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(HRCUHTfi%K}iHTDHARWAD
DATED T}-IIS THE 26"" DAY OF 0cT0BE_E:;"'20:_~e..: ;_. 4
BEFORE
THE HONBLE3 MR. JUSTICE NAf{AY}\TN}X_SWA?xi_Y A I
CRIMINAL APPEAL No'.'15'29/2o_9"_4AV.'V': 2 "
BEHNEEN:
1. SRIKANTH, ..
s/0 KRISHNA HORAKERI ;
AGED ABOUT 23 YEARS, .
OCC: MECHANIC IN.-VRLe.:COM;P\ANY. A
R/O vARUR~H_Uf-BL1,l;_ I '
DISTRICT ;t)rL{~_1*RwA.RD.' _
2. VIJAY, s/0 KR{S}:{N}¥} HC= R1\Ki¥3RI:._
AGED ABOUT-2_'1;YEAfR'S,
STUDYING I'I_'I_DIP.LC)V_l'x/IA =
R/O HUBLI, 1)_1sR1c'1*.EHARVVAL). '
3. SMT. MALLAW./_A LAXIVH
W/O KRISHNA HORAKERE,
- .AGED»ABQUT' 45 YEARS. «
A Occ: "HOUSEHOLD WORK,
'R/ Q 'H.u£s1,1; ~ ~I7)'IE3'I'RICT DHARWAD.
A V A V' bv * vs» ?§;%'§goaiif&v?gm
~ « IA-ND'
" ~ . _V ': ~.i*H.Ej OF KARNATAKA.
' BANAKAR, HCGP]
RESPONDENT
\
and to pay compensation of Rs.15,000/– t.o PW~5 and
appellants Nos.1 and 3 are convicted for an offence
punishable under Section 323 of the Indian
and sentenced them to pay a fine of each”
and in default to undergo simple im.pTrison.n1ent=”forV.;3.’
months and in default to und..e1-go lsignple iien’pVris_on11ient
for three months and in lieu of-,su–b_stanLi«x}e lsenfitence of
imprisonment, they compensation
of Rs.5,000/~ each to.~P”vV{5 and in
default the _iteaelizic,d dnlder Section 431 of
the Code léfdced_urveVland paid to PW15.
he c_ase’–oft”the«prosecution is as follows:
is in the on 01/01/2001 the deceased
l”K1fislinEaf G’angara1VnHllChikkodi was on his way to his
fel~t.-‘giddy and was about to fall. Seeing him,
accL1se;l’i’lo’j3~Mal1avva Horakeri laughed and when the
it de,e_ease*d asked as to why she was mocking at him,
“‘:1ci(:t1sed No.3 abused ti’/e deceased in Vulgar words and
in turn the deceased also abused accused No.3. As a
result, on 02/01/2001 at about 1.30 p.m. uriienfiusifiiig
deceased was sleeping in his house, accused”Nos.”1:”t:’ane’d— ~
2 along with their mother accu.se»d»..No.?3hbeanie be
house of the deceased and questfionedi’
to why he had abused accusedfo.3 onth.e1p1:eifious”jday ” V
and at that time, accused No’.’b’10ws§ on the
face of the deceased, the deceased
on his stomac1″1′:ai1d with hands
all over the’ the husband of
accused “instigated and abetted
the offerice; the deceased suffered severe
pain;’in_ston1ach”and could not sleep and therefore in
d on 03/ 01 /2001, his mother
.5) took the deceased to KIMS hospital,
Hubli a.::1d’va’fter initial checkup, he was admitted in the
hospital.’ On reciept of MLC information, PW-15 the ASI
oi””Keshwap1.1r Poiice Station visited the hospital and
“”i*ecorded the oral complaint of the deceased as per E£x.Pw
i
4 and based on the same. case in Crime No.3 / 2001 was
registered for the offences punishable under Se_ctio’ns
323. 324 and 504 read with Section 34
Penal Code against. accused Nos.l
forwarded FIR to the Magis»trat.c24,AAfj» i
06/ 0 1 / 200 1, the deceased»’w.as op’e.ra’i;ed ;
course of treatment on 20(a)’l’, vvfdeceased
started passing blood-..t:hifoIigh_ at about 11.58
p.:m. breathed his lastiia jthe—h:o_s’};:.iitalZ”. is the further
case of the deceased died due to
the .4fj3,r’_’mthe’. accused on 02/ 01/ 2001.
Hence,A’SectioriV.e_§5o:g. Code of Criminal Procedure
wasiviricludedi-.and” after investigation, charge sheet came
,.¢.,tofi’Oe all the five accused under the
*- afores aid-« ns.
3._ ‘i”3:i’tie accused appeared through counsel and
deiliedthe charges levelled against them and claimed to
Statement of the accused under Section 313 of
\”
6
the Code of Criminal Procedure was recorded. On
behalf of the prosecution, PWs.1_ to 19 were ex£’¢hi’ined
and EXS.P~1 to P-24 and M.Os.1 and 2 were
The accused did not lead any defencev—-eifideri:ee..but
Exs.Dm1 and [)–2 were got at
examination of the witness»-i§s’.«.__issues’Were
4. The trial Court, the oral
and documentary Iby Hvjludgment
dated 30 / 09/ 2004 I to 3 for the
aforesaid by the said
are before this Court.
5. aiivdnéfare the panch witnesses to the
sp_otj«:.pEaAr1chanai*11a::E:s:.P~I and PW–4, who is also panch
‘ w’itnesstov”sei;<ure panchanama, has turned hostile and
h_isll'evidencje.is of no assistance to the prosecution. PW~
5 is rhother of the deceased. PW~7~£)r. Dattaraya
Baljurao Kulkarrii conducted post mortem. PW–8
i31*.Satyabodh21 k. katti got admitted the deceased at
i
KIMS hospital and issued wound certificate. PW«9 is
the Assistant Executive engineer who p1'epa1jeldljt.'he
sketch of the spot as per EX.P–11.
grandmother of the deceased. Pwf 1 1 is _t’l.1e– of ‘w
deceased. PW-13 SiddappaSon’1.appa
Head Constable of Kesliwa_purl’~Police f:lStati.QVn
carried the FlR-EX.P~ __13 to is the
Police Cosntable who”has7.spoi:ef1–l.:i:ofabout the efforts
made by him nab .th”e” . Dr. Basawant
Sangappa. ti-.e_at.ed~..”afivd ogiefated the deceased
at 1_9_– the Taluka Executive
Magistrate whucolndtietedtest identification parade and
PWs; ifiand 1 afe the .inVestigat.iI1g officers.
‘Lear’ried counsel for the petitioners submits
in filing the complaint. and the said
delay not been explained satisfactorily by the
V. p:’o4seci’;1tioI1. As per the complaint«Ex.P–4, the alleged
lilnlcilderit took place on 02/01/2001 at “H30 p.m.,
T
however, the complaint: has been lodged on
03/01/2001. PW–15. who is stated to have recorvde:(‘l*the
statement of the deceased in the hospital, H
that EXP-4 bears the signaturemof «ABI_it
contraiy to the same, PW–:_l_6
statement./complaint-Ex.P44gis froth’ reco’19c'(ed..V_VVin_V§ hisnli»
presence and denies the si_g’1*iatcu.1je found orii EXIDW4.
Hence. the learned coimsel %.sul’j’1njivts’~that Ex.P–4 has
come into erdstencei-uiider s,u»spici01,i’s»” circumstances.
PWs. 5 and-» aife__Ati1e mother’ grand–mother of
the +;leceas’el:}_., _re.spe.ctiVely.- who are eye wintesses
8.CCOFdi’I’1.g’ljQ the hp-1*osVe’e1_ition, are planted witnesses and
theijefore tiheifevidence is an improvement. In the
c.ofi.3.}.31ai’iitv?E?1§;.P-4,mthe injured has stated that when the
he was alone in the house but
cof’it.ra-fly the same, PWs.5 and 10 have deposed that
it they Were present when the incident: took place and
they made an attempt to interfere but they were
it “preventzeci from doing so. Hence, the learned counsel
T
9
submits there is Contradiction in the statement of the
deceased and PWs.5 and 10. Learned counsel
relies on the place of incident. PW–15 in H
has deposed thatrfhe incident hastaken the ‘w
house but PWs.5 and 10 have
same and as per the sketch ‘drawn”b3f PW9: as ‘per I33x.P–.:*
1 1 the place of incident is the per the
co1np1aint~EX.P–4 i§VVs.6 and 15, the
incident took ‘place outside 1.30 pm. and
the area such being the
case,a_ the A’ ‘ivi’._-pijosecudtiovn _ -should have examined
indepenci_ent Witne.s–s{“—.__S’ince no other witness, except
the;1’e1ative:5.., p’1″thex’ deceased, who are all interested
witness; hiavte been examined, it can be construed that
the has failed to prove the case. In respect
oft-he»._’inj’:t19ies sustained by the deceased, the learned
eoiinseissubmitted that the Doctor–PW-8 who admitted
°frhe”:patient at the first instance who issued the MLC
“”fegister as per Ex.P<O, has deposed that on
10
examination. he found two external injuries. swellirig
and tenderness on both cheeks and superficial abrasio.r1
and haernotonia on left tempero parietal regioriceplof ”
scalp. in his crosswexamination;”hehas de_posed’–.that
the said injuries are simple in ria_tt1–re. as
evidence of Pw-17, the Doctoifhvho
and also conducted. deposed that on
further examining it ‘th;’eltt_i’I.1jured was HIV
patient. the patient
developed? he died. Further
postmortem over
the that death is due to
septcacemic’-shock has a result of perforation of colon
” intreaebeiomirial hemorrhage as a consequence of
on the abdomen. The opinion of
PW–s.7–__”and 17 as regards the cause of death is not
it ~cogent”and hence the prosecution has failed to prove the
T he learned counsel farther submitted that PW.’7
it not a competent doctor since he has not treated the
<
injured, his op.inio11 as regards the cause of death
should not haw: been considered. The death"
injured according to the appellant is not becau;se..'_*o.f _
injuries suffered as alleged by p1*os_e'c'u–t:ii:ori"'ou<t for 'w
the reason that the injured was'».st1fi'esr.ing'=frorrr H'E\:f.__an;dA
for the reason that while t1'at1s_fusion'VefVb1ood_; tlfie
did not accept the sarne of the
injured and under counsel
prays to a11OW'_:th__€ 1 and 5
have been for the major
offence of accused 1-2 has been
sentencedfor two"simple injury and with a fine
of the fight of the order passed by the trial
court parties have confined this submission
under Section 325 of IPC.
‘~’v7x.”;.Lear-ned Government pleader submits that the
st.at’eI11ent as per Ex.P4 was recorded on 3.1.2001 in the
hospitai which is natgurai course of action and the same
X’
X
has been “treated as evidence under Section 302 of the
Indian Evidence Act. The said statement of the,inj_ured
was recorded and 15 days thereafter he _
the statement as per EIXP4 is _at par being ”= ‘V
declaration to reply to the subrfiissiioni’
as regard the place of ‘j/ifftf-i.t1ent”‘ the
Government Pleader per th:e’jew:fdence of
PW.5–10 and also as a.s per EX.P-
11, incident_to:ok_ pialcejihouse and it is
supported; i V
as regards the injuries
sustairiedéby he submits that the Doctor-
who treated the injured has deposed that
oiily two simple injuries and after the injured
deizeIop4e’d,»v__st.orriach pain he was referred to PW. 17 and
PW’;17~’–.’onv ‘examination found two external injuries and
V ‘later conducted surgery on 6.1.2001 a.nd opined that
Aitjhefl initial injuries were grevious in nature. PW.”/’
it “supported the prosecution by deposing that on
1
conducting postmortem he found the surgery made to
the injured. Hence, the Government Pleader
that t.here is no inconsistency in the evidenaje’ of..EWE3t V’
and 17.
Insofar as the evidence »5.’.a11d«.
concerned. learned Governriieitt Pieader. sthatd’
they have stated in~..their’meVi.denc.e’ that” they were
present when the incicient accused
were assau1ti*ngjd:eeceased in his death.
:;..A_C}o*-Lfeifnrnent VVV_Pvieader further submits
that the alenient View in the matter
and awardedvvlesser._pu.riishment by bringing down the
offence tinder«Section 302 to 325 IPC. Hence. he
‘foridisrnissai of the appeal.
izzaoth sides. I have gone through the oral
and documentary evidence piaced on record.
<
9. The statement of the injured was recorded on
3.1.2001 wherein he has stated to the police a.ftei’—-.»t.he
incident that took place on 1.1.2001,
accused 1 to 5 entered his house and asls’a,ulted.l1ilm-.1 K
recklessly and was beat on his stomach
admitted to the hospital_r’o_y his._niotl1er»–“?.an’d: gi’fandl’*a»
mother on 8.1.2001 and at 12.00 before the
police, he gave stater_fient–}Vi Inthis_i’st.atement he has
stated that on 2.1.2.001 fthe”v,ai’t-evrenoon he was
assaulted. hefevidence that the
incident 1.30pm and at that time
she was.__in_the._ the accused entered the
hoLrsev_ _Accu’seVd’No..l1 assaulted with hands and kicked
ac;c_usedlllll§lo.5 kicked with bootlegs. Accused
her son with bootlegs and accused
No”.”3 sl’a;3p’ed him with chapple. Further. she deposed
1′ that thefiaccused dragged her son outside the house and
lgooiired water on him when she and her mot:her~in~law
11 “PW. 10 tried to intervene. they were pushed away and on
‘K
the next. day, she took her son to the hospital and the
police were informed about the incident by thev.d»o:cto1*.
PW–5 in her cross examination has deposed””th.at::
was inside the house when the incident too}:-.;.jiVac’c. * _
10. PW.1O who is the
deceased in her examinationivifn.chiet’*s_hehas’idei)osed
that on the date of incf1d_ent’.sh’e”V’. house of one
Laxman and after hearing came out of
the house taken out of
the house iind:-‘Was”‘ass.ai;i1tecI…2)y7aI1 the accused, which
has resulted in 5’ri’eVo*L:s’ei.ri””u H to stomach.
11. the neighbour, though has
..itur1v.ioexti hostile, has””d’eposed in her examination in chief
of the house after the incident and at
persons had gathered in front of the
‘house oftéhe accused and she learnt that accused have
V”22ssa_u:1ted Krishna–comp1ainant. So far as the
.i'(_:Vo_f1ter1t;ion that there is a delay of one day, it is not fatal
<
the judgment: reported in 2006(2) KCCR 1202 that dying
declaration alone cannot. be a basis for convictionlland
the Cannot. be accepted in View of
circumstances stated supra.
l2. So far as the injtiriesleau.-sed
on the person of the injuredis eonzyerned;”the.eVidenCe_
of PWs«7, who conducted po4s’te-uniortern’ «.:(§\l€1′ the dead
body opined that deathi”s_Ad’ia,ie lspetieaemic shock as a
result of perfo’ration;””‘of– ifeolonp intra abdominal
haemorrhagev<asilf;a.'_ Cor1ase.qu.e1i(;e ofmblunt force impact
on they abvdoinen:§.l%5V'J:f8.:lwho .init1'ally treated the injured
has deposed that only two simple injuries and
after' -he dVeiv.e1oped.l"st.omacl1 pain, the injured was
PpW~w17VH'and PW~17 on examination found two
eX.t_er1na4l"-in]uiries which were simple in nature and the
int'erna1'i~njL1ries were grievous in nature and he was
operated on 06/01/2001. Thus the evidence of these
'''witnesses supports the ease of the prosecution that the
.. ,,.-giccused pave cornmit.t.ed\§he offence punishable under
H' Hkrnv
19
accused and I do not find any ground to interfere with
t.he well considered judgment.
13. At this juncture, learned counse}’Tt”or:”y:’*the
accused No.2 prays for reduction of pur1i.s’hme:n’t”don’
humanitarian ground and a1so.’Eook’i’ng Tat
also the family back ground of =
Government Pieader, initiadldiyy:’though_V_ agree,
Eater submitted that ‘1*s_for_’tneA to consider.
Heard both side_s.’d’ the socio-
economic and.[_ocVc’L1patior_’1 of accused No.2, sentence of 2
years is .__reduce_d =..t’o “year. Accordingly, accused
N02 ‘visyyeordw-icte’d’ for the offence under Section 325 of
Pena} Code to undergo simple imprisonment
“‘ forcne V V
A.,ct1<;rding1y. the appeai is dismissed.
3&5
TUSDGE