Karnataka High Court

Basavaraju vs The State Of Karnataka on 4 January, 2022

Bench: B.Veerappa, M G Uma

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2022

                        PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

            THE HON'BLE Mrs. JUSTICE M.G. UMA

                 CRL.A.NO.1114 OF 2016
                           C/W
                  CRL.A.NO.250 OF 2017
IN CRL.A.NO.1114 OF 2016

BETWEEN:

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

(BY SRI. CHANDRASHEKARA K.A, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY THE POLICE OF
T. NARASIPURA POLICE STATION,
MYSURU DISTRICT - 571 124
REPRESENTED BY
                              2




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

(BY SRI. VIJAYKUMAR MAJAGE, ADDL SPP)
                           ****
     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.

IN CRL.A.NO.250 OF 2017

BETWEEN:

STATE OF KARNATAKA
BY T. NARASIPURA POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.                          ...APPELLANT

(BY SRI. VIJAYKUMAR MAJAGE, ADDL. SPP)

AND:

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

2.     KUMARA @ MAHESHA,
       S/O. NANJAIAH,
       AGED ABOUT 30 YEARS,
       R/AT. KALIKUNDA VILLAGE,
       BILAGERE HOBLI, NANJANAGUD TALUK,
                             3




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

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

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

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

     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.



     THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING,
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
                                  4




                         JUDGMENT

Criminal appeal No.1114/2016 is filed by accused No.1 to

acquit him or in the alternatively to reduce the sentence; and

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.

2. 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.

3. The gist of the prosecution case is that on 19.05.2013,

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

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.

4. 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

in the language known to them, to which, the accused persons

pleaded not guilty and claimed to be tried.

5. 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.

6. 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

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.

7. We have heard the learned Counsel for the parties.

8. 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

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

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.

9. Learned Counsel for the appellant further contended that

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

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.

10. 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

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.

11. In view of the aforesaid rival contentions urged by the

learned Counsel for the parties, the points that would arise for our

consideration are:-

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 304- Part II of IPC., or in the alternative to reduce the sentence in the facts and circumstances of present case?

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?

12. 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.

13. 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

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

the offences punishable under Section 143, 302 and 323 read with

Section 149 of IPC.

14. This Court being the Appellate Court, it is relevant to

consider the evidence of prosecution witnesses and the documents

relied upon:-

(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

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.

(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 cross-

examination to disprove that accused No.1 has not assaulted the

deceased.

(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.

(iv) P.W.4 - Sri K.S. Mahadeva Swamy, another eye witness

to the incident has partially supported the case of the prosecution.

(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.

(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.

(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.

(viii) P.W.8 - Sri Rachappaswamy, witness to the sport

mahazar - Ex.P.2 has supported the prosecution case.

(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

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.

(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

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.

(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

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-

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

offence.

(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 cross-

examined.

(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.

(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-in-

law 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

was taken to the Hospital at Mysuru and the police did not enquire

him. He has not been cross-examined.

(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.

(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.

15. Based on the aforesaid evidence on record, the trial

Court acquitted accused Nos.2 to 5 for the offences punishable

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.

16. 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:

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

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

17. 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:

"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.

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.

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).

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).

13. Blunt injury can be caused by hand"

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

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.

18. 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 cross-

examination 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

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:

"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."

19. 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

they kicked and assaulted the deceased after he fell down. No

medical evidence is also produced to prove with regard to

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.

20. 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:

"Section 300-Murder: xxxx Exception 1: xxxxx Exception 2:xxxxx

Exception 3:xxxxx

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."

21. A careful reading of the aforesaid provision, makes clear

that to invoke said provision, four requisites must be satisfied,

namely;

     i)     It must be a sudden fight;


     ii)    There should be no premeditation;

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

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

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

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

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

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.

23. 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

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.

24. 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.

25. 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.

26. 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

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.

27. 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.

28. 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

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.

29. Accordingly, we pass the following:

ORDER

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

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

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;

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

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

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.