1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE12H DAY OF AUGUST, 2015 BEFORE THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA CRIMINAL APPEAL No.3676/2010 BETWEEN:
1.
2.
3. Santosh S/o Devindrappa Ambekar, Age:
26. years, Occ: Electrician, R/o LTRT151, 15th Cross Shahabad Tq. Chittapur. Sushil S/o Devindrappa Ambekar, Age:
21. years, Occ: Welder, R/o LTRT151, 15th Cross, Shahabad Devindrappa S/o Subh Age:
26. years, Occ: Electrician, R/o House No.LTRT151 15th Cross, Shahabad, Tq. Chittapur. (By Sri: Baburao Mangane & Ashok B. Mulage, Advocates) ... APPELLANTS2AND: The State Through Shahbad Town Police Station, Dist. Gulbarga. (By Sri: Sheshadri Jayashankar M. HCGP) ... RESPONDENT This Criminal Appeal is filed under Section 374 of Cr.P.C., praying to set aside the judgment and order dated 03.08.2010 passed in S.C.No.222/2009 by the Court of the III Additional Sessions Judge At Gulbarga, convicting the Appellants/ Accused for the offences P/U/S323 304(I) R/W Sec. 34 of IPC and the Appellant/ Accused No.1 to 3 are sentenced to undergo R.I. for Seven years each and to pay of fine of Rs. 10,000/- each, ID SI for one year each for the offence P/U/S304(I) of IPC. Further the Appellants/Accused No.1 to 3 are sentenced to pay fine of Rs. 1,000/- each ID SI for Two months each for the P/U/S323of IPC. This appeal coming on for hearing this day, the Court delivered the following: JUDGMENT
This appeal is filed under Section 374, Cr.P.C. challenging the judgment of conviction and sentence passed in S.C.222/09 which was pending on the file of III Additional Sessions Judge, Kalaburagi. During the 3 pendency of this appeal, the 3rd appellant died and hence the appeal against him has abated.
2. These appellants were charges earlier for the offences punishable under Sections 323, 324, 341, 504, 302 read with 34 of IPC. Ultimately all of them have been found guilty of the offences punishable under Sections 323 and 304-I read with Section 34, I.P.C. and have been sentenced to undergo RI for a period of 7 years each and to pay a fine of Rs.10,000/- each for the offence punishable under Section 304-I, I.P.C. and to undergo SI for a period of 2 months each and to pay a fine of Rs.1,000/- each for the offence punishable under Section 323, I.P.C. It is this judgment of conviction and sentence dated 3.8.2010 which is called in question in this appeal on various grounds as set out in the appeal memo.
3. Facts leading to the trial in S.C.222/09 are as follows:
4. a) CW-1,Shabir Ahmed who is examined as PW-3 was residing in the quarters of Alstom Colony in Shahbad, Kalaburagi District. The names of his two sons are Sajid Ahmed and Javed Ahmed. b) At about 9.00 p.m. on the night of 7.12.2008, when said Shabir Ahmed was in his house, he heard some commotion. He got down from his house and saw that CW4-Sajid. his son and CW6-Shivaraj were talking to each other. At that time, the 1st accused along with 2nd accused and 3 others came there and picked up unnecessary quarrel with his son and assaulted him. In the meanwhile, Shabir Ahmed pacified them. When he was bringing back his son-Sajid Ahmed towards his house, both the accused accompanied by three more persons followed them and started assaulting his son- Sajid in front of his house and 1st accused fisted on his left eye and 2nd accused fisted on the back and caused injuries to his son Sajid. 5 c) On hearing the commotion, deceased Javed Ahmed, elder brother of CW4-Sajid came out of the house and intervened in the matter and asked the accused as to why they were assaulting his brother. Then 1st accused is stated to have abused Javed in a filthy language and asked him as to why he had come in their way. Saying so, 1st accused assaulted on the temporal region of Javed and 2nd accused fisted on his chest and all of them kicked on his stomach, as a result of which Javed sustained severe injuries and died at the spot. Thereafter all the accused ran away. d) At midnight, Sajid Ahmed went to the police station and lodged a report FIR against accused nos.1 to 3 and other unknown persons on the basis of which a case came to be registered in Crime No.133/08. After concluding investigation, charge sheet was filed initially against accused nos.1 and 2 only and trial was held. 6 e) During the course of trial, an application was filed under Section 319, Cr.P.C. by the prosecution to implead3rd accused (deceased 3rd appellant herein). The application was allowed and Devindrappa was impleaded and material witnesses who had already been examined, were recalled and further examined and cross-examined. f) After the conclusion of the evidence on behalf of the prosecution, all the accused came to be examined under Sect5ion 313, Cr.P.C. Their defence is one of total denial of the allegations levelled. They have made an attempt to probablise that Javed died because of falling from the stairs as he was coming from the first floor to the ground floor. After hearing arguments and appreciating the oral and documentary evidence on record, all the appellants have been found guilty for the offences punishable under Sections 323 and 304-I read with Section 34, I.P.C. They have been acquitted of all 7 other offences, i.e. Sections 324, 341, 504 and 302 read with Section34, I.P.C. g) As many as 17 persons had been cited as witnesses in the charge sheet filed by Shahbad police. Out of them, 15 witnesses have been examined. CW3- Yakbal Ahmed is examined as PW1 and he is the attestor to Ex.P1-inquest drawn between 7.00 and 8.00 p.m. on the next day after the incident near the house of Shabir Ahmed. He has supported the prosecution case. CW6-Shivaraj is examined as PW2 and he has stated to be an eyewitness and has the trusted hostile to the case of the prosecution.
4. Learned counsel for the appellants, Mr.Baburao Mangane has argued that the material witnesses examined on behalf of the prosecution are interested witnesses, in the sense that they are members of the same family. According to him, requisite caution has not been taken by the trial court while evaluating their 8 evidence. He has argued that PW11-Mohamed Yousuf has turned hostile subsequently and this has not been taken into consideration. He has further argued that the trial court has relied on the opinion of the doctor to come to the conclusion that the death of Javed was due to neurogenic shock and trauma as a result of the alleged assault made by the accused. It is his argument that such opinion is not based on cogent and reliable materials and therefore, the trial court could not have relied on his opinion.
5. He has further argued that the case on hand does not come within Part I or Part II of Section 304, I.P.C. and at best, it would fall under Section Section 323 provided the evidence of witnesses related to the deceased inspire confidence in the mind of the court. He has placed reliance on the decision of the Hon’ble apex court rendered in the case of STATE OF RAJASTHAN .v. MOHANLAL7OTHERS ([2012]. 2 9 CRIMES73(SC) to contend that in the absence of any injury, internal or external on the body of the deceased, the trial court is not justified in convicting the accused for the offence punishable under Section 304-I, I.P.C.
6. Per contra, learned HCGP Mr.Seshadri Jayashankar M.has vehemently argued that the trial court is justified in relying on the opinion of the doctor and there is no reason to jettison his version. It is argued that the evidence of Shabir Ahmed and his family members cannot be rejected on the ground that they are related to each other. He has argued that the evidence of these witnesses is trustworthy and they have not left out the real assailants in order to implicate persons unconnected with the case. He has placed reliance on a decision rendered by three Judges of the Hon’ble apex court in the case of SANJEEV .v. STATE OF HARYANA [2015]. 4 SCC387and another decision in the case of MOHAN SINGH AND ANOTHER10.v. STATE OF MADHYA PRADESH reported in [1999]. 2 SCC428 7. Relying on the above decisions, learned HCGP has argued that even if there are some contradictions between the ocular and medical documentary evidence, ocular evidence will prevail and the duty of the court is to remove the chaff from the grain while appreciating the evidence placed on record. He has argued that the intention to commit the offence can be formed even in the place of the incident at the time of commission of the offence and this could be gathered from the surrounding circumstances established from the nature of assault and injuries sustained and the version of independent witnesses. It is further argued that in order to read either intention or knowledge, the court will have to examine the circumstances as there cannot be any direct evidence as to the state of mind of the accused. 11 8. After going through the records and hearing the learned counsel for the appellants, Mr.Baburao Mangane and learned HCGP representing the State, the following points arise for consideration of this court:
1. Whether the prosecution has been able to proveo that Javed Ahmed, son of Shabir Ahmed died at 9.15 p.m. on the night of 7.12.2008 in the vicinity of the house of Shabir Ahmed?.
2) Whether the prosecution has been able to prove that all the accused assaulted Javed Ahmed in such a way as to cause neurogenic shock and trauma resulting in his death?.
3) Whether the trial court is justified in convicting the accused for the offences punishable under Sections 323 and 304-I, read with Section 34, I.P.C.?.
4) Whether the trial court is justified in sentencing the accused to undergo RI for a period of 7 years and 2 months respectively for the offences punishable under Sections 304-I and 323, I.P.C. respectively?. 12 R E A SO N S9 Point no.(1): The fact that Shabir Ahmed is the father of CW4-Sajid Ahmned and deceased Javed Ahmed and husband of Hajira Begum (PW12) is not in dispute. The evidence placed on record discloses that Shabir came out of his house after hearing the commotion in the vicinity of his house and then he saw his son Sajid and Shivaraj talking to each other and at that time, accused nos.1 and 2 assaultedl his son being accompanied by three more unknown persons. He went there and pacified them. At that time, Sajid had not sustained any injuries. Shivaraj, an independent witness has not supported the prosecution case and therefore, it has to be eschewed.
10. The best witness to speak about the injuries sustained is Sajid himself and he has deposed that when his father was taking him back to their house, accused nos.1 and 2 accompanied by 3 others followed 13 them and assaulted him near his left eye and other parts of the body. His evidence is sought to be corroborated by the medical certificate produced at Ex.P13, wound certificate issued by the officer of Community Health Centre, Shahbad.
11. PW6-Dr.Mohamed Wasim is the author of Ex.P13. He has deposed that at 10.35 a.m. on 8.12.2008, a person named Sajid aged 28 years came to him with history of injuries sustained in an assault. He had been accompanied by a police constable (P.C.823). On examining him, he found blackened swelling on the left eye, scratch mark measuring ¼ cm. X ¼ cm. And contused wound measuring ¼ cm. X ¼ cm. Near left arm, right elbow and one on the right wrist. Though he has been cross-examined by the learned counsel for the accused, nothing useful has been elicited to discredit his deposition and the authenticity of the wound certificate issued by him. 14 12. Sajid is examined as PW7 and he has spoken about the assault made by the accused on his brother. Shabir Ahmed, Sajid Ahmed, Hajira Begum and Mohamed Yousuf have all deposed about the assault made by the accused on the deceased near the house of Shabir Ahmed. The evidence of these witnesses who are related cannot be rejected outright and it will have to be evaluated with little caution. .
13. PW3-Shabir Ahmed has specifically deposed that when he was going along with his son back home, accused being accompanied by 3 unknown persons, followed them and assaulted his son-Sajid and on hearing the commotion, his son-Javed came down and asked the accused why they were beating him. Being enraged by his questioning, the 1st accused assaulted on his cheek and 2nd accused assaulted on his abdomen and 3 unknown persons and these accused assaulted him and kicked with legs. He has further 15 deposed that when Javed fell down, the accused kicked him on his testicles and he died at the spot. Whether he died because of the assault or not would be discussed separately on the next point framed for consideration. Suffice to state that he died at the spot and this is forthcoming from the inquest mahazar drawn vide Ex.P1 on the next day and post mortem report issued by the doctor vide Ex.P12.
14. PW5-Dr.Parameshwar has opined that the cause of death was due to cardio vascular failure as a result of neurogenic shock caused by trauma. He conducted post mortem of the dead body between 9.00 and 11.00 a.m. on the morning of 8.12.2008. Though material witnesses have been cross-examined at length, nothing has been elicited from their mouth even to remotely suggest that Javed Ahmed did not die in the vicinity of his house at 9.15 p.m. on 7.12.2008. The materials placed on record by the prosecution are quite sufficient 16 to demonstrate that Javed died in the vicinity of his house. Hence, point no.(1) is answered in the affirmative.
15. Point no.(2): What is argued by Mr.Seshadri Jayshankar, learned HCGP is that the evidence of the doctor is decisive in the present case and this has been relied on by the trial court. Therefore the evidence of PW5-Dr.Parameshwar is to be looked into as he was the medical officer in Shahbad and was working on the morning of 8.12.2008. It was he who conducted autopsy on the dead body of Javed between 9.00 and 11.00 a.m. on 8.12.2008. His entire examination is relevant and it is extracted below: Examination in Chief by Public Prosecutor: In December 2008 I am working as Medical Officer at CHC Shahabad on 8.12.008 at about 9 A.M to 11 A.M I conducted PME over the dead body of Javeed. On examination of the dead body there were no external injuries found on the dead body. On dissection of the dead body all the injuries organs were intact. I am of 17 issued PME report, the opinion that cause of death is due to cardio respiratory failure as a result of neurogenic shock caused by trauma. Time since death is within 24 hours. Accordingly I have it bears my signature. PME report is marked at Ex.P.12. Trauma in medical term refers to fisting and blow and even kicking also. A blow given on temporal region and below on the heart, and abdomen and testicles it may result to neurogenic shock and resulting to death. Even in the absence of external injuries may result to trauma. Cross Examination by SMP Adv:- Dead body was brought by P.C. No.46. I have not enquired history of cause of death. Since there were no any external injuries so there is chance of death caused by neurogenic Shock, even though there were no internal injuries. There may be any internal injuries by kicking on chest, testicles and by fisting also. It is true that in a 4-5 persons kicked on the chest, testicles and by fisting there may be possibility in internal injuries. It is true that deceased died after 6 to 8 hours of his last meal. I have got given specific time of death in the PME. It is false to say that deceased died due to heart attack and I have issued false PME report. Neurogenic shock may be caused by different types of injures. Further re-Chief examination by P.P. Advocate 18 If person assault with hand and fisting on the body no visible injuries caused. If the person was suddenly brought on house and attacked there will be shock. Due to shock he may die also. There were no outward contents-3- found in the stomach of the deceased. Neurogenic shock may leads heard attach. Further re-cross examination by Sri. S.M.P Advocate: It is true that, if a persona made to fall on ground and 2-3 persons fisted to him and assaulted 10 to 15 times there may be abrasions on the body. If the person was fisted forceable or kicked there may be rupture of spleen.
16. What is argued by the learned HCGP is that the doctor has opined that in spite of no visible injuries being found either internal or external, death was due to shock and therefore, such opinion cannot be ignored. Per contra, Mr.Baburao Mangane for the appellants has vehemently argued that the evidence of PW5 is not gospel truth and it has to be assessed as that of any other evidence. In the case of MAYUR P.SHAH .v. STATE OF GUJARATH (1982 Crl.L.J.
82 19 (SC)), the Hon’ble apex court has held that the evidence of a doctor has to be assessed as that of any other evidence and there is no presumption to the effect that the evidence of a doctor is a gospel truth. In his cross- examination, PW5 has specifically deposed that he did not know about the cause of death and that he did not notice any external or internal injuries. He has deposed that there might be internal injury as a result of kicking on the chest and testicles and by fisting also. He has specifically deposed that if 4-5 persons were to kick on the chest or testicles or assault with fist, there would be possibility of sustaining internal injuries. It is in this regard the oral evidence of material witnesses will have to be looked into.
17. Shabir Ahmed has specifically deposed that the 1st accused assaulted on the cheek of Javed and 2nd accused assaulted on the abdomen and 3 unknown persons who were there also assaulted him and all of 20 them kicked with their legs and assaulted with their hands. He has further deposed that as a result of the same, Javed fell down and they again kicked on his private parts and within 4-5 minutes, he died at the spot. In his cross-examination, he has deposed that his son had sustained internal injuries and contusion was found on the private part, i.e. testicles and chest. Nothing is forthcoming in the inquest panchnama or the post mortem report marked as Exs.P1 and P12 respectively. In Ex.P12, it is mentioned that there was no evidence of any strangulation or any ligature mark on the neck and no external injuries were found on the abdomen, chest, upper and lower limbs. Rigor mortis was seen on all 4 limbs and external genital organs were intact. The skull was intact and thorax was also intact. Abdomen was also intact as per Ex.P12 and urinary organs were also intact and healthy. The opinion given in Ex.P12 is as follows:
21. My opinion as to the cause of death is due to cardio vascular failure as a result of neurogenic shock because of trauma. Sd/- M.O. ‘Received on 13.1.2009’ PSI, Shahbad Sd/- 18. Sajid is examined as PW7. He has deposed that all the accused started assaulting his brother and 1st accused assaulted on the cheek and 2nd accused fisted on the abdomen and back and the remaining accused assaulted his brother with fists and kicked with their legs on his private part and abdomen. This is found in the examination-in-chief. Even PW11-Mohamed Yousuf has deposed that when Javed came out of his house to see what was happening, 2nd accused and one person Devindrappa assaulted him with their fist and kicked on his private part and assaulted him for 4-5 minutes and he died at the spot. 22 19. The version of Hajira Begum (PW12) discloses that she witnessed the incident through the window of he 1st floor, and all the accused assaulted her son on his abdomen and kicked him on private part as a result of which he fell down and died at the spot. PW5- Dr.Parameshwar has not spoken anything about the trauma which is mentioned in Ex.P12. It is better to look into the Medical Jurisprudence and Toxicology authored by Dr.Subrahmanyam and published by Law Publishers (India) Private Limited. In page 182 of the said book, the aspect of traumatology is found in chapter XII. What are the types and complications of trauma has been discussed therein apart from defining the word ‘trauma.’ ‘Definition: Injury to the body inflicted by some form of outside force. Types: It is categorized into four types:
1. Physical trauma: caused by physical violence 2. Thermal trauma: caused by heat or cold 3. Electric trauma : caused by electric energy 4. Chemical trauma: caused by poisons 23 20. Admittedly no internal injuries were found so as to cause neurogenic shock due to trauma as defined by Dr.Subrahmanyam in his commentary. It is in this regard the decision of the Hon’ble apex court in the case of MOHANLAL (supra) relied upon by Mr.Baburao Mangane, is relevant. As per the facts of the said case, PW1 and PW7 (Shambhu and Lalu) were brothers and residents of a village in Rajasthan. While on their way back from the house of one Arjun Shah, on the night of 23.1.2000, the accused, i.e. Mohanlal had attacked them with lathies and dharias. PW7 somehow managed to escape from the accused and rushed to the police station and lodged a report at about 11.30 p.m., on the basis of which a case was registered for the offences punishable under Sections 147, 148, 149, 307, 323, 347, I.P.C. and the injured was immediately shifted to Pratapkar Hospital where he succumbed to the injuries. On conclusion of investigation, the offence 24 of Section 302 was added. On completion of the trial, they were sentenced to undergo imprisonment for life for the offence punishable under Section 302, I.P.C. and imprisonment ranging from 1 to 3 years for other offences and also to pay fine. In the appeal filed in Crl.A.509/11 before the High Court of Rajasthan, the appellants were acquitted of the offence punishable under Section 302 read with Section 149, I.P.C. and the sentence already undergone by them was awarded as sentence in respect of other offences. Against the said judgment, the State went in appeal before the Hon’ble Supreme Court.
21. In the said case, the doctor examined as PW13 had deposed that the injuries sustained by the appellant were simple in nature inflicted on non-vital parts of the body and there was no external injuries found on the skull. Therefore in the absence of any other evidence to support the charge leveled against the 25 accused, it was held that they would not be guilty of murder as the accused had not intended to cause death of the deceased, nor any bodily injury was inflicted as was likely to cause death. Even the doctor who had conducted post mortem did not certify that the injuries were sufficient to cause death in the ordinary course. In the light of such evidence, the Hon’ble apex court held that the High court was justified in allowing the appeals and acquitting the accused of the charge of murder and maintaining conviction for the remaining offences with which they were charged.
22. In the present case, neither internal injuries were found nor external injuries. Though there is consistency in regard to the nature of assault allegedly made by the accused on Javed Ahmed, they are not corroborated in any manner by the version of the doctor. He has not been able to substantiate as to 26 what exactly was neurogenic shock or trauma leading to the death in the manner referred to in the commentary of Traumatology by Dr.Subrahmanyam.
23. In fact, Dr.Bakshi’s Law Lexicon published by Ashoka Law House Volume I at page 737, the aspect of culpable homicide has been discussed at length. Clause (b) of Section 299, I.P.C. corresponds with clauses (2) and (3) of Section 300. The only intention of causing bodily injury coupled with the knowledge of such injury causing death of a particular victim is sufficient to boring the killing within the ambit of clause (2). Clause (2) of Section 299 and clause (4) of Section 300, I.P.C. both pertain to knowledge of the probability of the act causing death. This observation is made on the basis of the decision reported in AIR2004SCW1244(CHENKU .v. STATE OF KERALA). What is ‘bodily injury sufficient in the ordinary course of nature to cause death’ would mean that death would 27 be the most probable result of the injury in the ordinary course of nature. For a case to fall within clause (3) of Section 300, I.P.C., it is unnecessary that the offender intended to cause death, as long as death ensues from the intentional bodily injury sufficient to cause death in the ordinary course of nature. Unless these ingredients are present, it would be culpable homicide not amounting to murder.
24. Per contra, learned HCGP has relied on the decision in the case of SANJEEV (supra). As per the facts of the said case, a doctor had conducted post mortem on the dead body of one Rajpal with the assistance of her colleague. She had noticed as many as 7 injuries. Her opinion is found in paragraph 5 of the judgment. In fact the dead body in the said case was found in a pool of blood which would suggest the nature of injury and intention and also the weapon 28 used. This is clearly distinguished vis-à-vis the facts of the present case.
25. Insofar as the decision rendered in the case of MOHAN SINGH, it is held by the Hon’ble apex court that ocular evidence always prevails over medical evidence. It is true that the court is expected to remove the chaff from the grain in order to give the benefit of doubt. In the present case, though there is consistency in regard to the nature of assault made on Javed Ahmed by the accused, the same is not corroborated even remotely in the form of oral evidence of Dr.Parameshwar or PW12 or the post mortem report.
26. Suffice to state that on re-assessment of the entire oral and documentary evidence on record, it can be held with certainty that . the assault allegedly made on Javed Ahmed did not cause any external or internal injuries and cannot be considered as the basis for the 29 alleged neurogenic shock or trauma. Trauma must necessarily be based on the injuries sustained as per the commentary by Dr.Subramanyam. Therefore point no.(2) is answered in the negative.
27. Point nos.3 and (4): The learned judge is not justified in convicting the accused under Section 304-I, I.P.C. On the other hand, he is justified in convicting them for the offences punishable under Sections 324, 341, 504 and 302, I.P.C. Accused have already deposited Rs.10,000/- each in regard to the offence under Section 304-I, I.P.C. The same could be treated as fine for the offence punishable under Section 323, I.P.C. Accused nos.1 and 2 were in judicial custody for more than 4 months during investigation. Therefore the conviction for the offence under section 323, I.P.C. alone is to be confirmed by enhancing the sentence of fine from Rs.1,000/- each to Rs.11,000/- each and adjusting the amount already deposited by them. 30 28. At this stage, Mr.Baburao Mangane, learned counsel for the appellants has requested that the conviction and confirmation of sentence under Section 323, I.P.C. should not come in the way of accused nos.1 and 2 to continue their work in Alstom Limited, a cement manufacturing company. The said submission is taken on record.
29. In the result, the following order is passed: ORDER
The appeal is allowed in part. The judgment of conviction and sentence insofar as the offence punishable under Section 304-I, I.P.C. is concerned, is set aside. The judgment of conviction and sentence for the offence punishable under Section 323, I.P.C. is confirmed, enhancing the fine amount from Rs.1,000/- each to Rs.11,000/- and the amount of fine already deposited by the accused be adjusted towards fine. It is made clear that the sentence of fine imposed for the 31 offence punishable under Section 323, I.P.C. would not come in the way of their employment. Out of the fine amount of Rs.33,000/- in deposit as fine, Rs.25,000/- (rupees twenty five thousand only) be given to Shabir Ahmed (PW3) as compensation as ordered by the trial court. The appeal stands modified accordingly. vgh* Sd/- JUDGE