Karnataka High Court
Akkidoddaiah vs State Of Karnataka on 3 October, 2008
Bench: S.R.Bannurmath, B.V.Nagarathna
W THE KIGH (min? or KAR1%wrAKA' AT ~ "
Dated this the 3rd day er October , 22393' L' %
'Pi-IE Hozwsnx fir. J'iiS'I'I('.:E SIR. fl;a1§NVfi.§&ATfi «. "
THE HOWBLE Mrs. Jus-r1i5E 3.s(. naémgfang:
CRIMINAL no.3. 3;::_f8;~~55'3'~& 66212004
cmmmax. APPEAL mos,
BETWEKN:
. '°'::~.. ..
Agedvabout }"r:§;a:1js;T. _ "
Papaiahu' .
S / ;:-- -Jagg1da1iah,V V
about 30
. 1 . B/lahadeva @ Hucina,
"S,/oTA1a 1;ca_San.r_m;.ia.h,
H 2 Aged aim: years,
fésiéiants of B1dara'haii1
Huniii xiillagez,
V' * Sxjxangapatna taluk,
vmaiadya District.
. . . APPELLAHT3
' (B3? Sri B. Shankarappa, Amlcus Gurlaej
" Arm:
State of Xaxnataka,
By Amkere Pafice,
1.
Represented by the
State Public Prosecutor,
High Court; of Karnataka,
T Bangalore. .. . :17 ~ .b
(By Sri. 3.3. Pavia, SPF.) _
CRIMINAL APPEAL No. 653/2004"-._ . 3 *
amwzen; V
State of Karnataka,
By Arakere Poiice,
Represented by the _
State Public Pmsecutor, T ;
High. Court of Karnataka, H " vv -. 1 .. =
Bangalore. ' ' . " - .'APPELLA§I'!'
(By 3.8.
AKD:
'$3;!_o
"{§,ged ;§b§&mtV7.4"_'j_;ears,
2. 'Ai§§1:1dq;i,da§§,at§.
S /3;: Jagaciéraiah,
Aged" about 39' years,
._ o:Jagadaria}:1,
Aged about 34 years,
'=.<;. Venkataiah (g2 Netadi,
S] 0 late Sannaiah,
Aged about 32 years,
5. Somamma,
S/o late ,
Aged about 27 yeam,
6. Huchajah @ Mahadevaiah @ i~«Iucha,-_ " x
8/0 late Sannaiah, ' ~ "
34 ycars.
7. Kariyaiah,
S/0 late ,
Aged about 24 years, __
8. Muddi@ Muddamma
W/0 _ . .
Aged about:34,y€_:a1's,§;_ Z, _V
"(/0 I
All are
Hundiyiliagc; ~ _
S.R. Paths; taluk._ ...RB8POHDE!l'!'8
V' {By =sudgzshafi;"'Adv.)
no. Maggi:
V . 3m'rwm:I""
4 ,Stsit¢: of Kamataka,
'.l:»"§z Ariikerc Police,
_ Represented by the
" State Public Prosecutor,
' " Court of Karnataka,
Bangalore. ... APPELLANT.
(By Sri. 3.3. Pavia, SPF.)
AND:
1. Alckidodcimah,
S] 0 Jagadaraiah,
Aged about 35 years,
2. Papaiah
S/o Jagadariah,
Aged about 30 years,
LO
. Hutchaiah ({3} Mahadeva 'fiixrsha,
S/0 late Sannaiah, .. ' "
Aged about 36. '
All are re$icie--.t;m_~3 of
S1ira:ngaps£i;'o,a%_V tahgk, _ é 3. _
Manciya'D:snict';'j'-~ ' ~ ' RESPONDENTS.
{By Srj. L. S'-ug1s..vs1¢."a;1;
' 'A N0. 378j20{)4 is filed by the appefiants _ Siggaéinnmndent, Sub. Jail, Mandya against the jucig;.Iién£v_(ia'tf::f' 7. 13.12003 passed by the learned Sessions
-Judge'; u "'Mafidya, in S.C.No. 4612000 commng the _ h convicts for the ofilenccs punishable under Sections ' '4M3.,a;Z;1 304 Partdi IPQ, am sentencing them :0 undergo R3. ___ '"fcar ;4 years each for the otfcncé punishable undfir Section 304 "-. }5a"1*t-«ii {PC and aiso to pay a fine: of RS500/-- each for the " offence punishable under Section 448 of IPC. Each of the accused are ordered to undergo 12.1. for 6 months. Both the sentence ordered shall run concurrently. Criminal Appeal No. 553/2004 is filed 373(1) 83 (3) Cr.P.C. by the State praying to grant:
appeal against the judgment and oIt;i§:rb_datc(i"7'."1 1 by the learned Sessions Judge, Mfandyfi, thereby aoquittizng the respondents/'a¢é'a_1_Scd Nqs. '1, and 9 for the oflbnccs ..}mde r Sgctidns 42, and 302 1"/W 149 IPC.
Cz11n111' ' al Appeal $62'; ~und.er Section 377 Cr.P.C., by the States ptayixig {he judmcnt and order of by the learned Sessions Judge,' 46/2000 convicting the zespondentsl sand 6 for the ofibnces punishab1eAVunder""s.=¢'tions 44s;"éo4 Part-II we and sentencing flgemvto R_.I. f<§f'4v-years each for the offence punishable uIA1d._er §3aé;1é_a;rt-II 190., and also to pay a fine of Rs.5£:s:s] Vfitxe-:"ofi'ence punishable under Section 448 ' tvI_*1.é' are sentenced to undergo R.I. for 6 1no13.ths. Bdthzthcv Sentences shall run concunenfly. appeals coming on fbr Hearing this day, V , _ J1, delivered the foflowi11g:-
they are taken up together for consideration andheing disposed of by this common judgment.
3. The brief facts as per follows:
The accused andv his relatives are all residents of i SV:iiJangapatna Taluk.
The interse witnesses are Racha ia__h" _«~ file is the brother of Siddata' h. PM/.19 j 'idahafieuemma this wife of Siddaiah Whereas P.W.17 'B:%t.t§IB;;.ni;i'eis"A't7%e wi{¢%¢fme deceased Rachaiah. In so far as between the accused is cencernecl, ' are brothers, similarly accused Nos. 4 to 7 inters'e,}5intheI's, accused No.8 is the sister of accused of ..aé-Le'}15€?§..1<\"A_ANo.6 and in mm accused No.6 is the son~in---law of V. No.2, accused No.9 is the wife ofaocused No.2. 6""
10
the fact Iemains that the said injured Rachaiah afier assault, was found in the house of his brother - p.w.4 andvjfiiaon he breathed his last there only. In this regard, P.\_V."1'7A4thc fixst information with the jurisdictional morning. P.W.24 --~ Venkatacha1egc1:§a?do§_:§ :13':-._ 9.5.1, of Arakere Police Station, on the mi about the crime fimm P.W.I7,'V""i;§C0rds. on basis of it registers a all} the 9 accused for the oi?t'enoes"1V3ta'Ji3_j.*.=};i.&;bb:VLe _.z:1_§%1(if(§:'»»__Sec5mns 143, 342, 302 r/W 149 oase, the mandatory pmcedfizxes _A . inquest, spot mahazam and thereaftrA:'r,..V_t4h¢: éubjeotaed to autopsy, evidence of the nfaiafiyes ot.her 'pe1:sons an: recorded and search for the - 2 The accused Nos. 1, 3, 4, 5, '7, 8 and 9 23.1.2000; accused No.6 is azmsted on No. 2 is armsted on 7.2.2000. They am and on the basis of voluntary statement, the "'L:§yea'1$o'ns alleged to have been used in the cximc are seized. ES. Aficr completion of the investigation and filing of the charge sheet as well as committal, the trial Court charged the 9% 11 accused for the offences punishable under Sections 148, 342, 448, 392 r/w 34 I130. The accused denied t1;c~1e't;;a;_%g§«§g s..nd claimed to be tried and as such, they tried.
6. In order to estabiish thf: of f prosecution has Ielicd upon the (of marked Exhibits 9.1 to 51 an( i iimt dii' not lead any 0131 cvi;d.enoe.VAV.-----« xfie-Wtwcr, 'durillglithe (moss- exammation, they got méifléc-d (3.1 to (1.9 --~ portions from th¢'--s§atem,»"éfiis:'§>f witnesses. As already: nqtud",7 th¢V' at the conclusion of the trial giving bémgfit %o£'d§i15:£gs'~ Nos. 1, 4, 5, 7 to 9 acquitted themcf fiowever, so far as accused Nos. 2, 3 V. held that they are guilty of the offences Section 304 Part-II as well as Section 448 of sentenced them. Hence, these thmc 7'. Taking us through the cmine evidence and the 1' reasoning of the trial Court, the learned Smite Public Prosecutor vehemently contended that, the appreciation of evfiencc by the EL 13 same as that of in 11-rspcct of the other accused, of doubt to some of them only on the surmises the 1113' 3 Court is illegal and unsustainable. . that the finding of the ma; Court age E are related to the deceased am.
the masoning also is _V thc. thc trial com itself since on thcj evidence of these witnesses, it has .fcund 6 guilty. Hence, it is submittcéi é the txtiai Court is clearly not fiance it is submitted that, on a:I.;Lii'..Vv_co_n,~;:.icVtcnt material against all the accused',A"'t;h£: to have held all the accused guilty t of the cfieficcst :1: is also submitted that, '% A" mi;i3itted§iy tizc deem' Racha1a' h was severely assaulted with chcppem, knives, clubs, etc, and the rctii;1}ttingV.i1iji}z1ics and death ckarly shows that the only object uof thcse-Vciccuscd was to commit murder of deceased Rachaiah of ill will betwccn both the pazdies. It is submitted as the prosecution witnesses have cogcntly stated that all u the accused came to the house of the deceased, armed with deadly weapons and carried out the same, clearly indicates that £r/ 14 they had common object of assaulting and killing As such, the acquittal of all these accused for the :._'ofl;."enoes punishable under Sections 143, 342, 302 1497--o perverse. The leamed State .
that, even in respect of convicted :VNos._ finding of the trial Court gu:113f'A¢;§+_h.e ~ebn?¢na:o punishable under Section 304 is in View of the proved homiseiiai it is submitted that even if the o!7--t1'ge:se the offence under Section 304_ in view" of proved homicitlal aeg:::.t .the.Lé3ternate, it is submitted that even if the the offence under Section 30441 IPC if; "even then the sentence of R.I. for 4 years for
- r guoh "Ra cxtivniehvis totally mad' equate and insuficle nt it is submitted that even if this Court upholds the of the prosecution as found by the trio} Court, appeel under Section 377 Cr.P.C.., for enhancement of ":t:x$ente"1;.ces is liable to be allowed.
8. On the other hand, the learned Counsel for the accused both convicted and acquitted argued in support of the 52/ 15 trial Court findings. It is to be noted that, the accused, who stand convicted have also filed an independent Once again taking us through the entire evidence in accused, it is vehemently contended that, the of 'the prosecution witnesses is full of coniiadiciions "V is no consistent version as submitted that, admittedly of how actually the assau1tV_Atool("'f1i#:ec;*'VVV?a:;;i than 5 persons aileged to have fwd with weapons like choppers, J¢.§njves, of establishing the common zidenizh.'-y_ing all the accused with indiviclual overtacts,' " Nos.2, 3 and 6 alone was 111ega' .,I1;is the reasons given by the trial' Court 'C V. "for Nos}, 4, 5, 7 to 9 on all force also
- accused also and as such, it is convicted accused Nos. 2, 3 and 6 are also benefit of doubt as has been given to the other Not foI1owmg' this principle by the tnal' Court, to the learned Counsel, indicates the pezversity and '4 non application of mind by the trial Court. Hence, it is fit, 17 to the house and locked the deceased inside the hou'se;:.tl:n:.s..was obviously with an intention to either enqu1re' ' or hold him till the panchayat to _ conduct towards injuxzing the 1eputa.fion of - This has taken place at about o1l*lA8,(V:)'(}' the witnesses speak, it only __1l V545, few other accused came to the out the injured Raehaiah and &1dl11g inside, got enraged, in and thereafter as already unfortunately and 1 1A.l' he with the evidence of the prosecution, to consider whether Rachaiah met % llloirficieial deatvhflespecially when the tria1Court has found No.3 2, 3 and 6 not guilty of the offence tinder Section 302 but of lesser degree i.e., '~»punishahle for the offence under Section 304 Part~II of IPC. The of the entire evidence of the prosecution witnesses and e_s?pecia1ly the injury certificate and the post mortem report indicates that the deceased had received majority of injuries on é/L» 19 and locking the deceased inside his own house,4vw.VV_:Extex; the evidence of the wife of the deceased P.W.17 eriien she quesfioaed the motive of the aocus*.z:i;' husband, the accused has told heriathat-.t}«;e to cause any harm but only to "is before the panchayath of eklere'VL'fo;t'ettq11ity they have kept quite. But'o_fi1y or i1".x()O in night, when they retumed hacAl};V_;§'3:A1ti' the dweased has lacked out, they have no doubt the door and rushed in.
As such, the trial Court that the offence is of homicidal death amount to murder 302 IPC hae to be accepted.
tsepthe tttjefitttvquestion as to the culpability or involvement in the crizne in question.
12. Asfézfi the accused are connected with formafion of in}gw":}:fi,1:l aj3sembly and carxym' g out the common object, we V. find out whether there was common object and most what it was. As we have already noted, the ointaention of the accused appears to be to teach a lesson to the E4.' deceased for having an afiair with Smt. Kumari or her and possibly running away thereafter for 6 montllslll'e._V_It is possible to hold from the conduct of the 'l that they had common object of only lesson to the deceased even by T lhe most, but not murder. The la more than 5 pemons, aspeet. at the outset, we to hold' of unlawful assembly and of assault or causing hurt to Aé"'é;i:c}j,__:tihe finding of the trial Court fin. benefit of doubt to the accused for the ofi'czlc:z:_ 143 or 149 IPC., appears to be:.€.z1roneoi1a.V Z ' " ll stage, it is to be noted that, on perusal of the eotixje judgozlexlt as rightly contended by the learned Public and to some extent by defence also, we find that, totally non application of mind by the learned txial Joidge. The perusal of the judgment indicates that, some of the ll conclusioas arrived at by the trial Court are based on only surmises and conjecture. The learned trial Judge has given go- gt, 21 bye to the settled principles regarding app1eciation",ef and as such, this being the first appeal, looked into in detail the entire evidence, ; five our findings.
14. As alrewy poted', :c_af" examined, P.Ws. 1, 2, 4, 5, 17, as partial eye wimesses to the entire is concerned, the pmsecumg, of P.Ws. 1, 2, 5, 3, 16 and 1 o:{.a;t §£ these Witnesses, P.\Vs. 5, 8 and 16 pmsecution and as such, they have 9 witnesses. In spite of searching cfxos§;.--e:ee:o.§;:;£aa't.i§)n. c»f witnesses, nothing helpful V "" 'Been brought out to help the namely P.Ws. 3, 6, 9, 10 am are "flwiimesses witnessing the spot mahazar, ~ inxzjuesit, etc., and xemaining are the members of the team. Hence, in. order to find out the culpability of n we have to consider the evidence of P.'oVs. 1, 2, 4, A: "»1?',;ii;8 and 19.
51» 24 such, are interested pemons and hence, their evidence are not accepted. We do not find any force in this azigume-nt liemuch as it is new Wei} settied that, the evidence ef-i Witnesses cannot be thrown out only on are interested because of the neha=tioniiivith".the No doubt time and again, it is held witnesses if natural and no and fast rule to reject the truthful. Keeping in mind this when we consider the entire evidenee of we find that apart ficvom their there is not disparity in evxd' enee ii aniongstd All of them have spoken genexjaiiyfias V-theinvtilveinent of these accused in the aileged . it «we find that the evidence of these "§§i'£nesses is aoceptabke.
1"6V.__Ai3 However as laid down in the case of MASALTI V/S [AIR 1965 SC 202] when large number of people are i' involved in a major crime that too» with the aid of Section 149 it iPC.., the Court must take into consideration the usual tendency of the victims family in nyzing to involve as many persons as 2:.//"i 25 possible from the accused family and as such, as laid down in the aforesaid case, we have to follow the test and it, we find that so far as accused Nos. '7, 8 and 9 are 'their role is obscure. Except P.W. 17, none of the speak about their an'1va1' or in;v»¢1i&exm;1a:« in _the_ 'cm'? e'.in 7. quesfinn. It is to be noted that, woman folk and as such, Vagiiigdng 'the Mass-.l't1"s case, we find flzgat of daniirt gisen to them by the trial Court is far as the other accused are conseizned,:_F5;Ws;;I,_ '2:,V:'va-1! and 23 have given consistent vevixyiofl «inclusion of the trial Court in pickisag up and 6 is incorrect. On ze- appmciafien "«::f.theV find that accused Nos. 1 to 6 the inesient resulting in assault on the deceaseVVd.;- almady noted, the act and oflence of falls under the provisixms of Section " sf There is also suficient evidence to show that, unlawful assembly and also tvess passed into the % __cif the deceased and as such, they am Iiabk: to be 'j_&"c°on§l'icted for the ofiences punishable under Sections 143, 342, 5* 27 accused Nos. 2, 3 and 6 alone as guilty persons. Hence, in our view, not only the appeal filed by these accused Appeal No. 373/ 2004 is name to be rejected but_'also--«'th:é:
am by the State -- Criminal Appeal No. 653/:24_1<5_%:».gsa»4ijng Abggefit of doubt to the other accused is u Hence, we hold that, aocus¢d._4'No.$'*-{to 6 of offences punishable under 143, 3.42',o 304 Part-II 1'/W 149 IPC. Howevexj: we of other accused Nos. 7 to 9 confirmed.
19. us quesuion as to the sentence.
The of rigorous imprisonment for 453%-aArs V-far"£is Nos. 2, 3 and 6 are concemod. . V. "No V'doub"t* scnfoooo is meagre comparing to result of the We find from the peculiar facts and it was damaged, who had contributed to "-some to the incident and sizes the incident is 8 years "'L.§3;_1V,>"'4"§:nds of justéoe would be met, in the facts and cifcumstances of the case, if sentence of R1. for 4 years is It is to be noted that during the trial, except accused Nos. 2, 3 and 6 other accused were on bail. It is n 28 submitted at the Bar that infact the accused have oéianpleted the term of imprisonment as on today and " the pecu11ar' facts and circumstances of the case, to impose sentence of RJ. for 4 ai AV the same time, we award a fine of he the accused and in default to E.v._fo3z-'..():I_"i_.f= S
20. In the seasons stated above, CI'JII]J11' ' al Appea1'_£§m,_ 3?8'}'2(>¢@{¢ Nos. 2, 3 and 5 as well as 3'19. ~6fi2,' filed by the State for enhanéemenf accused Nos. 2, 3 and 6 stand xqmmdmmrmmfiaafifiafiasaymm4mammm¢nmm as in:;1ieated_ ab'e-veg sd/-3;
Judge Sd/-r Judge .4,_ b NS"/U