Karnataka High Court
Mahantesh Somappa Gummagol vs The State Of Karnataka on 20 June, 2023
Bench: Anil B Katti
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CRL.A No. 100081 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100081 OF 2014
BETWEEN:
1. SHRI MAHANTESH SOMAPPA GUMMAGOL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. HOSUR, TALUK: SAVADATTI
2. SHRI SIDDAPPA DODDAPPA GUMMAGOL,
AGED 48 YEARS, OCCU: AGRICULTURE,
R/O. HOSUR, TALUK : SAVADATTI
3. SMT CHANNWWA W/O. SIDDAPPA GUMMAGOL,
AGED 41 YEARS, OCCU: HOUSEHOLD WORK,
R/O. HOSUR, TQ : SAVADATTI
...APPELLANTS
(BY SHRI S.S. YADRAMI, SR. COUNSEL FOR
SHRI H.M. DHARIGOND, ADVS.)
AND:
Digitally signed
J
by J MAMATHA
Date:
THE STATE OF KARNATAKA
MAMATHA 2023.06.21
12:25:11 BY MURUGOD POLICE STATION
+0530
BELAGAVI DISTRICT,
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SHRI M.H. PATIL, AGA)
***
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CRL.PC
SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER OF
CONVICTION DATED: 28.02.2014 PASSED BY THE LEARNED II
ADDL. SESSIONS JUDGE, BELAGAVI IN SC NO.172/2011 AND
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CRL.A No. 100081 of 2014
FURTHER BE PLEASED TO ACQUIT THE APPELLANTS OF ALL
THE CHARGES LEVELLED AGAINST THEM.
THIS APPEAL COMING ON FOR FURTHER HEARING AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.03.2023, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
Appellants/accused Nos.1 to 3 feeling aggrieved by the
judgment of trial Court on the file of II Addl. Sessions Judge,
Belagavi, in S.C.No.172/2011 dated 28.02.2014 preferred this
appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that there
was dispute between the husband of complainant - Shrishail
and accused for carrying JCB in the land of deceased Shrishail,
since Shrishail was objecting for the same on the ground that
pipelines laid in his lands would be damaged. On 19.03.2010
at 6 p.m., in front of house No.992 at Hosur village, husband of
complainant - Shrishail was crying for taking JCB in his land
who was under intoxicated condition. Accused Nos.1 to 3
started abusing Shrishail in filthy language by questioning as to
CRL.A No. 100081 of 2014
how Shrishail is not allowing to use the road in his land.
Accused Nos.1 and 2 caught hold Shrishail and pushed him to
the ground where stones were collected. Due to the said overt
acts of accused Nos.1 and 2, Shrishail sustained internal head
injuries and succumbed to the said injuries while he was under
treatment in the hospital. On these allegations made in the
complaint, Investigating Officer on completion of investigation
filed the charge-sheet.
appeared before the Court. The trial Court after being prima
facie satisfied framed the charge against all the accused for
offences punishable under Sections 304 and 504 read with
Section 34 IPC. Accused Nos.1 to 3 pleaded not guilty and
claimed to be tried. Prosecution to prove the allegations made
against accused relied on the oral evidence of PWs-1 to 16 and
documents Exs.P.1 to 26.
5. On closure of prosecution evidence, statement of
accused under Section 313 Cr.P.C. came to be recorded.
Accused Nos.1 to 3 have denied all the incriminating material
evidence appearing against them and claimed that false case is
filed. The trial Court after appreciation of evidence convicted
CRL.A No. 100081 of 2014
accused for the aforesaid offences and imposed sentence as per
order of sentence.
6. Appellants/accused Nos.1 to 3 challenging the said
judgment of conviction and order of sentence preferred this
appeal contending that the very first version recorded by
Medical Officer - PW-8 on 20.03.2010 as per Ex.P.8 would go to
show that Shrishail was brought to the hospital with history of
consumption of alcohol and severe burning sensation in
stomach, since was not responding and not talking since
morning and on clinical examination he did not find any head
injury. On reference to General Hospital, Bailhongal, history is
recorded as fall from height due to alcoholic intoxication which
is recorded in MLC register Ex.P.10 by PW-9. The said history
was given by wife of Shrishail that injured is unconscious due
to heavy alcohol consumption and her husband had fallen from
height. The injured Shrishail was then shifted to District
Hospital, Belagavi, on 21.03.2010 wherein X-ray and CT Scan
was advised, but there was no attendants of the patient to get
investigation done. The doctor is of clear opinion that patient is
unconscious and not responding to painful stimulus as per
Ex.P.6 and the said doctor has not been examined by the
prosecution. The independent eyewitnesses PWs-5 and 6 have
CRL.A No. 100081 of 2014
not supported the case of prosecution. PWs-1, 3, 4 and 6 are
highly interested witnesses and their improved version cannot
be believed as against the medical evidence. The trial Court by
brushing aside the medical evidence of PWs-7 to 9, committed
serious error in relying on the interested version of PWs-1, 3, 4
and 6 in holding that prosecution has proved the charges
levelled against accused. The approach and appreciation of
oral and documentary evidence by trial Court is contrary to law
and evidence on record. Therefore, prayed for allowing the
appeal and to set aside the judgment of conviction and order of
sentence. Consequently, to acquit all the accused from the
charges levelled against them.
7. In response to notice of appeal, learned High Court
Government Pleader has appeared for respondent - State.
8. Heard the arguments of both sides.
9. On careful perusal of oral and documentary
evidence placed on record by the prosecution, it would go to
show that accused No.1 is the younger brother of deceased
Shrishail. The deceased Shrishail is the husband of
complainant - Basavva. Accused No.2 - Siddappa is the cousin
brother of deceased Shrishail and accused No.3 is the wife of
CRL.A No. 100081 of 2014
accused No.2. There is a land of deceased Shrishail and
accused persons to the extent of 17 acres pertaining to the
family, out of which, an area of 15 guntas was donated to
Government in which a Government School has been
constructed. The amount for having acquired the said land has
been received by accused No.2 - Siddappa Doddappa
Gummagol. The Government has further acquired land for the
purpose of constructing a public tank for the villagers. JCB was
brought to dig land for the purpose of constructing public tank.
At that time, JCB passed in the land of Shrishail and he
objected for the same, since pipelines laid in his land would be
damaged. However, accused persons have forcibly taken JCB
passing through the land of Shrishail because of which Shrishail
was not happy with accused persons.
10. On 19.03.2010 at about 6 p.m., in front of house
No.992 at Hosur village, Shrishail was crying under intoxication
that inspite of his resistance, JCB is being taken in his land by
damaging pipelines laid in the land. Accused Nos.1 to 3 started
abusing Shrishail in filthy language and questioned Shrishail as
to how he is not allowing JCB to pass through his land.
Accused Nos.1 and 2 caught hold deceased Shrishail and lifted
him, thereafter thrown him on the spot where the stones were
CRL.A No. 100081 of 2014
collected, due to which Shrishail sustained internal head
injuries and on account of such injuries succumbed to the
injuries while was undergoing treatment in Government District
Hospital at Belagavi. The material witnesses relied by
prosecution to prove the charges levelled against accused are
PW-1 - wife and PW - 3 - son of deceased Shrishail, PW-4 - co-
sister of complainant and PW-6 - co-brother of complainant.
The said evidence is sought to be corroborated by the medical
evidence of PWs-7 to 9 and documents Ex.P.8 to 10 and PW-14
, doctor who conducted the post mortem examination of
deceased Shrishail and issued post mortem report, Ex.P.22 with
that of Investigation Officers - PWs- 12, 13 and 15.
11. Learned counsel for appellants/accused Nos.1 to 3
argued that the oral evidence of PWs-1, 3, 4 and 6 is contrary
to the medical evidence, PWs-7 to 9 and the wound certificate
at Ex.P.8 to Ex.P.10 and trial Court has committed serious error
in relying on the improved version of PWs-1, 3, 4 and 6 when
deceased Shrishail was shifted to Government Hospital at
Belagavi. The trial Court was not justified in rejecting the first
version given by complainant herself when Shrishail was first
brought to PHC at Hosur and the Government Hospital at
Bailhongal wherein the history is recorded as due to fall from
CRL.A No. 100081 of 2014
height under intoxication. The trial Court has also not
appreciated the inconsistent evidence of eyewitnesses PWs-1,
3, 4 and 6 that deceased Shrishail suffered head injury due to
alleged overt acts of accused Nos.1 and 2.
12. Per contra, learned High Court Government Pleader
argued that the overt act of accused Nos.1 and 2 in causing
injury to deceased Shrishail over parietal region is proved by
the prosecution out of the evidence of PWs-1, 3, 4 and 6 and
the medical evidence of PWs-7 to 9. In view of the fact that
Shrishail suffered internal head injury, the admission of PW-8
that on clinical examination of the injured did not find any
injury on the body and the head cannot be a ground to reject
the entire case of prosecution. The mere fact that deceased
Shrishail consumed alcohol cannot by itself be said as sufficient
ground to hold that he suffered internal head injury due to fall
from the height. The history recorded by PWs-8 and 9 in
Exs.P.8 to 10 alone cannot be decisive factor to reject the case
of prosecution.
13. On careful perusal of complaint allegations Ex.P.1
with regard to narration of incident would go to show that all
the accused due to their negligence caused Shrishail to fall on
the ground. PW-1 and her son brought Shrishail to the home
CRL.A No. 100081 of 2014
and he was not in a position to talk. At about, 1 p.m., Shrishail
was brought to PHC, Hosur, where she has stated that her
husband has fallen and after giving first aid, Shrishail was
referred to higher centre, Government Hospital at Bailhongal.
Since her husband was unconscious state, filed the complaint
against all the accused.
14. PW-1 during the course of her evidence has
deposed to the effect that accused Nos.1 and 2 have lifted
Shrishail and thrown him over stone due to which there was
swelling. After 5 days of the incident, her husband died in
Government District Hospital, Belagavi, due to head injury
sustained in the incident. The above referred statement of
PW-1 is contrary to the complaint allegations Ex.P.1 wherein
she has never claimed that accused Nos.1 and 2 have lifted
Shrishail and thrown him on the stone due to which he suffered
injury.
15. PW-3 with reference to incident has spoken to the
effect that all the accused caught hold his father Shrishail and
by holding the shirt pulled him on the stones. This statement
of PW-3 runs contrary to the evidence of PW-1.
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CRL.A No. 100081 of 2014
16. PW-4 deposed to the effect that all the three were
quarrelling with Shrishail by holding shirt on the chest and
pulling and due to such pull, Shrishail fell on the stones and
there was swelling.
17. PW-6 has deposed to the effect that when he came
to the house, found people gathering in front of the house of
Shrishail and further he was informed that Shrishail fell under
intoxication. PW-6 has admitted in the cross-examination that
when he came to house, he did not see any of the accused and
Shrishail was lying on the stones and he understood that
Shrishail has fallen under intoxication. PW-6 further admitted
that he do not know who had caught hold deceased Shrishail.
Therefore, from the said evidence of PW-6, it is evident that he
is not an eyewitness to the incident and he came to know about
the incident through PW-1. Therefore, the above referred
evidence of PWs-1, 3, 4 and 6 will have to be appreciated in the
light of medical evidence on record.
18. PW-7 - Kiran Kumar, is the doctor who has first
seen Shrishail in District Hospital, Belagavi on reference from
Bailhongal hospital. On the same day, injured Shrishail was
admitted to the hospital and he has referred injured to surgery
department and accordingly, he has issued Exs.P.6 and 7. The
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CRL.A No. 100081 of 2014
injured was admitted to hospital on 21.03.2010 and died on
24.03.2010 at 4.40 p.m. It is for the first time in Ex.P.7,
history is recorded as alleged assault. PW-7 has admitted in
the cross-examination that he cannot tell the reason as to why
Shrishail had gone unconscious state, since CT scan was not
done.
19. PW-8 - Dr.Ravindra Kumar Jakkanur, doctor
working in PHC, Hosur, has first seen the injured brought by
complainant on 20.03.2010 at 1 p.m. and history is recorded as
"over consumption of alcohol and severe burning
sensation in stomach since night and not responding and
not talking since morning". This history must have been
necessarily recorded by PW-8 on the information given by PW-1
herself. PW-8 also admitted in his cross-examination that the
said history was given by wife of Shrishail and the relatives.
PW-8 further admits that on clinical examination, he did not
find any injuries over his body or on the head. PW-8 has
referred Shrishail for higher treatment to Government Hospital,
Bailhongal.
20. PW-9 - Dr.Rangappa, Orthopedic Surgeon has
recorded the history in Ex.P.9 wound certificate that "fall from
height under alcohol intoxication". PW-9 found swelling
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CRL.A No. 100081 of 2014
over the right parietal occipital region of skull. Therefore, it is
evident from the evidence of PWs-8 and 9 that Shrishail was
brought to PHC, Hosur and Government Hospital, Bailhongal
with the history of over consumption of alcohol and fall from
height.
21. The evidence of PW-14 - Dr.Gurudat S.Kodala, who
conducted the autopsy of deceased Shrishail and issued post
mortem report as per Ex.P.22 would go to show that cause of
death is due to cranio cerebral injuries as a result of head
injury sustained by blunt force impact. Therefore, from the
evidence of PWs-7 and 14 it can be only said that deceased
Shrishail succumbed to head injury suffered by him.
22. The mere fact that deceased Shrishail succumbed to
the head injury in view of the evidence of PWs-7 and 14 and
the document Ex.P.6, 7 and 22, it cannot be said that the
deceased Shrishail suffered head injury due to alleged overt act
of accused. The oral evidence of PWs-1, 3 and 4 as referred
above is inconsistent with regard to Shrishail having suffered
head injury either due to pulling of accused to the ground or
accused Nos.1 and 2 lifting Shrishail and throwing him to the
ground over collected stones. The evidence of PWs-8 and 9
and the history recorded in Ex.P.8 to Ex.P.10 would go to show
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CRL.A No. 100081 of 2014
that the history recorded by them on the information given by
complainant herself at the earliest point of time on the date of
incident assumes much significance. If at all, accused Nos.1
and 2 have lifted Shrishail and thrown him to the ground on
collected stones as deposed by PW-1 and Shrishail was being
pulled to the ground on collected stones in a scuffle as deposed
by PWs-3 and 4, then nothing has prevented PW-1 and her son
PW-3 to give the history of injuries suffered by Shrishail due to
overt act of any of the accused. The first version revealed by
PW-1 before PW-8 that Shrishail was taken for treatment to
PHC, Hosur, and subsequent to Government Hospital,
Bailhongal, without there being any scope for manipulation has
to be accepted by giving due credence to such theory.
23. It has been brought on record during the cross-
examination of PWs-1, 3 and 4 that there was 17 acres of land
belonging to the family touching to the boundary of Hosur to
the western side. Out of which 6 acres of land has fallen to the
share of complainant. Out of the said 6 acres of land fallen to
the share of Shrishail, 2 acres has fallen to the share of
Mahadevappa and 2 acres of land to accused No.1 and the
entire land is being divided. PW-1 has admitted that 6 divisions
has been effected of 1 acre each and 2 portion of 1 acre each
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CRL.A No. 100081 of 2014
fallen to their share and in the said land, there is no any
pipeline. Therefore, the cause assigned in the complaint for
deceased Shrishail objecting to take JCB in the land on the
pretext that pipelines laid in the land would be damaged, does
not arise.
24. Looking to the evidence of PWs-1, 3 and 4 and the
medical evidence referred in Exs.P.8 to 10, it would go to show
that on the day of incident i.e., on 19.03.2010, deceased
Shrishail was intoxicated on account of heavy consumption of
alcohol. The incident in question took place in front of the
house of complainant at about 6 p.m. The complaint at Ex.P.1
is filed on 21.03.2010. The first version given by complainant -
PW-1 before PW-8 who has first seen the injured on the next
day of incident i.e., on 20.03.2010 at 1 p.m. and that of PW-9
and the wound certificate Ex.P.8 to 10 would go to show that
Shrishail under intoxication fell from height. Therefore, from
the said evidence on record, the possibility of Shrishail
sustaining internal head injury due to fall cannot be ruled out.
The inconsistent evidence of PWs-1, 3 and 4 that deceased
Shrishail sustained internal head injury due to overt act of
accused which is improved version only when the complaint is
filed on 21.03.2010 creates serious doubt that deceased
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CRL.A No. 100081 of 2014
Shrishail sustained internal head injury due to overt act of any
of the accused. The prosecution has failed to establish the
nexus between the internal head injury suffered by Shrishail
due to any overt act of accused Nos.1 to 3 and hence the
benefit of such doubt shall have to be given to accused.
25. The prosecution also alleges that accused have
abused Shrishail in filthy language. The complaint allegations
at Ex.P.1 only speaks about questioning deceased Shrishail.
The evidence of PWs-1, 3 and 4 also speaks about only accused
questioning Shrishail for not giving road. Their mere statement
that accused were abusing itself cannot be said as sufficient
evidence to attract penal action in terms of Section 504 IPC.
26. In this context of the matter, it is useful to refer to
the judgment of Hon'ble Apex Court in Fiona Shrikhande
V/s. State of Maharashtra, reported in AIR 2014 SC 957,
wherein it has been observed and held that:
"Section 504 of IPC comprises of the
following ingredients viz., a) Intentional insult,
b) the insult must be such as to give
provocation to the persons insulted, and c) the
accused must intend or know that such
provocation would cause another to break the
public peace or to commit any other offence.
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CRL.A No. 100081 of 2014
The intentional insult must be of such a degree
that should provoke a person to break the public
peace or to commit any other offence. The
person who intentionally insults intending or
knowing it to be likely that it will give
provocation to any other person and such
provocation will cause to break the public peace
or to commit any other offence, in such a
situation, the ingredients of Section 504 are
satisfied. One of the essential elements
constituting the offence is that there should
have been an act or conduct amounting to
intentional insult and the mere fact that the
accused abused the complainant, as such, is not
sufficient by itself to warrant a conviction under
Section 504 of IPC.
If the evidence of PWs-1, 3 and 4 is appreciated then it
will have to be said that their evidence is not in conformity with
the aforementioned judgment of the Hon'ble Apex Court.
27. The trial Court without properly appreciating the
evidence of PWs- 1, 3, 4 and 6 in the light of their evidence on
record which stands contrary to the medical evidence of PWs-8
and 9 as per Exs.P.8 to 10 committed error in holding that
prosecution has proved the guilt of accused beyond all
reasonable doubt. In view of the reasons recorded as above,
the said finding recorded by the trial Court cannot be legally
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CRL.A No. 100081 of 2014
sustained and interference of this Court is required.
Consequently, proceed to pass the following:
ORDER
Appeal filed by appellants/accused Nos.1 to 3 is hereby
allowed.
The judgment of trial Court on the file of II Addl. Sessions
Judge, Belagavi, in S.C.No.172/2011 dated 28.02.2014 is set
aside.
Accused Nos.1 to 3 are acquitted from the charges
levelled against them under Sections 304, 504 read with 34 of
IPC.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
