Karnataka High Court
Sri Nandish vs State Of Karnataka on 8 April, 2024
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CRL.A No. 384 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 384 OF 2018
BETWEEN:
Sri Nandish
S/o. Narayanaswamy,
Aged about 31 years,
R/o Arabikothanur Village,
Vokkaleri Hobli, Taluk
Digitally signed & District Kolar - 563 101.
by SRIDEVI S ...Appellant
Location: HIGH (By Sri. Veeranna G. Tigadi, Advocate)
COURT OF
KARNATAKA
AND:
State of Karnataka,
Rep by Inspector of Police,
Kolar Rural Police Station,
Rep by State Public Prosecutor,
Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
...Respondent
(By Sri. M.V. Anoop Kumar, HCGP)
This Criminal Appeal is filed u/s.374(2) of Cr.P.C praying
to set aside the judgment and order of conviction dated
16.09.2017 and sentence dated 18.09.2017 passed by the I
Additional Sessions Judge, Kolar in S.C.No.112/2016 -
convicting the appellant/accused for the offence p/u/s 302 of
IPC.
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CRL.A No. 384 of 2018
Date on which the appeal was
11.03.2024
reserved for judgment
Date on which the judgment was
08.04.2024
pronounced
This Criminal Appeal having been heard & reserved,
coming on for pronouncement this day, Sreenivas Harish
Kumar J., pronounced the following:
JUDGMENT
This appeal is against conviction judgment in
SC.No.112/2016 on the file of I Additional Sessions Judge,
Kolar. The appellant being the accused faced trial for the
offence under section 302 of IPC and has stood convicted
and sentenced to life imprisonment and fine of
Rs.10,000/-.
2. The incident that led to prosecuting the accused
took place on 8.5.2016, the allegation against the accused
being that when the accused, Narayanaswamy, Anbu and
Tulasi were playing a native dice game called 'Chowka
Bhara' in front of Satyamma temple around 12 noon, the
accused and Narayanaswamy got into altercation which
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was pacified by the villagers. But around 1.00 p.m., when
Narayanaswamy was sleeping in front of Satyamma
temple, all of a sudden the accused came to that place
with six others and on the instigation of one Nagaraj
stabbed Narayanaswamy on his left rib. This resulted in
Narayanaswamy suffering serious injuries. He was taken
to SNR Hospital, Kolar in the first instance and from there
he was shifted to R.L Jalappa Hospital. But
Narayanaswamy succumbed to injuries on the same day at
4.35 p.m.
3. PW13 was the first informant and Ex.P13 was the
report given by him to the police. He was also an eye
witness. Out of 18 witnesses examined by the
prosecution, majority of them did not support, but based
on the testimony of PW13 and recovery of knife at the
instance of the accused, the trial court held that the
prosecution was able to prove its case beyond reasonable
doubt and thereby convicted the accused.
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4. We have heard the argument of Sri. V.G. Tigadi,
learned counsel for the appellant and Sri. M.V. Anoop
Kumar, High Court Government Pleader for the respondent
- State.
5. Sri. V.G. Tigadi confined his argument to the point
that the conviction against the accused for the offence
under section 302 IPC cannot be sustained in as much as
MO.1 the knife is not a dangerous weapon, and if the
testimony of PW13, the eye witness is acceptable, at best
the accused can be held guilty of the offence under section
325 IPC. Elaborating, Sri. Tigadi argued that PW10, the
doctor has given the cause of death as due to stab injury
and this opinion of the doctor is incorrect in the sense that
injury will never result in death, but on the other hand
injury will result in shock or hemorrhage which will lead to
death. PW10 has not given this kind of opinion. He has
also not mentioned the width of the weapon. In his
evidence he has just stated that the length of the knife
was 23 cms. Length of the handle was 11.5 cms and
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length of the blade was 10.5 cms. If he noticed stab
wound measuring 2 cms x 1 cm over left side of the chest,
he should have given the width or the thickness of the
blade in which event it would have been possible to infer
that MO1 was used for inflicting injuries. Even otherwise if
MO1 is seen, it is just a kitchen knife which cannot be
considered as dangerous or deadly weapon. The evidence
shows that Narayanaswamy was taken to hospital on a
two wheeler which circumstance thereby indicates that he
did not sustain such kind of injury as would result in
death. The post-mortem report shows that the stab had
cut the 8th rib and then cutting the spleen through made a
nick on the left lobe of liver. Spleen is not vital organ to
say that injury to it would result in death. Of course liver
is a vital organ, but except a nick there was no damage to
it. In this view no opinion can be formed that the death
was as a result of stab injury. He argued that the accused
should have been convicted for the offence under section
325 of IPC and therefore now in this appeal, the impugned
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judgment is to be modified for the said offence and the
custody period that he has already undergone be set off
against the punishment for the offence under section 325
of IPC. In support of his argument he placed reliance on a
few decisions to which we will refer later.
6. Meeting the arguments of Sri V.G.Tigadi, learned
Government Pleader argued that if really the accused had
no intention, he could have picked up anything, other than
knife, available at the spot to beat Narayanaswamy.
Accused did not inflict injury while altercating with
Narayanaswamy when they were playing. He left that
place and came back again with a knife and stabbed
Narayanaswamy who was sleeping. The Government
Pleader argued that these attending circumstances would
indicate the intention of the accused. And referring to
post mortem report he argued that the depth of the injury
was 10 cms., causing injury to liver piercing through
spleen. One can imagine the force with which accused
might have stabbed Narayanaswamy. For all these
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reasons, the Government Pleader argued that the trial
court is right in recording conviction for the offence
punishable under section 302 of IPC and there is no
reason to interfere with the judgment of the trial court.
7. Keeping in mind the points of arguments, if the
entire case is put to analysis, what is forthcoming is this :
The prosecution has projected a previous incident of rape
which actually was the reason for enmity between the
families of the accused and the deceased Narayanaswamy.
PW13, the first informant and elder brother of the
deceased has stated that his cousin namely Ambarish had
raped a girl by name Gitanjali, the daughter of V.Nagaraj.
Ambarish was arrested and he came out of jail after six
months. About a month after Ambarish came out of jail,
Nagaraj and his supporters got into a scuffle with
Ambarish and this led to a criminal case being registered.
Therefore there persisted enmity between two families.
8. The history thus given by PW13 is not
controverted in the cross examination. Instead PW13 was
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suggested that his family members used to altercate
unnecessarily with Nagaraj and his kinsmen. These
suggestions are of course denied by PW13, but it is not
impossible to infer some kind of resentment between two
families. And it was quite strange that the accused and
the deceased belonging to opposite groups were playing
'Chowka Bhara' in front of Satyamma Temple. The
defence does not dispute that they were not playing, in
fact suggestion given to PW13 that he was not present
when the accused and the deceased were playing, implies
the game being played by both of them. The incident has
this background.
9. The argument of Sri V.G.Tigadi shows that the
actual incident of stabbing is not disputed. PW1 to PW5
have not supported. PW13 was an eye witness, and his
testimony as regards the incident is believable. In
addition, his evidence throws light on other attending
circumstances which may help decipher whether the
accused had intention to inflict such bodily injury as may
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result in death. The situation depicted by PW13 is that
after the altercation between the accused and the
deceased was pacified, the accused left that place. The
deceased was sleeping in front of the temple. After half
an hour, four persons including Nagaraj and the accused
again came to that place. The accused kicked the
deceased and before the latter could get up, accused
stabbed on the left side rib of the deceased, and said at
that time that anybody hating him would meet that kind of
fate. These circumstances clearly indicate that the
accused did not attack the deceased during the scuffle that
took place while they were playing 'Chowka Bhara', rather
he left that place and again returned with a knife.
Intention to attack the deceased becomes writ large.
10. The next question arising for consideration is,
whether the offence under section 325 of IPC can be said
to have been committed although the incident resulted in
death of Narayanaswamy.
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11. This question requires to be answered in the
light of Sri V.G.Tigadi's argument which is already referred
to. MO1 is a knife. The doctor examined as PW10 is of
opinion that injury noticed by him at the time of
conducting post mortem examination is possible to occur if
knife shown to him had been used for stabbing, and he
has also opined about possibility of death due to use of it.
He stated that the knife shown to him measured 23 cms in
length, the handle length was 11.5 cms and blade length
was 10.5 cms and the knife was stained with blood. He
did not give the measurement of width of knife. PW13
identified the knife-MO1 while giving evidence and stated
that it was the knife with which the accused stabbed the
deceased. Therefore there is ample evidence in regard to
identification of the knife.
12. The doctor may have stated that death was due
to stab injury. Merely for the reason that he did not state
that death was due to shock or haemorrhage, his opinion
does not lose evidentiary value. Haemorrhage or shock is
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a medical term which the doctors usually use, but non
mention of it by PW10 does not take away the evidentiary
value ascribable to his deposition. He has given opinion
for cause of death in ordinary or common language.
13. The doctor's evidence discloses that the
measurement of stab injury is 2 cms x 1 cm x 10 cms. 10
cms is the depth of the injury which corresponds to length
of the blade. On dissection of the body, the doctor found
that the stab entered through 8th inter coastal space
cutting the 8th rib, and passing through the spleen it had
made a nick on the left lobe of liver. No further evidence
is required to imagine the amount of internal bleeding, as
it is self evident. Therefore the argument of Sri Tigadi
that the doctor's evidence is not conclusive as to cause of
death cannot be accepted.
14. MO1 may be a kitchen knife, and for that reason
it cannot be accepted that it is not dangerous or deadly.
It depends on its usage; it may not be dangerous if it is
used for cutting vegetable or fruits, but turns out
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dangerous if it is used for committing crime. Sri
V.G.Tigadi has sought support for his argument from a
decision of the Supreme Court in the case of Mathai vs
State of Kerala [(2005) 3 SCC 260]. He referred to
paragraph 17 of this decision where it is held :
"17. The heading of the Section provides
some insight into the factors to be considered.
The essential ingredients to attract Section 326
are : (1) voluntarily causing a hurt; (2) hurt
caused must be a grievous hurt; and (3) the
grievous hurt must have been caused by
dangerous weapons or means. As was noted by
this Court in State of U.P. v. Indrajeet Alias
Sukhatha (2000(7) SCC 249) there is no such
thing as a regular or earmarked weapon for
committing murder or for that matter a hurt.
Whether a particular article can per se cause
any serious wound or grievous hurt or injury
has to be determined factually. As noted above
the evidence of Doctor (PW 5) clearly shows
that the hurt or the injury that was caused was
covered under the expression 'grievous hurt' as
defined under Section 320 IPC. The inevitable
conclusion is that a grievous hurt was caused.
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It is not that in every case a stone would
constitute a dangerous weapon. It would
depend upon the facts of the case. At this
juncture, it would be relevant to note that in
some provisions e.g. Sections 324 and 326
expression "dangerous weapon" is used. In
some other more serious offences the
expression used is "deadly weapon" (e.g.
Sections 397 and 398). The facts involved in a
particular case, depending upon various factors
like size, sharpness, would throw light on the
question whether the weapon was a dangerous
or deadly weapon or not. That would determine
whether in the case Section 325 or Section 326
would be applicable."
(underlining by us)
15. Needless to say that the cited decision is of no
avail to the accused, for it is clearly held there that facts of
the case and such other factors decide whether a weapon
is dangerous or not.
16. The other decision that Sri V.G.Tigadi has
referred to is State of Haryana vs Mange Ram And
Others [(2003) 1 SCC 637] where, the Hon'ble
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Supreme Court found that the conviction recorded by the
Sessions Court for the offences under sections 325 and
326 was correct in view of doctor's evidence being not
definite as to cause of death. Despite the fact that the
deceased had been inflicted injuries with weapons, the
doctor had a doubt that the death might have occurred
due to blood reaction also. This was the main reason for
holding the accused guilty of causing grievous hurt instead
of the offence under section 302 of IPC. Therefore Mange
Ram is also not helpful to the accused.
17. Sri V.G.Tigadi has placed reliance on another
judgment of the Supreme Court in the case of Noor Aga
vs State of Punjab and Another [(2008) 16 SCC 417]
to meet our query as to why the cross-examination of the
doctors lacks questions pertaining to improbability of
occurrence of death if the nature of injury suffered by
Narayanaswamy is considered. It was his submission
burden of proving it was on the prosecution, and no
presumption can be drawn in favour of prosecution merely
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because such questions were not put to the doctor. Noor
Aga no doubt discusses the concepts of burden of proof,
and statutory presumptions. That case related to offences
under Narcotic Drugs and Psychotropic Substances Act
which provides for drawing presumption under sections 35
and 54. It is also held that presumption cannot be
straightaway drawn unless foundation is laid on basic facts
by the prosecution. But in the case on hand, it is not the
question of drawing presumption. What is to be seen is
whether the prosecution has discharged its initial burden,
and if so, has the defence rebutted that evidence when the
onus shifted on it. The burden on the prosecution was to
prove that the injuries inflicted to Narayanaswamy was
sufficient in the ordinary course to cause death. For this,
prosecution examined the doctor who conducted post
mortem and he gave an opinion that the death was
consequent to stab injury. The knife was also showed to
him to seek his opinion whether injury as mentioned in
post mortem report would occur if that knife was used for
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stabbing. And he opined about its possibility. Once this
much of evidence is brought by the prosecution before the
court, the burden on prosecution gets discharged; then
the onus shifts on defence to question the doctor if
according to it the opinion of doctor is unacceptable, or
from the type of weapon produced before the court
injuries as noticed by him were unlikely to occur or even if
such injuries could be inflicted, they are not fatal. The
prosecution need not put questions which the defence has
to ask in the cross-examination. Here what is found in the
cross examination is one simple suggestion that injury
mentioned in Ex.P10, i.e., the post mortem report will not
occur from MO1 i.e., knife, which suggestion was denied
by the doctor. Mere giving a suggestion is of no use and
therefore the evidence of PW10 cannot be discarded.
18. Now as the evidence brought on record by the
prosecution proves motive, and the overt act of the
accused, the inference to be drawn is that his act
amounted to murder. No circumstance is brought to fore
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by the defence to apply any of the exceptions to section
300 of IPC. There is no infirmity in the judgment of the
trial court. Appeal is therefore dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
CKL
