Karnataka High Court
Sri. Ramesh Rudrappa Banoshi vs The State Of Karnataka on 11 September, 2023
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CRL.A No. 100119 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T.
CRIMINAL APPEAL NO.100119 OF 2018
BETWEEN:
1. SRI RAMESH RUDRAPPA BANOSHI
AGED ABOUT 45 YEARS
2. SHRI RAVI RUDRAPPA BANOSHI
AGED ABOUT 55 YEARS
3. SHRI BASAPPA @ BASAVANNI RUDRAPPA BANOSHI
AGED ABOUT 60 YEARS
4. SHRI ASHOK RUDRAPPA BANOSHI
Digitally AGED ABOUT 47 YEARS
signed by
SHILPA R
TENIHALLI 5. SHRI SURESH RUDRAPPA BANOSHI
Location: AGED ABOUT 50 YEARS
HIGH COURT
OF
KARNATAKA 6. SHRI VITHAL IRAPPA BANOSHI
AGED ABOUT 55 YEARS
7. SHRI KALMESH VITHAL BANOSHI
AGED ABOUT 26 YEARS
8. SHRI SHRIKANT DEMANNA BANOSHI
AGED ABOUT 45 YEARS
9. SHRI MARUTI DEVENDRA BANOSHI
AGED ABOUT 60 YEARS
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CRL.A No. 100119 of 2018
10. SHRI MAHABALESHWAR DEVENDRA BANOSHI
AGED ABOUT 63 YEARS
11. SHRI SANJU MARUTI BANOSHI
AGED ABOUT 27 YEARS
12. SHRI VISHNU DEMANNA BANOSHI
AGED ABOUT 38 YEARS
13. SHRI MAHANTESH MALLAPPA BANOSHI
AGED ABOUT 40 YEARS
ALL ARE AGRICULTURIST
AND ALL ARE RESIDENT OF MUGLIHAL,
KHANAPUR, BELAGAVI.
...APPELLANTS
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(NANDGAD POLICE STATION)
BY IT'S STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE
HIGH COURT BENCH PREMISES
DHARWAD-11.
...RESPONDENT
(BY SRI V. M. BANAKAR, ADDITIONAL S.P.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 28.03.2018 AND ORDER OF
SENTENCE DATED 02.04.2018 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS COURT, BELAGAVI, IN S.C.
NO.281/2013 AND ACQUIT THEM ALL THE CHARGES FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148,
323, 324, 302, 341, 447, 307, 504 AND 506 READ WITH
SECTION 149 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.06.2023 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, VENKATESH NAIK T., J.,
DELIVERED THE FOLLOWING:
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CRL.A No. 100119 of 2018
JUDGMENT
This appeal is filed by the appellants aggrieved by the impugned judgment of conviction dated 28-3-2018 and order on sentence dated 02.04.2018 passed by the I Additional District and Sessions Judge, Belagavi, in Sessions Case No.281 of 2013, convicting them for the offences punishable under Sections 143, 147, 148, 323, 324, 302, 341, 447, 307, 504 and 506 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC').
2. The brief facts of the prosecution case are that, on 4-6-2013 at about 8:30 a.m., when the complainant-Sri Malappa Rudrappa Hattiholi (PW1), a resident of Mugalihal, Khanapur Taluk, Belagavi, was in his land bearing Sy. No.148/1B measuring 5 acres along with his father, brother, brother's wife and children i.e., his entire family, at that time, the accused persons formed themselves into an unlawful assembly, with their common object to finish the complainant and his family members trespassed into his land, having a dispute with -4- NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 regard to the landed property, picked up a quarrel with them by abusing the complainant and his family members in a filthy language and assaulted with axe, pick axe, stick, stone on the head, nose and mouth and right eye of Nagappa (deceased) with the pick axe and club. Suresh Banoshi (Accused No.5) assaulted the complainant on his right hand and on the backside of the neck and also assaulted the complainant's brother Earappa (PW3) with axe. Vishnu (Accused No.12) assaulted on Earappa's (PW3) neck with club. Maruti Devendra Banoshi (Accused No.9) and Mahabaleshwar Banoshi (Accused No.10) assaulted Earappa with their hands, legs and with a sickle on the head and they also assaulted Rudrappa's (PW2) feet with axe and club. Further, the accused persons have assaulted Rukammava's (PW4) left hand and Annapurna's (Not- examined) left ear and caused grievous injuries with an intention to finish the complainant and his family members. Due to the injuries sustained, Nagappa died in the Hospital while taking treatment. Further, accused -5- NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 have threatened the lives of the complainant and his family members and thereby, they committed the offences punishable Sections 143, 147, 148, 324, 302, 341, 447, 307, 504 and 506 read with Section 149 of IPC. Hence, PW1 lodged complaint (Ex.P1) to the Nandagad Police, Belagavi District.
3. On the basis of the complaint-Ex.P1 lodged by P.W.1, Nandagad Police registered the case for the aforesaid offences. Investigation Officer visited the spot, collected material objects, drew mahazars, recorded statements of witnesses and after conclusion of investigation, filed charge-sheet against the accused persons for the aforesaid offences and the learned Magistrate took cognizance of aforesaid offences Under Section 190(1)(a) of Cr.P.C. in C.C. No.729/2013 against the accused persons. As the alleged offence exclusively triable by Court of Sessions, the Jurisdictional Magistrate committed the matter to the Court of Sessions for trial. After committal of the case to the Court of Sessions, the -6- NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 learned Sessions Judge after hearing both side framed charges against the accused persons for the offences punishable under Sections 143, 147, 148, 324, 302, 341, 447, 307, 504 and 506 read with Section 149 of IPC and the same was read over to the accused persons, they pleaded not guilty and claimed to be tried.
4. In order to prove the case, the prosecution examined in all 19 witnesses as P.W.1 to P.W.19 and marked documents as per Exs.P.1 to P.64 and material objects as per M.Os.1 to M.O.45. After completion of the evidence on behalf of the prosecution, the statement of the accused persons were recorded by the trial Court as contemplated under Section 313 of the Code of Criminal Procedure, 1973. The accused persons denied all the incriminating evidence appeared against them and did not lead any defence evidence and their case is of total denial.
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5. Based on the oral and documentary evidence on record, the learned Sessions Judge framed the following points for consideration:
1. Whether the prosecution proves beyond all reasonable doubts that the death of deceased Nagappa Rudrappa Hattiholi is of culpable homicide?
2. Whether the prosecution proves beyond all reasonable doubts that on 4.6.2013 at about 8.30 a.m., within the limits of Khanapur P.S., the accused persons forming themselves into an unlawful assembly, in the land bearing Sy No. 148/1 B situated at Beedi Village of Khanapur Tq., with their common object to assault, abuse, threaten to the complainant, complainant's brother, complainant's father, having land dispute with the complainant party and thereby, committed the offence punishable U/sec. 143 R/w Sec. 149 of IPC?
3. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 -8- NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 being the members of such unlawful assembly and in prosecution of common object of such unlawful assembly were holding axe, pick axe, club and stones and used force against the complainant, his brother deceased Nagappa, Malappa, the complainant's brother Erappa, Rudrappa Banoshi, complainant's brother's wife viz.
Rukammava and Annapurna and thereby committed the offence punishable U/Sec. 148 R/w. Sec. 149 of IPC?
4. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of unlawful assembly and in prosecution of common object of such unlawful assembly trespassed into the land bearing Sy No. 148/1 B of Beedi Village of Khanapur Tq., in order to commit certain offences and thereby committed the offence punishable u/s 447 R/w Sec. 149 of IPC?
5. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful -9- NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 assembly and in prosecution of common object of such unlawful assembly, wrongfully restrained the complainant and his family members from going in the land and thereby committed the offence punishable U/sec. 341 R/w. Sec. 149 of IPC?
6. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful assembly and in prosecution of common object of such unlawful assembly, the accused no.1, 2 and 6 caught hold deceased Nagappa Rudrappa Hattiholi and accused no.3 assaulted the Nagappa with the axe on his head and accused no.13 and 5 assaulted with pick axe on his nose, on right eye and head and caused the death of deceased Nagappa Rudrappa Hattiholi and thereby committed the offence punishable U/sec. 302 R/w. Sec. 149 of IPC ?
7. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 assembly and in prosecution of common object of such unlawful assembly, while they were assaulting complainant and while CW9 came to pacify the quarrel, the accused no.3 with an intention to finish him assaulted him with an axe on his head and caused grievous injuries on his head with intention and having knowledge that, by that act, if they caused the death of CW9, they were guilty of murder and thereby committed an offence punishable U/sec. 307 R/w. Sec. 149 of IPC?
8. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful assembly and in prosecution of common object of such unlawful assembly, when the complainant came to intervene while they were assaulting Nagappa, the accused no.8 and 12 and accused no.9 and 10 assaulted CW-9 with their hands and kicked with their legs and caused simple injuries to him and thereby committed an offence punishable u/s 323 R/w Sec. 149 of IPC and within my cognizance.
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9. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful assembly and in prosecution of common object of such unlawful assembly, while they were assaulting Nagappa and when the complainant intervened the incident, the accused no.4 assaulted with stick on the right hand of complainant, accused no.5 assaulted with a pick axe on his ear, accused no.7 assaulted with club on his neck and assaulted CW8 with axe on his left leg foot, accused no.11 assaulted with club on his back, accused no.2, 5, 6 and 11 assaulted CW10 to 15 with clubs on their back and caused simple injuries to them and thereby committed an offence punishable u/s 324 R/w Sec. 149 of IPC?
10. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful assembly and in prosecution of common object of such unlawful
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 assembly, abused the complainant and his family members in a filthy language by saying that ' ¨ÉÆøÀr ªÀÄPÀ̼À E°è KPÉ UÀ¼É ºÉÆqÉAiÀÄÄwÛ¢ÝÃj d«ÄãÀÄ £ÀªÀÄäzÀÄ' and gave provocation to them intending that such provocation would cause them to break public peace and thereby committed the offence punishable U/sec. 504 R/w. Sec. 149 of IPC?
11. Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, the accused no.1 to 13 being the members of such unlawful assembly and in prosecution of common object of such unlawful assembly, threatened to the life of complainant and his family members with dire consequences as to take away their lives and gave alarm to them by saying 'E£ÉÆߪÉÄä ¹UÀj ªÀÄPÀ̽gÁ ¤ªÀÄä£ÀÄß PÉÆAzÀÄ ©qÀÄvÉÛêÉ' and thereby committed an offence punishable U/sec. 506 R/w. Sec. 149 of IPC?
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6. The learned Sessions Judge after considering the entire oral and documentary evidence on record has answered point Nos.1 to 11 in the affirmative and recorded a finding that the prosecution has proved its case beyond all reasonable doubt that on 4-6-2013 at about 8:30 a.m., all the accused persons formed an unlawful assembly by holding deadly weapons committed rioting, assaulted the family members of the complainant and committed murder of deceased Nagappa Rudrappa Hattiholi. Hence, the learned Sessions Judge convicted the accused persons for the aforesaid offences. Aggrieved by the judgment of conviction and order on sentence passed by the trial Court, the accused persons have preferred this appeal.
7. We have heard the learned counsel for the parties to the lis.
8. Sri Ashok Kalyan Shetty, learned counsel for the accused, vehemently submitted that the impugned judgment of conviction and order on sentence being bad
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 in law, required to be set aside; the trial Court has not rightly appreciated the evidence on record; the trial Court has failed to see that the prosecution has utterly failed to prove the prosecution case beyond reasonable doubt the alleged possession of the disputed land by the complainant's party, unlawful assembly by these accused with common object to commit crime, criminal trespass, rioting, wrongful restraint, assaulting with mens rea to commit either murder or attempt to commit murder or to commit any offence or to cause injuries, intentional insult, criminal intimidation, manner of incident and if the injured sustained in the manner and by the weapons described during the course of trial, especially having regard to inconsistent stand, material improvements, admissions by the material witnesses, and as a consequence, even if for a sake of argument, there was any incident on spur of moment and a free fight, the appellants cannot be termed either as criminal trespasser or aggressor or caused injuries or took undue advantage being in a settled possession of the disputed land. It is
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 further contended that for the alleged possession and the agricultural activities by the complainant's family members, objection and assault by the appellants but such genesis being falsified from their own documents and admissions a reasonable doubt arises regarding such genesis and probabilities, twisting of facts, and making false accusation of high handedness against these appellants, as they did not give up their settled position.
9. It is further contended that the disputed land purchased by P.W.2-Sri Rudrappa Chanabasappa Hattiholi was 15 and 1/2 acre stands falsified as he himself in the Court deposed that admittedly, 6 acre was also not in their possession for years together on account of boundary and measurement dispute as evident from the proceedings before Tahsildar and the measurement done by him at the instance of P.W.2 and passing an order. This admission given by P.W.2 as the plaintiff in his suit in Original Suit No.93/2012 for bare injunction in respect of the disputed land and the evidence of P.W.3
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 that his father had approached the Tahsildar for possession, encroachment by the appellants family and ultimate dismissal of the suit holding that plaintiff i.e. P.W.2 failed to prove his possession as on the date of the suit.
10. It is contended that the prosecution which produced temporary injunction order in Original Suit No.93/2012 to claim possession by the complainant's side suppressed that such an order was stayed and ultimately, set aside in Miscellaneous Appeal No.10/2012 holding that the plaintiff has not made out prime facie case and then, as admitted by the said witness, replacing it with an order of status quo as per certified copy produced as part and parcel of the statement recorded under Section 313 of Cr.P.C. It is further submitted that the ultimate dismissal of suit proved that the possession of the disputed land of 4 acre was not with P.Ws.1 to 4 and deceased Nagappa. It is further contended that when the possession by the complainant's side itself does
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 not stand proved, then their claim regarding the agricultural activities being carried out by them is false claim and it stands fortified by the admission of P.Ws.1 and 17 and Ex.D.1. In addition to it, even the panch witness, Sri Narayan also does not vouch such activities as none of the neighbouring land owners or persons alleged to have seen the incident and the Investigating Officer has not made them as witness to the case.
11. It is further contended that P.Ws.1 to 4 are unreliable as they have no regard to truth. They have made material improvements with a view to somehow involve all the innocent persons in the crime. P.Ws.5 and 6 are got up witnesses as their names and presence was not mentioned in the complaint- Ex.P1.
12. It is further contended that in the facts and circumstances of the case and assertion of their certain possession of disputed land even at undisputed time and a right from beginning both before Revenue Authorities and in Original Suit No.93/2012, they have fortified by
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 admissions and material on record. It is contended that, the appellants formed an unlawful assembly with common object to commit either an offence or criminal trespass is baseless and devoid of merits and truth. As such, there being no proof of ingredients and formations of unlawful assembly thus, Section 149 of IPC is not attracted, thus it has no application in the case and consequently, the conviction and sentence of all the appellants either with the aid of Section 149 of IPC or for the offences punishable Sections 143, 147 and 148 read with Section 149 of the IPC, being bad, hence, it is liable to be set aside.
13. It is further contended that when the possession of such land by the complainant's side is not proved and when the accused-appellants is in possession thereof, having regard to the material on record, the necessary ingredients to attract the definition of criminal trespass being absent, the offence being punishable under Section 447 read with Section 149 of IPC is neither
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 made out or attracted, nor proved beyond reasonable doubt. Hence, the conviction and sentence for the said offences cannot be sustained.
14. It is contended that there being absolutely no evidence on record to make out requisite ingredient within this definition of wrongful restraint under Section 341 of IPC. Therefore, the conviction and sentence for the offence under Section 341 read with Section 149 of IPC being bad in law and it cannot be sustained. It is further contended that the trial Court erred in law in convicting and sentencing all 13 accused persons for the offences punishable under Section 302 read with Section 149 of IPC by overlooking the evidence on record. In fact, all of them did not assault deceased and all of them did not share a common object to commit his murder and that Section 149 of IPC has no application to the case on hand. It is further contended that in Ex.P1-complaint, it is alleged that accused No.2-Ravi and accused No.6-Vittal having grappled and held the deceased Nagappa while
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 accused No.3-Basappa assaulted with an axe on his head, accused No.5-Suresh assaulted with handle of peak axe on his nose, mouth and right eye. But before the Court, it is stated that accused No.1-Ramesh, who did not figure earlier was added as the third person to have grappled and held the deceased along with accused Nos.2 and 6. In the Court, it is stated that, apart from accused No.3, accused No.5 assaulted with peak axe on the face and accused No.13-Mahantesh assaulted with another type of peak axe on the head. Therefore, there being material improvement and not corroborated by medical evidence either regarding injuries or nature of offence. The conviction of all the accused cannot be sustained. Especially, when accused Nos.1, 2 and 6 being unarmed with and did not assault the deceased and when the complainant has not alleged any overt act against accused No.1, whose presence becomes doubtful. It is further contended that the alleged fatal injury on the head of the deceased Nagappa as per the post-mortem report was not found immediately after the alleged
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 incident even after examination of the Medical Officer at Nandagad, who issued Wound Certificate as per Ex.P13, who vouches for the correctness of the wounds found by him. P.W.17-Investigation Officer also admits the head injury is not mentioned in such Certificate. As such, the medical opinion mentions about the blunt force, it ruled out use of sharp edged weapons as alleged by the witness, non-production of records from both the hospital at Belagavi, there is something fishy about the prosecution case and the appellants cannot be allowed to become victims of the same and malafides. The admission made by the Medical Officers that such injurious by the deceased Nagappa could also be sustained otherwise than assault assumes importance and cannot be ruled out. Hence, in view of the material discrepancies, the conviction of the appellants for the offence under Section 302 read with Section 149 of IPC cannot be sustained. It is further contended that, the conviction of all the accused for the offences under Section 307 read with Section 149 of IPC for the injuries
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 on P.W.3-Eerappa is bad and unsustainable. Since it is not the case of the prosecution that all of them had assaulted the deceased or that the common object was to assault and to attempt to murder the deceased, but as per Ex.P9 Wound Certificate, the said witness had sustained simple injuries, but described as cut lacerated wound over the left parito temporal region measuring 4 cm x 1/2 cm on P.W.3, who went to Hospital by himself treated as an out-patient. The said injury did not have even bleeding or such an injury even otherwise is not sufficient to attract an offence punishable under Section 307 read with 149 of IPC. It is further contended that he was treated as an out-patient at Nandagad and Belagavi and his condition was not described as either serious or critical and his injury is described as simple in nature and there is nothing to hold that the death could have been caused.
15. It is further contended that even otherwise also it is not specifically forthcoming or proved beyond all
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 reasonable doubt as to who is the author of the single injury on the head of P.W.3 as he has alleged that accused No.3 with an axe and accused No.2 with sickle assaulted on his hand. There being a single simple injury, such an allegation cannot be said to have been proved and benefit of doubt goes to both of them and hence, there cannot be any conviction on this regard.
16. It is further contended that according to P.W.3, accused Nos.9 and 10 were not armed with any weapons. Accused No.12 has not assaulted on his head and assault by accused No.12 with club is ruled out as there is no bar mark on his neck as P.W.3 says that assault by club gives bar mark. The said witness also says that tenderness is not an injury. Generalised body pain is too vague and general and accused Nos.9 and 10 cannot be held to the author of such vague as deposed by P.W.3. Hence, under such circumstances, the trial Court erred in law in convicting all the appellants for the offence punishable under Section 307 of IPC and even
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 accused Nos.2, 3, 9, 10 and 12 cannot be convicted for the offences punishable under Section 307 of IPC either individually or with the aid of Section 149 of IPC.
17. It is further contended that the conviction for the offences punishable under Sections 323 and 324 read with 149 of IPC is bad and unsustainable as they were not caused intentionally and as the injuries are such that they are not the ones which could be caused by the deadly weapons, but the witnesses who have suffered mainly abrasion have exaggerated the manner of incident though they were not assaulted by an weapon. It is further contended that P.W.1-Sri Mallappa- complainant as per Wound Certificate at Ex.P7 sustained simple injury, such as, abrasion over the right posterior part of the forearm; pain over nape of his neck; generalised body pain and the said witnesses with regard to abrasion over forearm does not say that he was assaulted by any of the accused on such part and hence, it is not on account of an assault.
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18. It is further contended that the overt act by P.W.1 that accused No.4 assaulted with a club on his upper arm stands falsified as he was not the one named in the complaint, but had named accused No.5 in this regard, further at any rate, there is no corresponding injury on his upper arm and as such, there cannot be conviction for the said injury.
19. It is further contended that with regard to pain over nape of his neck, P.W.1 had alleged in his complaint that he was assaulted with a club by accused No.7, but in the Court, he has stated that he was assaulted by accused Nos.6 and 7. Such assault by both accused is not supported by medical evidence, neither of them could be convicted on account of assault on the said witness.
20. It is further contended that as per the allegation of P.W.1 on oath that accused Nos.5 and 12 kicked and fisted him stands unacceptable as he had not
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 named accused No.5 in his complaint, but had alleged therein that it was accused Nos.8 and 12. Even otherwise, he has not specified on which part of his body, they kicked and fisted. Such allegations are being two ways as accused Nos.5 and 12 cannot be convicted especially when it is not proved as P.W.1 has not whispered regarding any pain sustained on the said account while stood in the witness box.
21. It is further contended that P.W.2, as per Wound Certificate at Ex.P4 sustained cut lacerated wound middle of left foot with no evidence of fracture. The injury is described as simple in nature, he had come on his wound and was treated on OPD basis. The weapon mentioned as a sickle at the earliest time and is later replaced by an axe used by accused No.3. Accused No.3 did not have sickle and even the axe allegedly used did not have any blood stains. Its use is not definitely proved. Assault by accused No.11 on the back of P.W.2 stands falsified as there is no corresponding injury and as
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 the Medical Officer opined that said club by him would not have been used. Hence, both of them cannot be convicted for the alleged assault on P.W.2.
22. It is further contended that P.W.4, as per Wound Certificate at Ex.P10, sustained simple injury, i.e. an abrasion over the dorsal part of left wrist measuring 1 cm x 1 1/2 cm. With regard to the said injury is concerned in Ex.P1-complaint, it is alleged that accused No.10 assaulted with a club on her left wrist, but contrary thereto P.W.1, however, deposed that she was assaulted with stone by accused No.10. P.W.4 has not alleged that accused No.10 assaulted her with a club on her left wrist, but in vagueness deposed that he assaulted by his hands. Therefore, accused No.10 cannot be convicted for simple injury or assault as alleged by the prosecution. It is further contended that as per the case of prosecution, Smt. Annapurna, wife of deceased Nagappa, was also assaulted by accused No.11 and she sustained an abrasion over the posterior part of the right
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 ear. However, Annapurna is not examined and hence, having regard to the nature of injury, accused No.11 cannot be convicted under Section 323 or 324 of IPC for the assault on the said Annapurna.
23. It is further contended that the conviction of the appellants for the offence punishable under Section 504 read with Section 149 of IPC is bad in law. There was no criminal intentional insult as alleged. The words assuming uttered was not to insult and they are not considered in the light of the circumstances and settle position of the appellants. It is further contended that the conviction and sentence of all the appellants for the offence under Section 506 read with Section 149 of IPC is bad and unsustainable. There was no criminal intimidation. The words assuming uttered only want the complainant's side not to come as the said complainant was not in a possession. It is further contended that in view of the admissions given by and suggestions made, it probablise that there was a free fight on a spur of
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 moment as it seems that the complainant's side being frustrated attempted to take and asserted forcible possession as they had filed suit as if in possession. Hence, assuming without admitting and in the alternative, it is submitted that the conviction with the aid of Section 148 of IPC is bad as individual acts and intention matter. It is further contended that the sentence imposed is harsh and unreasonable, fine amount imposed is also harsh and very much on the higher side and there is no case for imposition of fine. Thus, the sentence being bad and unsustainable is liable to be set aside. On all these grounds, the learned counsel for accused prays to set aside the judgment of conviction and order on sentence passed by the trial Court and prayed for acquittal of all the accused persons.
24. Per contra, Sri V. B. Bankar, learned Additional State Public Prosecutor appearing for the respondent-State, sought to justify the impugned judgment and order of conviction and contended that all
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 the prosecution witnesses have supported the case of prosecution and all injured persons including the complainant have categorically stated about the individual overt act of each accused. The learned trial Court considering the evidence of injured witnesses and other circumstantial witnesses and considering the evidence of mahazar witnesses and the fact that motive aspect has been established on the part of the accused, as there was a rivalry between the accused persons and the complainant's family in respect of land and there was cases pending against them. On the ill-fated day, the accused persons took quarrel with the complainant's family, assaulted P.Ws.1 to 4 with axe and other material objects and caused injuries to the complainant and his family members, the accused persons also committed murder of Nagappa. Even considering both oral and documentary evidence on record, the trial Court has rightly convicted the accused for the aforesaid offences and the sentence imposed by the trial Court is just and proper. Therefore, he sought to dismiss the appeal.
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25. In view of the rival contentions urged by the learned counsel for both parties, the points that arise for our consideration in the present appeal is:
1. whether the accused/appellants have made out any case for interference with the impugned judgment of conviction and order on sentence passed by the trial Court?
2. What Order?
26. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records carefully.
27. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 a. P.W.1-Mallappa Rudrappa Hattiholi is the complainant. He has deposed that on 4.6.2013, in the morning at 7.30 hours, himself, his father Rudrappa, younger brother's wife Rukmawwa, his elder brother's wife Annapurna, his brother's son Girish, his son Kiran, his elder brother's son Basappa and his elder brother's daughter Priya were engaged in work in their land, at that time, accused Nos.1 to 13 by holding sickle, axe and stones, trespassed into their land by abusing them in filthy language and threatened them. Accused No.1- Ramesh, accused No.2-Ravi, accused No.6-Vithal caught hold his brother Nagappa, at that time, accused No.3- Basappa assaulted Nagappa with axe on his head and caused bleeding injuries on the head of Nagappa, accused No.5-Suresh assaulted Nagappa with pick axe on his face, accused No.13-Mahantesh assaulted Nagappa with the handle of pick axe on his head. Then, his brother Nagappa fell down and he became unconscious. Accused No.4-Ashok assaulted on his left arm hand and caused injury. Accused No.5-Suresh and accused No.12-
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 Vishnu kicked him with their legs. Accused No.3-Basappa assaulted his elder brother on his head with axe and caused injuries and accused No.2-Ravi assaulted his brother Earappa with a sickle on his head and caused injuries. Accused No.12-Vishnu assaulted on the neck of Earappa with club, accused Nos.9 and 10 kicked Earappa with their legs and assaulted with their hands and caused injuries and hurt them and accused No.3-Basappa assaulted his father with pick axe on the left leg and caused bleeding injury. Accused No.11-Sanju assaulted with club on the back of his father. Accused No.10- Mahantesh assaulted Rukmawwa with stone, accused No.11-Sanju assaulted Annapurna with stick on her right hand. Accused Nos.6 and 7 assaulted him with a stick on his neck and caused injuries to him. All the accused persons threatened the complainant's family by saying that if they visit their land once again, they will take away their lives. Thereafter, in a private vehicle, they had gone to Nandagad Police Station to lodge the complaint. As Nagappa had sustained grievous injuries,
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 the Police asked them to file complaint later. Then, he immediately went to Government Hospital and from there, the Doctors sent Nagappa, Earappa and his father Rudrappa to KLE Hospital, Belagavi. Thereafter, he filed a complaint as per Ex.P1 before Nandagad Police Station. On the same day, the Police came to the spot with panchas and recorded the spot panchanama shown by him as per Ex.P2 and seized MO1 stone, MO2 blood stained piece of stick and MO3 sample piece of stick. On 4.6.2013, his brother Nagappa succumbed to the injuries in the hospital.
P.W.1 was cross examined. In his cross- examination, he has specifically denied that they themselves raised over the accused persons and admits that an oral quarrel taken place in between themselves and accused persons. In that quarrel, injury was caused to his brother Nagappa. He has specifically denied the suggestion that his father sustained injuries on his leg by a sickle which was held by himself. Further, he has
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 specifically denied that, in order to dispossess the accused persons from their land, himself, his father, his brothers and family members quarreled with the accused persons and in that quarrel, they themselves sustained injuries with the weapons held by them. He has further denied the suggestion that, knowing fully well that the accused persons are the owners and in possession of the land, just in order to dispossess the accused persons from their land, they themselves trespassed into the said land and picked up quarrel with the accused persons and filed a false complaint against the accused persons.
b. P.W.2-Rudrappa Chanabasappa Hattiholi, P.W.3- Earappa Rudrappa Hattiholi, P.W.4-Rukmawwa Nagappa Hattiholi, P.W.5-Priya Earappa Hattiholi and P.W.6-Girish Nagappa Hattiholi have deposed on par with P.W.1.
c. P.W.7-Hanamantha M. Mitagar is the witness to inquest panchanama as per Ex.P3. He has deposed that about three years ago, he had been to KLE Hospital along with P.W.21 in order to see the dead
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 body of the deceased and saw the visible injuries on the dead body of the deceased. He saw the injuries on head, nose and mouth of the deceased. In the cross-examination, he admits that he is one of the relatives of P.W.1 and he visited the mortuary. He further admits that he does not know the contents of Ex.P3-inquest panchanama.
d. P.W.8-Dr. Vishnu Mahadev Pai, who examined C.W.2 and issued Wound Certificate as per Ex.P4 and h e f u r n is h e d opinions as per Ex.P5 and P6 on examination of MO.6-Axe. In the cross-examination, he admits that the injury mentioned in Ex.P4 would be caused by MO.6 and not by MO.10.
e. P.W.9-Dr. M.A. Hiremath, who examined the complainant/P.W.1-Mallappa Rudrappa Hattiholi, P.W.3-Earappa Rudrappa Hattiholi, P.W.2-Rudrappa Channabasappa Hattiholi, Smt. Annapurna E. Hattiholi-CW11, P.W.6-Girish Nagappa Hattiholi and issued Wound Certificates as per Exs.P7 to 13.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 f. P.W.10-Dr. M.S. Mundignal, Casualty Medical Officer, who examined PWs.2 and 3 and issued Wound Certificates as per Exs.P14 and P15.
g. P.W.11-Nutan Ganapa Vaidya, Assistant Engineer, P.W.D, who prepared sketch (Ex.P36) of scene of occurrence.
h. P.W.12-Kemapanna Satyapapa Kocheri, Assistant Sub-Inspector of Nandagad Police Station, who secured accused Nos.1 to 5 and produced before the Investigating Officer.
j. P.W.13-Narayan Ramappa Gulekar is a witness to spot mahazar and seizure mahazar as per Exs.P2, 19, 20, 29 and took photographs as per Exs.P21 to 28.
k. P.W.14-Dilip Panduranga Nimbalkar, Sub- Inspector of Police, Nandagad, has deposed that on 4.6.2013 at 11.30 a.m., when he was on station
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 duty, PW1 produced a written complaint. Accordingly, he registered the same in Crime No.148/13 and sent the F.I.R. to the Court as per Ex.P35 and thereafter, immediately visited the spot along with CW4 and PW13 and recorded the spot panchanama as per Ex.P2 shown by PW1 between 1.30 and 3.00 p.m. and seized MOs.1 to 3 palm sized stone, blood stained stone and sample sand, respectively. At that time, he prepared a sketch as per Ex.P36 and obtained Ex.D1-photograph and on the same day, he recorded the further statement of PW1 and statements of PWs.2 to 6, CW11 and 13. Further, on the same day, he visited Government Hospital, Belagavi, and recorded the statement of injured Earappa Rudrappa Hattiholi and thereafter, visited KLE Hospital, Belagavi, and found that, the injured Nagappa was not in a position to give his statement as endorsed by the Medical Officer. He recorded the statement of another injured Rudrappa Channabasappa Hattiholi and deputed the official to
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 trace out the accused persons. On 5.6.2013, he received intimation from KLE Hospital, Belagavi, that at 23.40 hours of 4.6.2013, the injured Nagappa died due to the injuries sustained in the assault. Accordingly, he submitted a requisition to the Court as per Ex.P39, to add Section 302 of IPC.
l. P.W.15-Maruti Baburao Mahajan, Head Constable, has deposed that on 4.6.2013, he was fixed for search of the accused persons. On 7.6.2013, he received information that all the accused persons are at Alnawar and thus, he visited the Bus Stand, wherein, the accused Vishnu, Mahantesh and Ashok were present. Thereafter, brought the accused persons to Nandagad Police Station and produced at about 10.00 hours before CW31 with the Report as per Ex.P40.
m. P.W.16-B.R. Ravate, Assistant Sub-Inspector of Police, Nandagad, arrested accused Nos.7, 8, 9
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 and 11 and produced before the Investigating Officer with report as per Ex.P41.
n. P.W.17-Mahanteshwar S Jiddi, Investigating Officer, who conducted the investigation, recorded statements of the accused persons, collected documents and filed charge-sheet against the accused persons.
o. P.W.18-Dr. Manjula, F.S.L., Belagavi, who conducted autopsy on the dead body of the deceased Nagappa Rudrappa Hattiholi and issued post-mortem examination Report as per Ex.P55.
p. P.W.19-Dr Chayakumari, Deputy Director, R.F.S.L., who issued report as per Ex.P60.
28. On perusal of the evidence of PWs.1 to 4 and 6, they are injured eyewitnesses to the incident and they have clearly deposed that on 4.6.2013 at 7.30 a.m., all the accused persons formed unlawful assembly by holding deadly weapons, started quarrel with PWs.1 to 4 and 6
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 and deceased in respect of land dispute, contending that the land belongs to them and the family of complainant and deceased should not cultivate the land and abused them in a filthy language and threatened to the lives of the complainant and his family members with dire consequences to take away their lives. Accordingly, accused Nos.1, 2 and 6 caught hold his brother Nagappa, at that time, accused No.3 assaulted with axe on his head, thereby caused bleeding injuries, accused No.5 assaulted with peak axe on the face of the deceased and accused No.3 assaulted with handle of peak axe on the head of the deceased, thereby, deceased Nagappa was severely injured and fell down unconscious.
29. On perusal of oral testimony of PWs.1 to 4 and 6, in categorical terms, they have stated that, accused No.1 assaulted PW.1 on his left arm hand and caused simple injury, accused Nos.5 and 12 kicked him with legs, accused No.2 assaulted his brother with sickle on his head, accused No.12 held on the neck of the
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 deceased, accused Nos.9 and 10 kicked with their legs and assaulted with their hands and caused injuries, accused No.11 assaulted with club on the back of his father, accused No.10 assaulted PW4 with stone, accused No.11 assaulted Annapurna with stick on her right hand and she has not been examined. Accused Nos.6 and 7 assaulted PW.1 with stick on his neck and caused injuries to him. All the accused persons made criminal intimidation to eliminate the complainant's party. During the assault, the injured were shifted to Primary Health Center, Nandagad and again shifted, to District Hospital, for treatment to KLE Hospital and the deceased succumbed to head injury. Further, PWs.1 to 4 and 6 have deposed in categorical terms about the manner of assault made by all the accused persons with material objects. Admittedly, PWs.1 to 4 and 6 are close relatives i.e., father, son and grand- son and since they are close relatives to each other, their evidence cannot be discarded when their version clearly corroborates with each other. Furthermore, they are
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 injured eyewitness to the incident and the presence of the accused persons were admitted by the accused persons on the alleged date, time and place of incident. Further in the cross-examination of PWs.1 to 4 and 6, they have specifically denied that, when all the accused persons in their land, the complainant party i.e., they themselves entered into the land of accused persons in order to dispossess the accused persons from their land by taking disadvantage of an order of temporary injunction granted in favour of the complainant's party and against the accused persons and picked up a quarrel with the accused persons and in a scuffle, all the injured persons have sustained injuries with the deadly weapons brought by themselves. Therefore, from the above suggestion, it is evident that on the alleged date, time and place of incident, all the accused persons were present and PWs.1 to 4 and 6 have sustained injuries as specified in the Wound Certificates as per Exs.P7 to 13. Therefore, it clearly establishes that PWs.1 to 4 and 6 have sustained
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 injuries and their oral testimony corroborates with medical evidence. Further, PW.9-Medical Officer, also in categorical terms, deposed about the examination of PWs.1 to 4 and 6 and injuries sustained by them.
30. On perusal of the post-mortem examination report as per Ex.P55 issued by PW.18, she has categorically stated that the deceased died on account of head injury sustained by him. Therefore, the oral testimony of PWs.1 to 4 and 6 is supported by medical evidence.
31. On perusal of the evidence of PWs.17, 8 to 10, it is evident that, a cut lacerated wound is caused on the head of deceased leading from left ear to middle of the scalp and scalp was broken into two pieces and brain was damaged. On perusal of Exs.P.7 to 13, it appears that PWs.1 to 4 and 6 sustained simple injuries and it would attract Section 324 of the IPC. The injuries sustained by PW.1 are abrasion over the right posterior part of
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 forearm and pain over back of neck measuring 3 x ½ CM length and width and generalised body pain. PW.2 sustained injuries of cut wound over the left medial part of foot measuring 4 x 1 CM with bleeding and generalised body pain, PW.3 sustained cut lacerated wound over left parito temporal region measuring 4 x ½ cm length and width, pain and tenderness over the neck and generalised body pain, PW.4 sustained injuries of abrasion over dorsal part of left wrist measuring 1 x ½ CM length and width and generalised body pain, Smt. Annapurna Irappa Hattiholi-CW11 sustained abrasion over the posterior part of right ear measuring 1 x ½ CM length and width and no external injuries over the other parts of the body, and PW.6 sustained injuries to his right eye (swollen), bluish in colour and bleeding from nose, swelling over left zeugmatic region measuring 3 x 3 CMs length and width, left shoulder region abrasion is present and swelling measuring 3 x 3 CM length and width, semiconscious, bleeding from mouth and nose.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018
32. The accused persons have taken the contention that the complainant's party themselves entered into their land in order to dispossess them from the land and hence took up quarrel with them and in a scuffle, PWs.1 to 4 and 6 and the deceased sustained injuries. Strangely, the accused persons have not taken any defence that they have exercised the right of their private defence in order to protect themselves or protect their property.
33. On perusal of Ex.P62 (order on I.A. No.1 in O.S. No.93/2012) and evidence of PWs.1 to 4 and 6, it appears that temporary injunction was granted in favour of the complainant's party against the accused persons restraining the accused persons from interfering with the possession of the complainant's party over the disputed land.
34. It is evident from the order passed in Miscellaneous Appeal No.10/12 dated 10.2.2015 that both the parties were directed to maintain status quo till
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 disposal of the suit. Admittedly, the incident took place on 4.6.2013 as there was direction to maintain status quo and the fact that both the land of accused persons and the complainant's party are adjacent to each other. The accused persons enraged against PWs.1 to 4 and 6 and the deceased in view of the interim order passed by the trial Court, took quarrel with them and their common object was to take revenge against PWs.1 to 4 and 6 and the deceased. Thus, they assaulted the complainant and his family members with the deadly weapons at MO.1- stone, MO.2-blood stained piece of wood, MO.5-sickle and MO.6-axe, MO.7-pick axe, MO.8-pick axe, MOs.9 and 10-clubs and caused fatal grievous injuries and simple injuries. However, witnesses to spot mahazar and seizure mahazar have categorically stated with regard to their presence, investigation conducted by the Investigating Officer and regarding seizure of material objects. Therefore, in the present case, motive for murder of deceased Nagappa and assault on PWs.1 to 4 and 6 are proved. Admittedly, there are four injured
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 eyewitnesses and the incident took place in the land of PW.2.
35. The learned counsel submitted that, the trial Court convicted accused Nos.1 to 13 for the offences punishable under Sections 143, 147, 148, 323, 324, 302, 341, 447, 307, 504 and 506 read with Section 149 of IPC.
36. On careful perusal of Section 302 of IPC, it makes it clear that, the person committing murder shall be punishable with a death sentence or imprisonment for life. It is the case of prosecution that, all the accused formed an unlawful assembly by holding deadly weapons, committed rioting, took quarrel with family of the complainant, intentionally insulted to provoke their breach of peace, threatened them with dire consequences to eliminate them and assaulted with deadly weapons on PWs.1 to 5 and committed murder of the deceased Nagappa.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018
37. The Hon'ble Supreme Court observed in catena of decisions that evidence of an eyewitness cannot be discarded only for the reasons that they are family members and interested witness. But on perusal of the evidence of PWs.1 to 4 and 6, they are eyewitnesses to the incident, remains unimpeachable and their testimony is cogent, consistent and corroborative nature and hence, their evidence cannot be discarded. Further, the evidence of an eyewitness cannot be discarded on the ground that, he did not raise any alarm.
38. The Hon'ble Supreme Court in the case of Shahajan Ismael Mohammed Sheikh v. State of Maharashtra, in Criminal Appeal No.239 of 2017 dated 14-7-2022, held that, "in assessing the value of the evidence of eyewitness, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either welicited from those witness themselves or established by other evidence tending to improbabalise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence".
39. The Hon'ble Supreme Court in catena of decisions has held that there are situations in which several accused participate in an assault and there is often tendency to spread the liability to all of them, whenever a conviction is recorded and vice-versa where an acquittal results, regardless of the very fundamental proposition of criminal law that even in such instances where there may be a charge of common intention, unlawful assembly or rioting, that the Court is still required to sift the evidence and decide as to whether there is evidence of commonality of intent on the part of all the accused or whether a distinction will have to be
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 made between some of them and the rest. Criminal law undoubtedly admits to the proposition that commonality of intent may develop on the spot but on the other hand, citing the present case the intention of the group may have been to assault the victim, whereas one or more of the persons may have acted otherwise and would possibly qualify individually for a heavier conviction and sentence.
40. Undoubtedly, the Court will go by the weapons used, the overt acts attributed, the degree of force that was exerted and such other finer features of the incident while recording its findings. This is very important because it is equally essential that no accused person should end up with a heavier liability than what is strictly contemplated by the law and conversely, that there should not be a failure of justice through too light a consequence or wrongful exoneration. These are all very fundamental principles of evaluation of evidence and of criminal jurisprudence.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018
41. It is well-settled that where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence in pursuance of common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults a victim, it is not necessary that all of them must take part in the actual assault. Even in absence of actual assault, all members of unlawful assembly may be held vicariously liable for the acts of others provided there was common object to commit a crime.
42. Appreciation of evidence in such a complex situation is indeed a difficult task, but Courts exercising powers in administering criminal justice have to do their best in dealing with such cases and it is expected of them to discharge their duty to sift the evidence carefully and to decide which part of it is true and which is not.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018
43. Learned counsel for the appellants vehemently argued that present case is in nature of civil dispute, but the Investigating Officer given colour of criminal offence. Hence, prayed to acquit the accused persons. In this regard, he has relied upon the decision of the Hon'ble Apex Court in the case of Mitesh Kumar J. v. State of Karnataka and others reported in 2021 SCC OnLine SC 976.
44. On perusal of the aforesaid decision, the Hon'ble Apex Court held that there can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. Whereas in the present case, there is civil dispute between the accused persons and the complainant's party, but the accused persons have taken law into their hands, formed unlawful assembly and their motive was to assault PWs.1 to 4 and 6 and the deceased. Therefore, they entered the land with deadly
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 weapons and assaulted PWs.1 to 4 and 6 and caused the death of the deceased. Therefore, causing the death by deadly weapon would not amount to civil dispute.
45. Further, in the case of Ganesan v. State, represented by its Inspector of Police reported in (2020) 10 SCC 573, the Hon'ble Apex Court held that testimony of victim is found reliable and trustworthy, reiterated, conviction on basis of sole testimony is permissible.
46. Whereas in this case, PWs.1 to 4 and 6 are injured eyewitnesses. Their testimonies are found reliable and trustworthy. Their evidence corroborates with each other and their testimony also corroborates with medical evidence.
47. Further, in the case of State of Madhya Pradesh v. Chhaakkilal and another reported in (2019) 12 SCC 326, the Hon'ble Apex Court held that in a murder trial, involvement of the accused
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 established by trustworthy testimony of related eyewitness, conviction can be restored.
48. Further, in the case of Sidhartha Vashisht @ Manu v. State (NCT of Delhi) reported in (2010) 6 SCC 1, the Hon'ble Apex Court held that presence of accused at scene of occurrence is established, through testimonies of prosecution witnesses. It was contemporaneous documents, which was corroborated by prosecution witnesses and if the evidence is cogent, conviction is sustainable.
49. In the light of aforesaid judgments and the prosecution evidence on record, PWs.1 to 4 and 6 in categorical terms have stated that, accused Nos.3, 5 and 13 have assaulted deceased Nagappa. On perusal of the medical evidence, the evidence of Doctor also corroborates ocular evidence of injured eyewitnesses.
50. In view of the above facts and circumstances of the case and placing reliance on the above judgments of
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 the Hon'ble Apex Court, it appears that, accused Nos.3, 5 and 13 have committed the murder of the deceased and accused Nos.2, 3, 4, 5, 7 to 12 assaulted PWs.1 to 4 and 6. So far as the trial Court observation with regard to all the accused persons involved for the offence punishable under Section 302 of the IPC is concerned, on perusal of evidence of PWs.1 to 4 and 6, it appears that only accused Nos.3, 5 and 13 are involved in the offence punishable under Section 302 of the IPC, but trial Court invoked Section 302 read with Section 149 of the IPC. Trial Court has wrongly under misconception by invoking Section 149 of IPC, has convicted all the accused persons, which requires modification.
51. In order to attract Section 307 of the IPC, according to the prosecution, accused Nos.2, 3, 4, 5, 7 to 12 attempted to commit the murder of PWs.1 to 4 and 6. On perusal of the Wound Certificates, PW.9-Medical Officer has issued Wound Certificates as per Exs.P.7 to 13, wherein, it appears that the injuries sustained by
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 PWs.1 to 4 and 6 are simple in nature. Therefore, ingredient of Section 307 of the IPC is not attracted and at the most, Section 324 of the IPC is attracted.
52. In the instant case, as per the prosecution version, accused No.3-Basappa assaulted deceased Nagappa with axe on his head, accused No.5-Suresh assaulted deceased Nagappa with a peak axe on his face and accused No.13-Mahantesh assaulted deceased Nagappa with handle of peak axe on his head and thus, Nagappa fell down and became unconscious. From this, it is clear that only three persons participated in assault and it was accused Nos.3, 5 and 13 who had caused injuries to the deceased Nagappa. Hence, even if Section 149 of IPC is attracted and is applied and accused Nos.1, 2, 4, 6 to 12 are not held liable for the act of accused No.3, 5 and 13. But, the trial Court convicted accused Nos.1 to 13 for the offence punishable under Section 302 of IPC, the order of conviction for offence punishable
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 under Section 302 read with Section 149 of IPC cannot be said to have been made out by the prosecution.
53. It was the case of the prosecution that, accused Nos.8 to 11 caught hold deceased Nagappa and other accused, i.e. accused Nos.1, 2, 4, 6 to 12 assaulted Nagappa, but the prosecution evidence have not enlighten, any focus on accused Nos.8 to 11, except the allegations that, accused Nos.8 to 11 held the hands and legs of deceased Nagappa and thrown on the ground. On perusal of post-mortem report and the evidence of Doctor, who conducted autopsy on the dead body of deceased Nagappa, has opined that the death was due to head injuries, therefore, no significance shall be attached to the other minor injuries sustained, especially in the absence of any injuries sustained by deceased Nagappa as alleged by the prosecution against accused Nos.8 to 11 are concerned. The only persons who attacked the deceased Nagappa with deadly weapons are accused
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 Nos.3, 5 and 13 and they caused injuries on his person which resulted in his death.
54. The trial Court believed the ocular evidence of prosecution witnesses and convicted all the accused for offences punishable under Section 302 read with Section 149 of IPC. When PWs.1 to 4 and 6 being the injured witnesses have in categorical terms deposed about the individual overt act of each accused, especially, about accused Nos.3, 5 and 13 assaulting deceased Nagappa. Therefore, the benefit of doubt should be given to other accused persons for the offence punishable under Section 302 read with Section 149 of IPC, except accused Nos.3, 5 and 13.
55. The trial Court did not record a finding that, along with accused Nos.3, 5 and 13, the other unidentified persons also attacked the deceased and caused his death in furtherance of common object of unlawful assembly. Precisely for that reason, conviction of accused Nos.1, 2, 4, 6 to 12 for offence punishable
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 under Section 302 read with Section 149 of IPC are not on the basis of material available on record.
56. We find considerable force in the argument canvassed by the learned counsel for the accused. In view of the acquittal of accused Nos.1, 2, 4, 6 to 12 for offence punishable under Section 302 of IPC and in the light of the ocular evidence that, remaining accused assaulted PWs.1 to 4 and 6 and caused simple injuries, in our opinion, ends of justice would be met if we convict accused Nos.1, 2, 4, 6 to 12 for offence punishable under Section 324 of IPC, instead of Section 302 and 307 of IPC are concerned.
57. We have already observed in the earlier part of the judgment that accused Nos.1, 2, 4 and 6 to 12 have remained in jail for more than 5 years (i.e., from 2-4-2018). In the circumstances, in our considered view, it would be appropriate if the sentence already undergone by accused Nos.1, 2, 4 and 6 to 8 are treated as adequate and sufficient.
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018
58. For the aforesaid reasons, the conviction recorded by the trial Court against accused Nos.1, 2, 4 and 6 to 12 requires modification. Accused Nos.3, 5 and 13 are convicted for offence punishable under Section 302 of IPC, whereas accused No.1, 2, 4 and 6 to 12 are convicted for offence punishable under Section 143, 147, 148, 323, 324, 341, 447, 504 and 506 read with Section 149 of IPC.
59. Since accused Nos.1, 2, 4 and 6 to 12 have remained in prison for more than five years, in our considered opinion, the interest of justice would be served if we reduce substantive sentence already undergone by accused Nos.1, 2, 4 and 6 to 12. However, the sentence of fine imposed by trial Court remains unaltered.
60. Accordingly, we pass the following:
ORDER i. Appeal is partly allowed;
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 ii. The judgment of conviction 28.03.2018 and order on sentence dated 02.04.2018 passed by the I Additional District and Sessions Judge, Belagavi, in Sessions Case No.281 of 2013, in so far as accused Nos.3, 5 and 13 for the offence punishable under Section 302 read with Section 149 of IPC is confirmed;
iii. The judgment of conviction and order on sentence in respect of accused Nos.1, 2, 4, 6 to 12 for the offences punishable under Sections 143, 147, 148, 323, 324, 341, 447, 504 and 506 read with Section 149 of IPC is confirmed and the period already undergone by them is given set off under Section 428 of the Code of Criminal Procedure, 1973, and accused Nos.1, 2, 4, 6 to 12 are directed to be enlarged forthwith. The bail bonds executed by accused Nos.1, 2, 4, 6 to 12 stands cancelled.
iv. The judgment of conviction and order on sentence regarding Section 307 of IPC is modified and
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NC: 2023:KHC-D:10706-DB CRL.A No. 100119 of 2018 altered into Section 324 of IPC and the period already undergone by them is also given set off under Section 428 of the Code of Criminal Procedure, 1973.
v. The Trial Court is directed to refund the fine amount deposited, if any, by accused Nos.1, 2, 4, 6 to 12.
Sd/-
JUDGE Sd/-
JUDGE KVK/gab