Manjunatha vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned State Public Prosecutor.

The appellant was the accused before the court below for the offence punishable under Section 302 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC'', for brevity.

The facts, as claimed by the prosecution, are that on 13.10.2007, at about 4 p.m., one Suresha was said to be pruning the trees in land bearing Survey No. 26 of Kalluveedi Abbigallu Village. It is alleged that the present appellant had picked up a quarrel with Suresha and had assaulted him and had punched and kicked him. One Prema and one Shoba were the witnesses to the incident, who in turn, had rushed to the house of PW. 1 Narayananaika, the father of the deceased and narrated the incident. Thereafter, Narayananaika, along with Ramesha PW. 4, went to the spot where the deceased was said to have been attacked by the accused and they saw Suresha on the ground, frothing at the mouth and was alive. They shifted him to Thirthahalli hospital, but on the way, he had died and they had brought back the dead body to Hosanagar and thereafter PW. 1 is said to have lodged a complaint with the Hosanagar Police Station and a case was registered and inquest panchnama was conducted and after investigation and recording the statements of the witnesses, the accused was arrested and he was charge sheeted for offences punishable under Sections 504 read with 302 of the IPC. Charges were then framed against the accused and the accused had pleaded not guilty and claimed to be tried. The prosecution had then tendered evidence through PWs. 1 to 14 and had got marked several exhibits and material objects. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 having been recorded and after having heard the parties, the court below had framed the following point for its consideration:-

"Whether the prosecution proves that Suresh, s/o Narayana Naik deceased died due to homicidal due to the violence on 13.10.2007 at night on account of injuries sustained by him at 4 p.m., at Kalluveedi village in Hosanagar Taluk?"

The court held the said point partially in the affirmative, namely, that the deceased had died due to homicidal attack not amounting to murder under Section 304 Part II IPC and had convicted the accused. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would contend that the entire prosecution case rests on the evidence of PWs. 2 and 3 who were said to be the eye witnesses. The other witnesses were formal witnesses in support of the case of the prosecution.

Insofar as the evidence of PWs. 2 and 3 is concerned, they had claimed that the accused and the deceased were fighting with each other and that the accused was punching and kicking the deceased all over his body and they had intervened and prevented further quarrel, but however, when they went to collect the fire wood and when they came back, they again saw the accused and the deceased quarrelling and it is then that the accused fell to the ground and though they had tried to revive him by giving him water, he was not in a position to drink and he was frothing at the mouth. Therefore, they had rushed to inform the father of the deceased, who had then come and found that the deceased was still alive but struggling and when they tried to take him to the hospital, he had died on the way.

However, the learned counsel would point out that the case sought to be put forth that on account of the injuries caused by the accused, the deceased had died, would necessarily have to be established by indicating that there were, in fact, injuries found on the body of the deceased. Significantly, from the Post-mortem Report, it is clear that there were no external injuries found on the body of the deceased and the Forensic Science Laboratory Report had also indicated the absence of any poison in the body of the deceased. The Medical Practitioner, who had conducted the post-mortem had not furnished his final opinion and had died in the meanwhile. Therefore, PW. 8 had been called in to furnish a final opinion and according to PW. 8, the reason for the death of the deceased was that there was Pulmonary Oedema and Vasovagal attack. This would not lead to a presumption that he had died as a result of any injuries caused by the accused and in the absence of any such injuries found on the body of the accused, the prosecution seeking to claim, on the basis of the evidence of PWs. 2 and 3, that the accused was responsible for the death of the deceased, on account of the injuries caused by him to the vital parts of the body of the deceased and particularly to his testicles, is untenable.

The learned Counsel would draw attention to the evidence of PW. 8 and would point out that according to the witness, he was compelled to furnish an opinion in view of the Medical Practitioner, who had conducted the post-mortem being no more, but however, he has proceeded to express an opinion that the frothing at the mouth of the deceased was probably on account of his lungs being filled with liquid and since he may have been hurt or struck on his chest, frothing could be explained. And further, on being compelled by the Police to furnish an opinion as to whether a person injured on his testicles can die of shock, without indication of any outer sign of any injuries being caused, the Medical Practitioner has expressed an opinion that it is quite possible for a person to die of shock if he is struck on his testicles and it would leave no mark of any injury. This is the hypothetical answer elicited by reading the Medical Practitioner in his examination-in-chief and it could not be his opinion that the deceased had in fact died as a result of the injuries caused to his testicles and that the accused had not caused any such injuries. On the other hand, the evidence of PWs. 2 and 3 does not categorically indicate that the accused was seen striking the deceased on his testicles and therefore, the finding that the deceased had died as a result of the injuries caused to the vital organs of his body, particularly, his testicles, is a hypothesis, on the basis of which, the court has proceeded to hold that the petitioner was guilty of causing homicidal death not amounting to murder and proceeded to impose maximum punishment that is attracted for the offence punishable under Section 304 Part-II of the IPC. Hence, the learned Counsel would submit that it cannot be said that the prosecution had established its case beyond all reasonable doubt in proceeding as it has, in the absence of any categorical evidence particularly, the medical evidence, to indicate that there were injuries caused to the deceased and it was the accused who had caused such injuries and the death was on account of the deceased being struck on his testicles or on other vital parts of the body and seeks that the appellant be acquitted.

On the other hand, the learned State Public Prosecutor would seek to justify the judgment of the court.

The fact that there are direct independent eye witnesses, who have categorically stated that the deceased was pointedly attacked by the accused and was punched and kicked all over his body and this was witnessed on two occasions not one, and ultimately, the deceased having fell to the ground, would be adequate evidence of the deceased having suffered injuries all over his body and it is clearly a case of culpable homicide as held by the court below and this is adequately established by the evidence of PWs. 2 and 3-and there is no reason to discard the evidence of the said witnesses, who may not have particularly mentioned the deceased having been struck on his testicles or kicked on his testicles by the accused. This was wholly unnecessary if the evidence was sufficient to indicate that there was a situation where there was a scuffle between the accused and the deceased and there was no other explanation for he having died as a result of the pulmonary oedema and vasovagal attack. The learned State Public Prosecutor would hence seek that the appeal be dismissed.

In the above facts and circumstances, from the evidence of PWs. 2 and 3, it is evident that those witnesses were independent witnesses and have in all sincerity stated the facts as it unraveled. However, the injuries that would be necessary to cause death would certainly have left their mark on the body of the deceased. From a reading of the post-mortem report, it is evident that there were no signs of any physical injuries on the body of the deceased, except for a cut on the finger which would not lead to death if that would be significant. Though in the course of the judgment, it is recorded that one day after the incident, the inquest had been conducted and the date of the post-mortem report, however, is eight days after the incident. The author of the post-mortem report unfortunately died and the final opinion as to the cause of death was furnished by yet another doctor. It is evident, therefore, that if post-mortem was conducted eight days after the incident, the body would have been kept in a cold storage and possibly, any mark or sign of the injuries caused to vital organs, would have vanished. This would probably explain the reason why the doctors have found any injuries especially, in the region of testicles. This is a serious flaw committed by the prosecution in gathering the evidence and preserving it for the purpose of bringing the accused to trial.

The second grave lacuna in the case of the prosecution is that the final opinion provided by the doctor also would not indicate that the cause of death was on account of the injuries. According to the Butterworth''s Medical Dictionary-II Edition, the definition of the word ''Pulmonary'' reads as follows:-

"belonging to, connected with, or affecting the lungs".

''Oedema'', on the other hand, reads as follows:-

"The presence of excessive amounts of fluid in the intercellular tissue spaces of the body due to increased transudation of fluid from the capillaries. This may be caused by an increase of capillary blood pressure, increased permeability of the capillary wall or reduced plasma-protein osmotic pressure; all 3 factors may be present, though one usually predominates. Oedema may be localized or general. Localised Oedema is seen with venous or lymphatic obstruction around inflammatory lesions, or in some allergic conditions."

Further, the word vasovagal'' is defined as follows:-

''non-epileptic seizures, or convulsive syncope, due to cerebral ischaemia secondary to a systemic hypotension."

The said definitions would not indicate that the death has occurred on account of the injuries caused to the body or any vital part of the body and in the absence of physical sign of the injuries, it cannot be said that the accused had caused such injuries. Therefore, the opinion expressed in the examination-in-chief of the Medical Practitioner that it was possible that the injuries had been caused by the accused to the testicles of the deceased and he had suffered a fall on account of the same and that any such injury caused may not leave a physical impact or sign of such injury having been caused, is a hypothesis drawn by the Medical Practitioner PW. 8 at the instance of the Police and would remain an opinion without any basis. For there is no evidence to indicate that the accused had caused injuries to the vital parts or testicles of the deceased. In that view of the matter, it would be a miscarriage of justice to hold that on the basis of the evidence of PWs. 2 and 3, who indeed have stated that the accused and the deceased were fighting with each other and that the accused was punching and kicking the deceased and as a result of which, he had died, cannot be concluded with any degree of certainty. In otherwords, the prosecution had failed to establish that the accused had caused the death of the deceased beyond reasonable doubt. Hence, neither can it be said that the offence punishable under Section 302 of the IPC had been made out nor the offence of culpable homicide punishable under Section 304 Part-II of the IPC.

Consequently, the appeal is allowed. The judgment of the court below is set aside. The accused is acquitted. The bail bond furnished by the accused stand cancelled.