Virupakshappa vs The State Of Karnataka on 6 January, 2011

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Karnataka High Court

Virupakshappa vs The State Of Karnataka on 6 January, 2011

IN THE HIGH COURT OF KAHNATAKA, BANGALORE BATES was THE em DAY 0;: JAE\2UAR'{.§.2{}§.\:1'4:"V;~ PRESENT THE HONBLE MRS. JUSTI(}t£"MA«N,fti;_A.,CHéi,_L:ij'R7= ANE) THE HONBLE MR, Jus1':c;;é:-v»sg.N. k5sH,a.ayA_:NA--aAavANA cm.' APPE§A.LV'NLe.7'e.:(/2093fa} BETW EEN 1 .

5+3 f;.:r'1 Virupakshappa, "

Sfo. Cr:af:s3a'ppa,==_ ._ Aged. a.boL;i;f'43 year_s;- _ Occiiz A/g;_%'ic»u'ifuris,t."'=_fff ._ v P'ap'ar§'!j; a, @5f1: ?~3'aja;:-p'a} S/o._Nag'ap.pa',Vy " " __ "rAg'e,c5 abou:,3~5 years, Oc_ci Teacher';VGoy{"HLi'géi'ar Primazy School, H.D;-..ir<oteVTa1uk..v ' , S'hambu?fr'rgappaV, ' 5»--fS'fo."a'BAeJiappa, V _ Age'd_a'bQut 45 years, ' « VVVQCC': Agmtuiiurist.

H..V.aiS:J:;t)bappa, VS/0.' V Late Veerathappa, '~ Aged about 63 years, (Doc: Agricuiiurist.

Sicidaraju, S/0. HKB. Subbappa, Aged about 33 years, Occ: Agriculturist.

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8. Chinriaswamy @ HM. Mahadevappa, S/o. I-11.8. Nagappa. Aged about 41 years, (300: Post Master.

7'. Daiiaii Raﬁu, S/o. Late Kaiegowda, Aged about 35 years, Occ: Business : '

8. Basavanna, S/o. Bommaiapurada, Aged about 30 years, Occ: Agriculturist.

9. Smt. Vasantiwa, _ , W/o. 'Jirpakshappa, _ Aged about._32 years.-. _ ' Occ: Housewife. A

10. MS; .Ba'sava'r*.I:na, :.s/o.Siddappa;i, Aged aisout 51..,yearsr,..__ _ Oco: 'Teacher, ---Govt';--Scizooi, GL:rid.|.,upet, ' _ "

..No.33,"/Xshwirri Extension Opp: J.S.S;--~f3undE.upet, G'iian'iarajanagar District.

ti' are residents of ~. Hongaiiy _vi.t__Eage, G_tiﬁdtUp€TT.atUk, Chamarajahagar District, Nowfrj Clentrai Prison, Mysore. .....AppetEants CH. Jadhav W senior counsel for Sri. K./A. Ctiandrastiekara, ._ Advocate) Mysore, there were totalty 10 accused persons. Accused no.1 & accused no.9 are the husband and wife, accused 90.15 is the E3' wife or accused net, accused no.2 is the brothenirt-law ofaccused rto.iCl, accused no.4 is the father--irt~iaw of accused..«nd,'t..'_acciiseCl no.5 is the son of accused no.4. accused no.§__ i's..Vthef_"crothei< accused no.2, accused nest, 3, 7 acetate' friends-;.' .t_h'eVm are residents of Hongalli village in Gundlupettaldk oth;:,h~'/jiimaratariadare District. Deceased Nagappa, P;'rvi.\iL':.."8..sf9araVrrresh*iizatE1r5t5?;t'V'and. P.W.'9' Subappa are brothers. ifhey are"als.o_:'resi~d_ents of theisvame viilage. lt isnot in dispute that -deceased Nagappa were the gC).v'\f4€:':t't"t§.r?i'g School Betterment Commi"ttee..'Vo?.Tth;e:it;.; was difference of opinion between »and:dec'eased Nagappa over the transfer of a lady teac.her' 'N.'a'ga4lakshmi ~ P.W.4. As a matter of fact, th.ciieVwas no V'd'ii*ect____nfrisunderstandiztg of any nature between the . :Vaccus_ed.nos.''~5 to 8 and deceased Nagappa and his brothers. The incidents,n'a.rrated in the evidence of the witnesses would also indicate: th'a't;3 months earlier to the date of incident, there was an iiincidentsof assault on Nagappa in which deceased Nagappa sustained certain iniuries at the hands of accused no.1. 8, Se fee' as the date of incident is concerned, i.e. 19.5/E9985 prosecution refers to one more incident at about 7.38 pin,-"n.ear the bus stand in which accused not was assauttedpgiiiideceased Nagappa. We are concerned with the incident' occurred at 9.30 pm. on 19.5t1998'"in_fro--nt .VVhO'L:iS@i:v.,'O3;i:' it deceased Nagappa.

4. Against accused nosti"'1r-in 10 ch'argeg.'i:or.i:1ihe offences pnnishabie under sectio'ns..'_1 114 read with section 149 were framed'tandtheyitwere:_tr'iadtot: the said offences.

in all 27 apart from placing reiiance by the prosecution. The defence brciu'gii.:_tVoVn'Vi3rece4rd'~«E_xs.. 13-1 to D-6, portions of statements of witnesses foigthe'-pro-se'c:;ition. The teamed triai Judge on app.reciatinr§' 'enitirei-evidence, convicted Accused nos. 1 to 10 Aioi+..'o:tte.i'1cespunishaibiieiiunder Sections 143 read with sec. 149, 148 "i 302 read with sec. 149. So far as accused no.8 iis,__concerned.,'he was acquitted of the charges under sec. 324 FPO. So fares accused nos. 9 & 10 they were convicted for the offences .oonishabie under secticnttd» tread with sec. 115 IPC.

5. So far as acquittal ot the accused no.8 in respect of the offence punishable under sec.324 IPC. and acquittal of accused nos, 9 & 10 for the offences punishable under secs. 11¢} with $60!' 115 EPC. State did not challenge the order of {§nE.y the convicted accused approached this Co_urt.'v_"_tn.Vthie' Crl.A.767/2903. By order dated the Diivisiionu this Court opined that accused, no.t,4t3._Ato--8 are_'g'u'-i.Ety' of otfe"nces punishable under sec.3{)2 read"'witi*:. sec.i49_V_ancisalliitvothiers were acquitted including accused tV't}i~.for ottences punishable under sections H4 read nrithseic.v?'t:'t5_.lPCA,'~w.?t'i_e appettants 5 to 8 against whom o~rde--r_ of ﬁconyictionépiNae._coniirrned, approached the Apex .C0urt.i3Ei8'&"35tGfi2010. So far as ts' accused- appetlantj he confirmation of conviction and so far as acquititat\of.acc:ised 4, 9 & 10 by this Court, no appeat cantreVto~ be tiled'-.by___t_he. State. Therefore, we are concerned with . the rnavte«rlai:p't~aced on record which refers to accused nos. 5 to 8 in oVt'th'e.or'd;e'r..ot the Apex Court dated 15.2.2010 which reads as unden?

We; set aside the judgment coming under appeal and remit the matter to the High Court. Since the appeal before the High Court was of the year 2003, we hope and trust that the High Court witl finaliy at decide the appeai within six months from the date of receiptrprodection of a copy of this order' We are not expressing any opinion on th"e--.y merits of the case and it is for the High Court to fair decision on the appeai, The appeiiants are in iaii; .._tt them to make a prayer for baitbeforef?th4e.};iigh'-Coiitt__ if and if such prayer is yreade, tiaeiiiiitigh s'hatir' considerit on merits. V V With the above oib'se'r"'Q'atio'ns' and directions, :1 sf the appeal stand dis'p_osed_Qi.:.

6. Learned:s'e.niot;cotinsei i\/ir'.'~i.f;';H.v 'Jadhav contends that the tiiai cciwi eﬁrideince of F'.Ws. 8 & 9 so far as assautton them 7 & 8 and in the absence of the State fiiingjany' a,ppieai;--._therie was no justification on the pat of this the eariiiervvetdei dated 22.2.2007 to convict the accused ' aid of oniy section 149 when the very charge "f.ranied agV--aij_nsit them was for the offence punishable under section 324 i.F7C.., According to the learned counsei, ever; otherwise none of xtheyreievant witnesses viz. P.Ws. 8 to 11, 15, 22 & 23 have "indicated any overt act so far as these accused nos 7 & 8, regarding the injuries on the deceased. Therefore, there is no justification to uoholct the order of conviction made by the tria! Coun_

7. On perusal of the evidence of the compl_ai;naet witnesses, we note that hone of the eye§witne_sses'w_ho"supgoorted. the prosecution before the trial Courf»t,t'tai;1esst'ate<.t_aoym/e:rttt--..act,c_so tar as these two accused nos. Exren otherw'iV:s"6}.i the tjtarrtes of: * accused nos. 7' & 8 do not firtdﬂa"-tﬂiipaﬁe in hinstor/Sr of assault giver: by P.W.8 before t'i1;e_."d-octoirs §;ftihi'e:;t._hepiirspt wertt to the hospital at about 11.30 ppm. absence of State pursuing the tevtJ'--eiled"aga_iitst"the--aocused nos. 7 & 8 and when there. plointiing out the invoivement of the fata! injury or instigating the such fatal injuries on deceased Nagappa, itkwouldihe dit'-ficulit to accept the reasoning of the learned &tri'a.i.C;iu%::itg,te in Aconvictlihgi these two accused nos. 7 & 8 so far as the 'V'ottei:sce"«punivshettgtle urtder sections 148, 302 r/w section 149 FPO. 'fo,r__'the s_ir.npiie 'reason that the reateriai on record would indicate that there misunderstanding between the farttiiy of deceased l\iag~appa and accused rtot Virupakshappa. It was not just the day of iocicient that sorrte uneventful irtcidertt happened, but much prior 9 to the said date, there were wordy quarrels and also physical assault against each other. This would only indicateythat the supporters of accused rto.i wete not Eiked by the cotociainant's party. Therefore, we cannot rute out the ;oossibility_.ol=irnel'ic.a'tinQ"altl*. the supporters apart from the kith andmkin' of _acc'use?§»oo.t4_'_:in complicity of the offence. That apart;'_'wtien:i'we' possibility of their presence nea-:__the piece, oti'li_inct_ci'ent., -rexceptt' F'.W.8 and other eyewitnesses, te'ierrin.g to theirpresertce at the spot, no overt acts whVatsc*eye'lr ate. fo-tt'h.com_ing so fat as these accused are concerned. _Ev:eo.,othe;:wise',, th'e'rc"is no challenge to the acquittal ot"ac1c:.i-sed ho.8lri"respec"t--V.o'tvthe charge under section 324 seerns 'l'iave'§occurred at about 9.30 me. They at! belonrgvi/'ill_age and it there was wordy quarrel in frortt ofi..the.Vho'u.seQotthe deceased, it is oossibie the other vill,atjle'rsi'~assenabledVthere. Possibiiity of they coming to the spot .A ca.t_Voi our.iosi4ty~--as onlookers cannot be ruted out. Therefore, even if ~th'e--._p«roVsecot_iosrtis successfui in establishing their presertce without art':-1....ove..r:t.a'ct;' by virtue of sectiort M9, they cartnot be convicted for theotterices punishable under sections 302 r/w sec. 149, 148 rfw ' _s'e'c;*i49.

Nut 1 O

8. Then coming to the veracity of evidence against accused nos. 5 & 6 we note that accused no.5 is the brother-ih--law of accused no.1 Virupakshappa. Accused no.6 is Thevbéfotligf of accused no.2 and is closely related to accused lVé;__'["§'"l'3 persistent and consistent statement of eye~witne.s.se_si.R'€t[s.8 T1 15, 22 & 23 that accused no.1 stabbed on the chest of Nagappa white a.ccused'nos.. 5 & 6tactlita'ted'3'him t» holding the deceased. Therefore,» their'confa.E'i3cétS/V.' entirely different from the accus.a'ti'-ans accused n'os.7 & 8 and so also accused nos. 2 to 4!. 'Ac'cordin__g_*éc.AAthe 'learned counsel for the appellants. wh_e'n. this Bench oni'ea_i't-%er"o"c'casion disbelieved the particE.pa'ticn_o"f- acc3t;;sed"'n'o's. 10, justice demands same application of 'mlndt'to.accdsed nos. 5 & 6.

_ 9. 'A"cco'rdiVngv,to~-._the":learned counsel, even in the héstory the in;u'red....P'.W.8, at the earliest point of time before ' ,.P;'\.'\1._titVDr.'lvlé.f5».--.Ramachandra Rate Urs, name of accused no.5 "wa's7not ddlsjclossed. Therefore, accotding to him, as accused nos. 5 & are" closely related to accused no.3, they are implicated. tt was Aifdrt.her contended that as there was misundetstandlng between the 2'-tiérowigroups and accused nos. 5 & 8 being close relatives of accused not, the deceased party was always planning to implicate them in one way or the other. According to him, though'-,gP_W.8 sustained simple and negligible injuries, he first wentx.t.o_'4lhVe'hossictingl at moo or 11.30 am, and goes back to the villag"o__:arid'rtiheteaiterk' lodges a complaint at 2 am. This wo'Lii'd"oniy "i.ndi_cajte' itltatthe i interested more in collecting the detai'ls_ o--t_iothers' complaint had to be iodged,i*rat'her thvan, l'o.dAgi'ngi"~-allcothplaiht' immediately after the ginciden-t------ without wasting ..~:nuch time. Therefore, his contention"'isl'that'acctiseid *5_& 6 are plugged in only on accotzntoi their,c'lose-ness and, with accused no.1 and not because o;l':ttr:,elr co_n1'p,l.icil.;,r. l_'{ie'ti?'anotiiegr --a;:*gtiVnte_nt' was also made by the learned counsellor' the l.a'poeilarits'."'ttiet the presence of accused no.9 bringing a light toil'-facilitate her husband and others to attack ct'ei;jeased and oitherls was disbelieved. Therefore, in the light of "panch the spot P.W.5 deposing before the Court, that tlzoogh gthieirieiiwere electric poles not only near the house of deceasec' Nagappa but so also in the entire street but there was no /W A soopiy of electricity, without supply of electricity, it would not be it A - H i A possible for the complainant or the other witnesses to notice who wete alt the accused who were present in attacking the deceased.

11. Having regard to these arguments, after goEeg"~through the evidence of the retevant witnesses, we atsc3v__n'ote~Vfthat-:the_ evidence at the witnesses and especialty para .2'6'as:reli'ed upon by g Mt'. Bhavant Singh, S.P.P., we note that there is'sesoe.te'-dtitfetence of opinion among the witnesses'reggarditng the sts;n'eetV'tti:ghts suppty of electricity. The spot n1a'h'aa'ar_witness"_Vi?.WSicategoricalty says there was no sup'pty"':ot of street lights in the said village for quite of incident. Even if we take irttolt?o.:1vsiderat%ort'; etIidertce..'_oit7P.W.5, to accept the ttoiqilstreet light on account of non-

supply"oi remember that the incident occurred justin gfront"o._f:V the.v"hou-sewof Nagappa. When we go back to the A rtarration of the tn"c'i'dent by witnesses referred to above, they trdepose that deceased was not present when the "accused.--'nersons said to have come to the spot abusing the deceased. tt was P.W.8 who came out of his house which was at a _di'st_ance of 50' to 'E00' from the house of the deceased. When P.W.8 questioned the accused, they started abusing him also and "'\""'«>{';ﬂ = _ ,« ' said to have assanited hire also. Therefore, there was exchange cf words between P.W.8 anct the accused not much prior to the entry of deceased Nagappa on the scene. Therefore, the eVvi,'::ten.ce of P.W.8 that accused nos. 5 & 8 were also present anrd--heVr.\tr__a's aibte to identify them is convincing. Even otherwise, _on»'vei--t.her.A_iséd.e of 'theui street, where the incident happened, there «.we_re'ihctises._:an§j_tVhe house of Nagappa is situated in the t;ingayath".;stree't. the defence case that there wascno.eéectricity"s,ri.ppiS/Let/'en to the houses. Therefore, , when ;th'e* prosecution "'witnesses have categoricaily stated that there wasV5'li;ght.,a'r2{j'they were abie to see, in air probabifityithey vtgere:re.terringi"_tothestight in the residentiai houses'ion.,e'i't;herA:':s§ide ctthe roadrrrbéfit not from the street Eight in front the rhotisjelof.thercteceased. Even otherwise, aii the accused'):-erso,nsV' are to the witnesses. They were not st.ra,ngers. =hea_r_i_ng the voice of the accused, it woufcf be r :i3nssEioier.for:the__ witnesses to identify them as they are of the very ~.sar_r2e they knew each other apart from being related to each o«thei'.":ln that View of the matter, the contention of the learned V rrceouunsei for the appeitants that there was no light to identify the "'._VVacctised nos. 5 8: 6 cannot be accepted.

12. Then coming to their complicity, there is consistent and persistent evidence of these witnesses that these two accusedrrnost 5 8: 6 held deceased facilitating accused not to assa'i;z'i*t«l chest with knife. Entire crossexamination of the defence does not indicate or give presence and on the other hand._their presence lVS~l[lO:t>VO¥'.lEy 'spoi<en, to but atso the overt act of thern'r«i.ivs"ccnsistenttyrspotten by the witnesses. As a matterof factillltrhetljnalirraer of accused no.6 was disclosed in the history oflaesatrlt'vti'etore--.:.l§f;il\fifﬁmedical officer. lri that View oi th.e~rrtatter, other &CCUS~9d by this Court te'. Ocannot be extended to this accused--'as.ucc5n'tehdc-d ﬂlea'rn»ed senior counsel Mr. Jadhav, We are tiial Court was justified in concluding that acculsedl participated in the commission of crime ag.at'nsti'the deceiasedrbtagappa by holding deceased Nagappa .A iwhite accro-sVed,__r2o.t assaulted him with knife. Therefore, the .ct).¥wictl'ori_*'_v.ot'these two persons for offences punishabte under sexctionvsi tc';v8': read with section 34? 302 read with section 34 tPC. is jus_tified';' ' we in the resdlt, the appeal is allowed in part. Gonvictioh of accused me. 5 Siddaraju sfo H8. Subbappa & acc%J_ssd"n_o. 6 Chinnaswamy @ Ex/iahadevappa sfo HE. Nagap;3a__tdr"the' punishable under section 302 rfw sec, 34 PC.

So far as accused nos. "7 Dallaii js/udlatte' i 8 Basavanna s/o Bomlaperada Basapipaiare convcerhed, %l';e§far'e:. acquitted of the charges Eevelled'Vag::aii»nst them.' Registry is directedjc) ih'tihi_atej4'thei'concerhVeAd"authorities to release accused nos, 7 8:' forthwith if they are not z'equ%r_ed'ir_j any ether c.Ta'se«_.V as ' it

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