Nagaraj vs The State Of Karnataka By Vidhana ...

on 10 July, 2013

Karnataka High Court

Nagaraj vs The State Of Karnataka By Vidhana ... on 10 July, 2013
Author: B.V.Pinto
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 10TH DAY OF JULY, 2013

:BEFORE:

THE HON'BLE MR.JUSTICE B.V.PINTO

CRIMINAL APPEAL NO.1301/2006

BETWEEN:

NAGARAJ,
S/O.RANGAIAH,
AGED ABOUT 48 YEARS,
RESIDING AT NO 1437,
2ND CROSS,CHANDRA LAYOUT,
BANGALORE CITY. ... APPELLANT

(BY SRI.HASMATH PASHA, ADV.,)

AND:

THE STATE OF KARNATAKA,

BY VIDHANA SOUDHA
POLICE. ... RESPONDENT

(BY SRI.DORE RAJU, SPP)

THIS CRL.A FILED U/S 374(2) CR.P.C AGAINST

THE JUDGEMNT DT. 19.6.06 PASSED BY XXXIII
ADDL.CC.,& SJ., & SPL. JUDGE (NDPS), B'LORE IN
S.C.NO.45/98 CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 304 II IPC. AND
SENTENCING HIM TO UNDERGO SI FOR 3 YEARS &
TO PAY A FINE OF RS.5,000/- (RUPEES FIVE
THOUSAND) AND ID., TO UNDERGO IMPRISONMENT
FOR 3 MONTHS. THE APPELLANT/ACCUSED PRAYS
THAT THE ABOVE ORDERS MAY BE SET ASIDE.
2
THIS CRIMINAL APPEAL COMING ON FOR
CONTINUATION OF ARGUMENTS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-

JUDGMENT

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 Nagaraj vs The State Of Karnataka By Vidhana ... on 10 July, 2013

This appeal is filed challenging the Judgment dated 19.06.2006 passed by the XXXIII Additional
City Civil and Sessions Judge and Special Judge, Bangalore in SC No.45/1998 convicting the
appellant/accused for the offence under Section 304-Part-II of IPC and sentencing him to undergo
simple imprisonment for three years and to pay fine of `.5,000/-, in default to undergo
imprisonment for three months.

2. It is the case of the prosecution that, on 09.10.1997, at about 5.30 p.m. within the compound of
Multi-storied Building near Vidhanasoudha within the limits of Vidhanasoudha police station,
accused committed murder of the deceased-Manjunatha intentionally by assaulting him with a club
and kicking him on his stomach and thereby, he is alleged to have committed an offence under
Section 302 of IPC.

3. The prosecution in order to prove the case has examined in all 15 witnesses and got marked
Exs.P1 to 15 and produced Mos.1 to 7. The defence of the accused was one of total denial. However,
by the impugned Judgment the learned Sessions Judge was pleased to convict the appellant and
sentence him as herein above mentioned. It is this judgment of conviction and sentence for the
offence under Section 304-Part-II of IPC which has been challenged by the appellant in this appeal.

4. The deceased-Manjunatha approached the Sub-Inspector of Police, Vidhanasoudha police station

on 09.10.1997 and lodged the complaint stating that, he is working as a group 'D' employee in the
Accountant General Office. On 09.10.1997, at about 5.30 p.m, he completed his work and when he
was going in front of M.S.Building, his brother-in-law by name Nagaraja came to the spot and with
previous enimity assaulted him by means of a club on his nose, as a result of which he sustained
bleeding injuries and lost his conscience and fell down. At that time, his friend by name
Ramamurthy came near the spot and with his help, he went to the police station and thereafter, he
was taken to the hospital and there he has taken the treatment. Hence, he has requested for taking
suitable action against Nagaraja. He has also produced the blood stained shirt before the police
station. The police on receipt of the said complaint registered the case in Crime No.144/1997 for the
offence under Section 324 of IPC and transmitted the FIR to the jurisdictional Court.

5. It is the case of the prosecution that, the said injured-Manjunatha had been taken to the Manipal
Hospital after being taken to Maruthi Hospital and PW.13-Dr.Srikanth has stated that, on
10.10.1997, the injured-Manjunatha was brought to the hospital at about 10.20 a.m with a history of
alleged assault. Prior to his coming to the hospital injured Manjunatha was treated in two other
hospitals namely Bowring Hospital and Maruthi Nursing Home. At the time of admission of the said
person was observed to have features suggestive of peritonitis and septicemia. However, there were
no obvious evidence of external injuries on the person of the patient. It is stated by
PW.13-Dr.Srikanth that an emergency operation was conducted on the injured-Manjunatha.
Thereafter, though proper treatment was given to the injured, on 20.10.1997, Manjunatha died at
about 7.50 a.m. Thereafter, a case for an offence under Section 302 of IPC was registered by the
police and after completion of the investigation by the police, charge sheet came to be filed.

6. PW-1 -Ramamurthy is the Account Assistant cum Cashier in Allied Publishers Limited. He has
deposed before the Court that, he is working in Allied Publishers Limited which is situated in

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 Nagaraj vs The State Of Karnataka By Vidhana ... on 10 July, 2013

Gandhinagar and he knows deceased-Manjunatha. He is the childhood friend and that he is residing
in Domlur. He has stated that, on the date of the incident, himself and one Chandrashekhara left the
office at about 5.25 or 5.30 p.m. to go to the office of Manjunatha. It is in his evidence that, when he
went near the gate of M.S.Building, Venkatesh was also waiting for them and they had gone there in
order to discuss about tour for Dasara holidays. All three of them proceeded towards the office of the
said Manjunatha. Near a turn in between S.K.S.J.T workshop compound and M.S.Building lane,
Manjunatha was coming from the opposite direction towards them and when Manjunatha was so
coming, accused/appellant assaulted him with club on his face and forehead in an oblique way. He
also abused the injured-Manjunatha and the latter fell down and then the accused kicked him with
his shoe-leg on the stomach for about four to five times. On seeing it, they raised cries and they ran
towards Manjunatha and went near the accused. But accused fled away. Thereafter, they took the
injured-Manjunatha to the police station. The injured was thereafter taken to Bowring Hospital.
PW.1 has been thoroughly cross- examined by the defence and it is suggested that, he is deposing
falsely at the instance of the relatives and one Padmavathi-PW.4.

7. PW-2 -Venkatesh has also stated that, on the date of the incident, he had also seen some body
assaulting the deceased-Manjuntha by club on his nose. The said incident took place in 'kaludaari'
towards M.S.Building and S.K.S.J.T workshop compound. He has also identified MO.3-club by
which the assailant had assaulted on the injured-Manjunatha. There is evidence of PW.2-Venkatesh
that it is the accused before the Court who had assaulted the victim.

8. PW-3 -Thimmaiah.T has stated that he is a watchman in the Department of Personal

Administration in Vidhanasoudha and that he has seen accused assaulting the deceased. He has also
stated that near the gate on the road by the side of M.S.Building, accused was assaulting a person on
his forehead. He has identified PWs.1 and 2 and the persons who were present on the date of the
incident. PW.3 has also stated that the injured fell down. Thereafter he was taken to the
Vidhanasoudha police station. He has stated that, he had seen the occurrence from about 300 feet
away from the scene of occurrence where there is a tamarind tree.

9. PW-4 -Padmavathi is the wife of the deceased. She is not an eye witness to the incident. She has
spoken about the motive for the incident.

10. PW-5 -Kutti has turned hostile to the case of the prosecution and has not supported the
prosecution case.

11. PW-6 -Bhaskar is the Assistant Executive Engineer of PWD who has drawn the sketch of the
scene of occurrence.

12. PW-7 - Dr. B.R.S.Kashyap is the retired Senior Specialist at Victoria Hospital. He has stated that
he has conducted the postmortem examination on the dead body of the deceased-Manjuntha and
has issued certificate as per Ex.P5.

13. PW-8 -Krishnamurthy is the brother of the injured-Manjunatha. He has stated that, on
09.10.1997, at about 5.00 p.m, he came to know from his brother that accused had assaulted him.

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 Nagaraj vs The State Of Karnataka By Vidhana ... on 10 July, 2013

However, he is not an eye witness to the incident.

14. PW-9-Suersh Narayana Gaonkar is the Scientific Officer, Forensic Science Laboratory, Madiwala
who has stated that, he has tested the clothes of the deceased and has found the blood stains in
them. However he could not identify the blood group as the blood had disintegrated.

15. PW-10 -P.B.Paranjape, Senior Auditor of the Accountant General Office has stated that, the
deceased was working as a group 'D' employee of his office.

16. PW-11 -Krishnamurthy is also an attendar in the Accountant General Office.

17. PW-12 -N.Munirajaiah is the Assistant Writer in the Vidhanasoudha police station. He has stated
that, on 11.10.1997, on receipt of the memo from the Airport police station, he went to the Airport
police station and after collecting the memo, he went to the Manipal Hospital. However, the
injured-Manjunatha was not in a position to talk. Hence he returned to the police station.
Thereafter, on receipt of an intimation regarding the death of the injured-Manjunatha on
20.10.1997, he assisted the Inspector during the inquest proceedings on the dead body of the
deceased.

18. PW-13 is Dr. Srikanth about whose evidence a mention is made in the earlier part of this
Judgment.

19. PW-14 -Nataraj is a pancha witness who has turned hostile to the case of the prosecution and has
not supported the case of the prosecution.

20. PW-15 - Dr. Prakash is the Medical Officer of Bowring Hospital. He has stated that, on
09.10.1997, at about 7.30 p.m. a person by name Manjunatha aged about 33 years was brought by
Police Constable 6775 of Vidhanasoudha Police station with history of assault by one Nagaraja with
hands and sticks. It is in the evidence of PW.15 that the history given by the police was confirmed by
patient also.

21. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has
found accused guilty of the offence under Section 304-Part-II of IPC and convicted and sentenced
him as aforestated.

22. Heard Sri.Hasmath Pasha, learned Counsel appearing for the appellant and Sri.S.Dore Raju,
learned SPP appearing for the State.

23. Learned Counsel for the appellant submits that, except complaint given by Manjunatha stating
therein that he was assaulted on his face by the appellant, there is no other material connecting the
accused regarding the commission of the offence either for the offence under Section 302 of IPC or
for the offence under Section 304-Part-II of IPC against him. The injured was taken to the hospital
by the police constable bearing No.6775 and the said constable has not been examined before the
Court. He further submits that, PWs.1 to 3 have been implanted as witnesses subsequently because

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 Nagaraj vs The State Of Karnataka By Vidhana ... on 10 July, 2013

the chance of PWs.1 to 3 being present at the scene of occurrence is very remote, since PWs.1 to 3
are working near Anand Rao circle and it is in their cross-examination that, the time on which they
are supposed to have seen the incident is a busy shopping time and neither the shop keeper or any
other person has been examined to prove that the shop was closed by 5.00 p.m., which is an
improbability in the normal course of business.

24. It is further submitted by him that, the presence of PWs.1 to 3 is doubtful. It is further submitted
by him that, they have narrated the incident of alleged kicking for the injured. But the complaint-
Ex.P1 does not contain any allegation regarding kicking of the deceased by accused. However, both
of them have stated that, they had seen the incident from the distance of 100-150 meters, whereas
the road or lane in front of M.S.Building is a very busy road in the evening hours, since the
employees of Vidhana Soudha and other Government Officials would move towards bus stand
situated either at K.R.Circle or at High Court through the said road. Therefore the possibility of
PWs.1 and 3 observing the said incident is too remote in this case. It is further submitted by him
that, PW.3 is working in Vidhanasoudha which building is facing towards High Court and therefore,
the scene of occurrence is never in the vicinity of PW.3. Therefore, he submits that, in the absence of
any credible or cogent evidence, the chance of eye witnesses present at the scene of occurrence is
very remote and therefore, the order of conviction is not sustainable.

25. It is also further submitted by him that, the deceased was discharged from Bowring Hospital
after being treated on the same day. There is absolutely no evidence as to how the deceased reached
Manipal Hospital and no person has been examined to prove that the deceased was discharged from
Bowring Hospital and was taken to Manipal Hospital. Under the circumstances, the prosecution has
not proved the case against the appellant beyond all reasonable doubt. Hence, he submits that, the
appellant is entitled to an order of acquittal and the appeal be allowed.

26. Sri.Dore Raju, learned SPP on the other hand submits that, Ex.P1 is registered on the basis of the
complaint of injured-Manjunatha. In the said complaint, deceased-Manjunatha has stated that, he
was assaulted by accused by means of club on his nose on 09.10.1997 in front of M.S.Building. This
statement of PW.1 is further corroborated by the evidence of PW.15-Medical Officer of Bowring
Hospital. Hence, he submits that, the prosecution has proved the case against the appellant beyond
all reasonable doubt in view of the evidence of the eye witnesses PWs.1 to 3. Hence, he submits that,
the order of conviction be sustained and the appeal be dismissed.

27. I have gone through the evidence of the prosecution witnesses and also other documents
produced in this case carefully. It is seen that the incident had taken place in the busy road towards
S.K.S.J.T. workshop compound and M.S.Building at about 5.30 p.m., Necessarily it is a very busy
road. Therefore, the visibility of any person to see the occurrence is very remote. PWs.1 to 3 have
given eye witnesses account stating that the accused had assaulted the injured-Manjunatha by
means of a club and when he fell down, accused kicked him on his stomach. If at all these versions
are true, when Manjunatha was taken to the Vidhanasoudha police station, nothing prevented
PWs.1 and 2 from explaining the incident as to what had happened. However, Ex.P1 does not make a
mention of kicking on the stomach. But, only mentions about the assault on the nose. Therefore,
PWs.1 and 2 cannot be believed as against document-Ex.P1. Further, the Head constable

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Somalingappa who has received the complaint from the deceased-Manjunatha and the constable
P.C.6775 who has taken him to Bowring Hospital has not been examined in this case. It is also seen
that there is total blank insofar as the evidence is concerned regarding the injured being found in the
Bowring Hospital and on the next day being found in the Manipal Hospital. Nobody has spoken
regarding the fact as to how the injured Manjunatha was shifted from that hospital to the Manipal
Hospital. It is the case of PW.13-Dr.Srikanth that, before the patient was brought to the Manipal
Hospital, injured was taken to two other hospitals and there is no evidence to show as to who has
treated the said injured or what is the treatment given to the injured in the said hospitals. The
opinion of PW.13 is that, the deceased had died of peritonitis and septicemia and the date of the
death is 20.10.1997. PW.13 has clearly admitted that the name of accused has been inserted
subsequently in Ex.P11, the memo sent to the police. Hence it is clear that the name of accused was
added subsequently. Since none of the police officials are examined to prove the authenticity of the
original complaint given by deceased himself as per Ex.P1, the very complaint Ex.P1 is not proved
beyond doubt. Under the circumstances, the prosecution has not proved the case against the
appellant beyond all reasonable doubt, insofar as the involvement of the appellant in the death of
the deceased is concerned.

28. On considering the totality of circumstances in this case as discussed above, I am of the
considered opinion that the appellant is entitled for an order of acquittal. Accordingly, the following
order is passed:

ORDER The appeal is allowed. The order of conviction and sentence passed by the learned Sessions
Judge against the appellant is set aside and he is acquitted of the offence charged against him. Bail
bond executed by him stands discharged. Fine amount, if any deposited shall be refunded to him.

Sd/-

JUDGE KSR

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