23 September 1996
Supreme Court
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STATE OF KARNATAKA Vs DIWAKARA BHAT

Bench: FAIZAN UDDIN (J)
Case number: Appeal Criminal 29 of 1989


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PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: DIWAKARA BHAT

DATE OF JUDGMENT:       23/09/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) MUKHERJEE M.K. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin, J. 1.   This appeal  by the State has been directed against the reversing  judgment  of  the  High  Court  of  Karnataka  in Criminal Appeal No. 660 of 1986 setting aside the conviction of the  respondent recorded  by the  Session Judge, Kannada, Bangalore in  Sessions Case  No. 65  of 1985  for which  the respondent was  sentenced to  pay fine  of  Rs.  5000/-,  in default to  suffer simple imprisonment for one year.  It was directed by  the learned Sessions Judge that the entire fine amount, if  realised, shall  be paid  to Thara  Kini, PW  1, widow of the deceased N.B. Kini. 2.   The deceased  N.B. Kini  was working  as a  Manager  in Navabharath Printing  Press  at  Mangalore.    The  deceased alongwith his  wife.   Thara PW  1 and  son were living in a rented premises belonging to the respondent since about more than a  decade from  the date  of occurrence.  A part of the house was  occupied by  the respondent  and his father while other part  of the  said house  was  in  occupation  of  the deceased and  h is  family there being a common wall between the two  tenements.   There were four steps leading from the tenement in  occupation of  the deceased  to the  courtyard. Those steps  were also  common to  both the  tenements.  The house of witness Prabhaker, PW 2 was on the opposite side of the house of the deceased beyond the road while the house of Nagveker, PW  3 was  on  the  right  side  of  the  tenement occupied by  the deceased.   According to the prosecution on 3.7.1985 the deceased brought a T.V. Antenna and pipes which were kept  in the  Angala which has a concrete flooring.  At about 2.15 PM the deceased and  his wife were sitting in the verandah after  taking their lunch.  It is said that at that point of  time the  respondent opened  the door  and entered into the  varandah and  started talking to the deceased in a raised voice  saying with  whose permission  he had  brought that Antenna.   The respondent is alleged to have abused the deceased and  told him  that he would see as to how he fixes the Antenna.   The  deceased, however,  asked the respondent

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not to  get agitated  and requested  him to sit so that they could talk  over the matter calmly.  But the respondent went away with  the said  threat.   Shortly thereafter  when  the deceased was going to his office and asked his wife to close the door  and while he was so standing on the door itself on the steps,  the appellant  suddenly came  from his house and again objected as to how he was going to fix the Antenna and so saying he pushed the deceased with great force on account of which  the deceased fell down on the Angala with his face upwards.   His wife Thara, PW 1, raised a cry attracting the attention of the neighbours Prabhakar, PW 2 and Nagwekar, PW 3 and  others who came to the spot.  Thereafter PW 1 as well as PWs  2 and  3 lifted  injured Kini and made him to lie on the cot  inside the house.  Suresh, the son of the deceased, was informed on phone who rushed back home from his college. Suresh and  other witnesses  took the  injured Kini  to  the nearest  Vinaya  Clinic  for  medical  aid  but  the  doctor declined to provide any medical aid and advised them to take him to  Government Hospital  as it  was a  case of  assault. Injured Kini  was, therefore,  immediately  removed  to  the Government  Hospital   where  he   was  admitted  and  given treatment.   Thara PW  1 lodged  the report.   Injured Kini, however, died in the hospital at about 2.15 PM on 4.7.1987. 3.   The respondent  was  charged  f  or  an  offence  under Section 448  and 304  of the  Penal Code.    The  respondent pleaded not  guilty to the charge.  Dr. Arun Kumar Rao, PW 5 who first  attended the  victim in  the Government  Hospital found following injuries on his person:-      1.   Haematoma 3" x 3" on the right      side of forehead.      2.    Haematoma  2"  x  2"  on  the      occipito  parietal   area  in   the      middle.      3.   Abrasion 1/3"  x 1/3" occipito      parietal region close to injury No.      2      4.   Abrasion 1/3"  x 1/3"  on  the      left laternal malleolus. In the  opinion of Dr. Rao, PW 5 the injuries were caused by a fall  on account  of being pushed.  After the death of the victim Dr.  Prakash, PW 6 performed an autopsy over his dead body on 4.7.1985 and found the following injuries:-      1.   Abrasion  over  mid  occipital      region.      2.  Bruises over right nipplearepla      and around.      3.  Bruises over the left areola.      4.   A horse  shoe shaped operation      scar over  the right  part of skull      starting from right frontol bone to      occipital bone, through which right      hemisphere of brain has come out.      5.  A linear issure fracture on the      skull to  the right of midline from      frontal bone  to parietal  bone  to      occipital bone  measuring about  10      inches is seen.      6.     Defect  in   skull  due   to      operation in right tempero parietal      region measuring about 6 inches.      7.   Extensive contuisions  of  the      brain.      8.   Right occipital  and  parietal      lobes protrude through the skull. In the  opinion of  Dr. Prakash,  PW 6  the death was due to

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haemorrhage as  a result  of the injuries.  On evaluation of the evidence on record the learned Session Judge came to the conclusion  that  the  respondent  was  the  author  of  the injuries found  on the  person of  the deceased but took the view that  from the  facts and  circumstances of the case it cannot be  said that  the respondent  intended to commit the murder of  the victim.   He  took the view that the incident took place  in a  sudden quarrel  during the course of which the respondent  pushed Kini  without any intention to commit his murder or with the knowledge to cause such bodily injury as was  likely to  cause his  death.   The  learned  Session Judge, therefore,  took the  view that  the  respondent  was liable only  for  causing  grievous  hurt  punishable  under Section 325  and, therefore,  convicted and sentenced him as said earlier.   The  High Court, however, rejected, reversed the findings,  set aside the conviction and sentence awarded to the  respondent and  recorded the  impugned  judgment  of acquittal against which this appeal has been directed. 4.   Learned counsel  for the appellant-State contended that the evidence  of Thara,  PW 1,  the wife of the deceased was trustworthy which  was further  corroborated by  the  report lodged by  her as  well as  the medical evidence and to some extent by  the evidence of the hostile witnesses PWs 2 and 3 and,  therefore,   the  High  Court  was  not  justified  in interfering with  the well  reasoned judgment of the learned Session Judge.   With  the assistance of the learned counsel for parties  we have  gone through  the relevant evidence as well as  the judgments of the two courts below and find much substance in the submissions made by the learned counsel for the appellant.   It  is true  that PWs  2 and  3 who are the neighbours of the respondent had turned hostile but they had supported the  prosecution story to some extent.  Both these witnesses have  deposed about  the  exchange  of  hot  words between the  respondent and  the deceased  which took  place shortly before the occurrence.  They also deposed that after the incident  they saw injured Kini lying unconscious in the Angala.   Thara, PW  1 had narrated the entire incident from the beginning to the end.  She clearly deposed that when her husband deceased Kini was about  to go to the office and was standing on  the steps  the respondent came, objected to the installation of  Antenna and pushed the deceased who fell in the Angala  with his  face upwards.  There is ample evidence to show  that the  said Angala  is a  rough and hard surface with a  concrete flooring.   The  evidence of Thara, Pw 1 is further supported  by  the  medical  evidence.    There  is, therefore, nothing  on record  to discredit the testimony of Thara PW  1 who  is corroborated by the medical evidence and other material  on record  as discussed above.  But the High Court with  the aid  of ifs  and buts  found fault  with the prosecution evidence and on the basis of certain conjectures and surmises rejected the evidence of PW 1 for which we find no justification  in view of the positive statement that she made. 5.   The High Court also took the view that the incident had occurred at about 2.15 PM while the report of the occurrence was made  at about 5.10 PM and that this delay raised a very serious suspicion about the manner in which the incident had occurred.   But the  fact cannot  be lost  sight of that the injured Kini  had sustained head injury and was unconscious. The first  and foremost concern of PW 1 and her son would be to see  that the  victim is  provided with immediate medical aid without  any further risk to his life.  They, therefore, took him  immediately to  a nearby  private clinic.  But the private doctor declined to attend to the victim and directed them to  go to the Government Hospital as it was the case of

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assault.   The wife and son of the victim, therefore, had to take the  victim to  the Government  Hospital where  he  was admitted and  given medical  aid.   In such  a situation the report was  slightly delayed  for which  there is  plausible reason.   In these  facts and  circumstances the question of any suspicion  or doubt  as  to  the  manner  in  which  the occurrence took  place does  not arise.   The High Court was not justified  in  drawing  an  adverse  inference  on  this account. 6.   Consequently,  the   appeal  succeeds   and  is  hereby allowed.   The impugned  judgment of  the High  Court is set aside and  that  of  the  Trial  Court  is  restored.    The respondent shall  deposit the  amount of fine as directed by the Trial  Court within  a period of three months and in the event of  default the respondent shall be taken into custody to serve  out  the  simple  imprisonment  for  one  year  as directed by  the Trial Court.  The amount of fine if paid by the respondent  shall be  paid to Thara Kini, PW 1, widow of the deceased.