Nagappa alias Nagaraj vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned Government Pleader.

The accused is in appeal questioning the order of conviction, in the following background:

One Sushilamma, wife of Sharanappa Doddamani, was the complainant and according to her, on 20.05.2009, at about 11.00 a.m., when the complainant''s son was standing near the 14th Cross, Tarfile, Gulbarga, in front of the house of Accused No. 1, namely Nagappa, one Hanamantha is said to have approached the complainant''s son and had mentioned something to him and it was observed that Accused No. 1 Nagappa had punched the complainant''s son on his abdomen and Accused No. 2, the father of Nagappa one Hana-manth Telgar is said to have held the complainant''s son and both the accused had punched him on various parts of his body and the complainant saw her son fall down. When the complainant and her daughters-in-law, namely Laxmi and Saroja rushed to the aid of the son of the complainant, they found that he was frothing at his mouth and he had also urinated, involuntarily. It is also alleged that Accused Nos. 1 and 2 had dragged him to the complainant''s house and thereafter, had taken him in an auto-rickshaw to a hospital. The complainant''s daughters-in-law are said to have accompanied them. But Hanamantha, the son of the complainant is said to have died on the way to the hospital. It was alleged that the death was a direct result of the assault by Accused Nos. 1 and 2 and it is in that background that the complaint was lodged.

The police have charge-sheeted both the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity), they were arrested. After further proceedings, the Court of the Magistrate had committed the case to the Sessions Court for trial. It is thereafter that charges were framed against the accused and the accused have pleaded not guilty and have claimed to be tried, the prosecution had tendered evidence through 14 witnesses and had marked several exhibits, apart from material objects. On the basis of the said evidence and the material on record, the court below had framed the following points for consideration:

Whether the prosecution proves the homicidal death of deceased Hanamanth?

Whether the prosecution proves beyond all reasonable doubt that on 20.05.2009 at about 11.00 a.m. at 14th Cross Tarfile, Gulbarga in front of the house of accused both accused in furtherance of their common intention have assaulted Hanumanth with fist oh his vital parts of the body and caused death of Hanamanth and thereby committed an offence punishable under Section 302 read with Section 34 of Indian Penal Code?

What Order?

The court below had answered the same in the affirmative and had convicted the accused to undergo simple imprisonment for a period of seven years for the offence punishable under the First Part of Section 304, IPC and had also imposed a fine of Rs.15,000/- each. Out of the amount so recovered, Rs.20,000/- was ordered to be paid to the complainant as compensation. It is that which is under challenge in the present appeal.

The court below relied upon the evidence of several witnesses, namely the complainant who was examined as PW-1 and who stated the sequence of events as an eyewitness to the assault on the deceased and secondly, of the wife of the deceased who was examined as PW-2 who also supported the case of the prosecution apart from the sister-in-law of the deceased examined as PW-3 and the brother of the deceased examined as PW-4, apart from the police personnel who were also examined as witnesses. PW-9 was the Medical Practitioner who had conducted the post-mortem examination of the body of the deceased Hanamantha. His report was marked as Exhibit P-3.

Significantly, the court noticed that the said PW-9 had not given any definite opinion as to the cause of death. He had also admitted in the cross-examination that he did not notice any injuries other than the injury mentioned by him in Exhibit P-3 and the nature of the injury found in Exhibit P-3 was not a major injury, but a very minor one. He generally stated that in the absence of external or internal injuries, there are many cases where death can occur, on account of cerebral trauma, a pain in the abdomen or on the private parts, which may result in vegal inhibition, neurogenic shock and myocardial infraction, etc. On a question posed by the court that if any male person is assaulted on his private parts, whether death can take place, the witness is said to have answered in the affirmative.

After discussing other evidence including the evidence of three witnesses examined on behalf of the accused, the court proceeded to address the points for consideration and accepted the ocular evidence as to the accused have repeatedly punched the deceased, including on his private parts, resulting in his collapse and thereafter have been found to be dead. The court below opined that the ocular evidence coupled with the opinion of the Medical Practitioner, it could safely be concluded that the death of Hanamatha occurred because of the assault and therefore, the death was held to be homicidal and the point was answered in the affirmative.

Insofar as the second point is concerned, the oral evidence of the above said witness been accepted in to in holding that the charges against the accused have been brought home. But, the court below opined that the act attributable to the accused could not be characterised as murder, in the absence of any premeditation or preparation or motive and at best, the motive was only rivalry and there was no evidence alleging that the accused had premeditated and planned to cause the death of Hanamantha. But however, the accused have assaulted the deceased on his private parts, they would have been aware that he would succumb to such injuries. However, the court below held that the motive behind the incident was not evident and therefore, thought it fit to convict the accused for an offence punishable under the First Part of Section 304, IPC.

It is to be seen as contended by the learned counsel for the appellants that though there were a large number of people who were apparently present at that time of the day in the vicinity where the incident occurred, it is only the evidence of the mother, the wife, the brother and sister-in-law of the deceased which seeks to implicate the accused and attribute acts which are said to have caused the death of Hanamantha. In order to establish that the accused had caused the death of Hanamantha, apart from the evidence of the above witnesses, the actual injuries caused were a significant piece of evidence, which is obviously not forthcoming. It is very significant notice that PW-9, the Medical Practitioner failed to identify the cause of death. He also stated that there were no injuries found, either internal or external, apart from a minor injury over a lateral angle of the right eye measuring 4 cms. X 3 cms., which was not an injury which could have caused the death of Hanamantha. The court below convinced itself that the deceased had been repeatedly punched on his private parts and which was the possible cause of death and the court below even placed these words in the mouth of the Medical Practitioner in proceeding to conclude that the death was homicidal and was on account of the assault by the accused. This conclusion unfortunately, cannot be sustained. It was necessary to demonstrate that there were some injuries on the deceased if he was repeatedly attacked and with such force, so as to cause death without the use of any weapons, but only with the bare hands of the accused. Therefore, without any trace of any injury on any part of the body except the one mentioned above, to have concluded that the accused had attacked the deceased on his private parts, is without there being acceptable evidence in this regard. The hurt caused to the private parts which is of such a severe nature as to cause the death, would certainly leave some trace of an injury, which the Medical Practitioner not found. Therefore, to convict the accused merely on the ocular evidence of the witness without support of any other medical evidence, would run counter to the established principles of criminal jurisprudence.

Therefore, it cannot be said that the death of Hanamantha was homicidal. It cannot also be concluded that the accused had attacked Hanamantha and had caused him hurt of a nature which could cause his death. Hence, it can safely be said that the prosecution had not established its case beyond all reasonable doubt. Therefore, the appeal deserves to be allowed.

Accordingly, the appeal is allowed. The judgment of the court below is set aside. The accused Nos. 1 and 2 are acquitted.

The bail bond furnished by the accused stands cancelled. The fine amount if any, shall stand refunded to the accused.