The State Of Karnataka vs Gouse S/O Balimsab Kambarors
2021 Latest Caselaw 3466 Kant

                          1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 22ND DAY OF OCTOBER 2021

                      PRESENT

          THE HON'BLE MR.JUSTICE R. DEVDAS
                        AND
    THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


           CRIMINAL APPEAL No.3586/2012

BETWEEN:

THE STATE OF KARNATAKA
THROUGH SULEPETH POLICE STATION
REPTD. BY
ADDL. STATE PUBLIC PROSECUTOR

                                        ...APPELLANT
(BY SRI. PRAKASH YELI, ADDL. SPP)

AND:

1 . GOUSE S/O BALIMSAB KAMBAR
AGE: 37 YEARS, R/O SULEPETH
CHINCHOLI, GULBARGA

2 . NAZEER S/O BALIMSAB KAMBAR
AGE: 34 YEARS, R/O SULEPETH
CHINCHOLI, GULBARGA

3 . SMT. JAINBEE W/O BALIMSAB KAMBAR
AGE: 51 YEARS, OCC: HOUSEHOLD
R/O SULEPETH CHINCHOLI,
GULBARGA

                                     ...RESPONDENTS

(BY SRI. USTAD SADAT HUSSAIN,
                              2



SRI. USTAD ZAKIR HUSSAIN &
SRI. SHIVASHARAN REDDY, ADVOCATES FOR R2;
R1 & R3 SERVED)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) OF CR.P.C PRAYING TO (A)GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER DATED
26.11.2011 PASSED BY THE I-ADDL. SESSIONS JUDGE,
GULBARGA, IN S.C.NO:23/2011 WHEREBY ACQUITTING
THE RESPONDENTS 1 & 3 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 R/W SEC 34 OF IPC. B)SET ASIDE
THE JUDGMENT AND ORDER DATED 26.11.2011 PASSED
BY THE I ADDL. SESSIONS JUDGE, GULBARGA, IN S.C.NO:
23/2011 WHEREBY ACQUITTING THE RESPONDENTS 1 & 3
FOR THE OFFENCE PUNISHBLE U/S 302 R/W 34 OF IPC. C)
CONVICT AND SENTENCE THE ACCUSED / RESPONDENTS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 R/W
SEC 34 OF IPC, 1989.


     THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, RAJENDRA BADAMIKAR J., DELIVERED THE
FOLLOWING:


                       JUDGMENT

The State has filed this appeal under Section

378(1)(3) of Code of Criminal Procedure (hereinafter

referred to as 'Cr.P.C.' for short) challenging the judgment

and order of sentence passed by I-Addl. Sessions Judge,

Gulbarga, in Sessions Case No.23/2011 dated 26.11.2011,

whereby the learned Sessions Judge has convicted

respondents/accused Nos.1 and 3 for the offence

punishable under Section 304(II) read with Section 34 of

Indian Penal Code (hereinafter referred to as 'IPC' for

short) and accused No.2 being convicted for the offence

punishable under Section 323 of IPC by imposing sentence

of simple imprisonment for a period of 3 years with fine of

Rs.10,000/- and simple imprisonment for a period of 1

year with fine of Rs.1,000/- with default clause

respectively.

2. For the sake of convenience parties herein are

referred with the original ranks occupied by them before

the Trial Court.

3. The brief factual matrix leading to the case is

that the deceased-Pashamiya was the son of elder sister of

the complainant. He was doing business and residing with

the complainant and he had put up a room in Ilagera Oni

near the house of Yadav Ilagera for the purpose of

sleeping. That on 18.10.2010 at 8:00 p.m. the deceased-

Pashamiya after dinner in the house of the complainant

went to his room in order to sleep and at 8:30 p.m. the

complainant heard hue and cry near the house of accused

No.1. Immediately complainant rushed to the spot and

found that accused Nos.1 and 3 had assaulted the

deceased-Pashamiya on his cheek and chest by hands for

having urinated in front of the house of accused No.1 and

then accused No.2 came there and kicked by leg on

testicles of Pashamiya. Due to the said assault, Pashamiya

became unconscious and in the meanwhile, PWs.3 to 6

rushed to the spot and pacified the scuffle. Immediately

Pashamiya was shifted to Government Hospital, Sulepeth,

in an auto rickshaw wherein he was declared brought

dead. As such, the complainant has filed a complaint

against the accused persons and the case was registered

for the offence punishable under Section 504 and 302 read

with Section 34 of IPC.

4. The Investigating Officer after recording the

statement of material witnesses and collecting material

documents has submitted the charge sheet against the

accused for the offence punishable under Section 302 read

with Section 34 of IPC. The accused were arrested and

were remanded to the judicial custody. The matter was

committed to the Sessions Court by the learned Magistrate

after taking cognizance and then the matter was placed

before I-Addl. Sessions Judge, Gulbarga.

5. After having heard the arguments, the learned

Judge has framed the charge for the offence punishable

under Section 302 read with Section 34 of IPC against the

accused and they pleaded not guilty.

6. The prosecution has examined in all 19

witnesses as PWs.1 to 19 and got marked 16 documents

as Exs.P1 to P16 and further placed reliance on 3 material

objects, which were marked as MOs.1 to 3. Then the

statement of accused under Section 313 of Cr.P.C. was

recorded to enable the accused to explain incriminating

evidence appearing against them in the case of the

prosecution and the case of the accused is of total denial.

However, accused did not chose to lead any oral or

documentary evidence, but have got marked Ex.D1, which

is the portion of the statement of PW.2 said to have been

recorded by Investigating Officer under Section 161 of

Cr.P.C.

7. The learned Sessions Judge after hearing the

arguments and after perusing the oral and documentary

evidence placed by the prosecution came to a conclusion

that prosecution has not established the guilt of the

accused for the offence punishable under Section 302 of

IPC. However, he found that the prosecution has made out

a case for the offence punishable under Section 304(II)

read with Section 34 of IPC as against accused Nos.1 and

3 and for the offence under Section 323 of IPC against

accused No.2 and accordingly convicted them by imposing

sentence of imprisonment and fine.

8. Being aggrieved by this judgment of conviction

against the accused for the offence punishable under

Section 304(II) and 323 in place of 302 of IPC, the State

has filed this appeal.

9. Heard the arguments advanced by learned

Addl.SPP for the appellant-State.

10. Learned counsel for the respondent/accused

did not appear before the Court so as to advance his

arguments.

11. We have also perused the records of the Trial

Court.

12. Learned Addl. SPP would contend that the

impugned order passed by the Trial Court is contrary to

the facts of the case besides being erroneous and is

unsustainable in the eye of law. He would also contend

that the conclusion arrived at by the Trial Court that there

is no premeditation to commit the murder of Pashamiya

and the incident has occurred in a spur of moment is

erroneous and contrary to the facts as assaulting on the

testicles itself is sufficient to prove that accused have

assaulted the deceased with an intention to commit the

murder and as such, he would contend that conviction

under Section 304(II) is unsustainable in law. He would

also contend that the Trial Court has over looked the

material and the evidence led by the prosecution, which is

sufficient to hold that all the accused have committed the

offence punishable under Section 302 of IPC and it has

lead to miscarriage of justice. He would further contend

that the judgment of the Trial Court suffers from

substantial error of law and needs to be interfered with. He

would also contend that the Trial Court has misdirected

itself in acquitting the accused for the offence punishable

under Section 302 of IPC and convicting them from lesser

offence under Section 302(II) and 323 of IPC. Hence, he

would seek for setting aside the impugned judgment and

order of sentence passed by the Trial Court and prayed for

convicting the accused for the offence punishable under

Section 302 read with Section 34 of IPC.

13. Having heard the arguments and perusing the

material placed before us, the following point would arise

for our consideration:

"Whether the judgment of the Trial Court

is arbitrary, erroneous and illegal so as to call

for any interference by this Court?

14. PW.1 is the complainant and Ex.P1 is the

complaint. PWs.1 to 7 are the eyewitnesses. PW.8 is the

inquest mahazar witness, while PW.9 is the cloth seizure

mahazar witness pertaining to cloths of the deceased,

which are marked at MOs.1 to 3. PW.10 deposes about

drawing the spot mahazar. PW.15 is the Mechanic of

GESCOM, deposed regarding uninterrupted supply of

power in Sulepeth during the relevant period. PW.16 is the

Medical Officer who has conducted autopsy on the dead

body of Pashamiya. PW.19 is the Junior Engineer who has

drawn the sketch while PWs.17 and 18 are the

Investigating Officers and PWs.11 to 14 are the Police

officials who depose regarding the apprehension of the

accused and submission of FIR etc.

15. PW.1 is the complainant and in his evidence he

has specifically deposed that when he heard hue and cry

he came out of the house and found that accused No.1

struck on the chest of the deceased by hands, while

accused No.3 assaulted the deceased on his cheek with

hands. His evidence further discloses that then accused

No.2 came out of his house and rushed towards deceased

and kicked him on his testicles.

16. PW.2 has also deposed in the similar way and

his evidence also discloses that first accused Nos.1 and 3

assaulted the deceased and in between accused No.2 came

out of his house and rushed towards deceased and kicked

on his testicles. The other witnesses PWs.3 to 7 have also

deposed regarding the individual acts of accused Nos.1 to

3. However, it is evident from the appreciation of the

evidence that first accused Nos.1 and 3 picked up quarrel

with the deceased on the ground that he had urinated in

front of the house of accused No.1, fisted on his chest,

while accused No.3 assaulted on his cheek and in the

meanwhile accused No.2 rushed to the spot and kicked on

the testicles of deceased.

17. PW.16 is the Medical Officer who has

conducted autopsy on the dead body of the deceased. The

post mortem report is at Ex.P8 and Ex.P9 is the final

opinion regarding the cause of the death. It is the specific

case of the prosecution that accused No.2 kicked on the

testicles of the deceased. But the post mortem report

reveals that there were only three injuries on the body of

the deceased i.e. (1) Multiple small contusions ranging

from 0.5 x 05 cm to 3x2 cm in size over left mid and infra

axillary areas of chest, bluish red in colour; (2) Contusion

about 3 x 3 cm over inner aspect of left upper thigh, bluish

red in colour; (3) Contusion about 4 x 2 cm over left

anterior superior ilea spine bluish red in colour. This

medical evidence of PW.16 and Ex.P8 clearly establish that

no injury was caused to testicles. Further, Ex.P9 clearly

discloses that death was due to cardio respiratory arrest

due to thoracic injury caused by blunt force. Further, the

evidence of PW.16 specifically reveals that injury Nos.2

and 3 do not have any connection to the cause of the

death and his opinion clearly establish that injury No.1

which is on chest of the deceased is the cause of the death

of Pashamiya. Hence, it is evident that though it is alleged

that accused No.2 has kicked on the testicles of the

deceased, but in fact the evidence discloses that the injury

was on the inner side of the thigh only and not on the

testicles and the said injury was not fatal one.

18. Apart from that the evidence also establish

that there was no enmity between the deceased and the

accused and they were in cordial terms all along. Further,

it is also evident that the incident did occur in a spur of

moment as the deceased urinated in front of the house of

accused No.1, which has resulted in scuffle and lead to this

incident. Hence, the Trial Court has came to a conclusion

that there was no meeting of minds and it is not an act of

premeditation so as to cause the death and as such, the

Trial Court instead of convicting accused Nos.1 to 3 for the

offence punishable under Section 302 of IPC, has convicted

them for the offence punishable under Section 304(II) of

IPC as Section 304 of IPC deals with culpable homicide not

amounting to murder.

19. Admittedly, the evidence disclose that there

was no premeditation or plan to attack and it cannot be

said that the injuries caused to the deceased, in the

ordinary course, was sufficient to cause his death. The

accused have not used any weapon and the incident has

occurred in a spur of moment that too when the deceased

was found urinating in front of house of accused No.1,

which is irritated the accused and as a result suddenly the

incident has occurred. Hence, the Trial Court has rightly

came to a conclusion that incident took place in a spur of

moment and there was no meeting of minds of the

accused persons to murder the deceased nor had they any

intention to kill the deceased. It has also rightly observed

that there is clear absence of motive for taking extreme

step of killing the deceased and it is not a planned or

premeditated act. Hence, the Trial Court after appreciating

the evidence came to a conclusion that the accused

persons had no intention to cause such bodily injury as is

likely to cause death for the reason that assault made by

them with hands was not likely to cause death and as such

come to a conclusion that the case of the prosecution falls

under Section 304(II) of IPC, but not under Section 302 of

IPC. The said finding is well reasoned. It does not call for

any interference by this Court.

20. Further, the Trial Court has also observed that

accused Nos.1 and 3 simultaneously attacked the

deceased-Pashamiya. The evidence of PWs.1 and 2 further

established that accused No.2 subsequently rushed to the

spot from his house and kicked the deceased. There is no

evidence to show that before accused No.2 involving in the

scuffle had any discussion with accused Nos.1 and 3. As

such, the Trial Court rightly come to the conclusion that

there is no common intention on the part of accused No.2

so as to attract the offence under Section 34 of IPC as

against accused No.2 so as to convict accused No.2 for the

offence punishable under Section 304(II) of IPC.

21. The evidence also disclose that there was no

meeting of minds to commit the offence in terms of

Section 34 of IPC. The Trial Court has held that there was

neither meeting of mind along with accused No.2 nor any

plan with accused Nos.1 and 3 in assaulting the deceased.

Further, the Trial Court has also observed that when

accused Nos.1 and 3 have participated in the crime initially

accused No.2 was not present and in the middle he

suddenly rushed to the spot from his house and kicked the

deceased. Hence, the Trial Court has come to a conclusion

that Section 34 of IPC cannot be made applicable to

accused No.2 and considering the act of accused No.2 in

kicking the deceased and causing simple injury to the

deceased on the inner side of the thigh has rightly

convicted accused No.2 only for the offence punishable

under Section 323 of IPC, which cannot be said to

erroneous.

22. The records disclose that the learned Sessions

Judge after appreciating the evidence has convicted

accused Nos.1 and 3 for the offence punishable under

Section 304(II) read with Section 34 of IPC and accused

No.2 was convicted for the offence punishable under

Section 323 of IPC. The evidence of PWs.1 to 7 coupled

with medical evidence of PW.16 and Exs.P.8 and P9

support the view taken by the learned Sessions Judge. The

learned Sessions Judge has before coming to conclusion

has appreciated oral and documentary evidence including

the medical evidence and arrived at a just decision. He has

also imposed reasonable sentences to accused.

23. It is also important to note here that the

accused/respondents have not challenged sentences

imposed against them. Hence, question of considering

reduction of sentence or otherwise does not arise at all as

State has only challenged the acquittal order for the

offence punishable under Section 302 of IPC. The evidence

on record clearly establish that the Trial Court is justified in

convicting the accused Nos.1 and 3 for the offence

punishable under Section 304(II) of IPC. The learned Trial

Judge has assessed the oral and documentary evidence in

detail in this regard and in fact Section 34 of IPC in this

regard has been elaborately dealt with regard to common

intention and the Sessions Judge arrived at a just decision

of convicting accused No.2 for the offence punishable

under Section 323 of IPC only. His appreciation is based on

observation of the Hon'ble Apex Court and under such

circumstances, at no stretch of imagination, the order of

the learned Sessions Judge can be said to be arbitrary,

erroneous or illegal so as to call for any interference. The

State has failed to establish that the judgment of the Trial

Court calls for any interference in this regard.

24. Looking to the above facts and circumstances

of the case, we do no hesitate to answer the point under

consideration in negative and accordingly, we proceed to

pass the following:

ORDER

The appeal is dismissed.

Pending IAs, if any, do not survive for consideration

and same are dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

sdu