Karnataka High Court
Ishwar S/O Mallappa Waggar vs The State Of Karnataka on 27 January, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100363 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100363 OF 2019 (C)
BETWEEN:
1. ISHWAR S/O MALLAPPA WAGGAR
AGE: 60 YEARS,
OCC: AGRICULTURE,
2. SHRIKANT S/O ISHWAR WAGGAR
AGE: 39 YEARS,
OCC: AGRICULTURE,
3. MALLIKARJOUN S/O ISHWAR WAGGAR
AGE: 32 YEARS,
OCC: AGRICULTURE,
ALL ARE RESIDENTS OF CHIKKANANDI,
TQ: GOKAK, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. V.M.SHEELVANT, ADVOCATE
AND SRI. K S PATIL, ADVOCATE)
Digitally AND
signed by
POORNIMA 1. THE STATE OF KARNATAKA
SHIVANNA
REPRESENTED BY CPI,
Location:
HIGH GOKAK CIRCLE,
COURT OF TQ: GOKAK, DIST: BELAGAVI,
KARNATAKA REPRESENTED BY
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CRL.A No. 100363 of 2019
STATE PUBLIC PROSECUTOR,
AG OFFICE, HIGHH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT DATED 17.08.2019 AND
SENTENCE DATED 22.08.2019 PASSED BY THE XII-ADDL. DIST. &
SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK, CONVICTING
ACCUSED NO.1 TO 3 FOR OFFENCES U/S 302, 201, 506 OF IPC AND
ACQUIT THE APPELLANTS/ACCUSED NOS.1 TO 3 BY ALLOWING THIS
APPEAL.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The appellants who were accused Nos.1, 2 and 3 in S.C.No.322/2014 are before this Court aggrieved by the judgment of conviction and sentence passed by the XXI Additional District and Sessions Judge, Belagavi sitting at Gokak in the aforesaid matter.
2. The case of the prosecution is that: -3- CRL.A No. 100363 of 2019
2.1. The accused having a property dispute with Ramsiddappa had picked up a fight with him at 7.00 a.m. and assaulted him. When his wife Padmavati sought to intervene, she was also assaulted. When their son Nirupadi sought to intervene and assist his parents, he was also assaulted. The assault was fatal in nature all of them succumbed to the injuries, Ramsiddappa at the spot, Nirupadi on 12.07.2014 and Padamavati on 31.07.2014.
2.2. Accused Nos.2 and 3 are the sons of accused No.1, accused No.4 is the wife of accused No.1, who has expired subsequently, the accused No.5 is the brother of the wife of accused No.4 i.e. brother-in-law of the accused No.4.
2.3. The deceased Ramsiddappa and the father of accused No.1 by name Mallappa are brothers.
There being one other brother, namely Yallappa, they have divided their properties -4- CRL.A No. 100363 of 2019 equally. Yallappa having one daughter by name Basavva, he adopted the son of Ramsiddappa by name of Bhimashi. It is in order to deprive Bhimashi the right to succeed to the land of Yallappa that the accused had purchased the land belonging to Yallappa which was opposed by Ramsiddappa and his family. A panchayat having been convened on 07.07.2014, the dispute was settled by the elders by directing Ramsiddappa to make payment of Rs.4,60,000/- to the accused and the accused to transfer the same to Bhimashi. A settlement having occurred on 07.07.2014, the transaction was to be completed by 11.07.2014 but however on 08.07.2014 at about 7.00 p.m. the accused have taunted the deceased Ramsiddappa and his family by stating that they could not do anything and even if he were -5- CRL.A No. 100363 of 2019 to make payment of the money. This was ignored by Ramsiddappa.
2.4. On the next day 09.07.2014 at about 7.00 a.m. when Ramsiddappa was chatting with his son Nirupadi near the compound of his house, Ramsiddappa is alleged to have stated that the dispute has been settled by the elders and the accused have to comply with the same. On hearing it, the accused No.1 armed with an axe and the accused Nos.2 and 3 armed with a sickle, came near the house of Ramsiddappa and assaulted him with the said weapons resulting in his immediate death. Nirupadi who came to the rescue of his father, was also assaulted. Hearing their cries, when Padmavati wife of Ramsiddappa came from inside the house, she was also assaulted fatally by the accused Nos.1 to 3. When villagers tried to rescue the injured, the accused are stated to -6- CRL.A No. 100363 of 2019 have threatened the villagers. Accused Nos.4 and 5 are alleged to have instigated accused Nos.1 to 3 and on that instigation, the accused Nos.1 to 3 further assaulted Padamavati and Nirupadi.
2.5. On the basis of the above, PW.1 who is another son of the deceased Ramsiddappa lodged a complaint as per Ex.P.1. Investigation was taken up, which culminated in laying a chargesheet against the accused Nos.1 to 5. Accused Nos.2 and 5 were arrested on 12.07.2014, accused Nos.1 and 3, on their discharge from hospital, were arrested on 16.07.2014, and accused Nos.4 and 5 were enlarged on bail.
2.6. The Magistrate, having taken cognizance of the offences, committed the case for trial to the Sessions Court. The presence of the accused was secured. After hearing the counsels, -7- CRL.A No. 100363 of 2019 charges were framed. The accused pleaded not guilty. During the trial, the accused No.4 expired and the case against her stood abated. The other Accused pleaded not guilty and claimed to be tried.
2.7. In order to prove the case of the prosecution, the prosecution examined 24 witnesses as PWs.1 to 24 and marked more than 109 documents as Exs.P.1 to P.109, and material objects in MOs.1 to MO.22 were also marked. The accused marked Exs.D.1 to D.10. 2.8. Upon closure of prosecution evidence, incriminating evidence was put across to the accused, and their statement under Section 313 of Cr.P.C. was recorded. The accused denied the incriminating material. The Accused Nos.1 to 3 filed their written statement but chose not to lead defence evidence.
-8-CRL.A No. 100363 of 2019 2.9. After hearing the counsels, the trial Court held Accused Nos.1 to 3 guilty of offences punishable under Sections 302, 201 and 506 of IPC. Accused Nos.1 to 3 and 5 were held not guilty of committing the offence punishable under Sections 143, 147, 148, and 504 read with section 149 of IPC and Section 109 of IPC and as such, they were acquitted of the said offences.
2.10. After hearing the counsel for the accused on sentencing, the accused Nos.1 to 3 were sentenced to undergo imprisonment for life for offence punishable under Section 302 of IPC for each count, i.e. murder of each of the three persons and each were sentenced to pay fine of Rs.50,000/- for three crimes i.e. each accused was directed to pay Rs.1,50,000/- and in default of payment of fine on each count they were directed to further undergo simple -9- CRL.A No. 100363 of 2019 imprisonment for a period of six months each. Accused Nos.1 to 3 were also sentenced to undergo imprisonment for a term of three years for an offence punishable under Section 201 of IPC, with each of them making payment of fine of Rs.5,000/- in default of payment of fine they were directed to undergo simple imprisonment for a period of one month.
2.11. The Accused Nos.1 to 3 were also sentenced to undergo simple imprisonment for a term of three years for offence under Section 506 of IPC with each of them to make payment of fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for a period of one month. 2.12. The term of sentence for offence under Sections 201 and 506 of IPC were directed to run consecutively for which they were entitled to set off under Section 428 of Cr.P.C. as regards offence for imprisonment of life for all three
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CRL.A No. 100363 of 2019 murders they were directed to run concurrently. However, it was made clear in case of commutation being granted any remission or condition by the competent authority for one murder would not ipso facto result in remission of sentence awarded for the convictions for the other murders. It was directed that convicts shall first undergo a term sentence i.e. imprisonment for an offence under Sections 201 and 506 and thereafter, the sentence of imprisonment for life would commence. The trial Court also came to the conclusion that there is no question of rehabilitation of the victims of the offence, and as such, no compensation was awarded under Section 357 of Cr.P.C. Out of the fine amount, a sum of Rs.4,00,000/- was awarded as compensation to PW.1 and his surviving brothers under Section 357 of Cr.P.C.
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CRL.A No. 100363 of 2019 2.13. It is aggrieved by the said judgement of conviction and order of sentence that accused Nos.1 to 3 are before this Court.
3. Sri.V.M.Sheelvant, learned counsel appearing for the appellants/accused, submits as under:
3.1. The Accused No.4 had died and the proceedings having been abated, and accused No.5 having been acquitted, the trial Court ought not to have convicted the accused Nos.1 to 3 since the allegation was that all of them together had committed the offence. If one of the accused is acquitted, the benefit of the same ought to have been made available to the other accused.
3.2. The Accused Nos.1 to 3 have also been acquitted of the offences under Sections 143, 147, 148, 504 and 109 of IPC. It would also indicate that they might not have committed the offence under Sections 302 and 506 of the
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IPC and, consequently, the offence punishable under Section 201 of the IPC. This also gives rise to doubt of the involvement of the accused as regards the offence alleged to have been committed by them, and as such, they ought to have been acquitted on the basis of this doubt. 3.3. Though the prosecution contends that PWs.2 to 4 were eyewitnesses, he submits that these were interested parties and as such, their testimony ought not to have been accepted by the trial Court.
3.4. The accused themselves having been injured in the incident, the injuries not having been explained and or no action being taken thereon, the entire incident being a free fight. This aspect not having been considered by the trial Court would impact the order of conviction passed.
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CRL.A No. 100363 of 2019 3.5. The first Investigating Officer-PW.20 having admitted that there were two crime numbers registered in Crime Nos.159/2014 and 160/2014, the present matter arising out of Crime No.159/2014 filed against the accused, Crime No.160/2014 filed by the accused has not been investigated completely since the accused therein had expired, no proceedings have been taken on the ground that it has abated, which is not permissible. 3.6. PW.21-the second Investigating Officer also having admitted about the police having filed the first information, which is registered in Crime No.160/2014 for an offence under Section 307, there is no evidence brought on record by the prosecution as regards what happened to the said complaint and as such there is a doubt raised as to who is the
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CRL.A No. 100363 of 2019 instigator which has not been taken into consideration by the trial Court. 3.7. He submits that it is at the instigation of the deceased that the fight took place, and in the free fight, the accused were also injured. The accused were only exercising the right of self- defence which would come under the exception of Section 300 of IPC which fact has not been taken into consideration by the trial Court. 3.8. There was no motive for the accused to have caused the death of the deceased inasmuch as the elders had resolved the disputes and the accused were willing to transfer the property subject to payment of monies. The dispute having been resolved by the elders, the accused abiding by the said resolution, the alleged motive as contended by the prosecution did not exist.
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CRL.A No. 100363 of 2019 3.9. The matter is related to a case and counter case, a single Investigating Officer ought to have investigated both complaints. Merely because in the complaint filed by the present appellants, the accused had expired, the same ought not to have been closed on account of it being abated. The practice and procedure followed by the Investigating Officer not being proper, the trial Court ought to have considered this aspect and extended the benefit thereof to the appellants.
3.10. Sri.V.M.Sheelvant relies upon the following decisions:
3.11. (2003) 9 SCC 426 STATE OF MP VS.
MISHRILAL AND OTHERS, more particularly para No.17 which is reproduced hereunder for easy reference:
"ON-EXPLANATION OF THE INJURIES SUSTAIBED BY THE ACCUSED
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17. The last and which appears to be fatal to the prosecution case is non-explanation of the injuries sustained by the accused. As already said, accused Mishrilal received as many as five injuries, which were dangerous to life. Madusudan and Jamunanprasad received simple injuries. In Ex.P-1 as well as in the entire deposition of PWs, the prosecution has not explained the injuries sustained by the accused. In the background of the defence, as set up by the accused, it was incumbent on the part of the prosecution, to have explained the injuries sustained by the accused. The defence version is that on being retreated the bullock- cart of Babulal, the complainant party - Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit Mishrilal's head with the farsa and Babulal, Maharaj Singh and Karan Singh beat Mishrilal with lathis. Madhusudan ran to save his father Mishrilal and they also beat him. When Jamunanprasad came to save, he was also beaten up and on that Jamunaprasad ran towards the house and made two fires in the air to save his father. It is the case of defence that the bullet, which struck Bhavarsingh, came from towards the house of Babulal. In the face of defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries is fatal to the prosecution case. In Lakshmi Singh and others vs. State of Bihar, (1976) 4 SCC 394, referring to earlier decisions in Mohar Rai v. State of Bihar, (1968) 3 SCR 525: AIR 1968 SC 1281: 1968 Cri LJ 1479, it was held by this Court:
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"... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. ... (However) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far
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CRL.A No. 100363 of 2019 outweighs the effect of the omission on the part of the prosecution to explain the injuries." 3.12. (1990) 3 SCC 190 VIJAYEE SINGH AND OTHERS VS. STATE OF UP, more particularly para Nos.16 to 19 which are reproduced hereunder for easy reference:
"16. The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following terms:
"105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
The Section to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence
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CRL.A No. 100363 of 2019 of circumstances bringing the case within the exceptions mentioned therein is upon him. The Section further lays down that the Court shall presume non- existence of circumstances bringing the case within an exception." The words "the burden of proving the existence of circumstances" occurring in the Section are very significant. It is well settled that "this burden" which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case beyond all reasonable doubts. It is also well-settled that the accused need not set up a specific plea of his offence and adduce evidence. That being so the question is: what is the nature of burden that lies on the accused under Section 105 if benefit of the general exception of private defence is claimed and how it can be discharged? In Woolmington v. The Director of Public Prosecutions, [1935] Appeal Cases 462, Viscount Sankey, L.C. observed:
"When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all, the evidence are left in reasonable doubt whether, even if his explanation be not accepted,' the act was unintentional or provoked, the prisoner is entitled to be acquitted."
It is further observed:
"Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt
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as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence ...
Through- out the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception. If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
In Emperor v.U. Dampala, AIR 1937 Rangoon 83 a full Bench of the Rangoon High Court following the Woolmington's case held that the ratio therein is not in any way inconsistent with the law in British India, and that indeed the principles there laid down from valuable guide to the correct interpretation of Section 105 of the Evidence Act and the full Bench laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions pleaded, the accused is entitled to be acquitted if upon a consideration
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CRL.A No. 100363 of 2019 of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded.
17. We have noticed that Section 105 requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any pan of the Penal Code is on him and the Court shall presume the absence of such circumstances. This presumption is rebuttable. In Parbhoo and Ors. v. Emperor, AIR 1941 Allahabad 402, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken by the Full Bench in Dampala's case. In Parbhoo's case Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prosecution and never: shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt. "The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow therefrom that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case." In Dampala's case Dunkley, J. while concurring with the majority
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CRL.A No. 100363 of 2019 view after discussing the law on the subject observed:
"The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circum- stances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence."
This case has been followed subsequently by a number of High Courts.
18. In K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR 567 it is observed that:
"In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution' to prove 'the guilt of the accused. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that Section the Courts shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved. This
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presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients, of the offence with which the accused is charged; that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real. Indeed, there is no conflict at all."
In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 it is observed:
"It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. The general burden never shifts and it always rests on the prosecution. But, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shah presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes
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that the said circumstances existed Or their existence was so probable that a prudent man ought, under the circum- stances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said Circum- stances so-probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the Court such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code."
A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parbhoo's case. However, in Rishi Kesh Singh & Ors. v. The State, AIR 1970 Allahabad 51, the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo's case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt. A majority of seven Judges approved the principle laid down in Parbhoo's case. The
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CRL.A No. 100363 of 2019 Larger Bench also referred to various subsequent decisions of the Supreme Court also including the Nanavati's case; Bhikari v. State of Uttar Pradesh, AIR 1966 SC 1 and Dahyabhai's case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati's case; Bhikari's ease; Dahyabhai's case and Mohar Rai & Bharath Rai's case, held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo's case. After analysing the view expressed by the Surpeme Court in the several above mentioned decisions, Beg, J. observed:
"After a close scrutiny of every part of each of the seven opinions in Parbhoo's case [1941] All LJ 619=AIR 1941 All 402 (FB). I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court have not been affected in the slightest degree by these decisions. These propositions are; firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved. his plea fully; secondly, that the obligatory presumption at the end of Sec. 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and, thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the accused is charged, the accused would be
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entitled to an acquittal. As I read the answer of the majority in Parbhoo's case [1941] All LJ 619=AIR 1941 All 402 (FB). I find it based on these three propositions which provide the ratio decidendi and this is all that needs t6 be clarified."
"The practical result of the three propositions stated above is that an accused's plea or an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard Of a prudent man weighing or balancing probabilities carefully. These stages are; firstly, a lifting of the initial obligatory presumption given at the end of Sec. 105 of the Act; secondly the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by "a preponderance of probability", which covers even a slight tilt of the balance of probability in favour .of the accused's plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the majority view in Parbhoo's case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice."
Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the majority in Parbhoo's case is in conformity with law, however, observed that the reasoning in
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CRL.A No. 100363 of 2019 support of the conclusions is erroneous. Beg, J. was not prepared to go to that extent. The majority speaking through Shri Mathut, J. laid' down that the dictum in Parbhoo's case which is still a good law, can, however, be modified as follows:
"In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused persons and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more the ingredients of the offence, the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence."
19. Learned counsel for the State, however, submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102' and 105.
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CRL.A No. 100363 of 2019 This very question has been answered by the Supreme Court in Nanavati's case and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused. But the failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence and the evidence relied upon by the accused in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder. The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities. As observed in Dahyabhai's case "the accused will have to rebut the presumption that such circum- stances did not exist" by placing material before the court which satisfies the standard of a prudent man and the material may consist of oral and documentary evidence, presumptions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act."
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CRL.A No. 100363 of 2019 3.13. (2017) 13 SCC 98 KRISHNEGOWDA AND OTHERS VS. STATE OF KARNATAKA, more particularly para Nos.20 and 33 which are reproduced hereunder for easy reference:
"20. According to PW1 on 27-02-1991 he took milk to the milk collection centre at Parikongalale Village along with PW5 & PW6 at 07:30 a.m. At that time A1, A3, A5, A6 held him and assaulted him with clubs and stones and fisted him. Then he has narrated how A1, A2, A3 and A4 assaulted him. Then the deceased, PW2 & PW3 came to the place of occurrence and asked him why they are assaulting PW1. A5 & A2 with chopper and club again assaulted their father and he fell down and became unconscious. Then PW6 carried his father to the veranda of the school and laid him down. After that again A2, A3, A10 assaulted his brother. At that time police came to the scene of offence at 10 a.m. and shifted the deceased and PW1 to the hospital and then he wrote a complaint and gave it to the police. Police recorded the statement and it is attested by him. Again at the time of inquest his statement was recorded by the police.
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible
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conclusion that the evidence of these witnesses cannot be a basis to convict the accused."
3.14. ILR 2002 KAR 3089 STATE OF KARNATAKA AND OTHERS VS. INAM AND OTHERS, more particularly para No. 42, 71, 72 and 73 which are reproduced hereunder for easy reference:
42. It is also the case where the police were aware that the accused party sustained grievous injuries. As stated earlier the injuries sustained by the accused will be dealt with in detail later. When the prosecution had the benefit of the wound certificate of the accused there was a duty cast on the prosecution to explain the injuries sustained by the accused; It is not necessary that in all cases that the injuries on the accused should be explained by the prosecution, for example if the injury on the accused is a superficial injury then it is not necessary to explain the injury.
Again for example to the injuries on the accused from the nature of the evidence could be understood to have been sustained by the accused during the brutal attack on the deceased, then those injuries on the accused may not be fatal to the prosecution. However where the accused have sustained grievous injuries on the vital parts of the body in the course of the same occurrence then there is a gap in the prosecution case and the case of the prosecution looses some credibility.
71. Once we conclude that the injuries caused on the accused had occurred during the course of the occurrence and the injuries are not superficial then there is a duty cast on the prosecution to explain
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CRL.A No. 100363 of 2019 injuries on the accused. It is not the case of the prosecution that the injuries suffered by the accused was in retaliation for the grue-some murder committed by the accused. On the contrary it is the case of the prosecution (P.W. 28 - C.P.I.) that the injuries on the accused had taken place in the same occurrence. If that be so we have no doubt that the unexplained injuries which were brought out in the cross- examination have certain bearing on the prosecution case. It is particularly so since the investigating officer says that A-1 also registered a case against P.W. 11, deceased and others almost simultaneously in Crime No. 63/1995. The Supreme Court in Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 : AIR 1976 SC 2263.] pronounced as follows:
"It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of alteration is a very important circumstance from which the Court can draw the following inferences:
1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested in inimical witnesses or where the defence gives a version which competes in
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CRL.A No. 100363 of 2019 probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975 - (Reported in (1975) 2 SCC 7 : AIR 1975 SC 1478) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
72. On the perusal of the evidence and the facts set out by the prosecution coupled with the injuries on the accused it can be culled out that there was a sudden fight in the heat of passion leading to a sudden quarrel. Exception 4 in Section 300 reads as follows:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
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Explanation:-- It is immaterial in such cases which party offers the provocation or commits the first assault."
73. Taking an overall view of the matter we feel that the occurrence must have occurred in such a way that Exception 4 to Section 300 would apply to the facts of this case.
3.15. (1976) 4 SCC 394 LAKSHMI SINGH AND OTHERS VS. STATE OF BIHAR, more particularly para No.17 which is reproduced hereunder for easy reference:
"17. Finally we might stress, even at the risk of repetition, that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery. The dramatic manner in which the assault is said to have started and the appearance of the accused led by Jagdhari Singh without any rhyme or reason and their assault on persons against whom they had neither any concern or animus introduces an element of inherent improbability in the case. According to the prosecution the main cause of the assault was the refusal of the deceased Chulhai Singh to demolish the Marwa which was constructed on the occasion of the marriage of Jaiwanti a daughter of the son of Chulhai Singh. There is no evidence to show that there was bad blood between Ramsagar Singh and Dasrath Singh on the one hand and their cousins Chulhai Singh and Ram Asrey on
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the other. On the other hand the evidence shows that even after the partition both the groups of the family were living in different portions of the same house, the courtyard being common. PW-6 Dasain Singh clearly admits that at the time of fixing the Marwa he had no quarrel with Dasrath Singh or Ramsagar Singh, i.e. about 3 days before the occurrence. If the relations between the parties were so cordial only 3 days before the occurrence, we fail to see how Dasrath Singh and Ramsagar Singh made a complete somersault and picked up a quarrel over the demolishing of a Marwa when they knew full well, as PW-1 would have us believe, that it was customary that the Marwa remained in its original position until a period of 11/2 months had elapsed. After all Dasrath Singh and Ramsagar Singh also belonged to the same family and were bound to respect the family and were bound to respect the family custom. It is difficult to believe that even if Dasrath Singh and Ramsagar Singh would raise any objection, they would do so on the day on which Chauthari ceremony of the marriage of Jaiwanti was held. It also surpasses our comprehension that even if a petty objection was raised, it would culminate in the murder of two close relations by the accused Dasrath Singh and Ramsagar Singh with the aid of the other appellants. So far as the five appellants,namely, Jagdhari Singh, Jagdish Singh, Lakshmi Singh, Ramprasad Sah and Chhathu Singh are concerned, they had neither any animus against the prosecution party nor any friendship with the accused Dasrath Singh and Ramsagar Singh and it is impossible to believe that these five persons would join hands with Dasrath Singh and Ramsagar Singh in the nefarious plan to kill two persons without
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any provocation, without any earthly reason and without any pertinent occasion. On the other hand the preponderance of probabilities seems to indicate that these five appellants had been falsely implicated by P. Ws. 1 to 4 who were their sworn enemies and who must have made it a condition precedent for supporting the evidence of P.W. 6, if the five appellants are also brought in. In this view of the matter, the prosecution case itself becomes wholly improbable. Furthermore, if P. Ws. 1 to 4 and 6 could go to the extent of falsely implicating the five appellants headed by Jagdhari Singh without their having participated in the occurrence, then the entire fabric of the prosecution case would collapse, and the fundamental part of the prosecution case would have to be disbelieved. It was, however, contended by the State that there was no reason to disbelieve the evidence with respect to Dasrath Singh and Ramsagar Singh, even if the other five appellants be acquitted. Where all the witnesses enter into a conspiracy to implicate five innocent per- sons in a murder case, then the backbone of the prosecution is broken, and it would be difficult for the Court to rely on such evidence to convict a single accused, particularly when the prosecution does not give any explanation for the grievous and other serious injuries on the person of Dasrath Singh. This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case."
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CRL.A No. 100363 of 2019 3.16. (2018) 7 SCC 536 KUMAR VS. STATE, more particularly para No.12 which is reproduced hereunder for easy reference:
"12. In his cross-examination PW-2 reveals as under-
Immediately after the occurrence, Udayalipatti police came to the place of occurrence and enquired about the incident and get my signature after recording my statement. They recorded my statement, before the arrival of 108 ambulance and before we took Sakthivel and Kumar. At the time, rajendra was also presented and the police recorded his statement and obtained his signature. The police examined me only prior to the arrival of 108 ambulance and never examined me after the arrival of 108 ambulance."
3.17. (2019) 4 SCC 360 MANI VS. STATE OF KERALA AND OTHERS, more particularly para No.22 which is reproduced hereunder for easy reference:
"22. However, the appellant-Mani came from west direction at the place of occurrence riding on a motorcycle. The accused had no knowledge or information that the victims are moving towards Chozhiyamkod. The
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prosecution witnesses have deposed that the accused or the victims did not have any personal enmity except political differences. The appellant was suddenly confronted with the victims and in the fight ensued in which the injuries came to be inflicted upon the deceased and other victims."
4. Per contra, Sri.V.M.Banakar, learned Additional SPP would submit that:
4.1. The dispute as regards the property being in existence, the motive was always present since the appellants worried that they had been deprived of their property.
4.2. The injuries which have been caused to the appellants are minor in nature the complaint in Crime No.160/2014 was filed for an offence punishable under Section 307 of IPC.
4.3. The injuries which have been caused to the accused are on account of three of the accused having together assaulted the deceased, and it is during that assault that minor injuries have
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been caused to the hands of the appellants. This appears to be caused by the weapons used by each other hurting them.
4.4. The place of incident was outside the house of the deceased, and the dwelling of the accused was 250 meters from there, it is the accused who had come to the said location and assaulted the deceased, and while doing so, they had carried the weapons which would establish that it is a preplanned assault which the appellants have committed.
4.5. The appellants have not explained why they went to the deceased's house. If the offence of Section 307 is even to be considered, it would have been the deceased who would have gone to the house of the accused. Here the situation is vice versa, the same cannot be accepted.
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CRL.A No. 100363 of 2019 4.6. There being eyewitnesses to the incident who have categorically stated that it is the appellants who had attacked the deceased and caused their death, the trial Court has rightly convicted the appellants and as such, he submits that this Court ought not to intercede in the matter.
5. It is based on the above submissions made by Sri.V.M.Sheelvant, learned counsel for the appellants and Sri.V.M.Bankar, learned Additional SPP, that we have been called upon to appreciate and reappreciate the evidence on record to ascertain if the judgement passed by the trial Court is proper or not.
6. In the present case the deceased have expired on account of serious injuries which have been caused to them. These injuries not being accidental or self- inflicted, it is clear that the offence of homicide has been committed. The appellants and the deceased
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CRL.A No. 100363 of 2019 being related to each other is established by the evidence on record.
7. PW.1-Channabasappa Ramashiddappa Waggar stated that the deceased Ramsiddappa was his father, Padmavati was his mother, and Nirupadi was his younger brother. He has stated that the first accused is his uncle's son, the accused Nos.2 and 3 are the sons of accused No.1, accused No.4 was the wife of accused No.1, and the accused No.5 is the son-in-law of accused No.1. This would establish the relationship between the deceased and the accused. He has further stated that there were five sons of whom one was staying at Mudhol, another in Raibag, another in Puna and the deceased Nirupadi and himself were staying along with their father and mother. Therefore, the father of accused No.1 and the deceased Ramsiddappa were brothers.
8. PW.2, PW.3, PW.4 and PW.8 have also reiterated what is stated by PW.1 as regards the relationship
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CRL.A No. 100363 of 2019 between the accused and the deceased. Therefore, the relationship is established.
9. Land dispute between the parties:
9.1. PW.1 has stated that his family was having land measuring 6 acre 30 guntas as regards which partition took place between the father deceased Ramsiddappa and his brothers, each of them got 1½ acres. Thereafter, Ramsiddappa purchased some other land which they were cultivating. He has stated that the land which had come to the share of the accused No.1 had been purchased by his father about 17 years ago by making payment of a sum of Rs.50,000/- under an agreement of sale, but sale deed was not executed. Whenever his father enquired regards the execution of the sale deed, the accused kept postponing the same. One year before the incident accused No.1 had categorically indicated that he did not
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intend to sell the land and, as such called upon the deceased Ramsiddappa to return the land. In pursuance of which, the deceased Ramsiddappa is stated to have returned the said land to accused No.1. Later on, the deceased and his family came to know that the accused were seeking to purchase the land which had gone to the share of Yallappa, another brother of deceased Ramsiddappa. In view thereof, there was friction between the family since the said land was to go to the share of Bhimashi who though being naturally born son of Ramsiddappa was taken in adoption by the family of Yallappa and as such Bhimashi would have succeeded to the said property. 9.2. It is in that background that he has stated that there was a panchayat which was called for and that the elders had a meeting which was attended to by the deceased Ramsiddappa and
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CRL.A No. 100363 of 2019 Bhimashi as also by the accused Nos.2, 3 and 4 and the elders decided the matter by directing the accused to hand over their land purchased from the daughter of Yallappa to Bhimashi towards which Bhimashi and or deceased would make payment of a sum of Rs.4,60,000/-. This settlement having occurred on 08.07.2014, the registration of the property was to be completed by 11.07.2014.
9.3. PWs.2, 3, 4 and 8 have also spoken of the aforesaid dispute between the parties. PWs.3 and 8 were the elders who resolved the said dispute have also stated about the dispute.
10. Motive:
10.1. The relationship between the accused and the deceased being established, there being a dispute between the appellants and the deceased the elders having decided and
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directed the accused to hand over the land to Bhimashi by registering the sale deed and collecting the amounts.
10.2. PWs.1 and 2 have deposed that the accused were not happy with such a resolution, and therefore they had the motive to cause the death of Ramsiddappa and his family members so as to save the property and not be forced to transfer the same.
10.3. From the deposition of the witnesses, it is also clear that the accused were not happy with the resolution since their prestige had been hurt by being directed to transfer the property.
11. Place of incident:
11.1. The contention of Sri.V.M.Sheelvant, learned counsel for the appellants, is that it is on account of the deceased Ramsiddappa having gone to the house of the accused on the
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previous night and picked up a quarrel and having gone to the house of the accused when a quarrel took place though not physical, on the next day when the deceased had made comments against the accused, the accused had gone to enquire as to why such comments are being made that the deceased attacked the accused and on that basis he submits that the deceased were the aggressors.
11.2. PW.1 has stated that on 09.07.2014 at 7.00 a.m. deceased Ramsiddappa and Nirupadi were standing in the varanda discussing about why the accused were not willing to transfer the land in spite of the decision of the elders. At that time the accused Nos.1, 2 and 3 came near the house, the accused No.1 was carrying an axe in his hand and the accused Nos.2 and 3 were carrying sickles in their hands, the body of the Ramsiddappa was found near his house.
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CRL.A No. 100363 of 2019 11.3. PW.2 has also stated that when Ramsiddappa and Nirupadi were standing in front of their house and talking about transaction, the accused No.1 and his sons i.e. accused Nos.2 and 3 went to the house of Ramsiddappa. 11.4. PW.3 has also stated that when he had gone to fetch water at that time he saw Nirupadi and Ramsiddappa in front of their house and talking about the transaction when accused Nos.1 to 3 came there.
11.5. PW.4 has stated that on 09.07.2014 at 7.15 a.m. when he was going for toilet he saw Ramsiddappa standing in front of gate of his house when the accused Nos.1, 2 and 3 came there.
11.6. PWs.2, 3 and 4 have also stated about the accused No.1 carrying an axe and the accused Nos.2 and 3 carrying sickles.
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CRL.A No. 100363 of 2019 11.7. Thus, it is clear from the testimony of the aforesaid witnesses that it is the accused who went to the house of the deceased carrying weapons.
12. Eyewitness testimony:
12.1. PWs.1, 2, 3 and 4 are the eyewitnesses to the incident. All of them have stated about the accused Nos.1 to 3 having come to the house of the deceased as mentioned above. They have also mentioned about the accused No.1 carrying an axe and the accused Nos.2 and 3 carrying sickles. PW.1 has stated that when the accused Nos.1 to 3 came to the house they shouted that they will kill Ramsiddappa and once he is killed he cannot take any land and saying so all the accused assaulted Ramsiddappa on his head, hands and legs.
When PW.1 came out of the house hearing the screams of Ramsiddappa, he saw his younger
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CRL.A No. 100363 of 2019 brother Nirupadi trying to protect his father. When the accused Nos.1 to 3 assaulted Nirupadi with axe and sickle, hearing his screams Padamavati the wife of Ramsiddappa came out of the house and tried to stop the attack, then the accused Nos.1 to 3 assaulted on her head by axe and sickle. By that time, he has stated that accused Nos.4 and 5 had came to the spot and were provoking accused Nos.1 to 3 to kill the deceased.
12.2. PW.2 has also stated similarly in his evidence.
Though in the cross-examination of PW.2 it is sought to be suggested that Ramsiddappa had instigated the fight by shouting at the accused, the same has been denied by PW.2.
12.3. PW.3 has also stated in similar terms as what has stated by PW.1 that the accused No.1 carrying an axe, the accused No.2 and 3 carrying a sickle and coming to the house of
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CRL.A No. 100363 of 2019 Ramsiddappa and assaulting him on the head, hands and legs. He has also spoken about how Nirupadi tried to protect Ramsiddappa, how he was attacked and as also about Padamavati having tried to stop the assault and she being attacked. He has stated that several people from the village had gathered at the place and an ambulance was called for, as Padamavati and Nirupadi being injured were shifted in the ambulance to the hospital. He has categorically stated that the accused Nos.1 to 3 moved towards the house of the deceased shouting and screaming while holding axe and sickle in their hands.
12.4. Thus, it is clear from his testimony that it is the accused by carrying the weapons went to the house of the deceased to cause harm to the deceased and in this case on the basis of the statements made by the accused they went
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CRL.A No. 100363 of 2019 there to finish of Ramsiddappa so that he does not seek for the property.
12.5. PW.4 has also similarly stated as that done by PWs.1 and 2 about how the accused assaulted Ramsiddappa on his head and legs, when Nirupadi tried to intervene how he was attacked, when Padamavati tried to intervene and she was attacked. He has further stated that after the attack accused No.1 has left the scene by saying now let us see how they will come and take the land.
12.6. He has further stated that the other persons who were gathered at the place were warned with dire consequences if they tried to intervene when the accused holding up of an axe and sickle.
12.7. The eyewitness testimony would clearly indicate that it is the appellants who had gone to the
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CRL.A No. 100363 of 2019 house of the deceased and attacked the deceased.
13. Nature of injuries:
13.1. PW.1 has stated that subsequent to the injuries which had been caused, his brother and mother were taken to the hospital and his brother expired on 14.07.2014 at 6.00 a.m. and his mother expired on 31.07.2014 at 9.00 a.m. He has also spoken about the nature of attack which has been made by the accused and the assault of Ramsiddappa on the head, hands and legs of Nirupadi being assaulted on his head and hands, how Padamavati was assaulted on the head, upper portion of her eyes.
13.2. Similar is the testimony of PWs.2, 3 and 4.
Their testimony is corroborated by the evidence of PW.5 Dr.Ashok Yamanappa Badappagol who
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CRL.A No. 100363 of 2019 has stated as regards the injuries caused to Ramsiddappa as under:
i) 5" X 1" incised wound over the right portal region bone deed injury brain matter see, blood clot present.
ii) 4 1/2 " X ½" incised wound over the left parital region blood clot present, bone deed injury.
iii) 1" X ½" transversive incised wound over the left paretial region, bone deep injury blood clot present.
iv) 6" X 1" Incised wound above the left ear, bone deed injury, blood clot present.
v) 1" X ½" Incised wound behind the left ear.
Bone deep injury, blood clot present.
vi) 1" X ½" Incised wound over the upper region lateral part of the left arm, 1/2 "
depth, blood clot present, 2" linage incised wound upper end.
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vii) 5" X ½" Incised wound over the left hypothenar eminence ½" depth blood clot present.
viii) Left index finger tip cut completely incised wound blood clot present.
ix) ½" X ¼" incised wound over the left middle finger tip. Blood clot present, skin deep injury.
x) ½" X ¼" incised wound over the left middle finger, blood clot present.
xi) ½" X ¼ " incised wound over the right arm upper end. ½" depth attached to this injury upper end 1 ½" linear incised wound, blood clot present.
xii) 2 ½" X ½" incised wound over the right left lateral aspect skin deep injury blood clot present.
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CRL.A No. 100363 of 2019
xiii) 2 ½" X ½" incised wound medical aspect of the left skin bone deep blood clot present.
xiv) 4" linear incised wound over the left thigh above the knee joint, red colour wound present over the posterior aspect.
The internal injuries as under
i) Fracture left porital bone.
ii) Fracture occipital bone.
iii) Fracture right parital bone.
iv) Fracture left temporoparital bones.
v) Subdural haemorrhage.
13.3. The nature of injuries which have been caused to the deceased as evidenced by postmortem report and the testimony of the doctor is inline with the eyewitness testimony of PWs.1, 2, 3 and 4. The postmortem report at Ex.P.28 discloses the injuries.
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CRL.A No. 100363 of 2019 13.4. PW.5 has stated that injures can be caused by the weapons which have been marked as MOs.1 to 3 namely axe and sickles. In the course of cross-examination, there were suggestions sought to be made that the injuries which have been caused are simple in nature which has been denied by the doctor. Doctor though admitted that few of the injuries are simple in nature, he has also spoken of the grievous injuries which has resulted in the death of the deceased. He has denied that the injuries could not have been caused by an axe or a sickle. He has supported the case of the prosecution. PW.5 opined that the injuries are caused as per Ex.P.31.
13.5. PW.6 has carried out the postmortem of Nirupadi. PW.6 has treated Nirupadi and Padamavati and has issued wound certificates at Exs.P.18 and P.21, examined MOs.1 to 3 and
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CRL.A No. 100363 of 2019 given an opinion in terms of Exs.P.25 to P.27. PW.6 has deposed as regards the injuries caused to Nirupadi as under:
i) Multiple cut lacerated wounds over scalp 6"X4", 3"X3", 2"X2".
ii) Depressed fractures of the right parietal bone at two places. Profuse bleeding, brain matter coming out of wounds.
iii) Bleeding from right ear.
iv) Incise wound over left forearm 6"X3" cut muscles and tendons.
v) Incised wound over left arm 3"X2"/cut tendons.
13.6. PW.6 has also stated that the injuries which have been caused to Nirupadi could have been caused by use of MOs.1 to 3. He has deposed as regards the injuries caused to Padamavati as under and further that the injuries caused to
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CRL.A No. 100363 of 2019 her could have been caused by usage of MOs.1 to 3:
i) Cut lacerated wounds 3"X2", 3"X1", 1"X1"
over scalp depressed fracture/cut/lacerated wound 1"X1" over left eyebrow/CT scan shows fracture of frontal and parietal bone/haemorrahgic of frontal lobe/5cm midline shift/ hemiplegia right side. 13.7. PW.7 is a doctor who conducted postmortem on Padamavati. He has reported on the injuries caused to Padamavati as under:
i) Operated scar on from to remporal region of scalp 'S' shaped measuring 12" in length starts from frontal region of scalp on right side external downwards backwards then forwards and downwards ends infront of left ear lobe.
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CRL.A No. 100363 of 2019
ii) Headled scar on left eye brow horizontal in direction measuring 2".
iii) Healed scar over forehead on left side oblique in direction1".
iv) Healed scar at frontal region of scalp on right side.
v) Healed scar at vertex of scalp measuring 3".
vi) Healed scar of occipital region of scalp measuring 2".
vii) Healed scar over abdomen at right hypochondria region measuring 4" with horizontal in direction.
13.8. PW.13 is the doctor who had conducted postmortem on Nirupadi and he has stated about the injuries as under:
i) Head and left hand were cloth bandaged.
ii) Right shoulder has been treated with the elastic bandage.
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CRL.A No. 100363 of 2019
iii) Injuries stitched with the suture wire measuring 2 ½" X ½", 4" X ½", 3" X ½" on the right side of the head. Right side temporal bone fractured, major injury to the brain matter, blood clot present.
iv) Injuries stitched with the suture wire measuring 2 ½" X ½", on the right side of the back head.
v) Injuries stitched with the suture wire measuring 2 ½" X ½", on the left side of the back head.
vi) Injuries stitched with the suture wire measuring 1" X ½" in the back side of the chest (back).
vii) Stitched injury measuring 4" X ½" on the right cheek.
viii) Scratched injury measuring 3" X 2" on the right shoulder.
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CRL.A No. 100363 of 2019
ix) Injuries stitched with the suture wire measuring 2" X ½" on the back of left shoulder
x) Injuries stitched with the suture wire measuring 2" X ½" the behind the right chest
xi) 4" X ½", 4" X ½", 2 ½" X ½ "Injury on back hand stitched with the silk thread.
xii) 3 ½" X ½" injury stitched with the thread on the left palm.
13.9. PW.15 is another doctor who had treated Padamavati from 17.07.2014 to 22.07.2014, she having been referred to their hospital. He has deposed that there was surgery conducted on the head of Padamavati when she was hospitalized she was in unconscious state, in serious condition and not able to talk. On a scan being conducted he came to know that
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CRL.A No. 100363 of 2019 there was bone flap on the head and it is on that background that he has given an injury certificate or wound certificate in terms of Ex.P.69.
13.10. The injuries having been detailed herein above, the nature of injuries would indicate them to be serious injuries which would not have occurred if not assaulted with an intention to cause such injuries. Ramsiddappa having suffered from 14 external and 5 internal injuries, Nirupadi having suffered from 6 injuries and Padamavati having suffered from 7 injuries, the said injuries cannot be stray injuries. Sheer number of injuries and multitude of injuries would indicate the intention with which assault was committed and cannot be stray injuries.
14. Injuries caused to the accused:
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14.1. PW.12 has stated that accused No.1 had injuries on his head, elbow, left hand and right hand fingers. He has further stated that on enquiry the accused No.1 had informed him that the injuries were caused due to the accused coming into contact with their own weapons.
14.2. PW.13 is a doctor who treated the accused Nos.1 and 3 and has issued injury/wound certificate in respect of accused Nos.1 and 3. In terms of injury certificate at Ex.P 108 and 109.
The injury which has been caused to accused Nos.1 and 3 are as under:
Injuries caused to the 1st accused Ishawar,
i) 2 X 1 cm incised wound on the scalp, bone deep injury.
ii) 1 X 1 cm incised injury between the middle and ring finger of the left hand.
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iii) 5 X 4 cm scratched injury on left knee, turned red and knee swollen out of pain Injuries caused to the 3rd accused Mallikarjuna,
i) 5 X 1 cm incised wound on the right cheek, bleeding present and bone deep injury.
ii) 10 X 1 cm incised wound on the right side of the parietal bone, bone deep injury and bleeding present
iii) 6 X 1 cm incised wound on the back of the left chest, bone deep injury and bleeding present.
iv) Right hand swollen out of pain. 14.3. PW.13 has categorically stated that the injuries are simple in nature. This evidence having come on record through the prosecution. We are unable to agree with the submission made by Sri.V.M.Sheelvant, learned counsel for the appellant that the injuries have been suppressed or not explained.
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CRL.A No. 100363 of 2019 14.4. The injuries as also the wound certificates of the accused having been marked in evidence as Ex.P 108 and 109 the injuries which are seen in the wound certificate in detail as they are minor injuries, if at all there was an assault made by the deceased against the accused to cause their death there would have been many some serious injuries. There is no evidence which has been placed on record by the accused. The accused not having led any evidence as regards any attempt allegedly made by the deceased on the life of the accused.
14.5. As referred to supra, it is the accused who went to the house of the deceased and quarrel took place there, assault took place there as also the death took place there. When the accused have gone to the house of the deceased and the assault takes place there, it cannot be said that the aggressors are the deceased.
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CRL.A No. 100363 of 2019 14.6. Though a complaint is alleged to have been filed in Crime No.160/2014, the same was filed subsequent to Crime No.159/2014 which is subject matter of the present appeal. That apart, the accused have not brought on record the said complaint in a manner known to law for the same to be considered either by the trial Court or by this Court. It is only the evidence which is placed on record which could be taken into consideration by the trial Court and this Court. In that view of the matter, the nature of injuries which have been caused to the accused being minor in nature, and the explanation offered is that, the injuries have been caused on account of the weapons coming into contact with the accused themselves which were used to assault the deceased and during the said assault some injuries have occurred to the
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CRL.A No. 100363 of 2019 accused is perfectly acceptable and cannot be found fault with.
14.7. PW.9 is a witness to the inquest of Ramsiddappa's body which has been produced at Ex.P.38 as also the witness to the spot mahazar at Ex.P.39 and witness to the seizure of the cloths of the deceased Padamavati at Ex.P.40, witness to the seizure of the clothes of deceased Ramsiddappa at Ex.P.41 and witness to the inquest of Nirupadi at Ex.P.42. He has supported the case of the prosecution and admitted his signature to the aforesaid documents.
14.8. PW.10 is a witness to the inquest of Padamavati at Ex.P.43, is a witness to spot mahazar of the scene of occurrence at Ex.P.44 and is a witness to the seizure of the cloths of Padamavati at Ex.P.45. He has also supported the case of the
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CRL.A No. 100363 of 2019 prosecution and admitted his signature to the above documents.
14.9. PW.11 is a witness to the personal search of accused Nos.2 and 5 which is at Exs.P.46 and P.47 respectively, is a witness to the recovery mahazar whereunder a sickle MO.3 was recovered as per Ex.P.48. He has supported the case of the prosecution and admitted his signature to the aforesaid documents. 14.10. PW.12 is a witness to the mahazar of the personal search of accused Nos.1 and 3 as per Exs.P.51 and P.52, is also a witness to the recovery mahazar of the axe at MOs.1 and 19 from accused No.1 as also the sickle MO.2 from accused No.3. He has clearly stated as regards the manner in which the accused had led the police to the recovery of the aforesaid MOs.1, 19 and 2. He has also supported the case of the prosecution.
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CRL.A No. 100363 of 2019 14.11. PW.14 is the Assistant Executive Engineer of the PWD who has prepared map/sketch at Ex.P.67 relating to place of incident. The said sketch matches with the deposition of witnesses in the matter.
14.12. PW.16 is a Scientific Officer at RFSL, Belagavi who examined 21 articles and submitted his report in terms of Ex.P.72. He has stated that except article 17 and 21, all other articles were stained with B-group of human blood. 14.13. Thus, from the witnesses to the mahazar, spot seizure as also inquest, it is clear that these witnesses have supported the case of the prosecution and these mahazars have been established by the prosecution. The Scientific Officer having categorically stated about various MO's having blood stains and they having been seized in the presence of the aforesaid witnesses, place of the occurrence of
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CRL.A No. 100363 of 2019 event, the seizure of the clothes of the accused as also seizure of the weapons used in the commission of the crime is established. 14.14. The official witnesses namely PW.17 who escorted accused Nos.1 to 3 to the hospital and produced them before the IO, PW.18 head constable who conducted search for accused No.4 and carried MOs.1 to 3 to the doctors, PW.19 Panchayat Development Officer who had issued property extract of that of the accused at Exs.P.81 to 83 indicating the disputed property, PW.20 being the Police Sub-Inspector who received the complaint Ex.P.1, registered it as an FIR as per Ex.P.85 arrested accused Nos.2 and 5 on 12.07.2014, received the RFSL report as regards the various items sent to RFSL and he himself having sent MOs.1 to 3 to medical officer for opinion, would indicate that
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CRL.A No. 100363 of 2019 registration of the complaint and arrest of the accused has been conducted properly. 14.15. PW.22 collected clothes of Ramsiddappa at MOs.14 to 17 and produced the same before the Investigating Officer. PW.23 is the constable who submitted FIR to the Magistrate on 09.07.2014 at 12.30 p.m. as per Ex.P.105. 14.16. PW.21 Investigating Officer has detailed out the manner in which he caused the investigation as also the case of the prosecution against the accused.
15. From the above, it is clear that the official witnesses have supported the case of the prosecution. The witnesses of the police, Panchayat Development Officer, Assistant Executive Engineer PWD, Scientific Officer, Belagavi have all clearly and categorically stated about the place where the incident occurred, the persons responsible for it, inasmuch as they were
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CRL.A No. 100363 of 2019 tasked with their arrest, the cloths of the deceased having been seized so also an opinion received from RFSL that its Mos.1 to 3 which have been used for commission of the offence.
16. The eyewitnesses namely PWs.1 to 4 having stated about the manner in which the incident occurred and how the accused had assaulted the deceased with axe and two sickles causing their death, the same being supported by the testimony of the other witnesses, it is clear that it is the accused who have caused the death of the deceased and as such the judgement of conviction which has been passed by the trial Court is proper, correct and does not require any interference at our end.
17. The last issue that has been raised by Sri.V.M.Sheelvant, learned counsel for the appellants is that there was counter complaint filed by the accused which got abated.
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18. He relies upon the decision in the case of MISHRILAL (supra) as regards non-explanation of injuries being fatal. The said decision would not apply to the present case more so since that was a case where the defence version contradicted with that of the prosecution case and the Hon'ble Apex Court held that it was mandatory on the part of the prosecution to have explained the injuries. In the present case, there is no such contradiction between the defence version and that of the prosecution. The only contention raised by the defence is that the case would come under exception 2 - 4 to Section 300 of the IPC. The same cannot be said to be competing for probability.
19. By relying upon VIJAYEE SINGH's case (supra), Sri.V.M.Sheelvant wants us to hold that the burden of proving the ingredients of the offence being that of the prosecution if circumstances exist to invoke the exceptions to Section 300 then that would have also
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CRL.A No. 100363 of 2019 to be placed on record by the prosecution. However, a reading of the said decision does not indicate such a position. The Hon'ble Apex Court has categorically held that general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting exceptions lies on the accused. The exceptions under Section 300 of IPC would therefore be required to be proved by the accused in a manner known to law which has not been done in the present case.
20. By relying on KRISHNEGOWDA's case (supra), Sri.V.M.Sheelvant contends that there are various lapses on the part of the investigating agency. The evidence which has been produced is not trustworthy and therefore could not have constituted as basis for conviction. He further submits that the evidence of the witnesses being full of contradictions cannot be accepted.
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21. Having examined the aforesaid decisions and the submissions made by Sri.V.M.Sheelvant, we have not found any material discrepancy in the evidence which would ensure to the benefit of the accused. The prosecution in our considered opinion has proved beyond reasonable doubt about the offence having been committed by the accused.
22. By relying on INAM's case (supra), he seeks to contend that there are unexplained grievous injuries sustained by the accused. The said decision on the face of it would not be applicable since in the present case the accused have not sustained grievous injuries but only simple injuries. Further, they have not remained unexplained as contended by Sri.V.M.Sheelvant. Hence, the decision in INAM'S case would not be applicable to the present case.
23. The judgement in LAKSHMI SINGH's case (supra) is again sought to be relied upon to contend that the injuries on the accused have not been explained.
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24. By relying upon KUMAR's case (supra) he submits that there was a fight between two groups and as such the genesis of the crime was important which was not placed on record. In a free fight without the genesis being placed on record, the Court could not have convicted the accused. In our considered opinion, the said decision would not be applicable for the simple reasons that we have already come to a conclusion that it is the accused who had gone to the house of the deceased carrying an axe and two sickles. Thus, there cannot be said to be a free fight between them. The said injury certificates having been placed on record and explained, the decision in KUMAR'S case would not apply.
25. By relying on the decision in MANI'S case (supra), Sri.V.M.Sheelvant seeks to make out a case of private defence on the part of the accused to contend that since they were allegedly assaulted, the assault made by the accused on the deceased was only in
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CRL.A No. 100363 of 2019 reply and to save themselves and constituted exercise of right to private defence. There is no evidence which has been led in this regard or placed before the Court by the accused. The burden of proving an exception would always be on the accused whereas the burden of proving the offence having been committed is on the prosecution. The offence being established, the occurrence of the fight and death of the deceased having been established, if at all the defence sought to be raised by the accused was that of private defence, they ought to have placed positive cogent evidence to establish the same. Not having done so, the accused cannot seek to transfer the burden on to the prosecution and make the prosecution liable to prove the defence of the accused.
26. The Apex Court in MANI'S case has also held that it was for the accused to establish their right to private defence, the accused if not established that there
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CRL.A No. 100363 of 2019 was sudden fight without any premeditation and or that the death occurred in the heat of passion. As such, the said decision is not applicable to the present case.
27. In view of the above, we pass the following:
ORDER The appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE sh