IN THE HIGH COURT OF' KARNATAKA, BANGALORE
DATED THIS THE 315'? DAY OF JULY, 2009
PRESENT
THE HON'-BLE MR. JUSTICE KSREEDHAR RAO
AND
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
C1'l.A. NO. 1293 OF 2006
BETWEEN:--
AKBER @ SYED AKBER,
S/ O. ESMAIL.
AGED 38 YEARS.
N_O.55, 6TH CROSS,
VIVIANI ROAD CROSS.
BANGALORE -- 5.
APPELLANT
(BY SR1 KB. MANJUNATH REDDY FOR
C.R. ABDUL RASHEED & ASSCTS., ADVOCATES)
AND:--
STATE OF' KARNATAKA.
BY S.H.O.,
K.G. HALLI POLICE STATION.
BANGALORE.
' RESPONDENT
{BY SR1 S.B. PAWIN, SPF)
THIS CRLA. IS FILED U/S3374 CR.P.C BY THE ADV.
FOR THE APPELLANT AGAINST THE JUDGMENT DT.
21.4.06 PASSED BY THE ADDL. S.J., FTC--II, BLORE CITY,
IN S.C.NO.637/03 -- CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
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K.)
U/SS. 302, 506{B] OF {PC AND SENTENCING HIM TO
UNDERGO IMPRISONMENT FOR LIFE FOR THE OFFENCE
PUNISHABLE U/S302 OF IPC AND TO PAY A FINE OF
RS.2000/- AND IN DEFAULT, TO UNDERGO RI. FOR SIX
MONTHS FOR THE OFFENCE PUNISHABLE U/S.506(B) OF
IPC. BOTH THE SENTENCES SHALL RUN CONCURRENTLY.
THE APPELLANT/ACCUSED PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.
This appeal is coming on for hearing this day.
SREEDHAR RAO. J .. delivered the following:
J U D G M E N T
One Bibijan is the deceased. One Akbar is the
neighbour of the deceased. The accused is the friend of one
Babu~PW3 who is the son of the deceased. On 14.3.2003 at
5 p.m., the accused visited the house of the deceased. PW3
and his Wife had gone to Shivajinagar market; the deceased
Was alone in the house. CW3 Shahira and CW4 Yasrneen
neighbours were present at the house. The accused came
and enquired about PW3. The deceased told that PW3 had
gone to market. The accused abused that the deceased
ob}ects his visit to the house, therefore, pushed her inside.
CW3 and CW4.» object the accused for his misbehavior. The
accused with the knife threatens CW3 and CWQ and they go
away from the place. The accused took the deceased inside
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the house throttled her neck, also fisted and assaulting her.
Thereafter the accused fled away from the scene. PW2 and
PW3 come to the house, they found the deceased iying
unconscious. PW3 sprinkled water, the deceased become
conscious. The deceased informs the incident and she is take
to PS. The statement of the deceased is recorded at E:-::.P.1.
Thereafter the deceased is taken to the hospitai. The
deceased had sustained only some simple injuries on the
face. The doctor after examination sent her back to the
house. The deceased died on the next day at 11.55 p.rn.
The PM report discioses that there was extensive
haemorrhage and congestion in the kidney and death is as a
result of cardiac failure on account of the injuries sustained.
The accused is charged for committing offences
punishable u/ s 302 IPC.
The prosecution has projected PW1–grand son of the
deceased as eye witnesses to the incident. His evidence
discloses that when he returned home at 5 p.m. he finds the
accused was sitting on the chest of the deceased and
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throttling her neck. CW3 and CW4 were also present at the
scene. The presence of PW1 at the scene at the time of the
incident is not mentioned in the FIR. The FIR version
discloses that later on PW2 and PW3 came and found the
deceased lying unconscious and they sprinkled water, the
deceased become conscious, thereafter complaint is lodged.
The FIR Version discloses that CW3 and CW4 are eye
witnesses to the incident. The said witnesses are not
examined by the prosecution. PW2 and PW3 are not
witnesses to the incident. They at the best would be
witnesses for oral dying declaration. The complaint of the
deceased marked at Ex.P1 assumes the character of dying
declaration. The trial court on the basis of the evidence
convicted the accused for the offence punishable u/ s 302
IPC. The accused is in appeal.
The dying declaration at EXP} is credible and
clinchingly establishes the incident. However, the nature of
injuries caused on the deceased mentioned in the PM report
is as under:
” i} Left black eye present.
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ii} Contusion present just above the middle of the
left eye brow measuring 3 Cm X 2 cm.
iii) Contusion present over left cheek prominence
measuring 4 cm X3 CM.
iv} Contusion present over right side of neck 8 cms
Below eight angle of jaw measuring 4Cm X 2
CM.
The doctor–PW1l who conducted the PM was not able to
give opinion immediately after the RM. the organs i., Heart,
Pieces of lungs, pieces of liver, spleen, half of each kidney
and brain were sent to Histopathological examination. The
PM report discloses that the kidney shows extensive
haemorrhage and congestion. The brain, lung, liver, heart
found to be normal. The doctor has stated that the death is
due to cardiac failure as a result of the injuries sustained.
The medical report does not clinchingly establish that the
injury caused by the accused has resulted in the death. The
injuries caused by the accused on the face and at the neck
are all simple in nature. A} the vital organs are intact. The
death takes place almost 18 hours after the incident. The
9K
deceased was also examined some time immediately after the
incident and she was found normal. The injuries caused by
the accused have no propencity to cause damage to the
kidney. resulted cardiac failure. The deceased is an old lady,
aged about 85 years. It is quite natural that on account of
kidney failure, the deceased died of cardiac failure and not
on account of the injuries inflicted by the accused. The death
is a natural death. in that view of the matter, the conviction
of the accused u/s 302 IPC is bad in law. the same is set
aside. However, the prosecution has proved that the injuries
caused on the deceased are simple in nature, hence, the
accused is convicted for an offence punishable u/ s 323 IPC.
The appeal is partly allowed. The order of conviction of
the accused for an offence punishable u/s 302 IPC is
modified to Sec. 323 IPC. Hence, the accused is convicted
for an offence punishable 21/ s 323 IPC.
The accused is in detention for over a period of five
years. Hence, the accused is deemed to have served the
punishment prescribed to Sec. 323 IPC.
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