Karnataka High Court
Narayan S/O Rama Naik vs The State Of Karnataka on 25 January, 2017
Bench: Ravi Malimath, K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 25TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2867 OF 2012
C/w.
CRIMINAL APPEAL NOs. 100147 OF 2014
AND 2576 OF 2013
IN CRL.A.NO.2867 OF 2012
BETWEEN:
1. NARAYAN S/O. RAMA NAIK
AGE: 60 YEARS, OCC: AGRICULTURIST
R/O.SHIRUR, BALAGOD VILLAGE
TQ: SIDDAPUR, DIST: UTTARA KANNADA.
2. SMT. IRAMMA W/O.NARAYAN NAIK
AGE: 50 YEARS, OCC: AGRICULTURIST
R/O.SHIRUR, BALAGOD VILLAGE
TQ: SIDDAPUR, DIST: UTTARA KANNADA.
...APPELLANTS
(BY SRI.S. S. YADRAMI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SIDDAPUR POLICE,
REP. BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M. BANAKAR, ADDITIONAL SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
376(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 26.07.2012 PASSED
BY THE SESSIONS JUDGE, FAST TRACK COURT-I, UTTARA
KANNADA, KARWAR, IN S.C.NO.15 OF 2010 AND ACQUIT
THE APPELLANTS OF THE CHARGES LEVELED AGAINST
THEM.
IN CRL.A NO. 100147 OF 2014
BETWEEN:
1. RAJU S/O. NARAYAN NAIK
AGE: 30 YEARS, OCC: AGRICULTURE
R/O. SHIROOR, BALAGOD VILLAGE
TQ: SIDDAPUR, DIST: UTTAR KANNADA
2. BALAKRISHNA S/O. NARAYAN NAIK
AGE: 40 YEARS, OCC: AGRICULTURE
R/O. SHIROOR, BALAGOD VILLAGE
TQ: SIDDAPUR, DIST: UTTAR KANNADA
... APPELLANTS
(BY SRI. S S YADRAMI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SIDDAPUR POLICE REP. BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE SEEKING
TO SET ASIDE THE CONVICTION AND SENTENCE DATED
26.07.2012 PASSED BY THE SESSIONS JUDGE, FAST
TRACK COURT-I, UTTARA KANNADA, KARWAR, IN
S.C.NO.15 OF 2010 AND ACQUIT THE APPELLANTS OF ALL
THE CHARGES LEVELED AGAINST THEM.
3
IN CRL.A NO. 2576 OF 2013
BETWEEN:
THE STATE
P.I. SIDDAPUR P.S. (U.K.)
... APPELLANT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
AND:
1. RAJU S/O. NARAYAN NAIK
AGE: 29 YEARS, OCC: AGRICULTURIST,
R/O. SHIROOR, BALAGOD GRAM,
TQ: SIDDAPUR, ( U.K.)
UTTAR KANNADA, KARWAR
2. BALAKRISHNA S/O. NARAYAN NAIK
AGE: 39 YEARS, OCC: AGRICULTURIST,
R/O. SHIROOR, BALAGOD GRAM,
TQ: SIDDAPUR, ( U.K.)
UTTAR KANNADA, KARWAR
3. NARAYAN S/O. RAMA NAIK
AGE: 63 YEARS, OCC: AGRICULTURIST,
R/O. SHIROOR, BALAGOD GRAM,
TQ: SIDDAPUR, ( U.K.)
UTTAR KANNADA, KARWAR
4. IRAMMA KOM NARAYAN NAIK
AGE: 50 YEARS, OCC: AGRICULTURIST,
R/O. SHIROOR, BALAGOD GRAM,
TQ: SIDDAPUR, ( U.K.)
UTTAR KANNADA, KARWAR.
... RESPONDENTS
(BY SRI.S. S. YADRAMI, ADVOCATE)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE
SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
4
PORTION OF ACQUITTAL OF ACCUSED IN S.C.NO.15 OF
2010, DATED 26.07.2012 AND CONVICT AND SENTENCE
THE ACCUSED/RESPONDENTS NOS.1 AND 2 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 326 AND 307
READ WITH SECTION 34 OF THE INDIAN PENAL CODE
AND FURTHER CONVICT AND SENTENCE ACCUSED NOS.3
AND 4 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 326 & 307 READ WITH SECTION 34 OF
THE INDIAN PENAL CODE IN ACCORDANCE WITH LAW.
RESERVED ON 10.01.2017
PRONOUNCED ON 25.01.2017.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 10.01.2017 COMING
ON FOR PRONOUNCEMENT THIS DAY, K.SOMASHEKAR J.
DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A.No.2867/12 is filed by accused Nos.3 and 4, Crl.A.No.100147/14 is filed by accused Nos.1 and 2 aggrieved by the judgment and order of conviction dated 26.07.2012 passed in S.C.No.15/2010 by the Sessions Judge, Fast Track Court, Uttara Kannada, Karwar, convicting them for the offences punishable under Section 447, 302, 324, 504 and 506 read with Section 34 of IPC and sentencing them to undergo S.I. for a period of two months and to pay a fine of Rs.500/- each respectively, in default, to undergo S.I. for 15 days for the offence under Section 447 read with Section 34 of IPC; to undergo R.I. for a period of two years and to pay a fine of Rs.1,000/- each, in default, to 5 undergo S.I. for three months for the offence under Section 324 read with Section 34 of IPC; to undergo S.I. for a period of six months and to pay a fine of Rs.500/- each, in default to undergo S.I. for one month for the offence punishable under Section 504 read with Section 34 of IPC and to undergo S.I. for a period of six months and to pay a fine of Rs.500/- each, in default to undergo S.I. for one month respectively.
Crl.A.No.2576/13 is filed by the State aggrieved by the judgment and order of acquittal dated 26.07.2012 passed in S.C.NO.15/2010 by the Sessions Judge, Fast Track Court, Uttara Kannada, Karwar, wherein the learned Sessions Judge has acquitted accused Nos.3 and 4 for the offence punishable under Section 302 of IPC and accused Nos.1 to 4 for the offence punishable under Section 326 and 307 of IPC seeking reversal of the acquittal judgment held against these accused and the accused be convicted for the charges leveled against them.
2. Since all these three appeals arise out of the same judgment of conviction and sentence, they are taken up together for consideration..
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3. It is the case of the prosecution that C.W.1- Manjunath Badiya Naik who has filed the complaint has stated that he and his brothers were residing with their families separately in the same ancestral house at Shiroor, Balagod Gram of Siddapur Taluk cultivating their respective shares of lands separately. There is long standing dispute in between their family members and the family members of accused regarding encroached Forest Sy.No.96 measuring 1 acre 10 guntas. As such, there was ill-will between the two family members regarding the said encroached forest land. Even there was ill-will with respect to the malki land of the complainant's land bearing Survey No.175 and in the previous year the accused had forcibly cut and removed the arecanut crop grown in their malki land and for that year the areca crop had ripened for harvesting. It is further stated that on 9.10.2009 at about 6.30 a.m. when the complainant's elder brother's wife-Gange wife of Venkatraman Naik along with other women folk of the family had been to the arecanut garden for harvesting. Accused No.4 came there and 7 picked-up quarrel and started to abuse the womenfolk of complainant's family. On hearing the galata the complainant and his family members went there. Meanwhile, hearing commotion, accused Nos.1 to 3 also arrived at the scene holding sickles in their hands and started to abuse the complainant and other family members. In the incident, the first accused assaulted Gange on her right side neck, on her left shoulder and on the left side of her chest with a sickle causing grievous injuries due to which she collapsed. The first accused also assaulted Narayan on the backside of his neck two to three times and also on the left leg with the sickle due to which he sustained grievous injuries. Accused No.2 assaulted Netravati on her right leg and on her right hand with a sickle. The first accused assaulted Venkatraman on his left cheek, on his ears, on his right shoulder and left side of his neck with the sickle due to which he suffered grievous injuries. The second accused assaulted Ganapati with the sickle on his right shoulder and on his left leg. He assaulted Timma also with the sickle on both his hands, on his 8 head and on his right shoulder. Accused No.3 assaulted Ira Naik with the sickle on his left hand and all over his person. The third accused assaulted Raju Naik with the sickle on his left hand fingers and on his right hand shoulder with the sickle. Accused No.4 assaulted C.W.1-Manjunath with a club on his right hand and on his right shoulder. Accused No.4 assaulted the women folk namely Gangu Naik, Kalpana Naik, Gouri Naik, Sumitra Naik and Rajeshwari Naik with the club causing them simple and grievous injuries. In the incident all the accused abused the complainant and all the family members with vulgar words causing insult to them. Meanwhile, hearing galata Narayan Timma Naik, Ratna Timma Naik and other villagers arrived at the scene and on seeing them the accused left the place by giving life threats to all of them. Meanwhile the villagers shifted all the injured persons to the Government Hospital, Siddapur in an ambulance. When they were undergoing treatment a complaint came to be lodged by C.W.1 which was registered by the police in Crime No.153/09 of Siddapur 9 P.S. against all the accused as per Ex.P39 for the offences punishable under Sections 447, 324, 326, 307, 302, 504 and 506 read with Section 34 of IPC. The I.O. who investigated the case by recording the statement of the witnesses laid charge sheet against the accused for the offences punishable under Sections 447, 324, 326, 307, 302, 504 and 506 read with Section 34 of IPC. The charges were framed against the accused. The accused pleaded not guilty and claimed to be tried.
In order to prove the offences, the prosecution in all examined PWs.1 to 29 and got marked Exs.P1 to P64 as well as M.Os.1 to 23. Thereafter, the statement of the accused was recorded as provided under Section 313(1)(b) of Cr.P.C. On behalf of all the accused defence evidence of accused No.4 is produced as D.W.1 and Exs.D1 to D-21 came to be marked.
The learned Sessions Judge on hearing the arguments advanced by the learned public prosecutor for the State and defence counsel for the accused held conviction for the charges levelled against them. 10 Aggrieved by the impugned judgment of conviction and sentence, the present appeals are preferred.
4. The learned counsel for the appellants- accused during the course of their arguments has contended that it is based on the complaint filed by P.W.1 the crime came to be registered and proceeded with the investigation. P.W.1 has specifically stated in his evidence that his father is having six sons by name Timma, Ira, Venkatraman, Narayan, Manjunath and Ganapati. All the sons of Badiya Naik are residing in the ancestral house itself separately and they are cultivating and enjoying their respective shares in the lands separately. The accused are their distant relatives. Further, in respect of forest Sy.No.96 measuring 1 acre 10 guntas there is long standing dispute in between the members of their family and the family members of accused. Adjacent to this forest Sy.No.96 their malki land in Survey No.175 is situated wherein they have grown areca and banana. In the year 2008, the accused had forcibly cut and removed areca 11 and banana crop from their malki land. In the month of October 2009 areca and banana crops had ripen in their malki land for harvesting. On 9.10.2009 at about 6.00 a.m. his brother's wife-Gange Naik and all the women folk of their family had been to their malki land in Sy.No.175 to pluck areca. All the brothers and their family members were engaged in agricultural work adjacent there only. When the women folk were engaged in Sy.No.175 in plucking areca, accused No.4 came there holding a club, picked up quarrel with the women folk and started to abuse them in filthy language. The remaining accused also rushed there holding sickles in their hands. Hearing the galata himself, his brothers and the other family members arrived at the scene. In the galata the first accused inflicted a severe blow on Gange with the sickle on her left shoulder due to which she collapsed there itself. When Netravati came there the second accused inflicted a blow on her right knee and right hand with a sickle. Accused Nos.1 and 2 assaulted Narayan Naik with the sickles two to three times on the backside of his neck 12 and caused grievous injuries. When Venkatraman Naik came there the first accused assaulted him on his left ear, left shoulder and right shoulder with the sickle. Accused Nos.2 and 3 also assaulted as narrated in the complaint at Ex.P1. In the meanwhile on hearing the commotion, Narayan Thimma Naik, Smt. Ratna Thimma Naik and the villagers arrived at the scene and all the accused holding threats at them left the scene with the sickles allegedly used by them for the assault. The I.O. conducted panchanama of the scene of offence as per Ex.P2 which bears the signature of P.W.1. Seized M.Os.1 to 4 and prepared rough sketch at the scene of offence as per Ex.P3 to which also PW2 and CW2 are the signatories. Ex.P2 is the scene of offence panchanama drawn by the I.O. on 9.10.2009 at 6.00 p.m. The complainant has stated in his evidence that he was present while this mahazar was drawn by the I.O. P.W.2 and C.W.2 are the panch witnesses in respect of Ex.P2. The learned counsel for the appellant keeping in view the evidence put forth by the prosecution has contended that the witnesses for the prosecution 13 examined all family members who are really interested witnesses and as such their evidence is unreliable for the prosecution to prove the guilt against the accused. All the injured witnesses have categorically stated in their evidence that accused Nos.2 and 3 were holding sickles, A-4 was holding club and inflicted injury on that day on the injured namely PWs.9, 11, 13, 1, C.W.21, P.W.10, 15, 8, 14 C.W.20 and P.W.12. Wound Certificates at Exs.P36, 37 and 38 of P.Ws. 9,8, 7 respectively have been issued from the Wenlock Hospital, Mangalore. There was long standing enmity between the complainant's family members and accused family members in respect of malki land bearing Sy.No.175 and so also the forest land bearing Sy.No.96. The accused Nos.1, 2 and 4 also had sustained injuries as per the wound certificates at Ex.D10 to D13. The complainant's family members namely P.Ws.1, 9, 11, 13, 10, 15, 8, 14 and 12 who had assaulted the accused Nos.1 to 4 have taken the defence that they assaulted them with a view to save themselves as the accused had given threats to their lives and also inflicted injuries 14 over them, which is indicated at Exs.D10 to 13. The alleged scuffle took place in the malki land bearing Sy.No.175 and not in Sy.No.96A and hence, the contention of the accused that the alleged scuffle took place in the encroached forest Survey No.96A is not correct. In order to gulp the land in Sy.No.96A, as the complainant and his brothers have failed in long standing civil litigation, now they are falsely contending that the alleged incident occurred in Sy.No.175. This aspect of the evidence is very much required to be appreciated in this appeal in proper perspective keeping in view the evidence of the prosecution and also the defence evidence as putforth. This aspect of evidence has not been analysed by the learned Sessions Judge while holding conviction against the accused for the charges levelled against them.
5. PWs.17 and 18 are the hearsay witnesses to the prosecution case. P.W.17 is the elder sister of deceased Gange Naik. She has spoken in her evidence that after hearing the news of assault on her sister and 15 her family members over telephone she went to the Government Hospital, Siddapur and saw the injured persons. When she made enquiries with Manjunath she came to know that the accused assaulted her sister with sickles and as such she died. In the incident, several family members of Badiya Naik had suffered injuries. In this regard she had given the statement before the police. P.W.18 has also spoken in her evidence that he too had accompanied P.W.17 after the incident. He noticed Gange Naik having died suffering grievous injuries in the incident. He came to know that it is the accused who assaulted Gange Naik and several family members of Badiya Naik had suffered grievous injuries in the incident. Subsequently, he learnt that Narayan Naik also died in Mangalore Hospital due to the injuries suffered in the incident. PWs.17 and 18 are only the hear say witnesses to the prosecution case. Their evidence has also been taken into consideration by the learned Sessions Judge and come to the conclusion that the prosecution has proved the guilt against the accused. The evidence of PWs.9, 10 and 7 are 16 consistent to each other and there are inconsistency and discrepancies in their evidence. The same is required to be taken into consideration in this appeal keeping in view the evidence of D.W.1 and also the documents at Exs.D1 to D21 got marked respectively. Ex.D1 is the petition copy in E.P.No.1/2000. Ex.D2 is the order sheet copy in E.P.No.1/2000. Ex.D3 is the plaint copy in O.S.No.3/09. Ex.D.4 is the marked portion in the statement of P.W.7. Exs.D5 to 7 are the marked portions in the statement of P.W.8. Exs.D8 and D9 are the marked portions in the marked portions in the statement of P.W.9. Ex.D10 to D13 are the wound certificates of A-1 to A-4. Ex.D14 is the scene of offence panchanama copy. Ex.D15 is the judgment copy in C.C.No.80/03 dated 29.10.2004. Ex.D16 is the judgment copy in C.C.No.442/98 dated 4.8.1999. Ex.D7 is the copy of the judgment in O.S.No.88/92 and O.S.No.103/92 dated 6.2.1996. Ex.D18 is the decree copy in O.S.No.88/92. Ex.D19 is the copy of the charge in C.C.No.80/03. Ex.D20 is the copy of FIR in Siddapur P.S. in Crl.No.154/09 dated 9.10.2009. Ex.D21 is the 17 copy of the complaint dated 9.10.2009. As these documents were got marked for the defence to establish their innocence in respect of the alleged offence to the effect that since the complainant's family members were extending life threat to accused Nos.1 to 4 to save their lives they were alleged to have caused injuries to them. That there is no overt act attributed against the accused in the commotion which took place between the family members of the complainant and the family members of the accused at the scene of crime in regard to the long standing enmity in respect of Survey No,.96A and malki land bearing Survey No.175. Therefore, this aspect is very much required to be considered in this appeal as the accused have taken self defence to save their lives. Therefore, considering the grounds as urged in these appeals they have prayed for allowing the appeal filed by them by setting aside the impugned judgment of conviction held by the learned Sessions Judge against the accused for the charges leveled against them. 18
6. In support of his contention, the learned counsel for the appellants-accused has placed reliance on the decisions reported in 2004(10) SCC 94 at Para 9 and (2010) 2 SCC 333 paragraphs 38 and 58(iii) which reads thus:-
2004(10) SCC 94 at Para 9 "9. In order to find whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh .vs. State of Bihar.(see Wassan Singh .vs. State of Punjab and Sekar V. State.)"
(2010) 2 SCC 333 paragraphs 38 and 58(iii) "38. When we see the principles of law in the light of facts of this case where Darshan Sign in his statement under Section 313 CrPC has categorically stated that 19 "Gurcharan Singh gave a gandasa-blow hitting my father Bakhtawar Singh on the head as a result of which he fell down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the gandasa. I apprehended that I too would be killed and I then pulled the trigger of my gun in self-
defence". Gurcharan Singh died of gunshot injury. In the facts and circumstances of this case the appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself.
58(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
7. The learned Additional SPP for the State has submitted that the prosecution in all examined 29 20 witnesses and also got marked several documents apart from M.Os.1 to 23 to prove the guilt against the accused. The accused have caused injuries to P.Ws.1, 9, 11, 13, 10, 15, 8, 14, 12 so also caused the death of Gange V. Naik, which is indicated in the P.M. report Ex.P31 and Narayana B. Naik, which is indicated in the P.M. report Ex.P33. Ex.P2 is the scene of offence panchanama drawn by the Investigating Officer, which is the evidence of P.Ws.1 and 2 being panch witnesses to the same. Ex.P3 is the rough sketch at the scene of offence to which P.W.2 and C.W.2 are the signatories. Exs.P 4 to 7 are the recovery panchanama. Besiders there are voluntary statement given by the accused Nos.1 to 3 which is at Exs.P43 to 45, which is recorded by P.W.26 being the I.O. who went to the house of the accused which shown by the accused and it was in the presence of the panch witnesses that he has recovered the weapons at M.Os.5 to 7 which has been seized under Ex.P4 of the seizure mahazar. P.W.3 is the common panch witnesses in respect of Exs.P5 to 7, recovery mahazar drawn by the Investigation Officer in 21 the presence of P.W.3 and C.W.4. Under these panchanamas the I.O has recovered the blood stained clothes of injured in the police station,. Ex.P5 is prepared on 9.10.2009 in between 7.00 p.m. to 8.00 p.m. P.W.20 produced the clothes work by deceased- Gange V. Naik on the date of the incident. A blouse, a langa and a saree, all blood stained, marked as M.Os.8 to 10 were produced by P.W.20 after her post mortem in the police station which are recovered before the panchas. Ex.P6 is prepared on 10.10.2009 in between 2.45 p.m. to 3.30 p.m. in the police station and it is the case of the prosecution that Kum. Kalpana Naik-P.W.14 produced a blood stained chudidar top and a chudidar pant, M.Os.11 and 12 before the panchas which were recovered under Ex.P6. Ex.P7 is the recovery panchanama prepared on 10.10.2009 itself in between 4.30 p.m. to 5.30 p.m. The injured-Kum. Gouri Naik- C.W.20 produced the blood stained blouse and langa in M.Os.13 and 14 before the panchas which were recovered under Ex.P7. Ex.P3 who is examined to speack about the panchanamas in Exs.P5 to P7 has 22 spoken in his evidence in regard to the mahazars conducted in their presence. Ex.P8 is the recovery panchanama of the clothes of Venkatraman Naik-PW10 which is prepared on 11.10.2009 at Wenlock District Hospital, Mangalore. Ex.P9 is the recovery panchanama of clothes of Timma Naik-P.W.7. Ex.P10 is the recovery panchanama of the blood stained clothes of Ira Naik-P.W.8. Ex.P11 is the recovery panchanama prepared on 11.10.2009 in between 2.30 to 3.15 p.m. under which the blood stained clothes of deceased Narayan Naik. Ex.P12 is the recovery panchanama of the blood stained clothese of Smt. Netravati Naik-PW9 which is prepared on 11.10.2009 itself in between 4.15 p.m. to 5.00 p.m. and Ex.P13 is the inquest panchanama of Narayan Naik prepared on 21.10.2009 in between 8.30 a.m. to 10.30 a.m. P.W.29 is the investigating officer who conducted Exs.P8 to 13 by securing the panchas. P.W.4 and C.W.11 are the common panch witnesses to all these mahazars. Ex.P14 is the inquest panchanama of Gange Naik, which is prepared on 9.10.2009 to which P.Ws.5, 6 and C.W.9 23 are the panch witnesses. Exs. P62 and 63 are the photographs of the dead body of Gange Naik. P.Ws.7 and 8 have spoken about the incident that on the date of the incident all the women folk of the family had been Sy.No.175 to pluck area and adjacent to the said land they were engaged in agricultural work. Accused Nos.1 and 2 assaulted Narayan Naik with sickles on the backside of his neck and on his left leg due to which he collapsed on the ground. Accused Nos.1 and 2 assaulted Timma Naik with sickles on his head, on his right shoulder and left palm. Accused No.3 assaulted him with a sickle on his left elbow and also on his back. He sustained injury on his left forearm also. P.W.9 has spoken in her evidence that on 9.10.2009 at about 6.30 a.m. all the family women folk had been to their malki land in Sy.No.175 to pluck areca. At that time, A-4 came to the scene of crime by holding club in her hand and started abusing them in filthy language. P.W.10 has stated in his evidence that the incident took on 9.10.2009 at about 6.30 a.m., the women folk of the family had been to their malki land in Survey No.175 24 and the accused came there and assaulted all the family members by holding club and sickles. He has stated with the accused assaulting all the family members with the weapons in M.Os.1 and 5 to 7. P.W.12 has stated in his evidence that on the date of the incident accused No.4 assaulted her with a club-M.O.1 on her hands due to which she had suffered injuries over her fingers and over her left elbow. P.W.14 has also stated in his evidence that when the women folk were engaged in plucking areca in their malki land the incident occurred. At that time, the accused persons came and assaulted the family members and caused injuries. P.W.16 being the eye witness was examined for the prosecution case. He has stated in his evidence that on 9.10.2009 at about 6.30 a.m. he and Ratna Naik were proceeding to forest to bring fodder. Meanwhile he heard some galata in the land of Timma Naik. When they went there he saw all the accused at the scene. The children of Badiya Naik and the family women had suffered injuries when he arrived at the scene. The grievously injured persons had fallen on the ground and 25 he managed to shift the injured to the Hospital in an ambulance. On the way Gange Naik died due to the injuries suffered in the incident. The grievously injured persons were shifted subsequently to Wenlock District Hospital, Mangalore. Subsequently, he came to that Narayan Naik died due to the injuries suffered in the incident on that day. P.W.23 has stated in his evidence that on 9.10.2009 at 8.50 a.m.-Timma Badiya Naik- P.W.2 was admitted in the Government Hospital with history of alleged assault and issued the wound certificate which is at Ex.P19. The doctor has certified that there is fracture base of first metacarpal bone in left hand and re-examined the patient on 12.12.2009. P.W.23 has also examined the injured P.W.8 and issued the wound certificate at Ex.P27 and also examined P.W.9 and issued wound certificate at Ex.P20. He has also examined P.W.11 and issued wound certificate as per Ex.P21, P.W.13 and issued wound certificate as per Ex.P22, C.W.21 and issued wound certificate as per Ex.P24; P.W.10 and issued the wound certificate as per Ex.P25; P.W.15 and issued the wound certificate as per 26 Ex.P26; C.W.20 and issued the wound certificate as per Ex.P29 and P.W.12 and issued the wound certificate as per Ex.P30. P.W.23 being the Medical Officer has also stated in his evidence with regard to the injury certificate issued by him and having conducted post mortem of Gange Venkatraman Naik and having issued P.M. report as per Ex.P31. He has further stated that after examining the weapons namely the sickles and club he has opined that the injuries caused to the deceased and Narayan Naik and also the injured persons could have been caused with those weapons, which is at Ex.P32 and also bears his signature. P.W.24 is the Assistant Professor working in the Department of Forensic Medicine, KMC, Mangalore, who has conducted P.M. on Narayan Badiya Naik and issued P.M. report as per Ex.P33. P.W.25 also examined P.Ws.7 to 10 and deceased Narayan Naik when he was working in the Wenlock District Government Hospital, Mangalore. He has stated in his evidence that he examined P.W.10-Venkatraman Naik and issued the wound certificate as per Ex.P34; examined deceased 27 Narayan Naik and issued the wound certificate as per Ex.P35 and referred him to Meghan Hospital, Shimoga for final opinion; examined P.W.9 and issued wound certificate as per Ex.P36; examined P.W.8 and issued wound certificate as per Ex.P37 and also examined P.W.7 and issued wound certificate as per Ex.P38. This evidence for the prosecution reveals that the injured suffered the injuries at the hands of the accused persons. P.W.28 has stated in his evidence that as per the direction of the Investigating Officer he prepared the sketch of the place of occurrence in the case on 23.11.2009, which was shown to him by PC.No.1279- Devidas Naik, which is at Ex.P48. P.W.27 being the chemical examiner who issued FSL report which is at Ex.P49. P.W.29 being the Investigating Officer who conducted the mahazar and recovered blood stained clothes of the injured who were being treated in the hospital as inpatients at Wenlock District Hospital, Mangalore. PW.26 has stated in his stated that on 9.10.2009 when he was in the station he received a telephone message that about 13 to 14 persons of 28 Shiroor, Balagod Village, who sustained injuries in an assault having been admitted to the Government Hospital, Siddapur for treatment. Immediately, he went to the hospital and saw the injured being treated there. P.W.1 lodged a complaint as per Ex.P1 against the accused and the same was registered in Siddapur P.S. in Crl.No.153/09 and sent the FIR to the Court as per Ex.P39. He saw Gange W/o.Venkatraman Naik having died in the hospital due to the injuries suffered in the assault and by securing panchas he conducted inquest panchanama as per Ex.P14 of Gange Naik. Immediately, he went to the scene of offence and conducted a scene of offence panchanama as per Ex.P2 which was shown to him by P.W.1 who being the author of the complaint and recovered M.Os.1 to 4. These evidence have been properly appreciated by the learned Sessions Judge and has come to the right conclusion that the prosecution has proved the guilt against the accused beyond all reasonable doubt that the accused had assaulted the injured as well caused death of the 29 deceased with means of sickles-M.O.4 to 7 and club- M.O.1.
8. Though the counsel for the appellants- accused in these appeals have taken the contention regarding the assault made by them as a self defence as the complainant's family members were extending life threat to them, keeping in view of the evidence of DW1 and also the documents produced at Exs.D1 to D2, which is produced by the counsel for the defence is of no help and it does not come in the way of the prosecution to prove that the accused had intention to commit the alleged offence as there was a motive behind to pick up quarrel with the family members of the complainant and assault them, which is evidenced by the wound certificates issued by P.W.23. Therefore, no force is found in the arguments advanced by the learned counsel for the appellants-accused to call for interference with the impugned judgment of conviction and sentence held against them for the charges leveled against them. Therefore, the learned Addl. SPP for the 30 State has sought for dismissal of the appeals by confirming the impugned judgment of conviction and sentence held against the accused and defended that the same be maintained as there is no infirmities found in the impugned judgment regarding the appreciation of the evidence by the learned Sessions Judge. In support of his contention, the learned SPP has placed reliance on the decision reported in SCC 2003 Part II Page 661 Para 13, which is extracted as under:-
"Then comes the plea relating to alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression " right of the private defence". It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this 31 question of fact, the court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private defence was
legitimately exercised, it is open to the court to consider such a plea. In a given case the court can consider it ever if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-
defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence: he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would 32 be a question of assessing the true effect of the prosecution evidence, and not a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-
defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram v. Delhi admn. 17 State of Gujarat v. Bai Fatima 18, State of U.P. v. Mohd. Musheer Khan 19 ands Mohinder Pal Jolly v. State of Punjab 20.) Section 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of 33 the assault. The oft-quoted observation of this Court in salim Zia v. State of U.P. 21 runds as follows: (SCC p. 654, para 9) " It is true that the burden oan accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establishing a mere preponderance of probabilities either by laying basis for that plea in the cross- examination of prosecution witnesses or by adducing defence evidence".
The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. and contended that the ratio laid down in the said case aptly applies to the facts and circumstances on hand the same may be considered for the prosecution.
9. Having regard to the strenuous contentions taken by the learned counsel for the appellant and also 34 the learned Addl. SPP for the State are concerned, it is relevant to state that the incident occurred in the malki land of the complainant and his brothers bearing Survey No.175 on 9.10.2009 at about 6.30 a.m. when the family members of the complainant i.e. the women folk had been to the land to pluck arecanut. At that time A-4 who came to the scene of crime holding club started abusing the womenfolk in filthy language. On hearing the altercation, the remaining accused rushed there holding sickles in their hands. Hearing galata, the complainant, his brothers and other family members arrived at the scene. Meanwhile, accused Nos.1 to 3 came to the scene holding sickles in their hands and in the scuffle the first accused assaulted Gange with the sickle on the left side of the chest, A-2 assaulted him on her right elbow joint and right knee. Narayan Naik was assaulted by the first accused with a sickle on the backside of his neck and Narayan was assaulted by both A-1 and A-2 with sickles on his left leg also. A-1 and A-2 assaulted Timma Badiya Naik on his left palm, right shoulder and on his head. Venkatraman Naik was 35 assaulted by A-1 and A-2 with sickles and the family women folk were assaulted by A-4 with the club. In the scuffle, Ira Naik was assaulted by A-3 with a sickle. P.W.9 has stated about this incident, which is narrated in the complaint filed by P.W.1, who is also the injured. Further, it is stated in the complaint that all the accused abused the complainant and all the family members with filthy language causing insult to them. Meanwhile hearing galata Narayan Timma Naik, Ratna Timma Naik and other villagers arrived at the scene and seeking them the accused left the place by giving life threats to all of them. P.W.10 has also stated in detail about the incident in his evidence. He has also stated with regard to the accused assaulting all the family members with means of M.Os.1 and 5 to 7. He has further stated that accused Nos.1 and 2 assaulted him with sickles on the left side of his head and on his right shoulder due to which he had suffered grievous injuries. He has also identified the banian -M.O.15 and lungi- M.O.16 which was worn by him on the date of the incident. He has also identified the weapons M.Os.1 36 and 5 to 7 used by the accused on the date of the incident. P.W.11 has also spoken about the incident and that he was assaulted by A-2 with a sickle on his right shoulder and on his left leg. He has stated that the weapons, M.Os.1, 5 to 7 were used by the accused in the incident. P.W.14 being the prime witness to the prosecution has also stated with regard to the incident and that she was assaulted by A-3 with a sickle on her left palm and on her head and was assaulted by A-4 with a club on her left shoulder. She has identified the weapons used by the accused in the incident. P.W.16 being the prime witness for the prosecution and also the eye witness has stated in his evidence that on 9.10.2009 at about 6.30 in the morning he and Ratna Naik were proceeding to forest to bring fodder. Meanwhile he heard some galata in the land of Timma Naik. When they went there he saw all the accused at the scene. He has stated that the children of Badiya Naik and the family women had suffered injuries when he arrived at the scene. The grievously injured persons had fallen on the ground and he managed to shift the 37 injured to the Hospital in an ambulance. On the way Gange Naik died due to the injuries suffered in the incident. The grievously injured persons were shifted subsequently to Wenlock District Hospital, Mangalore. Subsequently he came to know that Narayan Naik died due to the injuries suffered in the incident on that day. He has stated that it is the accused who had assaulted the children of Badiya Naik and the women folk of the complainant's family on that day. P.Ws.17 and 18 being the hearsay witnesses for the prosecution has also spoken about the incident that occurred at Sy.No.175 and the assault made by accused with means of M.O.1- Club and M.O.5 to 7 sickles. P.W.23 being the doctor who examined the injured who has also stated the history of assault and the issuance of wound certificates as per Exs.P19, 27, 20, 21, 22, 23, 24, 25, 26, 28, 29 and 30. He has stated with regard to the post mortem conducted over the dead body of deceased Gange Venkatraman Naik. He has further stated that on examination he found that there was an abrasion measuring 2x1 cm. in size over the left index finger. A 38 deep stab wound over the upper part of chest on the left side measuring 4x2x4 inches. There was enormous amount of blood in chest cavity. On close examination, he found that carotid arteries and jugular veins were cut. The major arteries surrounding muscles and subentamous tissues were torn. He has issued the post mortem report as per Ex.P31 wherein he has opined that the death was due to shock as a result of hemorrhage from major blood vessels. He has further stated with regard to the examination of the sickles and club sent to him by the investigating officer and the opinion given by him. P.W.24 who is the Assistant Professor working the Department of Forensic Medicine, KMC, Mangalore, has stated with regard to the post mortem conducted over the dead body of Narayan Badiya Naik on 21.10.2009 at 11.45 a.m. to 1.15 p.m. and the external injuries found as follows:-
"(i)A vertically placed surgically sutured wound measuring 12 cm is present in the suboccipital region on the back of neck to the left of midline. On removal of 39 sutures the wound is 5 cm wide, bone deep and appears spindle shaped with clean cut margins and sharp edges.
(ii)A vertically placed surgically sutured wound measuring 4 cm is present over the front of left leg.
(iii)A horizontally placed surgically sutured wound measuring 3 cm is present over the front of left ankle."
He has further stated that all the above injuries are antemortem in nature. The muscles contusions are present corresponding to the injury No.1 at the back of neck. A cut fracture corresponding to the external neck injury is present involving the 4th to 7th cervical vertebra and first thoracic vertebra in its length vertically. Corresponding cord is contused. He has mentioned the injuries in detail in the P.M. report as per Ex.P33 and opined that the death of Narayan is caused due to complications of the injuries sustained to the spine. P.W.25 who examined P.Ws.7 to 10 and also deceased Narayan Naik when he was working in the Wenlock District Government Hospital, Mangalore. He has stated in his evidence that on 9.10.2009 at 10.15 in the 40 night he examined P.W.10-Venkatramabn Naik and noticed the injuries which were inflicted over his body as indicated in Ex.P34-wound certificate. P.W.25 being the doctor who had examined the injured witnesses and issued the wound certificates which indicates that the injuries were inflicted over the person of the injured. Further, it is relevant to state that P.W.19 being the Head constable who has spoken in his evidence that on 9.10.2009 at 12.00 noon as per the direction issued by the Investigating Officer, he took FIR in Siddapur police station in Crl.No.153/09 to the Court and issued the report for having submitted the same as per Ex.P15. P.W.22 has stated in his evidence that as per the direction of the Investigating Officer he carried the material objects seized by the I.O. in all 23 items, for scientific investigation to the office of the FSL, Mangalore and brought back the same and handed over to the I.O. as per the report at Ex.P18. PW.27 being the chemical analyist has stated in his evidence that he received in all 23 items in relation to Cr.No.153/09 of Siddapur Police Station. The said weapons were 41 subjected to examination and issued the FSL report as per Ex.P49. P.W.29 being the I.O. has stated in his evidence that as per the direction of P.W.26 he visited Wenlock District Hospital, Mangalore, wherein he conducted the panchanamas and recovered the blood stained clothes of the injured who were being treated in that hospital as inpatients. He conducted mahazar as per Exs.P9, 10, 11 and 12. He has further stated in his evidence that on 21.10.2009 he conducted inquest over the dead body of Narayan Naik as per Ex.P13 in the Wenlock District Hospital, Mangalore. He has conducted mahazar as per Exs.P18 to 30 in the presence of P.W.4 and C.W.11. This evidence placed by the prosecution has been analysed by the learned Sessions Judge in a proper perspective and has come to the conclusion that the accused assaulted the injured family persons and also inflicted injuries over the person of deceased as indicated at Exs.P31- postmortem report of Gange V. Naik and P.W.33-postmortem report of Narayan B. Naik. Immediately, after the incident P.Ws.17 and 18 arrived and seen the family members of 42 the complainant being treated in the Government Hospital, Siddapur and they have noticed that due to the grievous injuries suffered by Gange Naik, she died on the way to the hospital. P.W.16 being the eye witness to the incident has specifically stated in his evidence that when he arrived at the scene of crime, he noticed that several members of the family of the complainant had suffered grievous and simple injuries; that the injured were shifted to hospital in an ambulance. Further, he has spoken about the incident that occurred when the family members of the complainant's family had been to the scene of crime in Survey No.175 for plucking areca nut and that all the accused were at the spot. This evidence having been subjected to cross- examination considered by the defence counsel nothing has been elicited to disbelieve the versions of the prosecution witnesses. The learned Sessions Judge has rightly come to the conclusion that the prosecution has proved the guilt against the accused beyond all reasonable doubt. It is relevant to state in these appeals that on the basis of the voluntary statements of 43 A-1 to A-3 which is at Exs.P43 to P45, the weapons M.O.1 and M.Os.5 to 7 were recovered as per Ex.P4. P.W.2 being the panch witness has spoken about the recovery of these weapons. Nothing worthwhile has been elicited in the evidence of the defence witnesses to discredit the evidence placed by the prosecution, with regard to the recovery of M.Os.1 to 4 while drawing the spot panchanama which is at Ex.P2 and also for having recovered blood stained clothes under different mahazar as drawn in the Government Hospital at Siddapur and also at Wenlock Hospital at Mangalore. It is relevant to state that the first information report was lodged immediately after the incident. There is no delay in lodging the complaint regarding the alleged incident. The prosecution witnesses have identified the weapons M.O.1-Club and M.Os.5 to 7 sickles which were used by the accused at the time of incident alleged to have been committed by the accused whereas the ocular evidence of the informants coupled with the evidence of P.Ws.7 to 9, P.Ws.10 to 15 and so also the evidence of eye witness P.W.16 for the prosecution which is found to be cogent 44 and credible in regard to the accused having committed the alleged offence and having caused injuries as indicated in the wound certificate and also the injuries inflicted over the person of the deceased as deceased at Exs.P31 and 33- the post mortem report of Gange V. Naik and Narayan B. Naik respectively. The recovery of material objects corroborates the case of the prosecution. The recovery panchanama conducted in the presence of P.W.2 which is at Ex.P4, it is noticed that there were blood stains on the weapons which were used by the accused, which is also proved by examining the I.O. for the prosecution. The prosecution witnesses have emphatically stated in their evidence that accused came to the scene of crime in Survey No.175, abused the injured and also the deceased in a filthy language intentionally to insult them and assaulted them with means of M.O.1-club and M.Os.5 to 7 sickles and caused injuries over the person of the injured as well as caused the death of the deceased.
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10. For the aforesaid reasons and findings, we are of the opinion that the learned Sessions Judge has rightly come to the conclusion by analyzing the evidence as putforth by the prosecution by placing cogent, corroborative and positive evidence to probabalize that the accused have committed the alleged offence and caused the injuries to the injured as indicated in the wound certificates issued by P.W.23 and also caused the death of Gange V. Naik and Narayan B. Naik by causing injuries as indicated in the P.M. reports as per Exs.P31 and 33. Therefore, we are of the opinion that there are no justifiable grounds as urged by the learned counsel for the appellants-accused who have taken the contention of private defence by producing the documents at Exs.D1 to D21 by examining D.W.1. Therefore, for the reasons stated, we are of the opinion that the appellants-accused have failed to succeed in these appeals. Accordingly, all these appeals deserves to be rejected.
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For the aforesaid reasons, we proceed to pass the following:
ORDER Criminal Appeal No.2867 of 2012 filed by appellant Nos.3 and 4 and Criminal Appeal No.100147 of 2014 filed by appellant Nos.1 and 2 are dismissed.
Criminal Appeal No.2576 of 2013 filed by the State is dismissed.
Consequently, the judgment dated 26.07.2012 and sentence dated 04.08.2012 held against these appellants/accused by the learned Sessions Judge, Fast Track Court - I, Uttara Kannada, Karwar in Sessions Case No.15 of 2010 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE *alb/-