Tamballi Ramappa vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order dated 12.12.2011 passed by the Fast Track Court, Sagar in SC. No. 55/2009 is the subject matter of these three appeals.

The sole accused was charged for the offence punishable under Section 302 of IPC. The trial Court on evaluation of the material on record convicted the accused for the offence punishable under Section 304(2) of IPC and sentenced him to undergo imprisonment for a period of five years and to pay a fine of Rs. 50,000/-.

Crl.A. No. 1329/2011 is filed by the convicted accused praying for his acquittal. Crl.A. No. 509/2012 and Crl.A. No. 510/2012 are filed by the State praying for conviction of the accused for the offence punishable under Section 302 of IPC and praying for enhancement of sentence against the accused respectively.

Case of the prosecution in brief is that the agricultural lands of the deceased Kuri Keriyappa and the accused Thamballi Ramanna are adjoining each other; both the accused as well as the deceased are residents of Kugve Village in Sagar Taluk; on 14.2.2008 at about 4.00 p.m., the deceased was found shifting the mud from the land of the accused to his land; the accused having seen the said act of the deceased, came near the deceased and assaulted on his thigh with sickle(MO. No. 1); he also assaulted on the left shoulder of the deceased with blunt edge of the sickle, consequent upon which the injured fell down on the paddy field; PWs.2 and 3 being the wife and daughter of the deceased respectively, who were working with PW.1, intervened; PW.2 snatched the sickle from the hand of the accused; the accused thereafter disappeared from the scene; PWs.4, 5 and 6 were also working in the field of the deceased during the relevant time; PWs.2 to 6 have seen the incident in question; at the first instance, the victim was taken to General Hospital at Sagar, wherein primary-aid treatment was given to him by the doctor-PW15; thereafter the victim was shifted to District Hospital at Shimoga on the advise of PW.15; the victim was treated for about three days in District Government Mc. Gann Hospital, Shimoga; unfortunately, the victim died in 17.2.2008.

The statement of the victim was recorded as per Ex. P1 by the Sub-Inspector of Police, Rural Police Station, Sagar, in General Hospital, Sagar from 5.30 p.m. to 6.30 p.m. on 14.2.2008, i.e., the statement of the victim was recorded while the victim was taking treatment in the hospital within 1 1/2 hours of the incident in question; based on Ex. P1, Crime No. 36/2008 came to be registered in Rural Police Station, Sagar for the offences punishable under Sections 324 and 506 of IPC; PW.22, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 22 witnesses and got marked 26 Exhibits and one Material Object. On behalf of the defence, 5 Exhibits were got marked. As aforementioned, the trial Court acquitted the accused of the offence punishable under Section 302 of IPC, but convicted him for the offence punishable under Section 304(2) of IPC and sentenced him to undergo imprisonment for a period of five years and to pay a fine of Rs. 50,000/-.

Sri Chethan Desai, learned Government Pleader taking us through the entire material on record and the judgment of the Court below submits that the trial Court is not justified in convicting the accused for the offence punishable under Section 304(2) of IPC; instead, the trial Court ought to have convicted the accused for the offence punishable under Section 302 of IPC; the very fact that the victim succumbed to the injuries within about 2 to 3 days of the incident in question would clearly reveal the intention on the part of the accused; despite giving adequate medical assistance to the victim, his condition was not improved, ultimately he died because of the injuries sustained by him; since the death was a direct result of the injuries sustained by the victim, the trial Court ought to have convicted the accused for the offence punishable under Section 302 of IPC; in the alternative he submitted that the sentence of imprisonment imposed on the accused is too meager under the facts and circumstances of the case and according to him, the trial Court at least ought to have sentenced the accused for a period of ten years.

Per contra, Sri Mahesh Uppin, learned advocate appearing on behalf of the accused submitted that the offence committed by the accused at the most may fall under Section 324 of IPC; the material on record is not sufficient to conclude that the death was a direct result of the injuries sustained; had the victim been given proper treatment immediately after the incident, the life of the victim could have been saved; the injuries sustained by him are not grievous injuries; since the death has occurred due to the negligence of the doctor as the injuries were simple in nature, at the most accused can be convicted for the offence punishable under Section 324 of IPC. He relies upon the judgment of the Apex Court in the case of Pirthi v. State of Haryana, reported in AIR 1994 SC 1583 in support of his contention.

Before proceeding further, it would be beneficial to advert to depositions of each of the witnesses in brief.

PW.1 is the son of the deceased. He came to the hospital after getting information about the incident in question. He is not an eye witness to the incident in question.

PWs.2, 3, 4, 5, 6 are the eye witnesses to the incident in question. Among them, PW.2 is the wife and PW.3 is the daughter of the deceased. PW.3 is also witness for scene of offence mahazar at Ex. P3. She has also deposed about the seizure of sickle (MO. No. 1) by the Investigating Officer.

PWs.4, 5, 6 and 7 were the workers working along with the deceased during the relevant point of time in the very field during the relevant point of time.

PWs.2 to 7 have supported the case of the prosecution.

PW.8 took the victim to the hospital along with PW.2 on his motor cycle. PWs.9 and 10 are the witnesses for inquest panchanama at Ex. P8.

PWs.11 is another son of the deceased. He also came to know about the incident later and came to the hospital.

PW.12 is the witness for scene of offence panchanama at Ex. P3. He has also deposed about Exs. P4 to P7, the photographs of scene of offence. He has also deposed about the seizure of MO. No. 1. The evidence of PWs.3 and 12 relating to seizure of sickle-MO. No. 1 reveals that sickle-MO. No. 1 was seized not from the scene of offence, but PW.3 brought the same from the house of PW.2 and she produced the same before the Investigating Officer. However, there were no blood stains on the sickle.

PW.13 is the Assistant Director of Forensic Science Laboratory. His report is at Ex. P13. The report merely discloses that no poison is detected in the materials sent for examination.

PW.14 is the Assistant Sub-Inspector of Police. He conducted part of investigation. He made a requisition before the concerned Court for adding Section 302 of IPC after the death of the deceased.

PW.15 is the doctor who treated the victim in General Hospital, Sagar immediately after the incident. Ex. P16, 17 and 18 are the medical records marked through him. He referred the patient to bigger medical centre i.e., Mc.Gann Hospital, Shimoga.

PWs.16, 17, 20, 21 are the doctors who were working in Mc.Gann Hospital, Shimoga during relevant point of time. All of them had treated the victim.

PW.16 has deposed about the medical record at Ex. P19; PW.17 has deposed about Exs. P20, 21 and 22. Ex. P22 discloses that the victim was discharged from Mc.Gann Hospital, Shimoga, against the medical advise. PW.20 has deposed about Ex. P21. PW.21 has deposed about Exs. P21 and P25. All these exhibits are medical records maintained by the said hospital.

PW.18 is the Inspector of Police, who recorded the complaint-Ex. P1. As aforementioned, the victim gives his statement in General Hospital Sagar at about 5.30 p.m. i.e., within 1 1/2 hours of the incident in question as per Ex. P1 based on which Crime No. 36/2008 came to be registered in Rural Police Station, Sagar.

PW.22 is the Investigating Officer, who completed the investigation and laid the charge sheet.

Prosecution has mainly relies upon the evidence of the eye witnesses, i.e., PWs.2 to 7 and the medical evidence both oral as well as documentary.

Ex. P1, the first information given by the victim in the hospital is recorded within Vfr hours of the incident in question. The same plainly discloses that the victim was shifting the mud from the land of the accused to the land of the deceased; at that point of time, PWs.2 and 3 were working with the deceased in the paddy field; accused saw the deceased shifting the mud from his field to the land of the deceased and hence suddenly being enraged, he assaulted on thigh and left shoulder of the deceased with sickle; PW.2 immediately intervened and snatched the sickle from the hand of the accused; accused thereafter threatened the deceased with dire consequences in case if he repeats such mistake and disappeared from the scene of offence. Thereafter injured as well as his wife-PW.2 came to the house of PW.8-Srinivas and requested him to take the injured to the hospital and consequently, PW.8 took the victim to General Hospital at Sagar on his motorcycle along with PW.2. The victim was treated in General Hospital at Sagar as outpatient at 4.30 p.m. by the doctor-PW.15 i.e., within Vfr hours of the incident in question. We have already mentioned supra that the victim died on 17.2.2008, i.e., within three days of the incident in question. Within this span of 3 days, no further statement of the deceased was recorded.

We do not find any reason to suspect Ex. P1 which was recorded by the Sub-Inspector of Police within 1 1/2 hours of the incident in question. There was no scope for manipulation or exaggeration of the case. None of the relatives of the deceased, except PW.2 was present when he gave statement as per Ex. P1 before the Sub-Inspector of Police. There is nothing on record to show that Ex. P1 is a tutored version. We do not find any reason to disbelieve the version of Ex. P1, more particularly when the deceased died within three days of the incident in question. Ex. P1 is nothing, but the dying declaration of the victim recorded by the Sub-Inspector of Police (PW.18)

Ex. P16 is the treatment certificate issued by PW.15-Doctor of General Hospital, Sagar. The same discloses that the victim came to the hospital with a history of assault by the accused at 4.00 p.m. on 14.2.2008 in the field with sickle. It is also mentioned in Ex. P16 that the patient was pale and extremely tired; after the first-aid, the victim was referred to Mc.Gann Hospital, Shimoga. Even assuming that Ex. P1 did not have any endorsement of the doctor to show that the patient was in fit condition to make any statement, the contents of Ex. P1 cannot be doubted, inasmuch as the same is recorded by the responsible Officer of the State. PW.15 the doctor has not at all deposed before the Court that the victim was not in a position to make statement. He has also admitted in the cross-examination that there was no person when the police recorded the statement of the victim.

The first version of the victim at Ex. P1 is fully supported by the version of PWs.2, 3, 4, 5 and 6 and 7. Ex. P1 discloses the presence of PWs.2 and 3 on the spot. PW.4 to 7 are stated to be the workers who were working in the filed during the relevant point of time. All these witnesses have deposed that the deceased was shifting the mud from the land of the accused to the land of the deceased. Having seen such illegal act of the deceased the accused being enraged assaulted on the thigh and left shoulder of the deceased, consequent upon which the deceased fell down in the paddy field. The version of PWs.2 to 7 though was challenged by the defence in its lengthy cross-examination, nothing worth is elicited by the defence so as to discard their evidence; in the cross-examination, these witnesses have reiterated about the assault by the accused on the thigh of the victim. The evidence of PWs.2 to 7 fully corroborate the case of the prosecution as per Ex. P1. If really the prosecution wanted to exaggerate the facts, it would have come out with a different story altogether. On the other hand, it is fairly stated in Ex. P1 by the victim as well as deposed by PWs.2 to 7 that the accused assaulted the victim only twice with the sickle and one assault was on the thigh and another assault was on the left shoulder of the deceased. The version of the eye witnesses, coupled with the version as found in Ex. P1 fully supports the case of the prosecution. We find that the evidence of PWs.2 to 7 is consistent, cogent and reliable. The presence of PWs.2 and 3 cannot be doubted, inasmuch as the same is spoken to by the deceased in Ex. P1 itself. Even ignoring the presence of PWs.4 to 7 on the spot and consequently ignoring their version before the Court, the version of PWs.2 and 3 is sufficient to prove the incident in question. The ocular testimony of PWs.2 and 3, supported by the evidence of PWs.4 to 7 and the version as found in Ex. P1 are further supported by the medical evidence. All the doctors, including the doctor who conducted the postmortem have deposed that the victim had sustained two injuries and out of them, injury No. 1 was deep cut injury and the same was grievous in nature. Thus, it is clear that the medical evidence fully supports the ocular testimony of PWs.2 to 7.

The doctors viz., PWs15, 16, 17, 19, 20 and 21 are subjected to lengthy cross-examination by the defence. PW.19 is the doctor who conducted postmortem examination. P.M. report is at Ex. P24. The doctor (PW19) who conducted the postmortem examination has mentioned in the report that on dissection of injury No. 1 (left thigh injury), the same was under process of healing. However, the opinion as to the cause of death was given by the doctor after obtaining chemical analysis report. The final opinion of the doctor-PW.19 is that the death was as a result of secondary septicaemic shock? Pulmonary embolism (thrombo-emblolic phenomenon). All the aforementioned doctors are cross-examined by the defence on the question of ''pulmonary embolism'' not only to know the exact meaning of the said words, but also to know whether the injuries were sustained by the deceased or not. The doctors have opined that the death in the matter on hand has occurred due to clotting of blood in veins; if the injury becomes septic, there is every likelihood of formation of air bubbles, which may enter veins consequent upon which there will not be free flow of blood; the blood clots so formed may also enter the lungs which may result in pulmonary embolism. On going through the evidence of the doctors examined before the Court, we are of the opinion that the pulmonary embolism has occurred due to injuries sustained by the victim and unfortunately he is one of the persons in such rare case.

As could be seen from the injury certificate issued by PW.15, the doctor, who examined the victim at the first instance at General Hospital, Sagar, it is clear that injury was measuring 15cm x 10cm x 10 cm, which means that injury on the thigh was 15 cm in length and 10 cm of width and 10 cm in depth. The sickle used for commission of offence almost reached the thigh bone of the victim. In such a situation, septicemia may result when the incident has occurred in a paddy field which supposed to be wet and muddy. Therefore, it is not open for the defence to contend that the death was not as a result of the injury sustained by the victim.

However, in our considered opinion, the trial Court is justified in concluding that the accused did not have any intention to commit the murder of the deceased and the incident has occurred in a spur of moment without any premeditation, that too in a fit of anger and in a heat of passion. We have already narrated supra that the deceased was virtually stealing the mud from the land of the accused and on seeing this incident of theft of mud, the accused assaulted on the thigh of the deceased with sickle. Thus, it is clear that the incident has taken place suddenly in a heat of passion without any premeditation. Therefore, the offence committed by the accused falls under Exceptions 1 and 4 of Section 300 of IPC. In this view of the matter, the trial Court is justified in convicting the accused under Section 304(2) of IPC and not under Section 302 of IPC. The sickle is an agricultural instrument which is commonly used for cutting grass. It is always carried by an agriculturist whenever he goes to agricultural field for his agricultural operations. Therefore, it cannot be said that the accused came to the spot with pre-plan of assaulting the victim armed with sickle. Looking to the totality of the facts and circumstances of the case, we are of the clear opinion that the trial Court is justified in convicting the accused for the offence punishable under Section 304 (2) of IPC.

It is not in dispute that the victim took treatment for about three days. It is also not in dispute that the victim was treated in a District Hospital for two days. The medical records reveal that in the morning of 17.2.2008, i.e., on the date of the death, the victim became very weak and his blood pressure was not recordable and pulse rate was fully down. Ultimately at about 2.00 p.m. the victim succumbed to the injuries. However, Sri Mahesh Uppin, learned advocate may be justified in arguing that if the victim were to be admitted to hospitals in Bangalore, his life would have been saved. He further brings to the notice of the Court that the victim was discharged from Mc.Dann Hospital in order to admit to Nanjappa Hospital (private hospital) against the medical advise and on the way to Nanjappa Hospital, he died. The citus of injury is not on a vital portion of the body. Having regard to the material on record and under the facts and circumstances of the case, the trial Court is justified in sentencing the accused to undergo imprisonment for a period five years and imposing a fine of Rs. 50,000/-. The sentence imposed by the trial Court also needs to no interference.

In view of the above, all the three appeals are liable to be dismissed and accordingly, the same stand dismissed.