Karnataka High Court
Shivabasappa@Basappa And Ors vs The State Through Sirwar on 10 July, 2024
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CRL.A No. 200091 of 2018
C/W CRL.A No. 200101 of 2018
CRL.A No. 200108 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200091 OF 2018 (374)
C/W
CRIMINAL APPEAL NO. 200101 OF 2018
C/W
CRIMINAL APPEAL NO. 200108 OF 2018
IN CRL.A NO.200091/2018
BETWEEN:
1. SHIVABASAPPA @ BASAPPA
S/O MARIBASAPPA PADAL,
AGE: 42 YEARS, OCC: AGRICULTURE.
Digitally signed by
BASALINGAPPA 2. MALLANNA
SHIVARAJ
DHUTTARGAON S/O DODDA LINGAPPA UNNER
Location: HIGH AGE: 35 YEARS, OCC: AGRICULTURE.
COURT OF
KARNATAKA
3. NAGESH
S/O PAMPANNA GOKARL
AGE: 35 YEARS OCC: AGRICULTURE.
4. LINGAREDDY
S/O MARIBASAPPA PADAL,
AGE: 45 YEARS, OCC: AGRICULTURE.
5. ANJANEPPA
S/O DODDA LINGAPPA UNNER,
AGE: 30 YEARS, OCC: AGRICULTURE.
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6. TAYANNA
S/O MARILINGAPPA UNERA,
AGE: 25 YEARS, OCC: AGRICULTURE.
7. SHARANAPPA
S/O MARILINGAPPA UNNERA,
AGE: 60 YEARS, OCC: AGRICULTURE.
8. MARILINGAPPA
S/O BASANNA UNNERA,
AGE: 60 YEARS OCC: AGRICULTURE.
9. BASAVARAJ
S/O HANUMANT GUDISALU
AGE: 22 YEARS, OCC: AGRICULTURE.
10. SANA VANAKERI
S/O MALLANNA UNNERA
AGE: 45 YEARS, OCC: AGRICULTURE.
11. MALLAYYA
S/O SANNA NARASAPPA SADHAPUR,
AGE: 22 YEARS, OCC: AGRICULTURE.
12. GURUDATTA
S/O RAMANNA HOODED HALLI
AGE: 24 YEARS, OCC: AGRICULTURE.
13. GOOLAPPA
S/O MALLAPPA SADAPUR
AGE: 21 YEARS, OCC: AGRICULTURE.
14. VIRUPAKSAPPA
S/O MARIBASAPPA PADAL,
AGE: 24 YEARS, OCC: AGRICULTURE.
15. YANKAPPA @ YANKOBA
S/O URUKUNDHAPPA SADAPUR,
AGE: 32 YEARS, OCC: AGRICULTURE.
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CRL.A No. 200091 of 2018
C/W CRL.A No. 200101 of 2018
CRL.A No. 200108 of 2018
16. HONNAPPA
S/O URUKUNDHAPPA SADAPUR,
AGE: 35 YEARS, OCC: AGRICULTURE.
ALL ARE R/O BOMMANAL VILLAGE,
TQ: MANVI, DIST: RAICHUR- 584 123.
...APPELLANTS
(BY SRI. ANILKUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE THROUGH
SIRWAR POLICE STATION,
DISTRICT: RAICHUR, NOW REPRESNETED
ADDL. SPP. HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585107.
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C, PRAYING
TO SET ASIDE THE JUDGMENT PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE AT RAICHUR CONVICTING
THE APPELLANTS BY ITS JUDGMENT DATED 8TH JUNE 2018, IN
THE INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO.200101/2018
BETWEEN:
SANTOSH
S/O SHANKREPPA GOUDA,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O BOMMANAL,
TQ. MANVI, DIST. RAICHUR.
...APPELLANT
(BY SRI. SHIVAKUMAR MALIPATIL, ADVOCATE)
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C/W CRL.A No. 200101 of 2018
CRL.A No. 200108 of 2018
AND:
1. DEVINDRAPPA
S/O MARIBASAPPA PADAL,
AGE: 41 YEARS, OCC: AGRICULTURE.
R/O BOMMANAL, TQ. MANVI,
DISTRICT: RAICHUR- 585101.
2. THE STATE SIRWAR P.S.
TQ. MANVI, DIST. RAICHUR,
REPRESENTED SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH- 585107.
...RESPONDENTS
(BY SRI. ANILKUMAR NAVADAGI, ADV. FOR R1;
SRI. SIDDALING P. PATIL, ADDL. SPP FOR R2)
THIS CRL.A. IS FILED U/S.372 OF CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT PASSED BY THE I ADDL. SESSIONS
JUDGE RAICHUR ON 08.06.2018 ACQUITTING THE ACCUSED
NO.1 AND CONVICT THE ACCUSED NO.1 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 143, 147, 148, 504, 324, 326,
307, 302 AND 427 R/W SECTION 149 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO.200108/2018
BETWEEN:
SANTOSH
S/O SHANKREPPA GOUDA,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O BOMMANAL,
TQ. MANVI, DIST. RAICHUR.
...APPELLANT
(BY SRI. SHIVAKUMAR MALIPATIL, ADVOCATE)
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C/W CRL.A No. 200101 of 2018
CRL.A No. 200108 of 2018
AND:
1. NAGESH
S/O PAMPANNA GOKARL,
AGE: 35 YEARS OCC: AGRICULTURE.
2. TAYANNA
S/O MARILINGAPPA UNERA,
AGE: 25 YEARS, OCC: AGRICULTURE.
3. MARILINGAPPA
S/O BASANNA UNNERA,
AGE: 60 YEARS OCC: AGRICULTURE.
4. SANA VANAKERI
S/O MALLANNA UNNERA
AGE: 45 YEARS, OCC: AGRICULTURE.
5. YANKAPPA @ YANKOBA
S/O URUKUNDHAPPA SADAPUR,
AGE: 32 YEARS, OCC: AGRICULTURE.
6. HONNAPPA
S/O URUKUNDHAPPA SADAPUR,
AGE: 35 YEARS, OCC: AGRICULTURE.
ALL R/O BOMMANAL VILLAGE,
TQ. MANVI, DIST. RAICHUR.
7. THE STATE SIRWAR P.S.
TQ. MANVI, DIST. RAICHUR,
REPRESENTED SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
...RESPONDENTS
(BY SRI. ANILKUMAR NAVADAGI, ADV. FOR R1 TO R6;
SRI. SIDDALING P. PATIL, ADDL. SPP FOR R7)
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CRL.A No. 200091 of 2018
C/W CRL.A No. 200101 of 2018
CRL.A No. 200108 of 2018
THIS CRL.A. IS FILED U/S.372 OF CR.P.C, R/W SEC. 377
CR.P.C. PRAYING TO ALLOW THE APPEAL, CALL FOR THE
RECORDS IN S.C. NO.42/2014 AND MODIFY THE JUDGMENT
PASSED BY THE I ADD. SESSIONS JUDGE RAICHUR ON
08.06.2018 CONVICTING THE ACCUSED 4, 7, 9, 11, 16 AND 17
FOR THE OFFENCES PUNISHABLE UNDER SECTION 504, 324,
326, 307, AND 327 R/W SECTION 149 OF IPC, AND THE
APPELLANTS HEREIN MAY BE PUNISHED FOR MAXIMUM
SENTENCE, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K., J., DELIVERED THE FOLLOWING:
JUDGMENT
These three appeals directed against the judgment of conviction and order of sentence passed by the Court of I Additional District and Sessions Judge, Raichur in S.C.No.42/2014 dated 08.06.2018, wherein, the learned Sessions Judge convicted the appellant/accused Nos.2, 3, 5, 6, 8, 10, 12, and 15 for the offence punishable under Section 302 r/w Section 149 of IPC and sentenced them to undergo rigorous imprisonment for life and also to pay a fine of Rs.5,000/- each. In default of payment of fine, they sentenced to undergo rigorous imprisonment for a period of one year. Further, accused Nos.2 to 17 convicted for the offences punishable under Sections 143, 147, 148, 504 -7- NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 and 427 r/w Section 149 of IPC and sentenced them to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of two months for the offence punishable under Section 143 r/w 149 of IPC. Further, they sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of two months for the offence punishable under Section 147 r/w Section 149 of IPC. Further, they also sentenced to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.2,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of two months for offence punishable under Section 148 r/w Section 149 of IPC. They also sentenced to undergo simple imprisonment for a period of two years and to pay fine of 2,000/- each. In default of payment of fine, they directed -8- NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 to under simple imprisonment for a period of two months for the offence punishable under Section 504 r/w Section 149 of IPC. They also sentenced to undergo simple imprisonment for a period one year and to pay a fine of Rs.1,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of two months for the offence punishable under Section 427 r/w Section 149 of IPC. The accused Nos.2, 4, 7, 9, 11, 12, 15, 16 and 17 are convicted for the offences punishable under Sections 324, 326 and 307 of IPC and sentenced them to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of three months for the offence punishable under Section 324 r/w Section 149 of IPC. Further, they sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.5,000/- each. In default of payment of fine, they directed to undergo simple imprisonment for a period of -9- NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 six months for the offence punishable under Section 326 r/w Section 149 of IPC. They also sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- each. In default of payment of fine, they directed to undergo rigorous imprisonment for a period of six months for offence punishable under Section 307 r/w Section 149 of IPC. It is also directed that, out of the total compensation of Rs.3,16,000/-, Rs.1,50,000/- has been allotted as a compensation to PW.1 and Rs.1,50,000/- to PW.4 as contemplated under Section 357 of Cr.P.C and rest of the amount shall be deposited to the State Exchequer. The accused are also given set off as contemplated under Section 428 of Cr.P.C.
2. The factual matrix of the prosecution case is as follows:
There was a Kondawada (a fold for cattle) in Bommanal village and accused Nos.1, 2, 5 and 15 have demolished the same in the night hours on 10.01.2014
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 and took the possession of the said land to keep their agricultural items and also using the same for the purpose of parking their vehicles. Hence, C.W.9 i.e., PW.4, C.W.17 i.e., PW.7 and deceased Shankrappagouda advised accused No.1, 2, 5 and 15 not to do so and requested them to handover the said place to the public to reconstruct Kondawada in the same place. On 10.01.2014 at about 10:00 a.m., a Panchayath was called to that effect near Earalgadda Katta in Bommanal village and deceased Shankrappagouda, C.W.9/P.W.4 Shivangouda, C.W.17/P.W.7 Yankangouda were sitting on the Katta on the chairs and others were assembled. At that time, accused No.2, 5 and 15 came there and when they were questioned regarding Kondawada, they picked up quarrel and abused PWs.4, 7 and deceased Shankrappagouda in filthy language like: "Oorige bandu Leader Aagabeku anta madiyenale Soolemagane" and went to their house at about 11-00 a.m., and returned along with accused No.2 to 17 and formed themselves into an unlawful assembly by
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 holding sticks, stones and axes, came near Earalgudda Katta and abused the elders who were sitting in the Panchayath like "Enale Langa Soole Makkale, namma swadhinadalliruwa Kondawadi jagawannu bittu kodiri anta kelalikke nimage dairya ellinda Bantu, ee Doctor Yankanagouda neewellaru Soolemagana Matu keli koodiddiri, navu yarigoo hedaruvudilla" and thrown the stones towards them and caused the damage to the Maruti Suzuki Swift Car bearing Registration No.KA-36/N-1974 of C.W.15 and assaulted to Shankrappagouda (deceased).
Accused No.6 assaulted him with axe on his right temporal region. Accused No.3 assaulted with axe, accused No.5 assaulted with stick and accused No.10 assaulted with stick on him and hence, he fell down uttering as "Satteneppo" and succumbed to the injuries.
3. Further, the accused also assaulted Ashok (another deceased) who came to pacify the quarrel i.e., accused No.2 assaulted him with stick, accused No.15 Veerupakshi assaulted him with stone, accused No.5
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 Lingareddy assaulted him with stick, accused No.8 Sharanappa assaulted him with axe, accused No.12 Mallayya assaulted him with stick and caused injuries to him, who succumbed to injuries on next day morning i.e., on 11.01.2014 at RIMS Hospital, Raichur.
4. Further, accused No.4 Nagesh assaulted with stick, accused No.9 Marilingappa assaulted with stone and accused No.17 Honnappa assaulted with stick to the C.W.11/P.W.5 Hanmantha and caused grievous injuries.
5. Further, accused No.7 Tayanna assaulted with stick, accused No.2 Shivabasappa assaulted with stick, accused No.11 Sanna Vankeri assaulted with stone, accused No.16 Yankappa assaulted with stick to the C.W.9/P.W.4 Shivangouda and attempted to murder him.
6. Accused No.13 Gurudatta assaulted with stick, accused No.5 Lingareddy assaulted with stick to C.W.10 Sharanappagouda and caused Injuries and accused No.14 Goolappa assaulted with stone, accused No.15
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 Veerupakshi assaulted with stone to C.W.12/P.W.8 Shivalingappa and caused injuries to him.
7. Hence, the accused committed murder of Shankrappagouda and Ashok and attempted to commit murder of P.W.4 Shivanagouda, P.W.8 Shivalinga, P.W.5 Hanumanth and P.W.10 Sharanappagouda and as such, accused 2 to 17 have committed the offences punishable under sections 143, 147, 148, 504, 324, 326, 307, 302 and 427 R/w Section 149 of IPC and accused No.1 has committed the offence punishable under Section 109 of IPC.
8. On the basis of the complaint lodged by PW.1- Santhosh S/o deceased Shankrappagouda, the respondent Police registered a case in Crime No.10/2014 for the offences punishable under Sections 143, 147, 148, 504, 324, 326, 307, 302 and 427 R/w Section 149 of IPC against accused Nos.2 to 17 and for the offence punishable under Section 109 of IPC against accused No.1
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 and submitted FIR to the Court. Thereafter, PW.21- Investigation Officer completed the investigation and laid the charge sheet against the accused for aforesaid offences before the Committal Court.
9. After committal of the case, the Sessions Court framed the charges against the accused for the aforementioned offences and read over the same to the accused. However, the accused denied the charges levelled against them and claims to be tried.
10. In order to prove the charges levelled against the accused, the prosecution in total examined 24 witnesses as PW.1 to PW.24 and got marked 68 documents as Ex.P1 to Ex.P68 so also got identified 50 material objects as M.O.1 to M.O.50. After closure of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as contemplated under the provision of Section 313 of Cr.P.C. However, the accused denied the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 same. The defence of the accused is that, the deceased, PWs.4, 5 and 8 along with 50-60 persons went to the house of accused Nos.2, 3, 4, 16 and 17 and they assaulted them and caused grievous injuries to them. In the said scuffle, the deceased Shankrappagouda and Ashok got injured and succumbed to the said injuries and PW.4, 5 and 8 also sustained injuries. Though the accused were not examined any witness to prove their defence, however got marked 14 documents as Exs.D1 to D14.
11. After the assessment of oral and documentary evidence, the learned Sessions Judge convicted the accused for the charges levelled against them and sentenced them as stated supra. The said judgment is challenged under these appeals i.e., Crl.A.No.200091/2018 filed by the accused Nos.2 to 17 challenging the conviction and order or sentence imposed against them, whereas, Crl.A.No.200108/2018 filed by the complainant against the acquittal of accused Nos.4, 7, 9, 11, 16 and 17 for the offences punishable under Sections
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 504, 324, 326, 307, 427 r/w Section 149 of IPC and Crl.A.No.200101/2018 filed by the complainant against the acquittal of accused No.1 for the offences punishable under Sections 143, 147, 148, 504, 324, 326, 307, 302, 427 r/w Section 149 of IPC.
12. We have heard the learned counsel Sri Anil Kumar Navadagi in Crl.A.No.200091/2018 for the appellants/accused, Sri Shivkumar Malipatil for the appellants/accused in both the appeals i.e., Crl.A.No.2000108/2018 and Crl.A.No.200101/20188 so also learned Additional SPP for the respondent/State in the appeals.
13. It is the primary contention of the learned counsel for the appellants in Crl.A.No.200091/2018 that the judgment challenged under this appeal suffers from perversity and illegality and the learned Sessions Judge totally erred while convicting the accused without properly appreciating the evidence and documents placed before it.
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 The learned Sessions Judge convicted the accused based on surmise and conjecture against the evidence on record so also the law laid down by the Hon'ble Apex Court and this Court. He would further contend that the prosecution utterly failed to connect the accused in the alleged crime by leading cogent evidence. He would further contend that in order to prove the charges levelled against the accused, though the prosecution relied the evidence of injured witness i.e., PW.4, PW.5 and PW.8, on perusal of their evidence, there are material contradictions and omissions in their evidence in respect of the assault made by the accused to the deceased and also to them. The learned counsel further contend that the eyewitnesses to the incident i.e., PWs.1, 6, 9 to 11 though supported the case of prosecution, their evidence goes contrary to the evidence of injured eyewitnesses PWs.4, 5 and 8. All the eyewitnesses and injured witnesses have stated distinctly to the evidence of one another about the alleged assault made by the accused. He would further contend that the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 Wound Certificate of PWs.4 and 5 as per Exs.P54 and P29, falsifies their oral testimony regarding the alleged assault made by the accused. Nevertheless the post-mortem report of deceased Shankrappagouda and deceased Ashok as per Exs.P27 and P28 respectively also depicts the injuries found on the dead bodies are quite contradictory to the oral testimony of the eyewitnesses and the injured witnesses. He would also contend that the evidence of Investigation Officer totally suffers from exaggeration and emblishments and as such, it is clear that, the accused were falsely implicated in the case by the Investigation Officer without proper investigation. The learned counsel by emphasizing the FIR and final report registered against the deceased Shankrappagouda and the injured in this case in Crime No.11/2014 registered soon after the incident based on the complaint lodged by accused No.2 and submit that the deceased and the injured in this case are the aggressors and they along with 50-60 persons visited the house of accused Nos.3, 4, 16 and 17 and
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 assaulted them with deadly weapons. In the said scuffle, Shankrappagouda and Ashok succumbed and PWs.4, 5 and 8 sustained injuries. As such, there is absolutely no motive or intention on the part of the accused either to commit the murder of the deceased or to cause injuries to PWs.4, 5 and 8. Hence, the learned counsel would contend that the learned Sessions Judge totally misread the evidence and convicted the accused. Accordingly, the learned counsel prays to allow the appeal or alternatively prays to modify the sentence imposed by the Sessions Court for the offence punishable under Section 304 Part-II of IPC instead of 302 of IPC against accused Nos.2, 3, 5, 6, 8, 10, 12 and 15 by submitting that even if the incident admitted for the sake of argument also the same is caused in a grave and sudden provocation without any premeditation and the offence squarely falls under Exception 1 to Section 300 of IPC. He also contend that the conviction imposed by the learned Sessions Judge to accused Nos.2, 4, 7, 9, 11, 12, 15 to 17 for the offences
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 punishable under Sections 307 and 326 of IPC may be modified to 324 of IPC since the prosecution failed to prove the motive or intention on the part of accused so also failed to produce any such x-ray report for they having sustained grievous/fracture injuries.
14. Per contra, learned Addl. SPP for the respondent/State would contend that the judgment challenged under this appeal by the accused Nos.2 to 17 does not suffers from any perversity or illegality and the learned Sessions Judge has rightly convicted the accused after meticulously examining the evidence available on the record. As such, the well reasoned judgment passed by the Sessions Court does not call for any interference by the hands of this Court.
15. He argued that, P.W.1 complainant's evidence is corroborated with the evidence of injured witnesses i.e., PWs.4, 5 and 8 and eyewitnesses i.e., PWs.6, 7 and 9 to
11. The Doctor's evidence is also corroborated with the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 evidence of P.Ws.4, 5 and 8. The Wound Certificates Ex.P.24 and 25, PME Report Ex.P.27, another PME Report Ex.P.28 issued by P.W.16 are also corroborates to the oral testimony of injured witnesses and eyewitnesses to the incident. The evidence of PWs.1 to 9 is cogent, truthful and there is nothing worth to discard their evidence in their cross examination. Ex.D1 and Ex.D1(a) is the some portion of evidence of P.W.1 not sufficient to discard his whole testimony. The accused have taken law in their hand and assaulted mercilessly with axe, sticks and stones and murdered two persons and caused injuries to 4 persons. The accused persons were the members of unlawful assembly knowing that some of the members holding axes are liable for the act of the other accused persons jointly. Hence, the learned Sessions Judge has rightly convicted the accused for the charges levelled against them. Accordingly, he prays to dismiss the appeal.
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16. The learned counsel for the appellant in Crl.A.No.200101/2018 filed by the victim/complainant against the acquittal of accused No.1 would contend that there is a clear evidence of PWs.1 to 11 about the assault made by accused No.1 to the deceased Shankrappagouda. Their evidence also corroborates to Ex.P1 complaint lodged by PW.1 in spite of that the learned Sessions Judge acquitted accused No.1 in the impugned judgment, which is bad in law and that portion of the judgment is required to be set-aside and accused No.1 may be convicted for the charges levelled against him.
17. Further, the learned counsel in Crl.A.No.200108/2018 preferred by the complainant to modify the impugned judgment passed by the Sessions Court by convicting the accused Nos.4, 7, 9, 11, 16 and 17 for the offences punishable under Sections 504, 324, 326, 307 and 427 r/w Section 149 of IPC and to impose maximum punishment is concerned, submits that the learned Sessions Judge after convicting the accused for
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 the aforesaid offences, has taken a lenient view while imposing the sentence to them. The Hon'ble Apex Court time and again laid the law about the sentencing policy and held that, flee bite sentence would effect the fundamental system of criminal justice. Accordingly, he prays to allow both the appeals preferred by complainant/victim.
18. Having heard the learned counsel for the parties so also having perused the records made available before us, the points that would arise for our consideration are:
1. "Whether the judgment of conviction and order of sentence challenged under this appeal suffers from any perversity or illegality?"
2. Whether the learned Sessions Judge is justified in convicting the accused Nos.2, 3, 5, 6, 8, 10, 12, and 15 for the offences punishable under Sections 302 of IPC?
3. Whether the learned Sessions Judge is justified in convicting the accused Nos.2 to 17 for the offences punishable under Sections 143, 147, 148, 504 and 427 r/w Section 149 of IPC?
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4. Whether the learned Sessions Judge is justified in convicting the accused Nos.2, 4, 7, 9, 11, 12, 15, 16 and 17 for the offences 324, 326 and 307of IPC?
5. Whether the learned Sessions Judge is justified in acquitting accused No.1 for the offences charged against him?"
19. This Court being the Appellate Court, in order to, re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon. On a cursory glance on the evidence deposed by the witness before the Sessions Court are as under:
(i) PW.1-Santhosh is the son of deceased Shankrappagouda and complainant in this case. He reiterated the averments of his complaint-Ex.P1 before the Court and deposed that on 10.01.2014 i.e., the date of incident, due to the demolition of Kondawada which was situated near their house, his father Shankrappagouda along with others called for a Panchayat and accused Nos.1 to 17 attended the Panchayat and accused No.1
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 instigated the other accused against his father and others. Accordingly, accused Nos.1 to 17 assaulted his father, deceased Ashok, PWs.4, 5 and 8 with axe, wooden rod and with stones. Though, himself and others made an attempt to rescue his father and Ashok, the accused assaulted them also and due to the assault PWs.4, 5 and 8 sustained grievous injuries. Thereafter, he shifted his father and deceased Ashok and PWs.4, 5 and 8 to Hospital in 108 Ambulance, where the Doctor declared that his father brought dead and on the next day Ashok died in the Hospital. He identified the complaint as per Ex.P1 so also the weapons which used by the accused for the commission of the crime as per M.Os.1 to 38 so also the other articles seized from the spot M.Os.39 to 44.
(ii) PW.2-Neelappa is the witness for inquest panchanama conducted over the dead body of deceased Shankrappagouda as per Ex.P2. He also witnessed for the mahazar Ex.P3 wherein the clothes of deceased Shankrappagouda seized at M.Os.41 to 44. He is also a
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 witness for Ex.P4 i.e., the mahazar, wherein M.Os.4 to 40 seized in the place of incident. He also identified M.O.1 the axe seized in the house of accused No.3 Mallanna on 12.01.2014 under Ex.P5. He is also a witness for Ex.P6 mahazar i.e., seizure of axe from the house of accused No.6 Anjaneyya under Ex.P6. Further, he is also a witness for seizure of M.O.3 axe from the house of accused No.8 Sharanappa under Ex.P7.
(iii) PW.3-Parameshwarappa is the witness for Ex.P8 i.e., inquest panchanama drawn on the dead body of deceased Ashok and also seizure of the clothes of deceased Ashok as per M.Os.47 to 50 under mahazar Ex.P9.
(iv) PW.4-Shivanagouda, PW.5-Hanumantha and PW.8-Shivaling are the injured eyewitnesses in this case deposed that, on the date of incident i.e., 10.01.2014 at 10:30 a.m., a panchayat was held for demolishing Kondawada situated near the house of accused No.1 and
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 in the said panchayat the accused Nos.1 to 17 done to death deceased Shankrappagouda and Ashok so also they assaulted them with deadly weapons like axes, wooden clubs and stones and caused grievous injuries. They identified M.Os.1 to 50.
(v) PW.6-Shivukumar, PW.7-Dr.Yankangouda, PW.9-Shivaraj, PW.10-Meenakshamma and PW.11- Shantamurty are the eyewitnesses to the incident deposed that, all of them were present in the Panchayat held at Eeralagudde on 10.01.2014 at about 10:30 a.m. in respect of demolition of Kondawada by accused No.1, 2, 5 and 15. In the said panchayat, the deceased Shankrappagouda enquired and advised the accused Nos.1 to 17 not to indulge in such activities, at that time the accused all of a sudden assaulted the deceased Shankrappagouda with axe and when PW.1 and deceased Ashok and PWs.4, 5 and 8 made an attempt to pacify the quarrel, at that time, the accused assaulted them mercilessly and committed the murder of deceased Shankrappagouda and Ashok so also
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 caused grievous injuries to PWs.4, 5 and 8. All the witnesses identified M.Os.1 to 50.
(vi) PW.12-Channappa, the retired PSI arrested the accused Mallanna, Honnappa and brought them back to the Police Station and produced them to CPI.
(vii) PW.13-Rachappa, the Head Constable of Sirawar Police Station arrested accused Nos.5 and 15 and brought them back to the Police Station and produced them to CPI.
(viii) PW.14-Veerappa, the retired PSI arrested accused Nos.4 and 16 and brought them back to the Police Station and produced them to CPI.
(ix) PW.15-Dr.MKS Naseer, treated PW.8 and issued Wound Wertificate at Ex.P24. He also conducted postmortem examination of Shankrappagouda and issued report as per Ex.P27.
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018
(x) PW.16-Dr.Rajesh Sangram conducted autopsy over the dead body of the deceased Ashok and issued postmortem report as per Ex.P28.
(xi) PW.17-Dr.Sharanappa, treated PW.5 and issued Wound Certificate at Ex.P29.
(xii) PW.18-N.Tara, issued Khata Extract of the land of Bommanal where the Kondawada was situated as per Exs.P31 to P34.
(xiii) PW.19-K. Hanymanthraya, the then Police Constable carried the FSL articles.
(xiv) PW.20-Ningappa, the then PSI registered the FIR as per Ex.P35 in Crime No.10/2004 based on the complaint lodged by PW.1.
(xv) PW.21-Sri G.Harish, the CPI conducted the investigation in this case and laid the charge sheet against the accused.
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 (xvi) PW.22-M. Venkateshwar Rao, the RTO Officer, issued report at Ex.P51 by examining damage Maruti Swift Car as per Ex.P51.
(xvii) PW.23-Srinivas, Head Constable, guarded the dead body of Shankrappagouda and after postmortem handed over the same to the relatives. (xviii) PW.24-Dr.Ashok, examined PW.4 the injured and issued the Wound Certificate as per Ex.P54.
20. On careful perusal of the above evidence, in order to prove the homicidal death of the deceased Shankrappagouda, the prosecution relied on the evidence of PW.15-the Doctor and the post mortem report as per Ex.P27 so also the inquest panchanama Ex.P8 drawn on the dead body as per Ex.P2 in the presence of PW.2. A careful perusal of Ex.P27 depicts that the cause of death is due to "cardio respiratory arrest as a result of hemorrhagic shock in brain". Hence, on a conjoint reading of Ex.P27 and Ex.P2 coupled with the evidence of Doctor so also the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 other witnesses, it is clear that the death of deceased Shankrappagouda is homicidal one. As far the death of deceased Ashok is concerned, the prosecution relied the evidence of PW.16 the Medical Officer who conducted the autopsy and his report Ex.P28 so also the inquest panchanama drawn on the dead body of deceased Ashok as per Ex.P8. PW.3 is the witness for Ex.P8. On careful perusal of Ex.P28, the Doctor opined that the death is due to "Cranial Haemorrhage on a injury to head is bleeding to Cardio respiratory failure". Hence, on conjoint reading of Ex.P28 and Ex.P8 coupled with the evidence of PW.15 and also the evidence of eyewitnesses, the prosecution also proved that the death of deceased Ashok is homicidal one. Nevertheless, the accused not seriously disputed the homicidal death of deceased Shankrappagouda and Ashok.
21. In order to connect the accused in the alleged crime, the prosecution primarily relied on the evidence of PW.1-complainant, PWs.4, 5 and 8 the injured witnesses in this case. In addition to that, the prosecution also
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 relied the evidence of eyewitnesses i.e., PWs.6, 7, 9 to
11. On careful perusal of complaint lodged by PW.1 i.e., the son of deceased Shankrappagouda, his evidence is verbatim to his complaint Ex.P1 lodged at the earliest point of time. According to him, accused No.1, 2, 5 and 15 demolished the Kondawada, for which his father deceased Shankrappagouda and others conveyed a Panchayat, wherein accused Nos.1 to 17 quarrelled with his father and accused Nos.1, 6, 3 and 10 assaulted his father with axe and other deadly weapons. When Pws.4, 5, 8 and deceased Ashok made an attempt to pacify the quarrel, the accused also assaulted them with the same weapon. Hence, PWs.4, 5 and 8 sustained grievous injuries and Ashok died due to the injury on the next day in the Hospital. This evidence of PW.1 corroborates with the evidence of PWs.6, 7, 9 to 11 who are the eyewitnesses to the incident. Moreover, on careful perusal of evidence of injured eyewitnesses i.e.,PWs.4, 5 and 8, all of them have categorically deposed that accused Nos.2, 3, 5, 6, 8, 10,
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 12, and 15 assaulted them with wooden stick, stone and axe. Their oral testimony corroborates with the medical evidence i.e., the evidence of PW.24 in respect of PW.4 i.e., the Wound Certificate-Ex.P54, evidence of PW.17 in respect of PW.5 and Wound Certificate-Ex.P29 and the evidence of PW.15 in respect of PW.8 and Wound Certificate-Ex.P24, depicts that the injuries sustained by them at the hands of the accused Nos.2, 3, 5, 6, 8, 10, 12, and 15. All the Doctors gave an opinion that the injuries could be possible, if assault is made by M.Os.1 to
38.
22. The prosecution also proved the recovery of M.Os.1 to 38 i.e., the weapons used for the commission of the crime under mahazar Ex.P5 i.e., seizure of M.O.1 from accused No.3, Ex.P4 i.e., seizure of M.Os.4 to 30 from the spot of incident so also M.O.2 from accused No.6 under Ex.P6 and M.O.3 from accused No.8 under Ex.P7. For these mahazars, PW.2 supported and categorically deposed that the same were recovered at his presence by
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 the Police based on the disclosure made by the accused. Nevertheless, the evidence of PW.21 the Investigation Officer corroborates to the testimony of PW.2. All the weapons are identified by the injured witnesses and eyewitnesses i.e., PWs.1 to 11. The Doctor who conducted autopsy and the Doctors who have examined PWs.4, 5 and 8 also given their opinion that their injuries could be happened by the weapon produced before them. In such circumstance, the prosecution proved the recovery of those weapons at the instance of accused and the same were used by the accused for the commission of crime.
23. The case on hand and based on the evidence of injured witnesses and eyewitnesses to the incident, hence the prosecution is not compelled to prove the motive for the incident. Nevertheless, PWs.1 to 11 categorically deposed that the incident was caused for the reason that accused No.1 and others demolished the Kondawada situated near to his house. They also deposed about the Panchayat conveyed on the date of incident and in the said
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 Panchayat the accused were committed the incident. Hence, the prosecution also proved the motive for the commission of the incident.
24. The learned counsel for the appellant vehemently contend that, there are much contradictions, omissions and emblishments in the evidence of PWs.1 to 11 and the same cannot be relied to convict the accused. The Hon'ble Apex Court in the case of Mallikarjuna and Others vs. State of Karnataka reported in 2019 (8) SCC 359 held that, while appreciating the evidence of a witness, the approach must be to assess whether the evidence of a witness read as a whole appears to be truthful. Once the impression is formed, it is necessary for the Court to evaluate the evidence and the alleged discrepancies and then, to find out whether it is against the general tenor of the prosecution case. If the evidence of eyewitness is found to be credible and trustworthy, minor discrepancies which do not affect the core of the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 prosecution case, cannot be made a ground to doubt the trustworthiness of the witness.
25. The learned counsel also argued much that, all the witnesses examined by the prosecution are partisan witnesses and there was a dispute between themselves and the accused. Hence, they falsely deposed against the accused to implicate them in the crime. The Hon'ble Apex Court in the case of Ravasahebgouda Alias Ravasahebgouda v. State of Karnataka reported in (2023) 5 SCC 391, held that the evidence of sole related eyewitness can be basis for conviction, particularly when there is no vagueness in his/her testimony with respect to the act committed by the accused. The Hon'ble Apex Court in Para No.17 of the said judgment held that:
17. "It is clear that it is the quality and not the quantity of the witnesses that matters. Further in Paragraph No.25 of the said judgment, it is stated that "a witness being a close relative is not a ground enough to reject his/her testimony. Mechanical rejection of an even "partisan" or "interested" witness
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of the general applications".
26. As per the law laid down by the Hon'ble Apex Court in the above case, it is evident that, there is no such bar to rely the evidence of relative witnesses and the same cannot be discarded only for the reason that they are the relatives of the deceased. In the case on hand, the evidence of relative witnesses also corroborates with the evidence of other witnesses, as such, we are of the view that, the contention of the learned counsel for the appellants does not hold much water.
27. On careful analysis of the evidence of material witnesses discussed supra, though the prosecution successfully proved the assault made by accused persons to the deceased so also caused injuries to PWs.4, 5 and 8, in the same time, the evidence on record depicts that the alleged incident caused in a sudden fight on a spur of moment. It is evident that the motive for the incident
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 projected by the prosecution is, the accused No.1 and others removed the Kondawada and for that a Panchayat was held in the Panchayat Katte at Eeralagudda. It is also clear in the evidence of PWs.1 to 11 that in the said Panchayat the deceased Shankrappagouda questioned the accused No.1 and others about the removal of Kondawada, enraged by the same, a sudden fight took place between the injured and deceased. During the said fight, the incident caused. Though PW.1 and other witnesses have stated that the accused went to their house and after 10 minutes they came to spot and committed the incident. The said version of PW.1 and other witnesses is quite contrary to the complaint lodged by PW.1 at Ex.P1 at the earliest point of time. Hence, it is quite evident that the incident occurred during the course of Panchayat in a spur of moment. The learned Sessions Judge failed to discuss in the judgment that who are the actual aggressors. Admittedly, a counter case has been registered against these witnesses also i.e., PWs.1, 2, 4,
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 6, 7, 9 and 14 for the offences punishable under Sections 143, 147, 148, 323, 324, 506, 504 r/w Section 149 of IPC in Crime No.11/2014 dated 10.01.2014, based on the complaint lodged by accused No.2. Further, the Wound Certificate produced by accused Nos.3, 4, 16 and 17 as per Exs.P9, 10, 11 and 12 depicts that, they also sustained injuries in the incident. In such circumstance, it could be gathered that, the incident caused in a sudden fight between two groups. The Hon'ble Apex Court in the case of DAUVARAM NIRMALKAR vs. STATE OF CHHATISGARH reported in AIR 2022 SC 3620 held that, when there was a sudden loss of self control on account of the "slow burn" reaction followed by the final and immediate provocation and if there is a temporary loss of self-control as the accused had tried to kill the deceased, then the offence has to be considered as it was based on a sudden and grave provocation with the loss of self control. Hence, the conviction has to be converted from Section 302 to Section 304 Part 1 of IPC. In the said
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 judgment by referring the judgment K.M Nanavathi vs. State of Maharashtra 1962, held in paragraph Nos.10, 11, 12 are as under:-
"10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, this Court has held that the conditions which have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden;
(d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of selfcontrol; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden"
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 provocation? No abstract standard of reasonableness can be laid down.
What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus:
(1) The test of "grave and sudden"
provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as:
"...some act or series of acts, done by the dead man to the accused
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of selfcontrol which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self- control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be shortsighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation".
28. The Hon'ble Apex Court further held that, it must be stated that the prosecution must prove the guilt
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 of the accused and it must establish all the ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge his burden, the accused may rely upon the case of the prosecution and evidence adduced by the prosecution in the Court.
29. On applying the above principles to the facts and circumstances of this case, as discussed supra, the incident caused in a scuffle between two groups without any premeditation or preparation by the accused to done with the life of deceased or to cause injuries to the injured persons. Though the incident was caused by the accused, the same must be on a spur of moment by sudden loss of self-control since the accused and deceased quarreled for the reason of Kondawada and all of a sudden by losing their self-control, they would have committed the incident. Ex.D14 the charge sheet clearly depicts that they have lodged the complaint against the deceased and
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 injured in this case and Exs.P9, 10, 11 and 12 i.e., Wound Certificates of accused Nos.3, 4, 16 and 17 depicts that they also sustained grievous injuries in the incident. Hence, we are of the considered view that, this case falls under the category of Exception 1 of Section 300 of IPC which is punishable under Section 304 Part 1 of IPC. It could be gathered that, there was a sudden loss of self- control on account of slow burn reaction followed by the final and immediate provocation, there was temporary loss of self-control by the accused. Hence, the punishment imposed by the Sessions Court to accused Nos.2, 3, 5, 6, 8, 10, 12, 15 is to be modified for the offence punishable under Section 304 Part I instead of Section 302 of IPC.
30. As far as the conviction and sentence of imprisonment imposed by the learned Sessions Judge for accused Nos.2, 4, 7, 9, 11, 12, 15 to 17 for the offences punishable under Sections 307 and 326 of IPC are concerned, on careful perusal of the overt act of these accused on the deceased so also the injured, it is the
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 evidence of eyewitnesses including PW.1 that among these accused, accused No.2 assaulted deceased Ashok with a stick and Accused No.15 with stone, those injuries are not grievous in nature. The other accused are not assaulted to both the deceased, but they assaulted to PWs.4, 5 and 8. On perusal of the Wound Certificate of PWs.4, 5 and 8 i.e., Exs.P54, 29 and 24, though PW.4 sustained grievous injuries, the evidence of Doctor PW.24 depicts that there is no fracture of bone as per x-ray report. However, to prove the gravity of the said wound, the prosecution failed to place the x-ray report before the Sessions Court. In such circumstance, the Co-ordinate Bench of this Court in Crl.A.No.530/2002 dated 03.03.2010 held that, "it is well settled that when the prosecution alleges that grievous injuries has bee caused it is necessary to the prosecution to prove the same beyond reasonable doubt. The injury described in the Wound Certificate is suspected fracture, then it is a duty to refer the injured for taking x-ray to confirm the finding
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 of the Doctor that there is a fracture. It is well settled unless the prosecution produces x-ray for confirmation of the fracture opined by the Doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury or fracture. Hence, the offence falls within the purview of Section 324 of IPC instead of Section 326 of IPC". As we already discusses supra, there are no such intention or motive on the part of the accused to do away the life of deceased or to cause injuries to the injured and the assault made by these accused not on such vital part either on the deceased or to the injuries and no such x- ray placed by the prosecution, we are of the considered view that the offence punishable under Section 307 of IPC also does not attracts against the accused Nos.2, 4, 7, 9, 11, 12, 15 to 17. Hence, these accused are liable to be convicted for the offence punishable under Section 324 of IPC instead of 326 and 307 of IPC.
31. As far as the conviction and sentence imposed to accused Nos.2 to 17 are concerned, i.e., for the offence
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 punishable under Section 427 of IPC for causing damage to the property i.e., the car belongs to PW.7-Yankangouda in the incident, though the prosecution examined PW.23 the Motor vehicle Inspector to that effect, however failed to produce any document including RC Book to substantiate that the Swift Car belongs to PW7 damaged. Further, the prosecution relied Ex.P51, i.e., enquiry report of PW.23, however in the complaint, there is no mention with regard to registration number of the Car belongs to PW.7. The witnesses have also failed to depose the Car number. In such circumstance, we are of the view that the prosecution failed to establish the guilt of the accused for the offence punishable under Section 427 of IPC.
32. As far as the appeal filed by the complainant against the acquittal of accused No.1 i.e., in Crl.A.No.200101/2018 is concerned, we have carefully gone through the entire evidence so also the statements of eyewitness and injured witnesses before the Investigation Officer as per Exs.D1 to D8. In those
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 statements, they have categorically stated that the accused No.1 was not in the scene of occurrence at the time of incident. Further, the charge sheet laid by the Investigation Officer also depicts that the accused No.1 was not present at the time of alleged incident and he had gone to Manvi. Though PWs.1 to 11 denied their further statement as per Exs.D1 to 8, nevertheless the Investigation Officer admitted these documents in his cross examination. In such circumstance, the evidence of PWs.1 to 11 goes contrary to their 161 statement given before the Investigation Officer and also the charge sheet laid by the Investigation Officer. The learned Sessions Judge extensively considered the evidence of the material witnesses in respect of involvement of accused No.1 in this case and acquitted him from the charges levelled against him by believing the plea of alibi put forth by him. In such circumstance, we are unable to accept the contention of learned counsel for the appellant, as he failed to convince us about the involvement of accused No.1 in the alleged
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 crime. Moreover, the appeal filed against accused No.1 i.e., Crl.A.No.200101/2018 is against his acquittal in the impugned judgment, there is no such compelling reason forthcoming to interfere in the impugned judgment. The Hon'ble Apex Court in the case of H.D Sundar and Others vs. State of Karnataka reported in (2023) 9 SCC 581 held in Paragraph No.9 is as under:
"9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment [State of Karnataka v. H.K. Mariyappa, 2010 SCC OnLine Kar 5591] only to find out whether the view taken was correct or incorrect.
After reappreciating the oral and documentary evidence, the appellate court must first decide whether the trial court's view was a possible view. The appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken".
33. On careful perusal of the law laid down by the Hon'ble Apex Court in the case on hand, there is no such error committed by the Sessions Court while acquitting the accused No.1. Hence, the appeal filed by the complainant in Crl.A.No.200101/2014 is deserves to be dismissed.
34. As far as the appeal filed by the complainant in Crl.A.No.200108/2018 against inadequate sentence imposed by the trial Court against the accused Nos.2 to 17 for the offence punishable under Sections 504, 324, 326, 307 and 427 r/w Section 149 of IPC is concerned, it could be seen from the impugned judgment, these accused are already sentenced maximum imprisonment for all the offences they have convicted i.e., Sections 504, 324, 326,
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 307 and 427 r/w Section 149 of IPC. Hence, the appeal filed by the complainant for enhancement of sentence for the offence the above accused convicted does not survive for consideration. Accordingly, the appeal filed by the complainant in Crl.A.No.200108/2018 also deserves to be dismissed.
35. As far as the sentence to be imposed to the accused are concerned, the learned counsel for the appellants submits that accused No.5 completed 10 years 6 months and 18 days of imprisonment as on today and accused No.6 completed 10 years 09 months 35 days imprisonment as on today and accused No.10 completed 10 years 07 days imprisonment as on today. As far as accused Nos.3, 8 and 15 have already completed 9 years and above imprisonment and accused Nos.2, 4, 7, 9, 11, 12, 13, 14, 16 and 17 have completed one year and above imprisonment as on today. Accordingly, he prays indulgence of this Court to impose minimum/lesser sentence to the accused. On careful analysis of facts and
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 circumstance of the case, the act of accused caused the death of two persons i.e., deceased Shankrappagouda and Ashok so also injuries to PWs.4, 5 and 8, we are of the view that flee bite sentence would not meet the ends of justice and appropriate sentence has to be imposed to the accused. In the circumstance, as discussed supra, their act comes under the purview of Exception I to Section 300 of IPC which is punishable under Section 304 Part I of IPC, we deem it appropriate to impose sentence for a period of 10 years and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, they shall undergo further imprisonment of two years.
36. As far as accused Nos.4, 7, 9, 11, 16 and 17 are concerned, we modified their conviction for 324 of IPC instead of 307 and 326 of IPC. On a query to the learned counsel for the appellants, he submits that the accused No.4 has undergone 15 months 38 days, accused No.7 has undergone 7 years 2 months, accused No.9 has undergone 1 year 3 months, accused No.11 has undergone 1 year 3
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 months, accused Nos.16 and 17 are undergone 1 year 3 months and as such, he prays to sentence them for the period they have already undergone. The maximum punishment awarded for the offence punishable under Section 324 of IPC is three years, we are of the view that, by imposing reasonable fine the accused may be sentenced for the period they were already undergone. Hence, we deem it appropriate to sentence them for the period they were already undergone and they also liable to pay a fine of Rs.1,50,000/- each, in default of payment of fine, they shall undergo imprisonment for nine months for the offence punishable under Section 324 of IPC.
37. As far as the sentence imposed by the trial Court against accused Nos.2 to 17 for the offence punishable under Section 427 of IPC is set-aside. Accordingly, we answer the point No.1 raised above in the negative and point No.2 to 4 are partly affirmative and point No.5 in the affirmative and proceed to pass the following:
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 ORDER i. The Crl.A.No.200091/2018 filed by accused Nos.2 to 17 is allowed in part.
ii. The judgment of conviction and order of sentence passed in S.C.No.42/2014 dated 08.06.2018 by the I Addl. District and Sessions Judge, Raichur is modified in so far as accused Nos.2, 3, 5, 6, 8, 10, 12 and 15 i.e., appellant Nos.1, 2, 4, 5, 7, 9, 11 and 14, by convicting them for the offence punishable under Section 304 Part II of IPC instead of 302 of IPC.
iii. They sentence to undergo imprisonment for a period of 10 years and also liable to pay a fine of Rs.1,00,000/- each. In default of payment of fine, they shall undergo imprisonment for a period of two years. iv. The judgment of conviction and order of sentence passed in S.C.No.42/2014 dated 08.06.2018 by the I Addl. District and Sessions Judge, Raichur is modified, in so far as accused Nos.4, 7, 9, 11, 12, 16 and 17 i.e., appellant Nos.3, 6, 8, 10, 11, 15,
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 16 by convicting them for the offence punishable under Section 324 instead of Section 307 and 326 of IPC.
v. They sentence for the period they were already undergone. They shall pay a fine of Rs.1,50,000/- each. In default of payment of fine, they shall undergo imprisonment for a period of nine months.
vi. The judgment of conviction passed by the Sessions Court for the offences punishable under Sections 143, 147, 148, 504 r/w Section 149 of IPC are confirmed, however the sentence imposed for these charges are modified and the accused are sentenced for the period they have already undergone. However, the fine imposed by the Sessions Court is kept intact.
vii. The judgment of conviction and order of sentence imposed by the trial Court for the offences punishable under Sections 427 of IPC is set-aside. The accused Nos.2 to 17 are acquitted from the charges for the offence punishable under Section 427 of
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 IPC. The fine amount, if any, paid by them shall be refunded to them.
viii. Consequently, the appeals filed by the complainant/PW.1 in Crl.A.No.200101/2018 and Crl.A.No.200108/2018 are dismissed. ix. All the sentences shall run concurrently. x. The accused are entitled for set off as per the provision of Section 428 of Cr.P.C. xi. If the fine amount deposited by the accused Nos.2, 3, 5, 6, 8, 10, 12 and 15 i.e., Rs.8,00,000/-, the same shall be equally paid to PW.1-Santhosh S/o deceased Shankrappagouda and PW.4-Shivanagouda i.e., father of deceased Ashok on proper identification.
xii. If the fine amount deposited by the accused Nos.4, 7, 9, 11, 12, 16 and 17 i.e., Rs.10,50,000/-, the same shall be equally paid to PW.4-Shivanagouda i.e., father of deceased Ashok, PW.5-Hanumanth and PW.8-Shivaling on proper identification.
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NC: 2024:KHC-K:4863-DB CRL.A No. 200091 of 2018 C/W CRL.A No. 200101 of 2018 CRL.A No. 200108 of 2018 xiii. If the fine amount deposited by the accused, the learned Sessions Judge is requested to intimate the same to above witnesses and disburse the same to them. xiv. If any fine amount already deposited by the accused, the same shall be included.
xv. The accused Nos.2 and 12 are directed to surrender before the Sessions Court within a period of four weeks from the copy of receipt of this order to undergo the remaining sentence. If they failed to surrender, the learned Sessions Judge is requested to secure their presence and commit them to prison to serve the remaining sentence.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 1 Sl No.: 43 CT;BN