IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE:
THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.949/2018 BETWEEN:
1. MAHESHA @ MAHESHA S/O KADAPPA, AGED ABOUT 40 YEARS OCC: LABOURER R/O AMBARAGODLU, SAGAR TALUK, SHIVAMOGGA - 577401 2. MANJUNATHA @ MANJUNATHA, S/O SHEKHARAPPA AGED ABOUT 21 YEARS, STUDENT R/O KOUTI VILLAGE, SAGAR TALUK, SHIVAMOGGA – 577401.
(BY SRI R. B. DESHPANDE, ADVOCATE) AND:
THE STATE OF KARNATAKA BY SAGAR RURAL POLICE STATION SHIVAMOGGA DISTRICT – 577401.
(REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU - 560001) ... PETITIONERS ... RESPONDENT (BY SRI S.T. NAIK, HCGP) * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 08.08.2018 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN S.C.NO.10012/2018 AND DISCHARGE THE PETITIONERS/ACCUSED NO.1 AND 2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC (CHARGE SHEETED FOR THE OFFENCE PUNSIHABLE UNDER SECTION 302 READ WITH 34 OF IPC).
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The present petition is filed by the petitioners- accused Nos.1 and 2 challenging the order dated 8.8.2018 passed in S.C.No.10012/2018 by the V Additional District and Sessions Judge, Shivamogga, Sitting at Sagar.
2. I have heard the learned Counsel for the petitioners and the learned High Court Government Pleader.
3. It is submitted by the learned Counsel for the petitioner that the Court below without considering the material on record has passed an erroneous order and hence, the same is liable to be set aside. He further submitted that the doctor, who has given his professional opinion on 10.2.2018 has stated that the death is due to ‘Cardiac Failure’ as a result of disease of the heart. This aspect has not been properly considered and appreciated by the trial Court. He further submitted that the injuries which have been suffered by the deceased are also simple in nature and there is no nexus between the injury suffered and the cardiac arrest. He further submitted that the eye witnesses have also stated that there was no serious allegations against the accused-petitioners. Under the said facts and circumstances, the Court below ought to have discharged the accused-petitioners by allowing the application filed by them under Section 227 of Cr.P.C. , for their discharge. On these grounds, he prayed to allow the petition.
4. Per contra, the learned High Court Government Pleader by justifying the order passed by the trial Court submitted that after receipt of the FSL report, the investigating officer has referred the first report for final opinion of the doctor and thereafter, the doctor has given his opinion that on 15.2.2018 ‘after perusal of the Post Mortem Report, Chemical Analysis Report and Histopathological Examination Report, the cause of death remains unchanged. However, the possibility of ‘Cardiac Failure’ leading to the death of the deceased in the manner alleged cannot be ruled out’. Thus this itself clearly goes to show that there is nexus between the assault and the death of the deceased and there is prima facie material to frame the charge against the accused-petitioners. On these grounds, he prayed to dismiss the petition.
5. I have carefully and cautiously gone through the contents of the complaint and submissions made by the learned counsel for the parties and perused the other materials placed on record.
6. The trial Court after considering the materials placed on record has come to the conclusion that whether the death is due to cardiac failure or due to the alleged assault has to be decided only after examination of the doctor and other corroborative evidences. It has been further observed that there are eye witnesses to the alleged incident and only after examination of the witnesses the said fact is going to be clarified. Under the said facts and circumstances, the trial Court has rightly dismissed the application and this Court is also of the considered opinion that the doctor in his second opinion has stated that the possibility of ‘Cardiac Failure’ leading to death of the deceased in the manner alleged cannot be ruled out and it is a matter of evidence and only after the doctor and other witnesses are examined, the cause death of the deceased can be decided. Now there is no prima facie material to hold that the accused persons are not involved in the said offence.
7. It is well settled principle of law that in order to discharge the accused persons, there must be sufficient materials placed on record. If on perusal of the records, even if it is accepted as it is, if no case is made out, then under such circumstances, the Court can discharge the accused. But in the instant case, the matter is at the stage of examination of witnesses and thereafter, whether the case falls under Section 304-II or not or whether there is nexus between the assault and cardiac failure of the deceased same has to be decided later.
8. Under the said facts and circumstances, I feel there is no good ground to interfere with the well considered order passed by the trial Court. The order passed by the trial Court is neither perverse nor illegal. Hence, the same is liable to be affirmed. Accordingly, the same is affirmed and the petition is dismissed.
Consequently, I.A.I/2018 for stay does not survive for consideration.
Sd/- JUDGE Nsu/-