Karnataka High Court

Mogalappa vs The State on 29 May, 2024

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                                                        NC: 2024:KHC-K:3492
                                                        CRL.A No. 200159 of 2018




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                              DATED THIS THE 29TH DAY OF MAY, 2024

                                               BEFORE
                                THE HON'BLE MR. JUSTICE C M JOSHI
                              CRIMINAL APPEAL NO. 200159 OF 2018


                      BETWEEN:

                      MOGALAPPA,
                      S/O SANNA BUGGAPPA METKU,
                      AGED ABOUT 22 YEARS,
                      OCC: AGRICULTURE,
                      R/O NANDEPALLI,
                      TQ & DIST. YADGIRI-585 102.
                                                                    ...APPELLANT
                      (BY SRI BABURAO MANGANE, ADVOCATE)

                      AND:

                      THE STATE,
                      THROUGH SAIDAPUR POLICE STATION,
Digitally signed by
KHAJAAMEEN L          TQ. & DIST.YADGIRI.
MALAGHAN              THROUGH ADDL. SPP,
Location: HIGH        HIGH COURT OF KARNATAKA,
COURT OF              KALABURAGI BENCH - 585 107.
KARNATAKA
                                                                  ...RESPONDENT
                      (BY SMT. ANITA M REDDY, HCGP)

                          THIS CRL.A IS FILED U/S.374 (2) OF CR.P.C., PRAYING TO
                      SET ASIDE THE JUDGMENT OF CONVICTION & SENTENCE
                      DATED 25/29.10.2018 PASSED BY THE SESSIONS JUDGE,
                      YADGIRI,    IN      S.C.No.17/2013     CONVICTING      THE
                      APPELLANT/ACCUSED NO.1 FOR THE OFFENCES P/U/S 304(ii)
                      OF IPC.
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                                  NC: 2024:KHC-K:3492
                                  CRL.A No. 200159 of 2018




    THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
02.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT BENGALURU
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

This appeal is directed against the judgment in SC

No.17/2013 by District and Sessions Judge, Yadgiri, dated

25-10-2018, whereby the appellant/accused No.1 was

convicted for the offence under Section 304 (ii) of IPC and

sentenced to RI for 07 years and a fine of Rs.10,000/-

with adequate default sentence and acquitted the other

accused.

2. The facts in brief germane for the purpose of

this appeal are as below:

On 22-6-2012 the brother of the complainant i.e.,

accused No.5-Sannabuggappa, was sitting infront of his

house beneath a Neem Tree, CW4-Jayamma with the help

of a stick chased a Hen in order to drive the Hen into the

hencoop. The Hen flied and hit on the body of accused

No.5 -Sannabuggappa and that accused No.5 and his wife

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accused No.4-Narasamma, came and abused CW4

Jayamma, who was daughter-in-law of the complainant in

filthy language alleging that she has intentionally caused

the Hen to fly on accused No.5. Even though CW4-

Jayamma told that she had no intention to cause such an

incident and the Hen had flied on its own and she could

not control the said Hen, the accused did not listen to the

same. The son of accused No.5 i.e., accused No.1 -

Mogalappa, came out of the house and abused CW4 -

Jayamma in filthy words and alleged that she had

intentionally done it and is now giving evasive answers. In

the meanwhile, the son of the complainant, who is also

Mogalappa and husband of Jayamma came out of the

house and questioned accused No.1 as to why he is

quarreling with the ladies. In the meanwhile, accused

Nos. 2 and 3 who are relatives of accused No.1 also came

and joined the quarrel. It was alleged that accused No.2

Mahalinga caught hold of the neck of the victim Mogalappa

and accused No.3 caught hold of the waist of Mogalappa

and accused No.1 gave a fist blow to the victim on his face

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and then kicked at the groin with folded right knee.

Meanwhile, the victim Mogalappa collapsed and fell down.

It was at about 8.30 p.m., CWs.5, 6 and 7 came and

pacified the quarrel and found that the victim Mogalappa

had died and they carried him to a private hospital for

examination who confirmed the death. Thereafter, the

complainant Doddabugganna lodged the complaint at

about 2.00 a.m., and it was registered in Crime

No.53/2012 for the offence under Section 302 read with

Section 149 of IPC of Saidapur Police Station.

3. The Investigating Officer visited the spot,

conducted the mahazar, subjected the dead body to the

inquest and postmortem and after completion of the

investigation filed a chargesheet to the Court. On

committal, the trial Court secured the accused. On

framing the charges, the accused claimed to be tried and

as such, the prosecution examined 16 witnesses as PWs 1

to 16, Exs.P1 to P14 and MOs 1 to 5 were marked in

evidence. After recording the statement of the accused

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under Section 313 of Cr.P.C., accused No.5 died during the

trial and therefore, the case against him abated. The

accused were on bail during trial.

4. The trial Court after hearing both the sides

framed the following points for consideration:

1. Whether the prosecution proves that on 22.06.2012 at 8-30 p.m. in Nandepalli village accused Nos. 1 to 4 along-

with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, abused the PW.5 Jayamma in filthy language as "Bosadi Randi" in-respect of a hen flying over accused No.5 Sannabugganna due to her chase over it to keep it in the hencoop and thereby gave provocation to her intending or knowing it to be likely that such provocation will cause her to break the public peace, or to commit any other offences and thereby committed an offence punishable under Section 504 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?

2. Whether the prosecution further proves that on the alleged date, time and place accused Nos. 1 to 4 along-with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, committed criminal intimidation by giving threat to the life of victim Mogalappa and thereby committed an offence punishable under Section 506 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?

3. Whether the prosecution further proves that on the alleged date, time and place accused Nos. 1 to 4 along-with accused No.5 who is reported dead, formed in to an unlawful assembly and in prosecution of common object of such assembly, accused No.2 Mahalinga @ Mahalingappa caught had of neck of victim Mogalappa and accused No.3 Raghavendra caught hold of victim Mogalappa's waist and accused No.1 Mogalappa gave fist blow to the victim Mogalappa on his face, chest and stomach and then kicked

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on testicles with folded right knee and committed his murder intentionally and thereby committed an offence punishable under Section 302 R/w Section 149 of Indian Penal Code, beyond all reasonable doubts?

4. What order?

5. Answering point Nos. 1 and 2 in the negative

and point No.3 partly in the affirmative, convicted accused

No.1 for offence under Section 304 (ii) of IPC and

acquitted accused Nos. 2 to 4. Accused No.1 was

sentenced to RI for 07 years with a fine of Rs.10,000/-

and default sentence of 03 months.

6. The learned High Court Government Pleader

has appeared for the respondent/State. The appeal was

admitted and the trial Court records have been secured.

7. This Court had suspended the sentence subject

to conditions as per order dated 10-12-2018.

8. The arguments by learned counsel for the

appellant/accused No.1 and the learned HCGP for

respondent /State are heard.

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Arguments:

9. The learned counsel appearing for the

appellant/accused No.1 has contended that the trial Court

has erred in holding that accused No.1 was the cause for

the death of the deceased. He submits that the

prosecution witnesses have not fully supported the case of

the prosecution. It is contended that the evidence of

PWs.2, 3, 4 and 10 is of vital importance to the

prosecution case. The other witnesses are only the

witnesses who participated in the investigation and

therefore, it is not of any relevance. He has drawn the

attention of this Court to the Post Mortem report which

shows that there was an abrasion on the arm and there

were no injuries to the testicles of the deceased and

therefore, accused No.1 cannot be held to be responsible

for the neurogenic shock. It is contended that the

neurogenic shock or vasovagal shock was due to the kick

by accused No.1 is not proved. Such a shock is not

spoken to by the Doctor who had conducted the Post

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Mortem, i.e., PW12. Therefore, the conclusion reached by

the trial Court that the neurogenic shock was due to the

'kick in a light way' is not sustainable in law. The nexus

between the kick and the death due to vasovagal shock

was not established by the prosecution and therefore, it

cannot be held that the accused committed the homicide

not amounting to murder. It cannot be inferred from the

evidence on record that accused No.1 had the knowledge

that such kick may result in vasovagal shock that may

cause the death. He points out that the evidence of PW12

does not show which injury caused the neurogenic shock.

Therefore, he contends that the prosecution had failed to

prove that the death was caused by accused No.1.

10. In support of his contention, he has placed

reliance on the judgment of the Apex Court in the case of

N. Ramkumar Vs. The State represented by

Inspector1.

Crl.A.No.2006/2023 DD 6-9-2023

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11. Per contra, the learned HCGP appearing for the

respondent/State has submitted that the neurogenic

shock may be caused by the kick to the testicles. It is

submitted that the evidence on record by PWs 2 to 7

clearly show that after the kick the deceased had fallen

down and died. It is submitted that no other assault could

have caused the shock and therefore, it was the kick alone

which caused the death. It is contended that accused

No.1 knew that such kick may cause death but he had no

intention to cause death. Hence, the trial Court has come

to a proper conclusion that the prosecution has proved the

guilt of the accused No.1 for the offence punishable under

Section 304 (ii) of IPC. Hence, she has prayed for

dismissal of the appeal.

12. The points that arise for consideration are:

1. Whether the trial Court is justified in coming to the conclusion that the act of the accused No.1, in kicking the deceased at the groin has resulted in the death of the deceased?

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2. Whether the trial Court is justified in holding that accused had the knowledge that such a kick may cause the death, but he had no intention? If so, Whether the sentence imposed by the trial Court is adequate?

Evidence:

13. PW1-Suresh happens to be the witness of the

Inquest Mahazar as well as the Spot Mahazar. He has

turned hostile to the prosecution case and cross-

examination has not yielded any fruitful result.

14. PW2-Ashappa happens to be an eye witness

and brother of the deceased. He has spoken about the

incident and states that the house of the accused is

adjoining their house. He says that accused No.3

Mogalappa (Mogalappa happens to be accused No.1) had

kicked the testicles of the deceased and the deceased

Mogalappa fell down and died. In the cross-examination

which took place nearly after two years of the

examination- in- chief, he has stated that after deceased

Mogalappa fell down he came and saw him and says that

Jayamma, the wife of the deceased had told him about the

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incident. It is pertinent to note that there is no suggestion

that accused No.1 had not kicked the deceased.

15. PW3-Tayappa, is another eye witness and

neighbour of accused as well as the complainant. He

speaks about the quarrel and that accused No.1 had fisted

the deceased and has kicked the deceased at the groin.

In the cross-examination, it is elicited that police has not

enquired him and he denies the suggestion that accused

No.1 has not fisted the deceased and had not kicked him.

16. PW4-Nallareddy is another neighbhour of the

accused and the deceased. He says that he only came to

the spot after the victim Mogalappa had died. Therefore,

he cannot be termed to be an eye witness and he is a

hearsay witness.

17. PW5-Jayamma, happens to be the wife of the

deceased Mogalappa. She speaks about the cause of the

incident and the quarrel. She stated that when accused

No.4 had picked up quarrel with her, accused No.1 also

came and had picked up the quarrel. The deceased came

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and questioned accused No.1 as to why he is quarrelling

with the ladies. Then other accused also came to the spot.

She has spoken to the fact that accused No.1 kicked the

deceased at his groin and immediately he fell down and

died. She states that there is a dispute between the

accused and the family of the deceased for about 30

years.

18. In the cross-examination, the details of the

incident were elicited and the suggestion that the

deceased died by falling from a katta was denied by her.

She denies that accused No1. had not kicked the

deceased.

19. PW6-Srinivas happens to be the another eye

witness and the neighbour of the accused as well as the

deceased. He is the son of PW3 and has also spoken on

the same lines as stated by PW3 Tayappa.

20. PW7-Gouramma happens to be the wife of the

complainant. Her evidence is also on the same lines as

stated by PW2-Ashappa. She categorically states that

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accused No.1 had kicked at the groin of the deceased and

therefore, he fell down and died. She also speaks about

the quarrel, the scuffle which ensued the quarrel.

21. PW8-Antappa and PW9-Sharanamma are

hearsay witnesses and their evidence is not of much

relevance.

22. PW10-Siddappagouda is an Engineer of the

PWD, who prepared the sketch of the spot at the request

of the Investigating Officer.

23. PW11-Nagappa is an Engineer of KEB and he

states that electricity supply was uninterrupted at the

time of the incident and had issued certificate as per

Ex.P10.

24. PW12-Dr. Devakar conducted the postmortem

and had issued the PM report as per Ex.P11. He states

that there was an abrasion, ante mortem in nature present

over the right iliac fossa and the cause of death was due

to neurogenic shock. In the cross-examination, there is

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nothing elicited as to what would be the cause of the

neurogenic shock. However, it was elicited that the

abrasion can be caused if a person falls on a stone while

walking. Ex.P11 also does not mention anything about the

injury to the testicles of the deceased. The only injury

mentioned in Ex.P11 is that there was an abrasion over

the right iliac fossa.

25. PW13-Siddanna, PW15-Pulakeshi and PW16-

Vijayakumar are the Investigating Officers of the case.

PW14-Sannaningappa is a hearsay witness.

26. From the above evidence on record, it is clear

that the medical evidence does not show that there was

any injury which caused the neurogenic shock. However,

it only show that there was an abrasion on the right iliac

fossa and the death was due to neurogenic shock.

Evidently, the nexus between the abrasion and the

neurogenic shock is not made out.

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27. The ocular evidence of PWs.2,3 and 4 and PW6

would show that they are the neighbours and they had

heard the quarrel and came to the spot to pacify the

quarrel. All these witnesses have stated that during the

scuffle, accused No.1 had kicked the deceased at the

groin. Evidently, the reason for the quarrel was that the

Hen had sat on the accused No.5 and there was a quarrel

which ensued between PW5 and accused No.4. Then the

other accused joined the quarrel and in the melee,

accused No.1 kicked the deceased at the groin. Therefore,

the trial Court has come to the conclusion that the kick by

accused No.1 at the groin of deceased Mogalappa was not

intentional, but he had the knowledge that such kick may

cause the death of the deceased.

28. Learned counsel appearing for the

appellant/accused No.1 submit that the neurogenic shock

or vesavagal shock cannot be linked to the kick at the

groin since there is no medical evidence linking the same.

He points out that PW12 did not mention the reason for

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neurogenic shock. He points out from Lyon's Medical

Jurisprudence and Toxicology, that only severe contusions

may cause death or severe compression of the testicles

may prove fatal from shock. He submits that the trial

Court observes in para 50 that the prosecution has

established beyond reasonable doubt that the quarrel took

place in front of the house of the accused on 22-6-2012 at

8.00 p.m., and while the quarrel was going on deceased

Mogalappa came out of his house to intervene and he was

kicked by accused No.1 on his testicles in 'light way'.

Therefore, when such an observation was made by the

trial Court, it could not have been a reason to hold that it

caused neurogenic shock. Therefore, he submits that the

conclusion of the trial Court that the kick by accused No.1

caused the neurogenic shock is not proper.

29. From the evidence on record, it is clear that

accused No.1 did not have any intention to commit the

murder. Now the question is, whether accused No.1 had

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the knowledge that his kick would have caused the death

of the deceased?

30. A kick to the vital part of the body may result

in severe injury. There is no evidence to show that except

the kick, there was any act which caused the neurogenic

shock. Medical jurisprudence shows that compression of

testicles may cause the shock. Obviously, the accused

No.1 had kicked at the groin with folded knee. Therefore,

it cannot be said that he was oblivious to the knowledge

that it would have caused death.

31. The Apex Court in the case of N.Ramkumar

Vs. State represented by Inspector referred supra, by

relying on catena of decisions lays down that, when the

incident had taken place in the spur of the moment,

without premeditation and in the fit of furry, invoking of

the offence under Section 304 (ii) of IPC was proper. By

holding so, the Apex Court held that the sentence has to

be adjusted towards the period of imprisonment already

undergone by the accused.

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32. In the case on hand also, even though there is

no medical evidence, the oral evidence of independent eye

witnesses show that accused No.1 had kicked the

deceased at the groin and he died at the spot. There is

nothing on record which would discredit the testimony of

the eye witnesses. They were neighbhours and there is no

reason to discard their evidence. Therefore, the trial Court

was justified in coming to the conclusion that the cause of

death viz., neurogenic shock was due to the kick at the

testicles of the deceased. Obviously, there is no other

injury as could be seen from the Post Mortem Report and

the testimony of PW12 which was the cause of death. The

arguments of the learned counsel for the

appellant/accused No.1 that the medical evidence do not

support the case of the prosecution cannot be accepted.

33. The next contention by learned counsel for the

appellant/accused No.1 is that the sentence imposed upon

the appellant is disproportionate to the offence. It is

relevant to note that the incident had taken place on a

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trivial dispute that the Hen driven by PW5-Jayamma flew

and sat on accused No.5. Considering the triviality of the

cause of the quarrel and that the incident had taken place

at the spur of the moment and fit of furry, the imposition

of sentence of RI for 07 years appears to be severe.

34. In the case of Syed Javed Ahamad Vs. State

of Karnataka2 this Court had an occasion to deal with a

similar case. In a similar circumstance, in fit of furry the

appellant had fisted on the chest of the deceased and due

to carodiogenic shock the deceased had died. This Court

while confirming the conviction for the offence under

Section 304 (ii) of IPC, sentenced the accused to pay a

fine of Rs.1,00,000/- and set off the imprisonment of 04

months which he had undergone by that time.

35. The offence under Section 304 (ii) of IPC is

punishable with imprisonment of either description for a

term which may extend to 10 years or with fine or with

both. Thus, the sentence of imprisonment is not

Crl.A.No.2420/2005 DD 21-08-2012

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mandatory. Nevertheless, having regard to the facts and

circumstances of the case and in view of the fact that

accused No.1/appellant has undergone nearly 05 months

of imprisonment, in the opinion of this Court, interest of

justice would be met, if he is sentenced to the period

already spent in custody and also to pay a substantial fine

so that the wife of the deceased (PW5-Jayamma) would be

adequately compensated. In that view of the matter, the

sentence ordered by the trial Court requires modification.

36. For the aforesaid reasons, point No.1 is

answered in the affirmative and point No.2 partly in the

affirmative. Consequently, the following:

ORDER

(i) The appeal is allowed in part.

(ii) The judgment of conviction passed by the

trial Court in SC No.17/2013 dated 25-10-2018

convicting the appellant/accused No.1 for offence

under Section 304 (ii) of IPC is confirmed.

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(iii) In modification of the order of sentence,

accused No.1/appellant herein is sentenced to the

period of custody already undergone and also

sentenced to pay a fine of Rs.1,10,000/- (inclusive of

the fine amount imposed by the trial Court) for the

offence punishable under Section 304(ii) of IPC.

(iv) Upon deposit of the balance of the fine

amount by accused No.1/appellant within eight

weeks before the trial Court, a sum of Rs.1,00,000/-

be paid to PW5-Jayamma, as compensation.