Sri. Jayanna S/O Basavaiah vs State Of Karnataka By
2022 Latest Caselaw 3579 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.572/2011

BETWEEN:
SRI. JAYANNA S/O BASAVAIAH
AGED 42 YEARS
R/AT SHIRADANAHALLI VILLAGE
RAMANATHAPURA HOBLI
ARAKALAGUD TALUK
HASSAN DISTRICT
                                             ....APPELLANT
(BY SRI. PRAMOD .R, ADVOCATE FOR
    SRI. A.M. BALAJI, ADVOCATE)

AND:
STATE OF KARNATAKA BY
KONANUR POLICE
REP. BY SPP
HIGH COURT OF KARNATAKA
BANGALORE
                                           ...RESPONDENT

(BY SRI. KRISHNA KUMAR .K.K, HCGP)

     THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTIION AND
ORDER    OF    SENTENCE      DT:25.03.2011  PASSED     IN
S.C.NO.143/2010 BY THE P.O., FTC, ARAKALAGUD-CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 304 PART-2
OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO S.I. FOR 5 YEARS FOR THE OFFENCES P/U/S 304
PART-2 OF IPC.
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    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The appellant/accused has preferred this appeal

aggrieved by the judgment and order dated 25.03.2011

passed by the Fast Track and Sessions Court, Arkalgud in

S.C.No.143/2010, convicting and sentencing him for the

offence under Section 304 part 2 of IPC.

2. Heard the learned counsel for the appellant and

learned HCGP for respondent-State and perused the

material on record.

3. The brief facts of the prosecution case are that

the accused was in the habit of consuming liquor and

quarrelling with Pw.2-Channayya. On 23.04.2010 at about

3.00 p.m., he picked up quarrel with him. At that time

deceased-Nagarajappa who was present at the spot tried to

pacify the quarrel. The accused picked up a stone which was

on the ground and threw at the deceased on his chest. The

first informant, Pw.1- wife of the deceased took him to the

police station for lodging a complaint against the accused.

Since he developed pain in the chest, he was taken to

Government Hospital, Konanoor. However, he died in the

hospital at about 5.00 p.m.,

4. The accused was charged for the offence

punishable under Section 302 of IPC. The prosecution in

order to substantiate the charges leveled against the

accused, got examined Pws.1 to 21 and got marked as

Exs.P1 to P17 and Mos.1 to 5. The defence of the accused

was one of total denial. However, he did not choose to lead

any evidence on his behalf.

5. The trial Court after appreciating the oral and

documentary evidence on record convicted the accused for

an offence under Section 304 part 2 of IPC and sentenced

him to undergo simple imprisonment for a period of 5 years.

6. Assailing the impugned judgment passed by the

trial Court, the learned counsel for the appellant has

contended that the trial Court without properly appreciating

the evidence and material on record has come to an

erroneous conclusion and convicted the accused. He has

contended that there is discrepancy in the evidence of the

prosecution witnesses, wherein according to Pw.1 i.e., first

informant the incident took place at about 3.00 p.m., and

the victim was taken to the hospital at about 5.00 p.m.,

wherein he died. However, the medical officer-Pw.14 has

stated that the victim was brought to the hospital at 3.30

p.m. He submits that according to medical evidence there is

no internal or external injury and therefore, the case of the

prosecution that the accused threw stone at the victim and

on account of which he died cannot be believed. He further

contends that the cause of death as per post mortem report

is due to cardiopulmonary arrest secondary to Vasovagal

shock. He therefore, contends that there is no nexus

between the act committed by the accused and the cause of

death. He submits that due to some political rivalry the

accused has been falsely implicated. He submits that

ingredients of the offence for which now the accused has

been convicted and sentenced are not made out and

therefore, the trial Court is not justified in convicting the

accused.

7. Per contra, the learned HCGP has contended that

Pws.1 and 2 are the eye witnesses who have clearly

deposed that the accused threw stone at the deceased, on

account of which he collapsed and he was shifted to the

hospital wherein he died. He contends that the evidence of

Pws.1 to 3 does not suffer from any infirmities and in view

of the evidence of Pw.14 who has given his opinion as per

Ex.P9 and opined that the victim has died on account of the

injury sustained and due to shock, the trial Court has rightly

convicted and sentenced the accused and there is no

illegality committed.

8. Pw.1 is the first informant. She is the wife of the

deceased. Ex.P1 is the complaint. It is stated that the

accused used to pick up quarrel with her brother Pw.2-

Channayya under the influence of alcohol and he was

quarrelling with him everyday. On 23.04.2010 at about 3.00

p.m., he picked up quarrel with her brother, at that time

her husband who was present at the spot tried to pacify the

quarrel. Then the accused took a stone which was fallen on

the ground and threw it at her husband. At about 5.00

p.m., she along with her brother and her husband were

proceeding to Konanoor police station to lodge a complaint.

Since her husband developed pain in the chest, they went in

an auto rickshaw to the Government hospital, Konanoor,

wherein the Doctor informed that he has died.

9. The first informant-Pw.1 has reiterated the

complaint averments in her evidence. She has stated that

accused threw a stone at her husband on his chest and her

husband immediately collapsed on the ground. They took

him to the hospital wherein the doctor after examining

declared him died. Her evidence is corroborated by Pws.2

and 3. Nothing is elicited in their cross examination so as to

disbelieve their evidence with regard to the accused

throwing the stone at the deceased. Pws.4 and 10 are the

children of deceased and Pw.7 is the brother of deceased.

They are not the eye witnesses but they are hearsay

witnesses and therefore their evidence is not of much

importance. Pw.5 is an eye witness, but he has turned

hostile. Pws.6, 12 and 13 are the panch witnesses to the

spot mahazar under which the stone (Mo.1) has been

seized. Pws.6 and 12 have supported the case of

prosecution. Pw.13 has been treated hostile. Pws.8, 9 and

11 are the panch witnesses to the inquest mahazar-Ex.P6.

Pw.14 is the doctor who conducted post mortem

examination, the report which is marked as Ex.P8. His

further opinion is marked as Ex.P9. Pw.15 is the junior

engineer who prepared sketch of scene of occurrence-

ExP10. Pws.16 to 22 are official witnesses.

10. Pw.14-Doctor in his evidence has stated that on

23.04.2010 at about 3.30 p.m., one Nagaraja was brought

to the hospital complaining of chest pain. His BP was low.

He died when he was being treated. He conducted post

mortem examination and issued post mortem report as per

Ex.P8. He has stated that a person if hit with a stone

(Mo.1), it could be fatal. According to the post mortem

report cause of death is due to cardiopulmonary arrest

secondary to Vasovagal shock.

11. The prosecution witness namely Pws.1 to 3 have

though consistently stated that incident took place at about

3.00 p.m, it is no doubt true that in Ex.P1 and in the cross

examination of Pw.1 it is stated that at about 5.00 p.m., the

victim was taken to the hospital. Whereas, Pw.14 in his

evidence has stated that victim was brought to the hospital

at about 3.30 p.m. But that discrepancy itself is not

sufficient to disbelieve the incident in question. The

witnesses have stated that at about 3.00 p.m., when the

accused started quarrelling with Pw.2, deceased tried to

pacify the quarrel, at that time accused picked up a stone

and threw it at him. Even though the defence has tried to

elicit in the cross examination of Pws.1 to 3 that there was

some political rivalry and ill will, the same has been denied

by them.

12. There is sufficient evidence lead by the

prosecution to show that accused threw a stone on the

chest of the deceased and subsequently he was taken to the

hospital for treatment and died in the hospital. The question

is as to what is the offence committed by the accused.

13. The accused was charged for the offence under

Section 302 of IPC. The trial Court has come to the

conclusion that there was no intention on the part of the

accused to commit murder, but he had the knowledge that

his act is likely to cause death and hence the trial Court has

convicted accused for the offence under Section 304 part 2

of IPC.

14. A careful perusal of the Ex.P1-complaint shows

that the incident has taken place at about 3.00 p.m. In this

connection at about 5.00 p.m. first informant-Pw.1 along

with Pw.2 and the victim went to the police station to lodge

a complaint. When they were near the police station, the

victim developed chest pain and therefore, he was taken to

the hospital, wherein the doctor after examining him

declared dead. The evidence on record would clearly

disclose that the accused was quarrelling with Pw.2, at that

time deceased tried to pacify the quarrel. Enraged by the

same, accused picked up a stone and threw at the

deceased. Pws.1 to 3 have deposed in their evidence that

the accused threw stone from a distance of about 8-10 feet.

The said stone is seized under Ex.P7 and it is stated that it

is a fist sized stone. Pw.14 in his evidence has stated that if

a person is hit on his chest with the said stone it could be

fatal. In the cross examination he has stated that if a

person is hit with such a stone on his chest, then there is

possibility of fracture to the bone and also blood clotting. He

has stated that there were no internal or external injuries

seen on the dead body and there was no injury caused by

the stone.

15. From the above evidence on record though the

prosecution has established that the accused threw a stone

on the chest of the victim but the material on record is not

sufficient to hold that the accused had any intention of

causing any injury as is likely to cause death or had

knowledge that he is likely by said act cause death. Further,

it cannot be held that the bodily injury intended to be

inflicted is sufficient in the ordinary course to cause death.

16. In State of Karnataka vs. Bhimappa reported

in 1985 Crl. L.J.NOC (Kant), on similar facts wherein the

stone pelted by the accused hit the victim resulting in

death, it was held that the accused can be convicted for an

offence under Section 325 of IPC. In the facts and

circumstances of the present case, it can be safely held that

the accused could be attributed only with an intention to

cause a grievous hurt to the deceased which will attract the

ingredients of the offence under Section 325 of IPC.

17. For the forgoing reasons, the conviction and

sentence imposed against the accused for the offence under

Section 304 part 2 of IPC is liable to be set aside and the

accused is liable to be convicted and sentenced for the

offence under Section 325 of IPC.

18. It is submitted that accused was arrested on

24.04.2010 and he was enlarged on bail on 10.12.2010.

After the impugned judgment was passed on 25.03.2011,

he was taken into custody and the sentence was suspended

by this Court on 01.07.2011. The accused was therefore, in

judicial custody for nearly 11 months. This Court is of the

considered view that the period of custody already

undergone by the accused is sufficient.

Accordingly the following:

ORDER

The appeal is partly allowed.

The judgment and order dated 25.03.2011 passed by

the Fast Track and Sessions Court, Arkalgud in

S.C.No.143/2010 convicting and sentencing the accused for

the offence under Section 304 part II of IPC is hereby set

aside. The accused is convicted for the offence under

Section 325 of IPC.

The accused is sentenced to the period of sentence

already undergone by him. He shall pay a fine of

Rs.10,000/- (Rupees Ten Thousand only) and in default of

payment of fine, he has to undergo simple imprisonment for

a period of three months.

The fine amount if deposited shall be paid to Pw.1-

Akkayyamma.

Sd/-

JUDGE

NS