Puttegowda and Others vs State of Karnataka

H. Billappa, J.—1. This appeal by the appellants-accused Nos. 1 to 5 is directed against the judgment and order dated 8.1.2010 passed by the Presiding Officer, Fast Track Court, Ramanagara in S.C. No. 350/2002 c/w S.C. No. 60/2004.

By the impugned judgment and order, the Trial Court has convicted the appellants-accused Nos. 1 to 5 for the offence punishable under section 304, Part-II of IPC and sentenced them to undergo R.I. for a period of 2 years 10 months and to pay a fine of Rs. 10,000/- each and in default of payment of fine, to undergo S.I. for a period of 5 months. The appellants have been acquitted of the offences punishable under sections 143, 147 and 504 r/w 149 of IPC.

Aggrieved by the conviction and sentence passed by the Trial Court, the appellants-accused Nos. 1 to 5 have filed this appeal.

Briefly stated the case of the prosecution is as follows:

"That deceased Raju is the complainant. Ex. P7 is the complaint. In Ex. P7, it is stated, that on 20.2.2002, at about 10.00 p.m., the accused Nos. 1 to 5 along with others were doing door to door canvass in connection with the election which was scheduled to be held on the next day. At that time, when the accused persons came near the house of the deceased they told, Then, the deceased told Thereafter, the accused persons abused the deceased and dragged him and assaulted him on his chest resulting in serious chest pain. At that time, DW-1 Puttaswamy intervened. It is alleged, A-3 snatched the wrist watch of DW-1 and neck chain of PW-4. It is prayed to take action in accordance with law."

Based on Ex. P7, a case in Cr. No. 43/2002 of Kodihalli police station has been registered against the appellants-accused Nos. 1 to 5 and others for the offences punishable under sections 143, 147, 395, 323, 504 r/w 149 of IPC. After the death of the deceased, section 302 and 341 of IPC have been included.

After investigation, charge sheet has been filed against the accused Nos. 1 to 5 for the offences punishable under sections 143, 147, 323, 504, 302 r/w 149 of IPC.

At the trial, the prosecution has examined in all 21 witnesses i.e., PWs.1 to 21 and exhibits P1 to P10 have been marked.

On behalf of the defence, DW-1 has been examined and exhibits Ex. D1 and D2 have been marked.

The Trial Court on appreciation of the evidence on record has held that the appellants-accused Nos. 1 to 5 are guilty of the offence punishable under section 304, Part-II of IPC and has sentenced them to undergo R.I. for a period of 2 years 10 months and to pay a fine of Rs. 10,000/- each and in default of payment of fine, to undergo S.I. for a period of 5 months. The appellants-accused Nos. 1 to 5 have been acquitted of the offences punishable under sections 143, 147 and 504 r/w 149 of IPC.

Aggrieved by the conviction and sentence passed by the Trial Court, the appellants-accused Nos. 1 to 5 have filed this appeal.

The learned counsel for the appellants contended that the impugned judgment and order cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the evidence of the witnesses is inconsistent and unreliable. Further he submitted that in Ex. P7, it is alleged, that HMT watch of DW-1 and neck chain of PW-4 were snatched. But, the investigation reveals that the allegations are false. Therefore, a false complaint has been lodged due to political rivalry. He also submitted that though DW-1 Puttaswamy has been cited as charge sheet witness, he has not been examined by the prosecution. The accused have examined DW-1 as defence witness. He has deposed that no incident occurred as alleged. The deceased was addicted to liquor. Due to consumption of liquor his health was upset. He was taken to the hospital as he was not well. He died in the hospital. The death of the deceased has nothing to do with the alleged incident. Therefore, the Trial Court was not justified in convicting the appellants for the offence punishable under section 304, Part-II of IPC. Further he submitted that even if the case of the prosecution is accepted, at the most, it may amount to causing hurt which comes under Section 323 of IPC. He therefore submitted that the impugned judgment and order cannot be sustained in law. In support of his submission, he placed reliance on the decisions of the Hon''ble Supreme Court reported in (2005)10 SCC page 737 and (1972)2 SCC page 537.

As against this, the learned Government Pleader submitted that the impugned judgment and order does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly convicted the appellants-accused Nos. 1 to 5 for the offence punishable under section 304, Part-II of IPC and it does not call for interference. He also submitted that PWs.9 to 14 and 17 are eye witnesses. Except PW-14, all the eye witnesses have supported the prosecution case. They have deposed regarding the incident. They have stated that the accused abused the deceased, dragged him and assaulted on his chest and back. As a result of that, the deceased died. Further he submitted that the Doctor has opined that the death was due to shock and massive hemorrhage due to rupture of spleen, liver and contusion injuries to both the lungs. The post mortem report shows that the deceased had sustained injuries to his lungs, spleen and liver. Therefore, the death is attributable to the conduct of the accused persons. The defence raised by the accused persons that the deceased was addicted to liquor and his health was upset and died due to ill-health is not substantiated by any acceptable evidence. The medical evidence and testimony of eye witnesses belies the defence taken. Therefore, the Trial Court was justified in convicting the appellants-accused Nos. 1 to 5 for the offence punishable under section 304, Part-II of IPC and it does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The points that arise for my consideration are;

"1. Whether the death was homicidal ?

Whether the Trial Court was justified in convicting the appellants-accused Nos. 1 to 5 for the offence punishable under section 304, Part II of IPC?"

Point No. 1: It is the case of the prosecution that on 20.2.2012 at about 10.00 p.m. the accused persons were doing door to door canvass in connection with the election which was scheduled to be held on the next day. At that time, the accused persons along with others when they came near the house of the deceased, they abused saying When the deceased questioned the accused, the deceased was dragged and assaulted by the accused persons on his chest and back resulting in serious chest pain. Thereafter, the deceased was taken to the hospital and died there at about 2.00 a.m.

PWs.3 and 4 are the inquest witnesses.

PW-3 has deposed that he was present when inquest was held on the dead body of deceased Raju. Ex. P1 is the inquest report. His signature is at Ex. P1(a). Ex. P1 inquest report shows the cause of death was due to assault by the accused persons on the chest of the deceased. The deceased died on 21.2.2002 at about 2.30 a.m. at Kanakapura General Hospital.

PW-21 Dr. Masood has deposed that he conducted post mortem and noticed the following injuries:

He has opined that the death was due to shock and massive hemorrhage due to rupture of spleen, liver and contusion injuries to both the lungs.

Ex. P9 is the post mortem report. It shows that there were no external injuries. However, the internal injuries are as follows:

The doctor has opined that the cause of death was due to shock and massive hemorrhage due to rupture of spleen, liver and contusion injuries to both the lungs. The eye witnesses have deposed that the deceased was assaulted by the accused persons on his chest and back. The evidence of PW-3, PW-21 and exhibits P1 and P9 show that the death was due to shock and massive hemorrhage as a result of rupture of spleen, liver and contusion injuries to both the lungs.

It is suggested on behalf of the accused that the deceased died due to ill-health. There is nothing on record to show that the deceased was addicted to liquor or died due to ill-health. The evidence on record shows that the death was due to shock and massive hemorrhage as a result of rupture of spleen, liver and contusion injuries to both the lungs which is attributable to the conduct of the accused persons. Therefore, the material on record clearly establishes that the death was homicidal. Point No. 1 answered accordingly holding that the death was homicidal.

Point No. 2: The Trial Court has convicted the appellants-accused Nos. 1 to 5 for the offence punishable under section 304, Part-II of IPC taking into consideration that there was no intention and the incident has occurred in a sudden quarrel.

The eye witnesses PWs.9, 10, 11, and 13 have deposed regarding the incident.

PW-9 is the wife of the deceased. She has deposed that on the date of the alleged incident her brother-in-law Siddegowda, her husband, her brother-in-law''s wife and herself were in the house. At about 10''o clock in the night the accused persons went near the house of Siddegowda, her brother-in-law and started abusing. When her husband questioned the accused, the accused persons assaulted her husband with their hands and legs. The incident occurred near a water tank in front of the house of Siddegowda. Thereafter, her brother-in-law, Vijikumar and Puttanna came to the spot. Thereafter, the deceased was taken to the hospital in the jeep of PW-1. After about two hours they came to know about the death of the deceased.

In the cross examination of PW.9, it is elicited that she is unable to say which accused assaulted on what part of the body. But she has stated that the accused assaulted on the chest and back of the deceased. She has denied the suggestion that she is deposing falsely and that her husband died due to ill health and a false case has been filed.

PW-10 is the sister-in-law of the deceased. She has deposed that on the date of the alleged incident, her husband, PW-9, the deceased and herself were in the house. At that time, the accused came near their house canvassing for the election and abused the deceased and her husband. When the deceased questioned the accused, the deceased was dragged near the water tank and assaulted on his chest and back. Thereafter, the deceased was taken to the hospital.

In her cross examination, PW.10 has denied the suggestion that the deceased was suffering from ill health and he was taking treatment and died due to ill health. She has also denied the suggestion that the incident did not occur and she is deposing falsely.

PW-11 is one Mallegowda. He has deposed that on the date of the alleged incident at about 10''o clock in the night the incident occurred in front of Siddegowda''s house. The accused persons assaulted the deceased with their hands on his chest and back. Himself, Puttaswamy and few others pacified the quarrel. Thereafter, the deceased was taken to the hospital and he died there.

In his cross examination, PW.11 has denied the suggestion that no incident occurred and the deceased died due to ill health.

PW-13 is one Munisiddegowda. He has deposed that on the date of the alleged incident, at about 9.30 or 10.00 p.m. the accused persons while canvassing for the election came near the house of Siddegowda. They picked up quarrel. Thereafter, the accused persons dragged the deceased near the water tank in front of the house of Siddegowda and assaulted the deceased on his chest and back resulting in chest pain. Thereafter, they went near the house of Siddegowda and the deceased was taken to the hospital after lodging the complaint. The deceased died at about 2.00 a.m.

In his cross examination, PW.13 has denied the suggestion that no incident occurred and he is deposing falsely at the instance of H.M. Siddegowda.

PW-17 Kumar has deposed that on the date of the alleged incident, the accused persons came near the house of Siddegowda while canvassing for the election and abused saying that he will not vote for their party. At that time, the deceased questioned the accused persons. Then the accused persons caught hold of the deceased and took him near the water tank and assaulted him on his chest and back. PW.17 went there and Raju was complaining chest pain. Thereafter, the deceased was taken near Siddegowda''s house and from there the deceased was taken to Kodihalli police station in a jeep. After lodging the complaint, the deceased was taken to the hospital.

In his cross examination, PW.17 has denied the suggestion that the deceased died due to his ill health and due to political rivalry he is deposing falsely at the instance of their leader Siddegowda.

PWs.12 and 14 are also eye witnesses.

PW-12 has partly supported the prosecution case. He has deposed, at about 9.30 or 10.00 p.m., on the date of the alleged incident there were about 40 to 50 persons in front of the house of Siddegowda and galata was going on between two groups. About 20 to 30 persons from one group assaulted the deceased Raju. He cannot say who assaulted whom.

PW-14 has not supported the prosecution case. His evidence is not useful in any way.

From the evidence of PWs.9, 10, 11, 12, 13 and 17, it is clear, the incident has occurred in front of the house of Siddegowda, the brother of the deceased. On the date of alleged incident, the accused persons have gone near the house of Siddegowda, the brother of the deceased and abused them saying that they will not vote for their party. At that time, when the deceased questioned the accused, the accused persons have dragged the deceased near a water tank in front of the house of Siddegowda and assaulted the deceased on his chest and back. All the witnesses have consistently deposed that the deceased was assaulted by the accused persons on his chest and back. The deceased has complained chest pain. Thereafter, the deceased has been taken to the Kanakapura General hospital. He died there at about 2.00 a.m. on 21.2.2002.

PW-21 Dr. Masood has deposed that the deceased was admitted to the hospital with the history of assault. After his death the police were informed through a death memo. He conducted the post mortem and noticed injuries to the spleen, liver and lungs. He has opined that the death was due to shock and massive hemorrhage due to rupture of spleen, liver and contusion injuries to both the lungs. There is no reason to disbelieve the evidence of PWs.9, 10, 11, 12, 13 and 17 who have seen the incident. It is suggested to the witnesses that the deceased died due to ill-health. The suggestion has been denied by all the witnesses.

On behalf of the accused persons, DW-1 has been examined. He has deposed that on the date of the alleged incident they returned to Hanakadabur at about 9.00 p.m. after canvassing in the neighbouring villages. At that time, the deceased complained headache and chest pain and went to his house. DW-1 went to his house. After taking food, DW-1 was sleeping. At about 10.00 or 10.30 p.m. PW-1 asked DW-1 to come to his house. When DW-1 went there, the deceased was in the house of PW-1. PW-1 informed DW-1 to take the deceased to the hospital as he was not well. Thereafter, DW-1 and few others took the deceased to the hospital. The deceased was admitted to the hospital. Thereafter, the deceased died in the hospital. The deceased was addicted to liquor and he was taken to the Doctor several times. During election time due to heavy consumption of liquor his health deteriorated. As a result of that, the deceased died in the hospital. There was no incident as alleged.

The evidence of DW-1 is contrary to the medical evidence and also the evidence of eye witnesses. There is no medical evidence or any evidence to show that the deceased was addicted to liquor or he had consumed liquor. The medical evidence shows that the deceased had sustained injuries to his spleen, liver and lungs. The eye witnesses have deposed that the accused persons assaulted the deceased on his chest and back. Therefore, the injuries sustained by the deceased are attributable to the conduct of the accused persons. Therefore, there is no merit in the contention that the deceased was addicted to liquor and the death was due to his ill-health. It is baseless. Therefore, it cannot be accepted. The material on record clearly shows that the accused persons assaulted the deceased with their hands and legs on the chest and back. As a result of that, the deceased sustained injuries to his spleen, liver and lungs. Consequently, it has resulted in the death of the deceased. Therefore, the death of the deceased was due to the assault by the accused persons. All the accused have collectively assaulted the deceased and it is inseparable.

The learned counsel for the appellants relied upon the decision of the Hon''ble Supreme Court reported in , (2005)10 SCC page 737 and , (1972)2 SCC page 537. The fact situation in the present case is totally different from the fact situation in the cases cited by the learned counsel for the appellants. In Shri Kishan and others v. State of U.P. reported in , (1972) 2 SCC page 537, the Hon''ble Supreme Court has altered the conviction from Section 302 read with Section 34 of IPC to Section 325 read with Section 34 of IPC in the fact situation of that case. In Sree Vijaya Kumar and Anr. v. State, by Inspector of Police, Kanyakumari reported in , (2005) 10 SCC page 737, the Hon''ble Supreme Court has convicted A2 under Section 304, Part II and A1 under Section 323 and 324 of IPC as there was no common intention.

But, in the present case it is the collective criminal behaviour of the accused Nos. 1 to 5 which has resulted in the death of the deceased. The act of the accused persons is inseparable. The knowledge can be attributed to the conduct of the accused. Therefore, all the accused are responsible for their act. The incident has occurred in the background of a election canvass. There was no premeditation or intention on the part of the accused persons. In a sudden quarrel the incident has occurred. The accused have caused the death of the deceased. The knowledge can be attributed to the conduct of the accused persons. Therefore, the offence falls under Section 304, Part-II, of IPC. The Trial Court on proper consideration of the material on record has rightly held that the appellants i.e., the accused Nos. 1 to 5 are guilty of offence punishable under section 304, Part-II of IPC. However, taking into consideration the background in which the incident has occurred and the circumstances of the case the sentence needs to be modified. Insofar as the conviction is concerned, it does not call for interference.

Accordingly, the criminal appeal is allowed in part. The conviction passed by the Presiding Officer, Fast Track Court, Ramanagara in S.C. No. 350/2002 c/w S.C. No. 60/2004 for the offence punishable under section 304, Part-II of IPC is concerned, it is confirmed.

Keeping in view that the incident has occurred in a sudden quarrel and in the circumstances of the case, if the appellants i.e., accused Nos. 1 to 5 are sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs. 25,000/- each, it would meet the ends of justice.

Accordingly, the sentence imposed by the Trial Court is modified as follows; The appellants i.e., accused Nos. 1 to 5 shall undergo R.I. for a period of two years and to pay a fine of Rs. 25,000/- each and in default of payment of fine, to undergo R.I. for a period of six months.

Out of the fine amount, a sum of Rs. 1 lakh shall be paid to PW-9 who is the wife of the deceased. The appellants/accused Nos. 1 to 5 shall be entitled to the benefit of section 428 of Cr.P.C.

The bail bonds stand cancelled. The appellants i.e., accused Nos. 1 to 5 shall surrender before the Trial Court forthwith to serve the sentence. If the appellants i.e., accused Nos. 1 to 5 fail to surrender before the Trial Court, the Trial Court shall take necessary steps to secure the appellants i.e., accused Nos. 1 to 5 to serve the sentence.

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