2007(2) Crimes 203 (Kar.)
KARNATAKA HIGH COURT
Chidananda Ullal & V. Jagannathan, JJ.
State by Vidyaranyapuram Police Station, Mysore City - Appellant
versus
R. Raju and Others - Respondents
Criminal Appeal No. 837 of 2000
Decided on 15-9-2006

IMPORTANT POINT
Where accused kicked deceased on testicles and victim died on spot and doctor opined cause of death as vagal inhibition, death could not be treated as homicidal and offence would fall u/s 323 IPC.

Headnote:Indian Penal Code, 1860 - Section 341, 302/34 IPC - Accused respondents tried on charges of offence and acquitted by trial Court - Deceased in a quarrel proceeded to police station to lodge com-plaint - Accused stopped him, caught hold of deceased and one of the accused kicked deceased on testicles and other accused assaulted on chest with hands - Deceased died on spot - PW 4 and 5, wife and daughter of deceased were eye-witnesses - Trial Court found prosecution failing to establish death as homicidal and found discrepancies in evidence of eye-witnesses - State appeal - Cause of death opined by doctor who conducted post mortem was vagal inhibition - Vagal inhibition meant sudden death due to minor trauma - Death from inhibition was accidental - Accused who kicked deceased on testicles could not be said to have intended to cause death or had knowledge that said act led to death - Case fell under accidental death and could not be termed as homicidal death - Trial Court however erred in giving much importance to minor and insignificant omissions and contradictions - Evidence of PW 4 and 5 was acceptable and it proved offence u/s 341 and 323/34 against accused - Accused had remained in custody for 6, 3 and 7 months respectively - Incident was of 1996 - Period undergone by them awarded as sentence for the offences.

       Held : According to Dr. K.S. Narayan Reddy, vagal inhibition means, sudden death occurring within a second or minute or two due to minor trauma or relatively simple and harmless peripheral stimulation are caused by vagal inhibition. (Para 16)

       The commonest cause of such inhibition is pressure on the neck particularly on the carotid sinuses as in hanging or strangulation. Unexpected blows to the larynx, chest, abdomen and genital organs. The said author has also opined in his work that there is a great variation in the individual susceptibility. Death from inhibition is accidental and caused by microtrauma. Therefore, in the instant case, even assuming for argument sake that accused 1 kicked on the testicles of Jawarappa, one cannot infer from the said act that accused 1 did intend to cause the death of Jawarappa or for that matter accused 1 had the knowledge that the said act led to death of Jawarappa. In this connection, we also place reliance on a Division Bench ruling of the Kerala High Court firstly in Thomas v. State of Kerala, 1992 Cri.LJ 581 (Ker.), wherein, the Court found that the death was due to subdural haematoma and taking note of the fact of the case, the Court opined that following a fist blow, subdural haematoma was caused leading to the death of the victim. It could not be said that by such act the accused caused the death of the deceased. Therefore, in the case on hand, even accepting the medical evidence of P.W. 18 and the post-mortem report Ex. P.16, one cannot arrive at the conclusion that accused 1 had neither the intention nor knowledge that his act of kicking the deceased would lead to the death of Jawarappa. In our opinion, having regard to the medical jurisprudence, this is a case, which falls under accidental death and cannot be termed as homicidal death. Therefore, the question of accused committing the offence under Section 302 of the IPC has to be ruled out as one of the basic ingredients of intention to murder has not been established. Consequently, no offence under Section 304, Part I or II also can be said to have been made out in this case. (Para 17)

       We, therefore, hold that the Trial Court was in error in placing much reliance on the insignificant omissions and contradictions in the prosecution case and has erroneously rejected the testimony of P.Ws. 4 and 5, and in fact, it has made a mountain out of molehill by discussing at great length the discrepancy in the evidence with regard to the button on the shirt of the deceased being found intact. We fail to understand as to how the Trial Court could have ignored the substantial part of evidence of the prosecution witnesses-P.Ws. 4 and 5 with regard to the charge levelled against the accused persons and when there is no delay in lodging the complaint and there being no delay in FIR reaching the Court, the Trial Court could not have disbelived the cogent, consistent and credible testimony of P.Ws. 4 and 5. The minor contradictions and inconsistencies in the testimony of eye-witnesses cannot be given much importance and unless the said discrepancies go to the root of the prosecution case, they have to be ignored. (Para 22)

       We, therefore, hold that the appreciation of evidence of the Trial Court is contrary to the established principles of law laid down by the Supreme Court and as such, the finding of the Trial Court is not only erroneous, but unreasonable. In our view, the prosecution has clearly made out the case against the accused persons insofar as the assault committed by them on Jawarappa is concerned. (Para 23)

       Having regard to the entire facts and circumstances of this case and the accused persons not using any deadly weapons in causing the assault on the deceased, the only inference that can be drawn from the manner in which the accused assaulted the deceased is that the case under Section 323 of IPC has been made against the accused persons. In arriving at this conclusion we also draw support from the Division Bench ruling of the Kerala High Court referred as above, wherein the view taken by the Court is that where the fist blow was given and the death took place due to subdural haematoma, the case would fall under Section 323 of the IPC and not under Section 302 of the IPC. Even in the instant case, as we see, mere an intention or knowledge can be attributed to the accused persons to cause the death of Jawarappa. Therefore, the act of either giving a fist blow on the chest or kicking on the testicles cannot be construed as an act on the part of the accused with an intention or knowledge to cause the death of Jawarappa. We are, therefore, of the view that insofar as the accused persons are concerned, a case under Section 323 of the IPC is made out and not under Section 302 of the IPC. (Para 25)

       Since the evidence is also very clear to the effect that all the accused persons restrained Jawarappa and assaulted him in the manner deposed by P.Ws. 4 and 5, it is obvious that all the ingredients of Section 341 of the IPC stands established beyond all reasonable doubt. The accused persons therefore will be liable for the offence punishable under Section 341 of the IPC in addition to Section 323 of the IPC. (Para 26)

       Result : Appeal allowed accordingly.