Virupaxagouda and Others vs State of Karnataka

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

The appellants were the accused before the court below for offences punishable under Sections 504 and 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as''IPC, for brevity).

The facts leading up to these cases are as follows:

One Ishwargouda was the complainant. It was his case that on 19.02.2010 at about 8.30 p.m., the accused - the appellant in Crl.A. 2877/2012 and Appellants 1 and 2 in Crl.A. 2930/2012 had accosted him and had scolded him in foul language for having passed through their property, as there was a dispute between the complainant and the appellants herein as regards a pathway. There was constant friction between them and on 19.02.2010 at about 8.30 p.m., it transpires that the appellants had come together and picked up a quarrel with him and after abusing him in foul language, Accused No. 2 - Appellant No. 1 in Crl.A. 2930/2012, had assaulted the complainant with an iron rod, as a result of which he had suffered an injury on the right side of his forehead and Accused Nos. 1 to 3 had punched and kicked him and when he fell to the ground, they are said to have stomped on his abdomen with much force. The deceased had called out for help and on hearing him, one Madivalappa Turman and Basappa Hugar had come to the spot and tried to prevent the accused from causing further harm to the complainant. When other people also started coming to the spot, it transpires that the accused had thrown the iron rod and run away.

It is in this background that the Saundatti Police had registered a case in Crime No. 98/2010. It transpires that the complainant was admitted at the local hospital at Saundatti for first aid and was later moved to the District Hospital, Dharwad. The District Hospital, Dharwad, after giving him further first aid, had advised him to move to KIMS Hospital, Hubli for further treatment, where he was then admitted.

On the next day, namely on 20.02.2010, the Saundatti police had recorded his statement as regards the assault caused by the accused and had registered a case in Crime No. 98/2010 by the Circle Police Inspector, Saundatti and further investigation was said to have been taken up. A charge-sheet was filed before the JMFC, Saundatti and the Magistrate after taking cognizance of the offence, had registered a case in C.C. No. 364/2010.

The complainant was under observation till 24.02.2010 and he was said to have been diagnosed with abdominal infection and a mesenteric tear, on account of which it was suspected that blood had collected in his abdomen. On 22.02.2010, he was operated upon and according to PW-16, two litres of blood was removed from his abdomen and he was given further treatment.

However, against medical advise, he was discharged on 24.02.2010, but was re-admitted on the same day on account of complications having developed. Thereafter, he had moved to Vivekananda Hospital on the same day and was under continuous treatment in a serious condition and ultimately he had expired on 28.02.2010. By virtue of which, after the initial proceedings which had been initiated for offences punishable under Sections 324 , 504 read with Section 34 of the IPC, the prosecution was required to invoke Section 302 as well, treating the complaint lodged in the first instance as a dying declaration. It is thereafter that committal proceedings were taken up and the matter was committed to the Sessions Court, Belgaum, which in turn had made over the case to the Fast Track Court, Saundatti, for trial. The accused having appeared before the court, charges were framed and the accused having pleaded not guilty and claiming to be tried, the prosecution had tendered 25 witnesses and marked several documents and material objects. The accused were examined under Section 313 of the Cr.P.C. and they having denied the incriminating circumstances appearing against them. Exhibit D1 was marked on their behalf. The court below had framed the following issues for consideration:

"(i) Whether the prosecution proves beyond all reasonable doubts that the accused Nos. 1 to 3 in prosecution of their common intention, on 19.2.2010 at 8.30 p.m. in front of the house of the deceased on street road at Inamhongal village, when the deceased was returning from market, at that time, accused persons picked up quarrel and abused in filthy language in respect of right of way in the land and gave provocation to deceased Ishwaragouda knowing that such provocation would break public peace and thereby committed an offence punishable under Section 504 read with Section 34 of IPC?

(ii) Whether the prosecution proves beyond all reasonable doubts that the accused on the above said date and time and place in prosecution of the common intention, accused No. 2 voluntarily caused hurt by hitting on the head with iron rod and caused skull injury and when the said Ishwaragouda fell on the ground the A1 and 3 voluntarily caused injuries on the stomach of the deceased by stamping thereby accused caused grievous injuries to the deceased on vital parts as a result, while treatment in the hospital the said Ishwaragouda succumbed to the said injuries on 28.2.2010 thereby A1 to 3 have committed murder of deceased Ishwaragouda and thereby committed an offence punishable under Section 302 read with Section 34 of IPC?

iii) What order?

The court below had held the above in the affirmative and convicted the accused and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 30,000/- each, for the offence punishable under Section 302 read with Section 34 of IPC and in default of payment of the fine amount, the accused Nos. 1 to 3 were to undergo rigorous imprisonment for four years. Further, Accused Nos. 1 to 3 were sentenced to pay a fine of Rs. 1,000/- each for the offence punishable under Section 504 read with Section 34 of the IPC and in default of payment of the fine amount, the accused Nos. 1 to 3 were to undergo rigorous imprisonment for three months. The sentences imposed were to run concurrently. It is this which is under challenge in the present appeal.

The learned counsel Shri Gundwade appearing for Accused No. 1 in Crl.A. No. 2877/2012 and Shri K.M. Shivalli, learned counsel appearing for the appellants in Crl.A. 2930/2012 who were Accused Nos. 2 and 3 before the court below, have pointed out that the sequence of events would indicate that the deceased had suffered an injury on his forehead which was described as a ''cut simple injury'' and that there was swelling in the forehead region. The allegation that Accused Nos. 2 and 3 had thrown the deceased to the ground and had punched and kicked him and stomped on his abdomen resulting in grave internal injuries, is sought to be proved through the evidence of PW-16 and PW-25. It is noticed that the deceased was said to be in an inebriated condition and this has been spoken to by PW-12. He was treated for a minor injury on his head and he was given first aid treatment at the local hospital in Saundatti and thereafter was moved to the District Hospital where again he was given first aid treatment and thereafter was admitted to KIMS, Hubli. In KIMS, Hubli, as seen from the medical records on behalf of the accused. He was under observation from 20.02.2010 to 22.02.2010 and it is only on 22.02.2010 that PW-16 had thought it fit to perform a surgery and according to him, there was a mesenteric tear, as a result of which there was internal bleeding and his abdomen was filled with blood. The Doctor had removed at least two litres of blood and thereafter had kept him under observation giving him further treatment. The deceased having sought to get himself discharged against medical advise and having been admitted in the Hospital on the same day and thereafter had died after continuous treatment on 28.02.2010. It is not made out, by the evidence tendered, that the injuries were of such a serious nature and had been caused apart from the mesenteric tear as a result of which there was internal bleeding and possible infection where septicemia had set in. This could not be attributed to the accused alone and it could even be said that on account of medical negligence and shoddy treatment, the minor injury had developed into a major complication and he had ultimately died as a result of the complication that had set in and not necessarily on account of the injuries caused. This the learned counsel seek to demonstrate by taking this court through the evidence of PW-16, PW-12 and PW-25 and would point out that none of these Medical Practitioners have stated that there were other injuries to his abdomen which were other than the mesenteric tear. For if the allegation that the accused had stomped on him or jumped on his abdomen, over and over again, as sought to be made out, the internal damage caused to the organs would have been of such a nature that it would be readily discernable and possibly relatable to such alleged acts. However, the only medical evidence placed on record is that the deceased had suffered a mesenteric tear and he was a man aged 38 and given to drinking. Therefore, the reasons for his death cannot be directly attributed to injuries which were never found in the internal organs of the deceased. Septicemia having set in, on account of infection resulting in his death, could not therefore be clearly attributed to the accused.

It is further pointed out that insofar as the other primary evidence sought to be cited against the accused, namely the complaint which was treated as a dying declaration, runs into two pages and is said to have been recorded by a Head Constable as dictated by the complainant. However, there is evidence on record to indicate that insofar as the deceased was concerned, at the relevant point of time when the complaint was recorded, was found to be acting in a hyperactive manner insofar as he was uttering incomprehensible words and was not in a position to make coherent statements and therefore, it was highly doubtful that he had made a complaint in a coherent and lucid manner as is sought to be projected. Therefore, it is sought to be contended that the Head Constable who has recorded the complaint has done so at the instance of the relatives of the deceased and only in order to frame the accused. The further circumstance that there was no Duty Doctor at the relevant point of time is also doubtful, as there is evidence to indicate that every ward in the Hospital there is a duty doctor Stationed at all times of the day and night. Hence, the claim of the Head Constable that there was no duty doctor who could certify that the person was in a position to make a statement, cannot be readily accepted.

Given the contrary evidence as to the state of mind of the deceased at the relevant point of time would clearly show serious doubt in the manner in which he was said to have been attacked by the accused. When the evidence on record does not bear out the so-called serious injuries caused to the deceased on his abdomen, it cannot be said that the prosecution had established its case beyond all reasonable doubt.

Insofar as the witnesses tendered in support of the circumstances, it is pointed out that there are no immediate eyewitnesses to the incident. It is the claim of the witnesses that they heard a hue and cry and then they had come upon the scene when accused had allegedly completed their attack. Therefore, there is no direct evidence as to the overt acts alleged against the accused and is therefore an embellishment and cannot be readily accepted. Coupled with the fact that the complaint itself is doubtful, the evidence of these witnesses cannot therefore be reconciled with the complaint and the inconsistent statements of the witnesses. Especially the wife of the deceased who has stated about the location where the assault has taken place is in a totally different direction and in a different location as allegedly stated by the complainant. PWs 6 to 8 and the complainant have indicated the location of the assault as per the sketch produced by the prosecution at Exhibit P-20. The wife of the deceased has however indicated that the location was elsewhere beyond their house and this cannot be reconciled at all. Therefore, he points to a situation where the deceased might have even fallen somewhere in a drunken stupor and having suffered injuries and case is sought to be framed against the accused.

Therefore, the learned counsel would submit that the extreme punishment of life imprisonment having been imposed as if the alleged assault on the deceased had in fact caused the death of deceased, when it is seen from the record that it was on account of infection to his abdomen by virtue of a mesenteric tear, which cannot be attributed to any serious attack on the abdomen and the tear which could have occurred even on account of a fall and the infection having set in, would not establish the case of the prosecution and hence seeks acquittal of the accused.

Whereas, the learned Additional State Public Prosecutor on the other hand would point out that PWs. 3 to 7 have consistently narrated the manner in which the assault had taken place and had attributed overt acts to each of the accused and they were direct witnesses to the incident and therefore, their evidence could not be brushed aside merely because the wife of the deceased had given inconsistent statements. The fact that he had suffered injuries is also reflected in the medical evidence. The endeavour on the part of the counsel for the accused to the effect that there was a minor injury to the head and also a minor tear in the abdomen, is an incorrect assumption. The Medical Practitioner had noticed that there was swelling and he was under observation for two days before it was decided to operate upon him and it was found that he had internal bleeding where blood to the extent of 2 litres had accumulated in the abdomen, which cannot be characterized as a minor injury and the same having been the direct result of the assault, it cannot be said that the accused were not responsible for any such development. The mesenteric tear was as a result of the assault on the deceased and the same having ultimately caused the death of the victim, the appellants cannot be absolved of the offence.

The death cannot also be attributed to medical negligence as sought to be canvassed by the learned counsel for the appellants. He would submit that there are a catena of decisions where the evidence of eye-witnesses would have to be given greater credence as to the manner in which assault had taken place and as to the manner in which the injuries had been caused. In the present cases that there were no apparent external injuries but internal injuries, is borne out by the treatment ultimately afforded to the deceased. Hence, he would submit that the prosecution has made out a case in the Trial Court having imposed the extreme punishment, which was very much warranted.

Insofar as the dying declaration is concerned, he would submit that it is now the settled law that as long as the dying declaration is recorded by a person whose credentials cannot be doubted, the fact that it was not certified by a Medical Practitioner as to the person making the dying declaration being in a fit state of mind, cannot be brushed aside. In fact, the dying declaration would have to be given primary credence even over and above the direct evidence of an eye-witness and hence, the dying declaration alone is sufficient to bring home the charges against the accused.

Insofar as the claim that the deceased was incoherent and was not in a position to make any statement and therefore, the dying declaration should be rejected, is also not a correct statement. Though there is a statement made by the Medical Practitioner that the deceased was found to be smelling of liquor at the time he was admitted to hospital and he was making incomprehensible statements and was blabbering continuously, it is on the next day that the complaint was recorded and which is now sought to be treated as a dying declaration. There is no infirmity in this regard and would therefore emphasize that the court was completely justified in imposing the extreme punishment.

In the light of these rival contentions, from the evidence on record, it would have to be established to the satisfaction of this Court, that the Trial Court was justified in imposing the extreme punishment which has visited the appellants. The contention of the State Public Prosecutor that there are direct eyewitnesses to the incident and therefore, their evidence will have to be taken at face value in addition to the dying declaration, is one aspect of the matter.

Insofar as this is concerned, PWs 3 to 7 are witnesses who are said to have actually witnessed the assault. But according to the complaint, the witnesses had come there after he was assaulted and he had started raising a hue and cry, which would presuppose that overt acts alleged against the accused were completed actions before the witnesses came on the scene. Therefore, it cannot be readily accepted that there were direct eyewitnesses to the actual assault.

We are then left with the statement made by the deceased himself and which is also termed as his dying declaration and the medical evidence. The medical evidence would indicate that he had suffered, what is characterized as a minor injury on his forehead, which according to the prosecution, was caused with an iron rod wielded by Accused No. 1. Abdominal injuries are not indicated other than a mesenteric tear in his abdomen. The mesenteric tear by itself was not the only injury which could have been caused, if two adult men jumped on the person''s abdomen repeatedly and punched and kicked him. A Mesenteric tear could have occurred otherwise as well. Therefore, to hold that the accused had caused serious internal injuries to the abdomen of the deceased, is not forthcoming. What is forthcoming however is that the mesenteric tear which was diagnosed much later, had resulted in blood accumulating in his abdomen which was belatedly diagnosed and the Doctor attending upon him - PW-16, had thought it fit to carry out a surgery only on 22.02.2010, by which time it was possibly too late, for septicemia had set in by then and it is evident that there was not much care and attention afforded to the deceased in the Hospital. He had in fact thought it fit to get himself discharged and was compelled to return to the hospital on 22.02.2010 on account of other complications. He was under continuous treatment and in a serious condition till his death on 28.02.2010. Therefore, what is established is that there was a minor injury on his forehead and a mesenteric tear on his abdomen resulting in internal bleeding, which in turn had resulted in injury becoming septic and ultimately causing the death of the deceased. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt.

Though what may have been established is that the accused had caused hurt which was not with an intention to cause the death of the deceased, but acts which had caused hurt. Hence, the accused being sought to be prosecuted for offences punishable under Sections 326 or 302 on account of the deceased ultimately having died after treatment could possibly establish an offence punishable under Section 324 read with Section 34 of the IPC. Consequently, the court below was not justified in imposing the extreme punishment of life imprisonment and a fine of Rs. 30,000/- each, for an offence punishable under Section 302 and a fine of Rs. 1,000/- each, for the offence punishable under Section 504 IPC.

Therefore, in our opinion, the punishment imposed was disproportionate to the case that was possibly established by the prosecution.

Insofar as the complaint which was sought to be treated as a dying declaration is concerned, the law as stated by the Supreme Court is that, recording of a dying declaration could not be circumscribed by requiring the certificate of the Medical Practitioner. But, a statement should be recorded as laid down in the case of Sheo Shankar Singh Vs. State of Jharkhand and Another, , that if reasonable credence could be given as to the impartial recording by the concerned person who has recorded the dying declaration, the prescription of a particular officer being required to record the dying declaration is also not to be strictly insisted upon. However, in the present case on hand, the Head Constable who has in the Hospital on the day after the incident, has stated that though he had recorded the dying declaration, he had not thought it fit to obtain the signatures of any witnesses and more importantly, he was not able to record the statement of a Medical Practitioner as to the fitness of the complainant to make a statement. This according to him, was on account of a duty doctor not being available.

However, the Hospital was a major hospital and it was on record that at all times, a duty doctor would be available in every ward during all times of the day and night. Hence, the dying declaration having been recorded by the Head Constable becomes doubtful, as he could have at least found some witness in whose presence the dying declaration could have been recorded. Therefore, to act on the dying declaration itself would not be advisable in the present case on hand.

Secondly, in our opinion, the court below was not justified in imposing the extreme punishment as has been done. It would be justified if the accused are convicted for an offence punishable under Section 324 read with Section 34 IPC, for which the punishment attracted is imprisonment for three years or fine.

Since the appellants after conviction, have been in prison for the past three years and one month, the punishment that could be attracted under Section 324 IPC has been exceeded.

Accordingly, the appellants shall now be set at liberty, though they are found guilty of the offences punishable under Section 324 IPC. The question of imposing any fine on them does not arise. The accused shall be set at liberty forthwith.

The operative portion of this order be transmitted to the Jail Authorities immediately.

If any fine amount has been deposited, the same shall be refunded to the appellants.