Nataraj Krishnamurthy and Others vs State of Karnataka

A.S. Pachhapure

Though the matter is posted for admission, with the consent of the counsel, it is taken up for final disposal.

The petitioner has challenged an Order to frame the charge against him for the offence punishable under Sections 302, 323 IPC and under Sections 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as "the Act of 1989" for short].

The accused is the petitioner herein. It is on 08.07.2010 at about 4.30 p.m., Channakeshava [deceased] want to the hotel of the accused and demanded a cup of tea. The accused is said to have asked Channakeshava [deceased] to settle the previous bill and unless the said dues are paid, he will not give the tea. But, Channakeshava [deceased] did not return from the hotel and it is alleged that the accused caused assault and kicked Channakeshava [deceased] and abused him in filthy language, as a result Channakeshava fell unconscious and was shifted to the hospital by his wife and on the way he died.

On the basis of the complaint filed in this regard, an investigation was held and a charge-sheet came to be filed against the accused for the offence punishable u/s 3(1)(x) of the Act of 1998. Initially charge was framed for the offence punishable u/s 3(2)(10) of the Act of 1989. During the course of the trial, P.Ws.1 to 3 were examined. P.W. 3 turned hostile. P.W. 2 stated about the assault on Channakeshava [deceased] and kicking him by the accused. P.W. 1 who is said to be not an eye-witness deposed about the assault on Channakeshava [deceased] by the accused. It is under these circumstances that an application came to be filed by the prosecutor requesting to alter the charge by including a charge for the offence punishable under Sections 302, 323 IPC and u/s 3(2)(v) of the Act of 1989. The said application was allowed after hearing. Aggrieved by the said Order, the present revision petition has been filed.

When there is inconsistency in the medical evidence and the ocular evidence, it has been held by the Apex Court that as the evidence of the doctor is by way of opinion and when the evidence of the eye witness is consistent, cogent and acceptable, it is the ocular evidence that has to be preferred. As could be seen from the copy of the post-mortem report produced in this revision, the death was due to respiratory failure and also struggle by the deceased. P.Ws.1 and 2 have stated in their evidence that the petitioner beat and kicked Channakeshava [deceased] and there was bleeding from the mouth and nose. It is on the way to the hospital that Channakeshava succumbed to the injuries. So, when the ocular evidence of P.Ws.1 and 2 is a matter of appreciation by the trial Court after conclusion of the trial, I do not think that at this stage a finding could be given as to whether the petitioner is not responsible for the offence punishable under Sections 302 or 323 IPC. It is only after conclusion of the trial that the trial Court has to assess the evidence of these witnesses and then come to an appropriate conclusion. Prima facie looking to the materials placed on record, I do not think that the trial Court committed any error in framing the additional charges. In that view of the matter, I do not find any merit in this revision. Accordingly, it is dismissed Consequently, I.A. No. 1/2011 filed for stay does not survive for consideration and the same is rejected.

The trial court need not be influenced by any of the observation made in the body of the Order.