted him for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default to pay the fine amount, to further undergo imprisonment for a period of 6 months.

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We have heard the learned counsel for appellant, the learned SPP-II for State and perused the evidence and material on record.

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HC-KAR

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Briefly stated, the case of the prosecution is that, on 20.06.2013, at about 08.45 pm, near Samudaya Bhavana of Ummathuru village, accused picked up a quarrel with deceased-Siddaraju regarding fetching of water from the Government water tank (Tombe) and with regard to the easementary right and stabbed him on his chest and stomach, due to which, Siddaraju died on 25.11.2013 at K.R Hospital, Mysuru.

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Before the trial Court, the prosecution in all examined 20 witnesses and got marked 14 documents and 4 material objects. The trial Court vide impugned judgment and order, convicted and sentenced the accused as noted ( supra ), holding that all the three eye-witnesses viz. PW3, PW5 and PW6 have deposed consistently in-line with the complaint averments and PW1-wife and PW5brother of the deceased have supported the case of the prosecution by deposing about the motive behind the incident i.e., regarding the previous enmity between the accused and the family of the deceased. Further, the trial

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Court relied on the medical evidence of PW9-Doctor who treated the victim at the first instance and issued Ex.P5wound certificate, affirming the nature of injuries sustained by the victim and the opinion furnished with regard to the knife. The trial Court has also considered the MLC Register Extract of K.R.Hospital, Mysuru and the Post-mortem report-Ex.P12 and held that even the medical evidence has sufficiently corroborated to establish the offence.

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The incident took place on 20.06.2013 at about 08.45 pm near Samudaya Bhavana, Ummathur village. It is the case of the prosecution, that the accused picked up a quarrel and abused the deceased in filthy language and when the deceased asked him as to why he was abusing, accused removed a knife and stabbed him on his chest and abdomen and ran away from the spot. The injured was immediately shifted to the District Hospital, Chamarajanagar and from there he was taken to K.R.Hospital, Mysuru. The document at Ex.P6 reveals that

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he was discharged on 03.07.2013 and once again admitted at K.R.Hospital on 30.10.2013 for treatment, but died on 25.11.2013.

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Insofar as the incident is concerned, in Ex.P1,

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the complaint lodged by the wife of the deceased, it is clearly stated that the accused stabbed her husband with a knife on his chest and abdomen, due to which her husband suffered bleeding injuries and the intestine protruded through the wound. The names of Ramaiah bin Kurisiddaiah and Shivakumar bin Siddaiah are mentioned as the persons who were present at the time of the

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incident and who shifted the injured to the hospital. The said two persons named in the complaint are examined as PW3 and PW14.

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Apart from PW1, the Complainant, the prosecution has got examined PW3, PW5, PW6 and PW14 as the eye-witnesses. PW14 has not supported the case of prosecution. However, the evidence of PW3, PW5 and PW6

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clearly discloses about the accused stabbing the deceased with a knife and running away by throwing the knife at the spot.

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There is nothing worthwhile elicited in the cross-examination of PW3, PW5 and PW6, to disbelieve their evidence. The learned counsel for the appellant contended that PW1 and PW5 are the wife and brother of

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the deceased and they being his close relatives, their evidence cannot be accepted. The said contention is liable to be rejected, as the evidence of PW1 and PW5 is corroborated by the evidence of PW3 and PW6. Their evidence reveals that the accused had consumed alcohol, and he abused the deceased in filthy language with regard to fetching of water and easementary right and when the deceased asked him as to why he was abusing, all of a sudden, he took a knife and stabbed on the abdomen of the deceased and ran away, throwing the knife at the spot.

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The learned counsel for the appellant contended

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that both the panch witnesses to the spot mahazar/Ex.P3, examined as PW14 and PW15 have turned hostile and therefore, the seizure of knife is not established. However, the hostility of PW14 and PW15, namely the panch witnesses to the spot mahazar is not a ground to disbelieve the evidence of the eye witnesses.

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It is vehemently contended by the learned counsel that, the incident took place on 20.06.2013 and after the injured was admitted to the hospital, he was discharged. However, due to the negligence of the doctor, the wound aggravated and he was once again admitted to the hospital and due to Septicemia, he died after a lapse of more than 5 months. He, therefore, contended that there is no nexus between the injuries allegedly inflicted by the accused and the cause of death. He, therefore, contended that the ingredients of the offence charged against the accused, are not proved.

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HC-KAR

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The learned SPP-II contended that, as per the

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evidence of the eye-witnesses, the accused has stabbed the deceased twice due to which he sustained grievous injuries to the abdomen and it is clearly established that those injuries were inflicted by the accused with an intention to commit his murder, due to previous enmity. He further contented that, the medical evidence establishes that the death is on account of the injuries inflicted by the accused and therefore, the trial Court has rightly convicted him for the offence punishable under Section 302 of IPC.

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It is not in dispute that, after the injured was taken to Chamarajanagar Hospital, he was given first-aid and thereafter, he was shifted to K.R.Hospital, Mysuru. It is also not in dispute that on 03.07.2013, the injured was discharged from the K.R.Hospital. PW9 is the doctor who treated the victim at District Hospital, Chamarajanagar and issued Ex.P5-Wound Certificate. In his evidence, PW9 has stated that on 20.06.2013 at about 10.30 pm, he gave

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emergency treatment to the injured, viz. Siddaraju, who was brought to the hospital by his wife, Siddamani (PW1) with the history of stab injuries inflicted by Nataraju/accused. PW9 has issued the wound certificateEx.P5 which shows that the injured had sustained “A lacerated injury 1 inch above umbilicus over left side with the subcutaneous fat covering it.” It is stated that the patient was restless, in hypovolumic shock. Hence, referred to K.R.Hospital, Mysuru. The opinion by General Surgeon is given regarding the injury as “Penetrating injury abdomen with jejunal and transverse colon perforation with mesentric tear and liver laceration.” PW9 has opined that the said injury is grievous in nature.

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PW9, has stated that on 03.07.2013, they

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received the report from K.R.Hospital as under:

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"i) No investigation done.

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ii) Patient was advised erect Abdomen X-Ray and USG Abdomen - But not done.

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iii) Other investigation: (if any)

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Surgery: Diagnosis: Penetrating injury abdomen with Jejunal and transverse colon perforation with mesenteric tear and liver laceration.

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iv) Treatment given in this hospital: a) Rx: Exporative laparotomy GA on 21.06.2013 with primary closure of perforation with haemostasis."

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Admittedly, the doctor who treated the injured at K.R.Hospital was not examined. Ex.P6 is the report sent by the Casualty Medical Officer, K.R.Hospital, Mysuru to the Medical Officer, Chamarajanagar Government Hospital. The said document would reveal that the injured was admitted on 21.06.2013 and discharged on 03.07.2013. No investigation was done, patient was advised Erective Abdomen X-Ray, USG X-Ray – Not done. Surgery: Diagnosis: Penetrating injury abdomen with Jejunal and transverse colon perforation with mesenteric tear and liver laceration.

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Though, the injured was once again admitted at K.R.Hospital on 30.10.2013, the prosecution has not collected any medical documents regarding the treatment given to him till his death on 25.11.2013. No steps were taken to summon those documents before the Court to see as to what was the condition of the injured when he was once again admitted to the hospital and what was the history furnished at the time of re-admission and the treatment given to him till 25.11.2013.

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Ex.P12 is the PM Report. PW18 is the doctor who conducted the Post-mortem examination. As per Ex.P12, death is due to septicaemic shock as a result of infection due to intestinal obstruction consequent to Abdominal injuries sustained. The following injuries are noted:

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"(i) Healed midline incised wound scar present over front of abdomen measuring 21 cm long.

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(ii) Sutured right paramedian incised wound present over front of abdomen measuring 20 cm long

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upper 7 cm wound is partially healed and the sutures are removed, lower 13 cm long wound is partially healed with intact sutures.

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(iii) Surgically made drainage wounds present over both iliac region of the abdomen infected and open."

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In the cross-examination, PW12 has admitted that the injuries were partially healed and further admitted

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that the injured was admitted on 30.10.2013 and died on 25.11.2013. He has stated that the death was not on account of negligence of the Doctor.

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From the above oral and documentary evidence on record, the prosecution has established that the accused inflicted stab injuries on the abdomen of the deceased on 20.06.2013 at about 08.45 pm. The victim was immediately shifted to District Hospital, Chamarajanagar and then referred to K.R.Hospital, Mysuru. He was discharged from K.R.Hospital on 03.07.2013. Thereafter, once again admitted at K.R.Hospital on 03.10.2013, but died on 25.11.2013 i.e.,

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after 5 months and 5 days of the incident. As per Ex.P12, the cause of death is due to septicaemic shock as a result of infection due to intestinal obstruction, consequent to abdominal injuries sustained. The prosecution has not placed any documents pertaining to the victim regarding the treatment given to him at K.R.Hospital, after he was re-admitted on 30.10.2013. The history furnished at the time of re-admission at K.R.Hospital, is also not forthcoming. The doctor who treated him till his death at K.R.Hospital was also not examined. Hence, it cannot be held that the cause of death has a direct nexus with the injuries inflicted by the accused. However, from Ex.P5 and other material on record, it is clearly established that the accused has inflicted a grievous injury to the deceased attracting the ingredients of Section 320 of IPC punishable under Section 326 of IPC.

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It is submitted by the learned counsel that the

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accused was in custody from 21.06.2013 to 20.07.2013 and again he was arrested on 18.08.2014 and he was in

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custody till 15.09.2014. Thereafter he was taken into custody on the date of passing of the sentence, on 11.07.2018 and released on 19.12.2018, after the sentence imposed against him was suspended by this Court. Hence, the accused was in custody for a total period of 7 months 11 days. The incident has taken place in the year 2013. Since then, 13 years have lapsed. At the time of incident, the accused was aged about 26 years. He has no criminal antecedents. It is submitted that, he is eking-out his livelihood by doing coolie work.

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Having regard to the totality of the facts and circumstances of the case, we are of the considered view that a sentence of 2 years imprisonment along with enhanced fine would meet the ends of justice.

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For the foregoing reasons, we proceed to pass the following:

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HC-KAR

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O R D E R

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(i) Appeal is allowed-in-part.

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(ii) The judgment and order dated 11.07.2018 passed by the Court of Additional District and Sessions Judge, Chamarajanagar (Sitting at Kollegala) in SC.No.17/2014, convicting and sentencing the appellant/accused for the offence punishable under Section 302 of Indian Penal Code, is hereby set aside.

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(iii) The appellant/accused is convicted for the offence under Section 326 of IPC and sentenced to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.25,000/(Rupees Twenty-five Thousand only), in default of payment of fine, shall undergo Simple Imprisonment for a period of 6 months.

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