Karnataka High Court

Bhojaraja @ Raju vs The State Of Karnataka By on 6 July, 2021

Author: Sreenivas Harish Kumar

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 06TH DAY OF JULY 2021

                        BEFORE

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

         CRIMINAL APPEAL No. 501 OF 2014

BETWEEN

Bhojaraja @ Raju
S/o. Ramanna,
Aged about 27 years,
R/o. 113, Behind Anjaneya Temple,
Chaudeshwari Nagara, Ring Road,
Gandhinagara, Davanagere-577001.
Native of Nallur, Channagiri Taluk.
                                               ...Appellant
(By Sri.P.B.Umesh, Advocate, for Sri R.B.Deshpande,
Advocate)

AND

The State of Karnataka by
Extension Police Station,
Davanagere-577001.
                                            ...Respondent
(By Sri.Mahesh Shetty, HCGP)

      This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set aside conviction and sentence dated
2/12.8.2013 passed by the II Additional District and
Sessions Judge, Davanagere, in S.C.No.7/2012 convicting
the appellant/accused for the offences punishable under
sections 341, 504 and 304II of IPC.
                             2


       This Criminal Appeal coming on for hearing this day,
through video conferencing the court delivered the
following:

                         JUDGMENT

The accused in S.C.7/2012 on the file of II

Additional District and Sessions Judge, Davanagere,

having been convicted and sentenced for the offences

under sections 341, 504 and 304(II) of IPC, has

preferred this appeal.

2. The prosecution case in brief is that on

10.9.2011 at about 7.30 PM, near Jayadeva Circle,

Davanagere, the appellant was going on his motor

cycle and his wife was the pillion rider. PW6-Rafiq and

the deceased namely Mohammed Rafiq were coming

on a bicycle. PW6 was peddling and the deceased was

sitting on the backside carrier of the bicycle. The leg

of the deceased touched the wife of the appellant and

for this reason, the appellant picked up quarrel with

PW6 and the deceased and in that course fisted on the

nose of the deceased severely. The deceased

sustained bleeding injuries on the nose and fell on the

ground supinely. He further intimidated them by

abusing in vulgar language. PW6 took Mohammed

Rafiq to a hospital for treatment and from there to his

house. On 14.9.2011, the health condition of

Mohammed Rafiq aggravated and therefore he was

taken to Bapuji Hospital where he took treatment till

19.9.2011. But, his condition did not improve and

therefore his brother, i.e., PW3 got Mohammed Rafiq

discharged from Bapuji Hospital for admitting him to

S.S.I.M. Hospital. But on the way, Mohammed Rafiq

died. Then PW3 again came to Bapuji Hospital where

the doctor declared his brother dead.

3. In regard to the above incident, two reports

were made to the police. While the deceased was in

the hospital, he gave a statement before the police as

per Ex.P4 on the basis of which an FIR was registered

for the offences punishable under sections 341, 323

and 504 IPC in Cr. No. 153/2011. After the death of

Mohammed Rafiq, PW3 made a report as per Ex.P2 on

19.9.2011. The police invoked section 302 IPC in the

FIR. After investigation the police filed charge sheet

for the offences under section 341, 302 and 504 IPC.

4. The prosecution examined 18 witnesses and

produced 20 documents as per Exs.P1 to P20 and two

material objects as per MO1 and 2 for proving its

case. The trial court ultimately held that the accused

could be convicted for the offences under sections

341, 504 and 304 (II) IPC as aforesaid.

5. I have heard the arguments of Sri

P.B.Umesh, learned counsel for the appellant and Sri

S.Mahesh Shetty, the learned High Court Government

Pleader.

6. Sri P.B.Umesh argued that the deceased

himself made a statement as per Ex.P4 in which he

did not take the name of the appellant. Even in the

statement, he did not mention the registration

number of the motor bike. In the FIR also, the

registration number of the motor bike is not

mentioned. The incident is said to have taken place

on 10.9.2011. Immediately after the incident, FIR

was not registered. The deceased directly went to a

hospital, took treatment and then went to his house.

It was on 14.9.2011 that the FIR was registered on

the basis of his statement. Delay in making the report

to the police is not explained. Therefore there is all

possibility that false allegations might have been

made against the appellant to be responsible for the

death of Mohammed Rafiq.

6.1. He argued that the trial court has mainly

relied upon the evidence of PW6 to come to conclusion

that the appellant caused hurt to Mohammed Rafiq

during the scuffle that took place. In this regard it

was his argument that when PW6 took Mohammed

Rafiq to hospital, he did not reveal about the incident

having taken place at Jayadeva Circle to the doctor.

He also did not go to police station to make a report

about the incident. In Ex.P4, the name of the

appellant is not mentioned, it is just stated that some

stranger made an assault. Moreover, in the cross-

examination of PW6, it has come that when he gave

statement before the police, he stated about an

accident. This shows that Mohamed Rafiq sustained

injury in an accident and not on account of assault by

the appellant. PW3, the brother of Mohammed Rafiq

is not an eye witness. Based on the sole testimony of

PW6, it cannot be said that the appellant caused

injuries to Mohammed Rafiq. There are two more

witnesses PW7 and 12 and they have totally turned

hostile. Therefore, the evidence as regards the

incident is inadequate and that the trial court should

not have returned a finding of conviction.

6.2. His last point of argument was that the trial

court has totally erred in convicting the appellant for

the offence under section 304(II) of IPC. Even

assuming that the prosecution case is believable about

the incident, it was just a scuffle between the

appellant and the deceased Mohammed Rafiq. Both

were strangers to each other. Mohammed Rafiq might

have sustained injuries, but, he did not die

immediately. The evidence of PW3 and 6 shows that

the deceased returned to his house after taking

treatment. It was on 19.9.2011, he died because of

medical complications. The evidence does not

disclose that the appellant had the intention to cause

death. In these circumstances, the offence under

section 304(II) is not at all attracted. According to

him, at best, the trial court could have convicted the

appellant for an offence under section 323 IPC, if it

can be assumed for the argument sake that the

prosecution was able to prove its case beyond

reasonable doubt. Therefore he pleaded for allowing

the appeal and acquitting the appellant; and,

alternatively he submitted that in case this court

comes to conclusion that the evidence would disclose

the taking place of incident, the conviction can be

scaled down to offence under section 323 IPC and the

appellant may be sentenced to a period already spent

by him in the jail.

7. The learned High Court Government Pleader

argued that though the incident projected by the

prosecution was just a scuffle in the middle of the

road, if the testimonies of PW3 and 6 are considered it

can be very well said that the appellant voluntarily

caused hurt to Mohammed Rafiq and as a result he

sustained grievous injuries. He read over the contents

of Ex.P4 to submit that it was a statement made by

the deceased before the police while taking treatment.

It discloses that on account of fisting on the nose of

Mohammed Rafiq, he fell down backwards on a hard

surface sustaining injuries in the back of his head.

The medical evidence clearly corroborates the

contents of Ex.P4. It is true that PW3 is not an eye

witness, but he is none other the brother of

Mohammed Rafiq. His evidence as regards his brother

having been admitted to hospital on 14.9.2011 and

events that happened thereafter cannot be

disbelieved. It was from his brother he came to know

about the incident. Then PW6 is an eye witness. He

has given a clear account of entire incident and

identified the appellant in the court. Just because the

name of the assailant was not mentioned in Ex.P4, it

cannot be a reason for disbelieving the entire

prosecution case. Delay as pointed out by the

appellant's counsel is not at all fatal to the prosecution

case because it has been suitably explained.

Therefore he argued for dismissing the appeal.

8. I have considered the points of arguments

and perused the entire evidence, both documentary

and oral. There are 3 eye witnesses, PW6, 7 and 12.

PW7 is the wife of the appellant and obviously she

turned hostile. PW12 is an independent witness.

There remains the testimony of PW6 alone. If his

testimony is perused, he has clearly stated that on

10.9.2011, he and the deceased were returning to

their house on the bicycle. As they came near

Jayadeva Circle, the motor cycle ridden by the

appellant came across their bicycle and therefore he

and the deceased had to tell him that he should ride

the motor bike carefully. For this reason the appellant

abused them in filthy language and then fisted on the

face and head of the deceased. Having sustained

injuries, the deceased fell down and sustained

bleeding injuries in his nose. Then he took him to

hospital for treatment and from there to his house.

He has stated that two days after the condition of the

deceased became serious and therefore he was

admitted to hospital. On 19.9.2011 Mohammed Rafiq

died. He has stated that the assault by the appellant

was the reason for death of Mohammed Rafiq.

9. The cross-examination of PW6 is not at all

effective. But his one answer in the cross-

examination needs to be referred to here because the

learned counsel for the appellant while arguing

referred to it. What is elicited from PW6 is, during

inquiry police asked him as to how and where the

accident took place. Because of the word 'accident', it

was argued by appellant's counsel, actually the

incident as has been projected by the prosecution did

not take place and the deceased sustained injuries in

the accident. This argument is difficult to be

accepted. It is not as though PW6 has not given an

answer like that. But this answer does not in any way

help to arrive at a conclusion that the deceased

sustained injury in an accident. The other part of

evidence of PW6 is so cogent that he has given a clear

account of what happened on 10.9.2011. Ex.P4 is an

important piece of evidence because it is statement

given by the deceased himself in the hospital. It is

found in Ex.P4 that the appellant picked up a quarrel

with the deceased and PW6 and gave a heavy blow

with his fist on the nose of the deceased. There was

bleeding from the nose and again the appellant fisted

on his forehead as a result of which he fell down

backwards. It is true that in Ex.P4 the deceased has

not taken the name of the appellant. This cannot be a

good reason for holding that the appellant has been

falsely implicated. But the evidence of PW6 shows that

he identified the appellant in the court during trial.

This identification is enough to believe the contents of

Ex.P4 to be true.

10. Now if the evidence of PW6 and the

contents of Ex.P4 are subjected to further scrutiny in

the background of medical evidence, certain

inferences can be drawn. PW8 was the doctor who

issued the wound certificate as per Ex.P7. PW8 was

not the doctor who treated the deceased. His

evidence is that on 14.9.2011, a doctor by name

C.J.Shanthakumar examined an injured by name Rafiq

(Mohammed Rafiq) son of Chand Peer and treated

him. He has stated that as per the records

maintained in the hospital, there were no external

injuries on the head of the deceased but when he was

subjected to CT scan, internal bleeding on the back of

the head and a fracture of occipital bone were

detected. PW14 was the doctor who conducted post

mortem examination after the death of Mohammed

Rafiq on 19.9.2011. The evidence of this witness

shows that when the body of the deceased was

dissected, he noticed presence of linear perpendicular

fracture of occipital bone from internal occipital

protuberance to posterior margin of foramen

magnum, measuring about 6 cms., and hemorrhage

over the left frontal lobe. Therefore the testimony of

PW14 fully corroborates the evidence of PW8. If

medical evidence is assessed, it may be stated that

these injuries did occur as a result of fisting on the

nose and, the deceased falling down in supine position

when he was again fisted for the second time by the

appellant. The deceased might not have sustained

any external injury on the back of his head but, there

was internal injury which occurred due to his falling

down on the hard surface on the ground. Therefore,

the testimony of PW6 is fully corroborated by the

medical evidence. Of course, PW3, the brother of the

deceased is not an eye witness. But there are no

reasons to disbelieve his evidence as regards

aggravation of health condition of the deceased when

he was in the house and what happened after he was

taken to hospital.

11. The analysis made above clearly discloses

that the prosecution has been able to prove its case so

far as the incident is concerned. The conclusions

drawn by the trial court are correct. But the question

is whether the trial court could have convicted the

appellant for the offence under section 304(II) IPC

along with other offences.

12. The trial court has assigned the reasons that

during the scuffle between the deceased and the

appellant, there was exchange of words, that the

appellant got enraged all of a sudden and fisted on the

nose and face of the deceased, that the deceased fell

down consequently and this incident would fall within

the purview of the offence under section 304(II) IPC.

It is not possible to accept this reasoning. To

constitute an offence under section 304 IPC the three

essential ingredients are, (i) intention to cause death

(ii) intention of causing such bodily injury as is likely

to cause death (iii) knowledge on the part of the

accused that he is likely by such act causes death of

another. These ingredients are found in section 299

of IPC. If the manner of death of the deceased is

seen, it is not possible to hold that the above

ingredients can be invoked. The evidence does not

disclose that the appellant had the intention to cause

death or had intention to cause such injury as is likely

to cause death or that he had knowledge that by his

act death would ensue. Here the deceased and the

appellant were strangers, the quarrel took place

because of the reason that the appellant's motor cycle

came across the bicycle of PW6. It was just an

ordinary quarrel. The appellant might have resorted

to assaulting the deceased, but it is not at all possible

to hold that he had intention to cause death or

intention to cause injuries likely to death or knowledge

that deceased was likely to meet death on account of

injuries. The entire incident can be brought within the

scope of section 325 IPC. There is no evidence to

hold that the appellant was provoked by the deceased

so that the offence under section 335 IPC would

constitute. Hence it can be concluded that the trial

court has grossly erred in convicting the accused for

the offence under section 304(II) IPC. The facts and

circumstances are such that the appellant has to be

convicted for an offence less graver than 304(II) IPC

and he can be convicted for 325 IPC. The conviction

of the appellant for two other offences, namely 341

and 504 IPC cannot be disturbed.

13. The incident took place during a scuffle in

the road traffic, the personal enemity as such between

the deceased and the appellant cannot be made out.

Though according to section 325 IPC, the offender can

be punished with imprisonment of either description

for a term extending up to 7 years, having regard to

the facts and circumstances of the case, I am of the

opinion, that the appellant may be sentenced to

simple imprisonment of one year with fine. Hence, the

following :-

ORDER

(a) Appeal is partly allowed.

     (b)   The   judgment      of   the    trial   court   in

           S.C.7/2012 is modified.        The appellant is

convicted for the offences under sections

325 IPC instead of 304(II) IPC and is

directed to undergo simple imprisonment

for a period of one year and pay fine of

Rs.10,000/-. The appellant shall undergo

simple imprisonment for a period of two

months in case of default of payment of

fine.

passed by the trial court in respect of

offences under sections 341 and 504 IPC is

confirmed.

(d) If the appellant has already deposited the

fine amount in accordance with sentence

imposed by the trial court, he shall pay the

balance of the fine amount imposed in this

appeal in connection with offence under

section 325 IPC.

(e) Out of the fine amount of Rs.10,000/-,

Rs.8,000/- shall be paid to the mother

towards compensation in accordance with