Karnataka High Court
The State Of Karnataka vs Nagappa S/O. Ningappa on 8 February, 2024
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8th DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100189 of 2020
C/W
CRIMINAL APPEAL NO. 100062 of 2020
c/w
CRIMINAL APPEAL NO. 100323 of 2020
IN CRL.A NO. 100189/2020
BETWEEN:
SRI. DURUGAPPA H. S/O. LATE NINGAPPA
AGE: 55 YEARS, OCC: COOLIE,
R/O: AMBALI VILLAGE, TAL: H.B. HALLI,
DIST: BALLARI-583212.
...APPELLANT
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)
Digitally signed AND:
by
SHIVAKUMAR
HIREMATH
1. THE STATE OF KARNATAKA,
Date:
2024.02.08 THROUGH C.P.I., KOTTUR CIRCLE,
15:06:29
+0530 KOTTUR POLICE STATION,
NOW REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD,
BENCH DHARWAD-580011.
2. SRI. NAGAPPA S/O. NANGAPPA,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: AMBALI VILLAGE, TAL: H.B. HALLI,
DIST: BALLARI-583212.
3. SRI. CHANDRAPPA S/O. NINGAPPA,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: AMBALI VILLAGE, TAL: H.B. HALLI,
DIST: BALLARI-583212.
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
4. SRI.KOTRESH @ KOTRAPPA S/O. CHANDRAPPA
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
5. SRI.KENCHAPPA S/O. CHANDRAPPA
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
6. SRI.MAHALINGAPPA S/O. THAMMANNA
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
7. SMT.LALITHAMMA W/O. NAGAPPA
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
8. SMT.RENUKAMMA W/O. CHANDRAPPA
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
9. SRI.GOWRIHALL MANJUNATH S/O. GALAPPA
AGE: 48 YEARS, OCC: SELF EMPLOYED,
R/O: AMBALI VILLAGE, TQ: H.B. HALLI,
DIST: BALLARI-583212.
...RESPONDENTS
(BY SRI. M.B. GUNDAWADE, ADDL. SPP. FOR R1;
SRI. GURUDEV GACHCHINAMATH, ADVOCATE FOR R2 TO R9)
THIS CRIMINAL APPEAL FILED UNDER SECTION 372 OF CODE
OF CRIMINAL PROCEDURE, PRAYING TO MODIFY THE JUDGMENT
CONVICTION DATED 18/01/2020 AND ORDER OF SENTENCE DATED
21/01/2020 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI, SITTING AT HOSAPETE IN S.C.
NO.5057/2014 AND CONVICT THE ACCUSED NO. 1 AND 2 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 307, 302, 201 AND 109 OF
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
IPC, ACCUSED NO. 3 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 AND 307 OF IPC, ACCUSED NO. 4 TO 7 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 326, 307, 302, 201 AND
109 OF IPC AND ACCUSED NO.8 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 143, 147, 148, 504, 323, 109, 324, 326, 307, 302
AND 201 R/W SECTION 149 OF IPC BY ALLOWING THE ABOVE
APPEAL, IN THE INTEREST OF JUSTICE.
IN CRL.A NO.100062/2020
BETWEEN:
KOTRESH @ KOTRAPPA S/O. CHANDRAPPA
AGED: 27 YEARS, FARMER,
R/O: AMBALI VILLAGE, H.B.HALLI TALUK,
BALLARI DISTRICT.
...APPELLANT
(BY SRI. G.I. CHACHCHINAMATH, ADVOCATE)
AND:
STATE BY CPI
KOTTUR CIRCLE, KOTTUR POLICE STATION,
BALLARI DISTRICT.
BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION MADE IN S.C. NO.
5057/2014 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE) AND SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION
MADE IN S.C. NO.5057/2014 PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE)
FOR THE OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148,
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
504, 323, 324, 326 PART - II, 201 OF IPC SO FAR IT PERTAINS TO
ACCUSED NO. 3 AND FURTHER ACQUIT THE ACCUSED NO.3.
IN CRIMINAL APPEAL NO. 100323/2020
BETWEEN:
THE STATE OF KARNATAKA,
REPRESENTED BY THE
THE CIRCLE POLICE INSPECTOR,
KOTTUR CIRCLE,
KOTTUR POLICE STATION,
BALLARI DISTRICT,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD-580011.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDITIONAL SPP.)
AND:
1. SRI NAGAPPA S/O. NINGAPPA,
AGED : 46 YEARS, OCC: FARMER,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
2. SRI. CHANDRAPPA S/O. NINGAPPA,
AGED: 61 YEARS, OCC: FARMER,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
3. SRI. KOTRESH @ KOTRAPPA S/O. CHANDRAPPA,
AGED: 28 YEARS, OCC: FARMER,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
4. SRI. KENCHAPPA S/O. CHANDRAPPA,
AGED: 25 YEARS, OCC: FARMER,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
5. SRI. MAHALINGAPPA S/O. THAMMANNA,
AGED: 26 YEARS, OCC: FARMER,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
6. SMT. LALITHAMMA W/O. NAGAPPA,
AGED: 41 YEARS, OCC: HOUSE WIFE,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
7. SMT. RENUKAMMA W/O. CHANDRAPPA,
AGED: 46 YEARS, OCC: HOUSE WIFE,
R/O: AMBALI VILLAGE, H.B. HALLI,
TALUK, BALLARI DISTRICT, PIN CODE-583212.
8. SRI. GOWRIHALLI MANJUNATH S/O. GALAPPA,
AGED: 48 YEARS,OCC: SELF-EMPLOYED,
R/O: VIDYA NAGAR, KOTTUR,
BALLARI DISTRICT, PIN CODE-583134.
...RESPONDENTS
(BY SRI. G.I. CHACHCHINAMATH, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) AND
(3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE AND GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 18.01.2020, PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING
AT HOSAPETE) IN S.C.NO.5057/2014 AND CONVICT AND SENTENCE
RESPONDENTS/ACCUSED NO. 1 AND 2 FOR OFFENCES PUNISHABLE
UNDER SECTION 307,302,201 AND 109 OF IPC AND
RESPONDENT/ACCUSED NO.3 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 AND 307 OF IPC AND RESPONDENT/ACCUSED
NO. 4 TO 7 FOR THE OFFENCE PUNISHABLE UNDER SECTION 326,
307, 302, 201 AND 109 OF IPC AND RESPONDENT/ACCUSED NO.8
FOR THE OFFENCE PUNISHABLE UNDER SECTION 143, 147, 148,
504, 323, 324, 326, 302 AND 201, 109 R/W 149 OF IPC IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ORDERS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI K,
J., DELIVERED THE FOLLOWING:
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CRL.A No. 100189 of 2020
c/w CRL.A No. 100062 of 2020
c/w CRL.A No. 100323 of 2020
JUDGMENT
These appeals are filed calling-in-question the legality and validity of the judgment of conviction and order of sentence passed in SC No.5057/2014 dated 18.01.2020 by the III Additional District and Sessions Judge, Ballari (sitting at Hosapete), wherein, the learned Sessions Judge convicted the accused Nos.1 and 2 for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 326 r/w Section 149 of Indian Penal Code and acquitted them for the offences punishable under Sections 307, 302, 201 and 109 of Indian Penal Code
2. The learned Sessions Judge convicted the accused No.3 i.e., the appellant in Crl.A.No.100062/2020 for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 326, 304 Part II and 201 of Indian Penal Code and acquitted him for the offences punishable 302 and 307 of Indian Penal Code.
3. Further, the learned Sessions Judge convicted the accused Nos.4, 5, 6 and 7 for the offences punishable under Sections 143, 147, 148, 504, 323, 324 r/w Section 149 of Indian Penal Code and acquitted them for the offences -7- CRL.A No. 100189 of 2020 c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 punishable under Sections 326, 307, 302, 201 and 109 of Indian Penal Code.
4. The trial Court exonerated the accused No.8 for the offences punishable under Sections 143, 147, 148, 504, 323, 324, 326, 302, 201 and 109 r/w Section 149 of Indian Penal Code.
5. Having convicted the accused for the aforesaid offences, the learned Sessions Judge sentenced the accused No.3 i.e., appellant in Crl.A. No.100062/2020 to undergo rigorous imprisonment for one month and pay a fine of Rs.3,000/- for each of the offence punishable under Sections 143, 147, 148, 504 and 323 of Indian Penal Code, in default of payment of fine in each offence, directed him to undergo further imprisonment for 15 days.
6. The accused No.3 further sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.3,000/- for the offence punishable under Section 324 of Indian Penal Code, in default of payment of fine, he shall undergo further imprisonment for one month. He also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under -8- CRL.A No. 100189 of 2020 c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 Section 326 of Indian Penal Code, in default of payment of fine, he shall undergo further imprisonment for three months.
7. The accused No.3 further sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 304 Part II of Indian Penal Code and in default of payment of fine, he shall undergo further imprisonment for six months.
8. The accused No.3 further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/- for the offence punishable under Section 201 of Indian Penal Code, in default of payment of fine, he shall undergo further imprisonment for one month.
9. Leaned Sessions Judge directed that the out of total fine amount, Rs. 1,14,000/- shall be paid to the parents and wife of the deceased and Rs. 10,000/- shall be confiscated as fine amount. Further learned Sessions Judge also directed that all the sentences shall run concurrently and extended the benefit under Section 428 of Cr.P.C.
10. The learned Sessions Judge though convicted the accused Nos.1, 2, 4 to 7 as above, but, enlarged them under Section 4 of Probation of Offenders Act, with suitable -9- CRL.A No. 100189 of 2020 c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 covenants. However, by invoking Section 5 of the Probation of Offenders Act, learned Sessions Judge directed the accused Nos. 1 and 2 to deposit compensation of Rs.25,000/- each and accused Nos.4 to 7 to deposit the compensation of Rs.5,000/- each and directed to pay the said compensation to the injured PWs.4 to 7.
11. For the purpose of reference the parties are referred to their original status before the Trial Court.
12. The factual matrix of the prosecution case is that- The accused persons carried enmity with the deceased and PWs.4 to 7 in respect of sexual assault committed by son of PW.6-Basappa against the daughter of accused No.1/Nagappa during August-2014. On that background, on 11.01.2014 at about 8:00 am at Ambali village in front of the house of PW.4, accused Nos. 8 and 9 instigated accused Nos.1 to 7, formed an unlawful assembly and forcibly sent the rape victim to the house of PW.6, they started quarrelling with PW.4, by abusing him in filthy language and started assaulting PW.4 by hands and legs. By that time, PW.6 and his son-Sanna ningappa
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 (deceased) along with PWs.7 and 8 intervened to pacify the quarrel. Enraged by the same, accused Nos.1 to 7 threatened them to do away with their lives and accordingly, accused Nos.6 and 7 held the hands of the deceased Sanna ningappa and accused No.3 assaulted him with an Axe (MO.5) on his neck. Thereafter, accused No.1 snatched the said Axe and assaulted the PWs.6 and 4 and caused injuries on their face and hand, accused No.2 assaulted PW.7 with a club on his back, accused No.4 assaulted PW.6 with a club on the waist, accused No.5 assaulted PWs.4, 6 and 8 with a club and caused the injuries. Due to the assault, Sanna ningappa sustained heavy bleeding injuries and he was shifted to the Hospital but, he succumbed to the injuries at 9:15 am.
13. Accordingly, PW.4 lodged the complaint before PW.20-The Head Constable of respondent-Police as per Ex.P.3 and the same was registered in Crime No.2/2024 dated 11.01.2014 as per Ex.P.13. Subsequently, PW.21 conducted the further investigation in the case and drawn the Inquest Panchanama on the dead body of the deceased and also drawn Exs.P.1, 2 and 10 i.e., the Spot and Seizure mahazars. Thereafter, PW.27 conducted the further investigation and
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 recorded the statements of all the witnesses and also after obtaining the necessary documents from the concerned authority, PW.27 laid the chargesheet against the accused for the offences punishable under Sections 143, 147, 148, 109, 504, 323, 324, 326, 307, 302, 201 r/w Section 149 of Indian Penal Code i.e., against the accused Nos.1 to 9 before the committal Court.
14. After committal of the case before the Sessions Court, the learned Sessions Judge, framed the charges against the accused for the aforementioned offences and read over the same to the accused. However, they denied the charges and claimed to be tried.
15. In order to prove the charges leveled against the accused, before the trial Court the prosecution in total examined 28 witnesses as PWs.1 to 28 and produced 24 documents as Exs.P.1 to 24 and identified 15 Material Objects as MOs.1 to 15.
16. After assessment of the oral and documentary evidence placed before the Sessions Court, the learned
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 Sessions Judge framed the following points for consideration as under:
1. Whether the prosecution proves beyond all reasonable doubt that, on 11.01.2014 at about 8.00 a.m. at Ambali Village in front of house of C.W.1 accused 1 to 7, being members of an unlawful assembly, having an intention to commit crime and thereby committed an offence punishable under Section 143 R/W Sec. 149 of Indian Penal Code?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, place and time, the accused 1 to 7 being members of an unlawful assembly committed rioting and thereby committed the offence punishable under Section 147 R/W Sec. 149 of Indian Penal Code?
3. Whether the prosecution proves beyond all reasonable doubt that on the said date place and time accused 1 to 7, being members of an unlawful assembly committed rioting by holding deadly weapons like axe, clubs and thereby committed the offence punishable under Section 148 R/w Sec. 149 of Indian Penal Code?
4. Whether the prosecution proves beyond all reasonable doubt that, on the said date place and time, the accused No.1 to 7 being members of an unlawful assembly quarreled with C.W.1 in filthy language, uttered to rape the female folks of C.W.13's family, insults, and thereby gives provocation to him, knowing it will cause him to break the public peace and thereby committed the offence punishable under Section 504 R/W Sec. 149 of Indian Penal Code?
5. Whether prosecution proves beyond all reasonable doubt that on the said date, place and time, the accused 1 to 7 being members of an unlawful assembly, assaulted C.Ws1, 13 to 15 with hands and legs and voluntarily caused hurt and thereby committed the offence punishable under Section 323 R/W Sec.149 of Indian Penal Code?
6. Whether the prosecution proves beyond all reasonable doubt that on the said date place and time the accused 1 to 7 being the members of an unlawful assembly, accused No.2 assaulted C.W.14 with an axe handle on his back, accused No.4 assaulted C.W.13 with club on the waist, accused No.5 assaulted C.W.1, 13 and 15 with club and voluntarily caused hurt with dangerous weapons and thereby committed the offence punishable under Section 324 R/W Sec. 149 of Indian Penal Code?
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
7. Whether prosecution proves beyond all reasonable doubt that on the said date place and time the accused 1 to 7 being the members of an unlawful assembly, accused No.1 assaulted C.W.15 with an axe on his face, accused No.4 assaulted C.W.13 with club on the waist, accused No.1 assaulted C.W.1 on his head and C.W.15 with club and caused grievous hurt by dangerous weapons and thereby committed the offence punishable under Section 326 R/W Sec. 149 of Indian Penal Code?
8. Whether the prosecution proves beyond all reasonable doubt that on the said date place and time, the accused 1 to 7 being the members of an unlawful assembly, accused No.1 assaulted C.W.15 with an axe on his face, with such intention or knowledge that such act may caused the death and he will be guilty of murder and thereby committed the offence punishable under Section 307 R/W Sec. 149 of Indian Penal Code?
9. Whether prosecution proves beyond all reasonable doubt that on the said date place and time the accused 1 to 7 being the members of an unlawful assembly, accused No.6 and 7 held the hands of Sanna Ningapp, accused No.3 assaulted Sanna Ningappa with an axe on his neck and committed his murder and thereby committed an offence punishable under Section 302 R/W Sec. 149 of Indian Penal Code?
10. Whether prosecution proves beyond all reasonable doubt that, on the above said date, place and time, the accused No.3 after assaulting Sanna Ningappa with an axe, washed it with water in order to destroy the evidence and thereby committed an offence punishable under Section 201 R/W Sec. 149 of Indian Penal Code?
11. Whether prosecution proves beyond all reasonable doubt that on the said date, place and time, accused 8 and 9 instigated accused No.1 to 7, to commit the aforesaid offences and thereby committed an offence punishable under Section 109 R/W Sec. 149 of Indian Penal Code?
12. What Order?
Learned Sessions Judge answered Point Nos.1 to 7 in the affirmative, Point No.8 in the negative, Point No.9 in the negative for the offence punishable under Section 302 of Indian
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 Penal Code against the accused Nos.1 to 7 and affirmative against accused No.3 for the offence punishable under Section 304 Part II of Indian Penal Code, further answered Point No.10 in the affirmative against the accused No.3, Point No.11 in the negative against the accused No.8 and answered Point No.12 as per the final order and convicted the accused and imposed the sentence as stated supra. The said judgment is challenged under these appeals.
17. The accused No.3 preferred Crl.A.No.100062/2020 to set-aside the impugned judgment of conviction and order of sentence passed against him.
18. The victim PW.4 preferred Crl.A.No.100189/2020 under Section 372 of Cr.P.C praying to modify the judgment of conviction passed by the learned Sessions Judge and to convict the accused Nos.1 and 2 for the offences punishable under Sections 307, 302, 201 and 109 of Indian Penal Code and also praying to convict accused No.3 for the offences punishable under Sections 302 and 307 of Indian Penal Code and to convict the accused Nos.4 to 7 for the offences punishable under Sections 326, 307, 302, 201 and 109 of Indian Penal Code and
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 to convict the accused No.8 for the offences punishable under Sections 143, 147, 148, 504, 323, 109, 324, 326, 307, 302 and 201 r/w Section 149 of Indian Penal Code.
19. The State has preferred Crl.A.No.100323/2020 to convict and sentence the accused Nos.1 and 2 for the offences punishable under Sections 307, 302, 201 and 109 of Indian Penal Code and also praying to convict accused No.3 for the offence punishable under Sections 302 and 307 of Indian Penal Code and to convict the accused Nos.4 to 7 for the offence punishable under Sections 326, 307, 302, 201 and 109 of Indian Penal Code and to convict the accused No.8 for the offences punishable under Sections 143, 147, 148, 504, 323, 109, 324, 326, 307, 302 and 201 r/w Section 149 of Indian Penal Code.
20. We have heard Sri.G.I.Gachchinmath for the appellant in Crl.A.No.100062/2020, Sri.Srinand A. Pachhapure in Crl.A.No.100189/2020, the learned Additional State Public Prosecutor in Crl.A.No.100323/2020 and Sri. G.I.Gachchinamath for respondent in Crl.A.No.100189/2020 and Crl.A.No.100323/2020.
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21. The learned counsel Sri.G.I.Gachchinamath vehemently contends that the judgment under these appeal suffer from perversity and illegality and the learned Sessions Judge convicted the accused No.3 without properly appreciating the evidence and materials available on record and only based on surmises and conjectures. The learned Sessions Judge failed to appreciate the material contradictions and omissions in the evidence of the injured eye-witnesses i.e., PWs.4 to 7. According to the learned counsel, the contents of the complaint- Ex.P.3 lodged by PW.4 totally differs from the evidence of PWs.4 to 7 as such, the prosecution failed to prove the charges leveled against the accused beyond all reasonable doubt. Accordingly, he prays to allow the Crl.A.No.100062/2020 and to dismiss the Crl.A.No.100189/2020 and Crl.A.No.100323/2020.
22. The learned counsel Sri. Srinand A. Pachhapure, submits that the trial Court has failed to appreciate the depositions of the prosecution witnesses in the right prospective and wrongly sentenced accused No.3 for the offence punishable under Section 304 Part II of Indian Penal Code instead of Section 302 of Indian Penal Code and also the learned Sessions
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 Judge wrongly acquitted the accused No.3 for the offence punishable under Section 307 of Indian Penal Code. Further, according to the learned counsel, the Sessions Judge has erred by acquitting the accused Nos.1 and 2 for the offences punishable under Sections 307, 302, 201 and 109 of Indian Penal Code and though, the Court convicted them for other offences, imposed inadequate sentence to them by wrongly invoking Section 4 of Probation of Offenders Act. He also contended that the learned Sessions Judge totally erred by acquitting the accused Nos.4 to 7 for the offences punishable under Sections 326, 307, 302, 201 and 109 of Indian Penal Code
23. He would further contend that, all the injured eye- witnesses categorically deposed about the assault made by the accused Nos.1 to 7 with an intention to do away the life of deceased Sanna ningappa and PWs.4 to 7. As per the settled principal of Law laid down by the Hon'ble Apex Court and by this Court, the evidence of injured witnesses must be weighed on a high degree prospective and hence, there is no reason to disbelieve the evidence of injured witnesses when their evidence corroborates, the medical evidence of the Doctor-
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 PW.24 who treated them. He contend that the evidence led by the prosecution clearly establishes that the accused No.3 had both guilty knowledge and an intention to commit the murder of the deceased-Sanna ningappa. Hence, the accused No.3 is liable to be convicted under Section 302 of Indian Penal Code. According to the learned counsel, all the accused persons with a common intention, by holding the weapons, entered the house yard of PW.4 and PW.6 and assaulted the deceased and PWs.4 to 7 with deadly weapons and caused injuries to PWs.4 to 6 and committed the murder of deceased-Sanna ningappa. In such circumstances, he prays to allow the Crl.A.No.100189/2020.
24. The learned Additional State Public Prosecutor has also vehemently contends that the learned Sessions Judge did not apply its mind to the evidence on record and wrongly acquitted the accused Nos.1 and 2 for the offences punishable under Sections 302, 307, 201 and 109 of Indian Penal Code and accused No.3 for the offences punishable under Sections 302 and 307 of Indian Penal Code and accused Nos.4 to 7 for the offences punishable under Sections 307, 302, 201 and 109 of Indian Penal Code and accused No.8 for all the offences charged.
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25. The learned Additional State Public Prosecutor would contend that the evidence of PWs.1 and 4 to 7 i.e., the injured eye-witnesses to the incident could not be rejected merely on the ground that they are the interested witnesses as their evidence is otherwise found to be reliable. The minor contradictions and inconsistencies are found in the evidence of eye-witnesses which are ineffective to the core of the prosecution case and should not be considered as a ground to reject the evidence in its entirety. According to him, the learned Sessions Judge without assigning valid reason has imposed fleabite sentence to the accused by acquitting them for major offences. Accordingly, the learned Additional State Public Prosecutor prays to allow the appeal preferred by the State.
26. Having heard the learned counsel for the appellants in respective appeals, the points that would arise for our consideration are:
1. Whether the judgment under these appeals suffers from any perversity or illegality?
2. Whether the learned Sessions Judge is justified in convicting and imposing sentence to accused Nos.1 to 7 as stated supra?
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3. Whether the learned Sessions Judge is justified in convicting the accused No.3 for culpable homicide not amounting to murder and punishing him for the offence punishable under Section 304 Part II of Indian Penal Code?
27. These questions are interlinked to each other and hence are taken up together for consideration. Accordingly, this Court being the appellate Court, on re-appreciation of the entire evidence available on record is necessary and hence:-
PW.1-Veerabhadraiah the maternal uncle of the deceased-Sanna ningappa is a witness for Inquest Panchanama drawn on the dead body of the deceased as per Ex.P.1 and identified the clothes of the deceased as per MOs.1 to 3. He also deposed about the previous enmity of the accused and deceased family.
PW.2-Somappa the maternal uncle of the deceased-
Sanna ningappa, he deposed about the motive/previous enmity between the family of accused and deceased. He also claims to be an eye-witness to the incident and also he shifted the injured to the hospital and indentified MOs.1 to 11. He is a
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Panch witness for Spot Mahazar-Ex.P.2 and identified MOs.12 to
15.
PW.3-H.Goneppa is the brother of the PW.6, who is injured in this case, he identifies MOs.1 to 4 and he was also present at the time of Inquest Mahazar.
PW.4-Durgappa is the injured eye-witness and complainant in this case, he deposed about the motive and the assault made by the accused against him, the deceased and the other injured witnesses.
PW.5-Chandrashekar is the injured eye-witness, he reiterated the version of PW.4 and he suffered grievous injuries.
PW.6-Basappa is the injured eye-witness, he is a father of the deceased and younger brother of the PW.4-Complainant and deposed about the previous enmity between the accused and the family of deceased and also identified MO.1 to 8 and the assault made by the accused to him and to other injured eye-witnesses.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 PW.7-Ningappa is the injured eye-witness, he is the cousin brother of the deceased and deposes about the previous enmity and motive and also about the assault made by the accused and he sustained simple injuries.
PW.8-Hanumakka is the eye-witness to the incident and she is the wife of Complainant-PW.4. She speaks about the motive and previous enmity between the family of accused and deceased.
PW.9-Somanagoud is an independent eye-witness to the incident and he has turned hostile to the prosecution case.
PW.10-Prakashaiah is an independent eye-witness to the incident and he has turned hostile to the prosecution case.
PW.11-Basavaraj is an independent eye-witness to the incident and he has turned hostile to the prosecution case.
PW.12-Ningaraj is an eye-witness to the incident and he has supported the prosecution case and he has deposed about the motive for the incident and also the assault made by the accused.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 PW.13-Basavaraj is an eye-witness to the incident and he deposed similar to that of PW.12.
PW.14-Parasappa S/o. Charavva is the son-in-law of the deceased, he is a hear-say witness to the incident and identified the clothes of the deceased.
PW.15-Parasappa S/o. Kotrappa is a Panch witness for seizure of clothes of accused Nos.1 to 3 under Ex.P.9 and the recovery of weapon as per MO.5.
P.W.16-Hanumantappa is a Panch witness for the seizure of the clothes of the deceased as per Ex.P.12, i.e., MOs.1 to 4.
PW.17-Chandrappa is a Panch witness for Spot Mahazar as per Ex.P.2 and seizure of MO.3 and he also identified MOs.6 to 8 and 12 to 15.
PW.18-T. Manjappa is the Police Constable who arrested the accused Nos.1 to 7 and produced before the Investigation Officer. PW.19-Gururaj is the then PSI who has arrested the accused Nos.1 to 7 with the help of PW.18. PW.20-Basavaraj is the then Police Head Constable and recorded the complaint of
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 PW.4 in the Hospital and registered the FIR in Crime No.2/2014 as per Ex.P.13. PW.21-B.Shekharappa is the then Head Constable and he recorded all the Panchanamas i.e., Inquest, Spot and Seizure as per Ex.Ps.1, 2 and 10. PW.22- Revanaradhya is the then Police Constable escorted the dead body to the Post-Mortem. PW.23-Noormohammad is the then Police Head Constable who carried the FIR to the Magistrate.
PW.24-Dr. Pavitra, conducted autopsy on the dead body and issued the Post-Mortem report as per Ex.P.14.
PW.25-Krishna Naik is the Assistant Executive Engineer prepared the Sketch of scene of crime as per Ex.P.20.
PW.26-Veerupakahsappa is the then Police Head Constable who carried the articles to FSL for examination.
PW.27-Layla Naik is the then CPI, conducted the investigation and laid the chargesheet against accused persons.
PW.28-Lingegouda is the Scientific Officer, examined the articles sent to him and gave the report at Ex.P.22.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
28. On a cursory glance of the above evidence available on record, in order to prove the homicidal death of the deceased, the prosecution relied on the evidence of the Doctor- PW.24 who conducted the autopsy over the dead body and gave his report as per Ex.P.14. On careful perusal of the same, it depicts the cause of death is due to "hemorrhage and neurogenic shock as a result of carotic artery injury". He further opined that injury can be caused by MO.5 as per Ex.P.15. He also treated the injured in this case i.e., PWs.4 to 7 and issued Wound Certificate as per Exs.P.16 to 19. The evidence of the Doctor-PW.24 also corroborates with the inquest Panchanama drawn by the Investigation Officer on the dead body as per Ex.P.1 and PW.1 is witness for the same and he has identified the injuries on the dead body. Hence, on a conjoint reading of Ex.P.14 and Ex.P.1 coupled with the evidence of the Doctor-PW.24, PW.2 and the Investigation Officer-PW.21 in our considered view, the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
29. Even otherwise, the learned counsel for the appellant in Crl.A.No.100062/2020 has not seriously disputed the said aspect.
30. In order to connect the accused persons in the homicidal death of the deceased and to the injuries caused to PWs.4 to 7, the prosecution mainly relied the evidence of injured eye-witnesses i.e., PWs.4 to 7 and the independent eye- witnesses i.e., PWs.8, 12 and 13.
31. Among the above witnesses, PW.4 lodged the complaint before the Police as per Ex.P.3. On perusal of Ex.P.3, it depicts that on previous enmity accused Nos.1 to 9 formed an unlawful assembly in front of the house of PW.4 and started to quarrel with PWs.4 to 7 and also with the deceased. At that time, accused No.1 assaulted the PWs.4 and 5 on his left side of the head by Axe-MO.5 and accused No.2 assaulted the PW.7 with club-MO.7 on the back side of his head, accused No.3 assaulted the deceased on his neck with MO.5 and accused Nos.4 and 5 assaulted the PWs.7 and 8 and accused Nos.6 and 7 held the hands of the deceased and accused Nos.8 and 9 instigated the other accused persons to commit the offence.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
32. On perusal of the evidence of the complainant- PW.4, he deposed before the Court that accused No.1 assaulted him with Axe, accused Nos.4 and 5 assaulted PWs.4 and 6, accused No.2 assaulted PW.7. However, during the course of the cross-examination he stated that the accused No.3 assaulted deceased-Sanna Ningappa with Axe. Hence, on perusal of the evidence of PW.4 the same does not corroborates with the contents of Ex.P.3.
33. Further, PW.2 in his evidence deposed that accused No.3 assaulted the deceased with Axe on his neck and accused No.1 assaulted PWs.4 and 5 on their head and face and accused No.2 assaulted PW.1 with club on his head and accused Nos.6 and 7 held the deceased.
34. PW.5 in his evidence stated that accused No.3 assaulted the deceased with Axe and accused Nos.4 and 5 assaulted PW.5 with club, accused No.1 assaulted the PW.4 and accused No.2 assaulted PW.7 and accused Nos.6 and 7 held the deceased.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
35. The evidence of PW.6 depicts that accused No.3 assaulted the deceased with Axe and accused No.1 assaulted PWs.4 and 5 and accused No.2 assaulted PW.7 and accused Nos.4 and 5 assaulted PW.6 and accused Nos.6 and 7 held the deceased.
36. Whereas, PW.7 stated that accused No.3 assaulted the deceased, accused No.1 assaulted the PWs.4 and 5 and accused No.2 assaulted PW.7 and accused Nos.4 and 5 assaulted the PW.6 and accused Nos.6 and 7 held the deceased.
37. Whereas, the independent eye-witness-PW.8 deposes that accused No.3 assaulted the deceased with Axe, accused No.1 assaulted PWs.4 and 5 with Axe, accused No.2 assaulted PW.7 and accused Nos.4 and 5 assaulted PW.6 and accused Nos.6 and 7 held the deceased. PWs.9 and 13 also deposed in a similar manner. PWs.10 and 11 the independent witnesses turned hostile to the prosecution case.
38. On careful perusal of the evidences of injured eye- witnesses, all of them predominantly deposed about the assault
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 made by accused No.3 on the neck of the deceased with Axe. However, the evidence of these eye-witnesses are quite contradictory with each other, in respect of the assault made by accused Nos.1, 2, 4 and 5.
39. Though, the complainant-PW.4 deposed in his evidence that the accused No.1 assaulted the complainant and PW.5 with an Axe. On perusal of the Wound Certificate of PW.4 issued by the Doctor as per Ex.P.16, the injuries are simple in nature. Nevertheless, the other injured witnesses, except PW.5, all are sustained simple injuries as per their Wound Certificate at Exs.P.16 to 19. The Doctor who treated them i.e., PW.24 also deposed similar version before the trial Court. Hence, the medical evidence belies the version tendered by the injured eye-witnesses regarding the injuries caused to them. However, the evidence of these witnesses establishes that the presence of the accused at the place of incident. Further, it also establishes from the evidence of these witnesses that the accused No.3 assaulted the deceased with an Axe-MO.5.
40. Though, the learned counsel for the accused No.3 vehemently contended that the contradictions in the evidence
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 of eye-witness, creates doubt about the very incident itself, but the said contention raised by the accused does not hold much water for the reason that, apart from the injured eye-witness, the independent eye-witness i.e., PWs.8, 9, 12 and 13 also categorically deposed before the Court about the assault made by the accused No.3 with an Axe. Further, the prosecution also proved the recovery of MO.5-Axe at the instance of accused No.3 by the evidence of PWs.2 and 15 under Ex.P.10. Nevertheless, the Doctor who conducted the autopsy on the dead body of the deceased i.e., PW.24 gave an opinion as per Ex.P.15 that, the injury found on the dead body could have been caused by MO.5-Axe. In such circumstances, the ocular evidence of injured eye-witness corroborates with the medical evidence. The prosecution also got marked Ex.P.22 i.e., the report from FSL issued by PW.28. On perusal of Ex.P.22, it depicts that the blood stains found on the weapon i.e., MO.5 is human blood with 'B' Group. In such circumstances, in our considered view, the prosecution established that the accused No.3 is responsible for the homicidal death of the deceased in this case.
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020
41. As far as the involvement of the other accused Nos. 1, 2, 4 to 7 are concerned, as discussed supra, their presence in the scene of occurrence and also their participation in the incident is proved by the evidence of PWs.4 to 9 and PWs.12 to
13. However, there are discrepancies in the evidence of these witnesses in respect of the assault made by the accused Nos.1, 2, 4 to 7. Admittedly, as many as 4 witnesses were found injured and hence, the presence of the accused and their participation in the incident is proved by the prosecution. As already discussed above, the medical evidence pertaining to the injured witnesses belies the version stated by them before the trial Court. Hence, in our considered view, the learned Sessions Judge rightly convicted the accused Nos.1, 2, 4 to 7 and sentenced them as stated supra.
42. The learned counsel Sri. Srinand A. Pachchapure vehemently contended that the learned Sessions Judge erred in sentencing the accused No.3 for the offence punishable under Section 304 Part II of Indian Penal Code instead of convicting him under Section 302 of Indian Penal Code. On careful perusal of the prosecution case, it is an undisputed fact that the son of complainant i.e., PW.4 was involved in a rape case of daughter
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 of accused No.1 and she had delivered a baby. The accused Nos.1 to 7 were insisting the father of the said Vasanta to perform the marriage of victim girl with Vasanta. As such, all the accused persons had been to the house of the complainant- PW.4 and requested him to perform the marriage of his son with the daughter of accused No.1. Absolutely, there was no intention on the part of the accused to commit the murder of the deceased who is the intervener or to commit the murder of PWs.4 to 7. Unfortunately, the accused No.3 who is the brother of rape victim enraged by the intervention of the deceased, suddenly entered the nearby house and brought the Axe and assaulted on the neck of the deceased. The entire incident caused is in a spur of movement and on a sudden fight emerged between the family of the deceased and all the accused. Admittedly, accused No.3 gave a single blow on the neck of the deceased with an Axe, during the course of scuffle between the family of the deceased and all the accused. He did not act cruel by assaulting the deceased repeatedly. He being the brother of the rape victim a young boy aged about 20 years, might have lost the self-control and assaulted the deceased because of his unwarranted intervention. There
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 existed no premeditation on the part of accused No.3 to do away the life of the deceased. Hence in our considered view, the learned Sessions Judge rightly appreciated the said aspect of the matter and opined that the act committed by accused No.3 falls under Exception Clause of Section 300 of Indian Penal Code which is punishable under Section 304 Part II of Indian Penal Code. Further, the Hon'ble Apex Court in the case of Deo Nath Rai Vs. State of Bihar, Home Dept and Others reported in AIR 2017 SC 5428, held as under:
"9. Looking to the totality of the facts and circumstances of the case and the evidence on record, it is clear that it was only the accused- Parsuram Rai who had assaulted Mohan Rai with the help of sword, whose assault resulted grievous injury, and the deceased Mohan Rai ultimately succumbed to the said injury during the course of transit to the hospital.
The incident had taken place when the deceased was returning from the disputed land and the Accused persons were busy in the adjacent field transplanting paddy seedlings from where they saw Mohan Rai crossing their land. There was no premeditation of any kind on the part of the Accused to commit the murder of the deceased. However, the eye witnesses have deposed that accused-Wakil Rai came and started quarreling with Mohan Rai when other family members also joined. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time."
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 The Hon'ble Apex Court in the case of Jugut Ram Vs. State of Chhattisgarh in Crl.A No.616/2020 held as under:
7. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh vs. The State of Punjab, 1958 SCR 1495, which stand well established. Suffice it to notice from precedents that in Joseph vs. State of Kerala, (1995) SCC (Crl.) 165, the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone.
The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows:
"3. ....The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI."
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 The Hon'ble Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andra Pradesh reported in (2006) 11 444, held as under:
"23. In Randhir Singh there was an altercation between the deceased and father of the accused. At that time, on the exhortation of his father, the accused, a young college student, gave a blow on the head of the deceased with a kassi. The solitary injury caused by the accused was sufficient in the ordinary course of nature to cause death and the deceased died after six days. Taking note of the circumstances, that the accused was not carrying the weapon in advance, there was no premeditation, that he was a young college boy, that there was some altercation between the father of the accused and the deceased, and that the death occurred after six days, the conviction was altered from Section 302 to 304 Part II.
25. In Bagdi Ram there was an altercation between two groups and brickbatting from both sides. When tempers were running high, in the heat of passion, upon südden quarrel without any premeditation, the accused assaulted the unarmed deceased. The accused-appellant was not carrying any weapon, but he picked up a pickaxe lying at the place of incident and he landed only one blow and did not repeat the blow. In these circumstances, it was held that he did not intend to cause the death of the deceased and that the appellant was guilty under Section 304 Part I IPC."
The Hon'ble Apex Court in the case of Anbazhagan Vs. State (represented by the Inspector of Police) reported in (2023) ACR 862, held as under:
"27. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge
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must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of the IPC designedly used the two words intention and knowledge, and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he "must have been aware that certain specified harmful consequences would or could follow."
(Russell on Crime, Twelfth Edition, Volume 1 at page 40).
62. Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone. The deceased died on account of the cerebral compression i.e. internal head injuries. However, the moot question is - whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the IPC."
43. Hence, on careful perusal of the law laid down by the Hon'ble Apex Court juxtapose the case on hand, we are of the considered view that, this case squarely falls under the
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 Exception I to Section 300 of Indian Penal Code and the learned Sessions Judge has rightly convicted the accused for Section 304 Part II of Indian Penal Code.
44. However, the sentence imposed by the learned Sessions Judge on accused No.3 is for a period of 10 years. Having regard to the submissions made by the counsel appearing for accused No.3 and findings of the trial Court and also it is a matter of record that there was an enmity in respect of the rape committed by the son of PW.4 on the sister of accused No.3, moreover there are no criminal antecedents of accused No.3 has been brought on record, in the interest of justice and in consideration of the above mentioned mitigating factors, we are of the view that the sentence of accused No.3 can be reduced from 10 years to 8 years, by enhancing the fine amount imposed by the trial Court for the offence punishable under Section 304 Part II of Indian Penal Code to Rs.2,00,000/- instead of Rs.1,00,000/-. As far as the sentence imposed by the trial Court, against accused No.3 in respect of other offences are kept in-tact. The sentence in respect of accused Nos.1, 2, 4 to 7 are concerned, the learned Sessions Judge after convicting them for the offences stated supra enlarged
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CRL.A No. 100189 of 2020c/w CRL.A No. 100062 of 2020 c/w CRL.A No. 100323 of 2020 them under Section 4 of Probation of Offenders Act with conditions. The learned Sessions Judge also directed the accused Nos.1, 2, 4 to 7 to deposit the compensation amount under Section 5 of Probation of Offenders Act. In such circumstances, we find no good grounds to interfere with the order passed by the learned Sessions Judge. Accordingly, we answer the Point No.1 in the negative and Point Nos.2 and 3 partly in the affirmative and proceed to pass the following:
ORDER i.) Crl.A.No.100062/2020 filed by the accused No.3 is allowed-in-part;
ii.) The sentence imposed to accused No.3 for the offence punishable under Section 304 Part II of Indian Penal Code is reduced to 8 years from 10 years. However, the accused No.3 is directed to pay a fine of Rs.2,00,000/- instead of Rs.1,00,000/- and in default of
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payment of fine, he shall undergo further imprisonment for one year;
iii.) However, accused No.3 is entitled for set-off as contemplated under Section 428 of Cr.P.C;
iv.) The sentence imposed against the accused No.3 for all other offences by the trial Court are kept in-tact.
However, all the sentences imposed shall run concurrently;
v.) The fine amount imposed to accused No.3 in all the offences shall be paid to PW.6 and his wife on proper identification;
vi.) The bail bonds executed by accused No.3 stands cancelled;
vii.) The accused No.3 is directed to surrender before the Sessions Court
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within 4 weeks from the date of receipt of copy of this order to undergo the remaining sentence;
viii.) If the accused No.3 failed to
surrender, the learned Sessions
Judge is directed to secure his
presence and to commit him to
prison to serve the reminder of
sentence;
ix.) Consequently, Crl.A.No.100189/2020 filed by the victim and Crl.A.No.100323/2020 filed by the State are dismissed as being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE PJ LIST NO.: 1 SL NO.: 46