Karnataka High Court
Kantharaju vs State Of Karnataka on 30 January, 2024
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NC: 2024:KHC:4078-DB
CRL.A No. 199 of 2017
C/W CRL.A No. 2089 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2024
PRESENT
R
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.199 OF 2017
C/W
CRIMINAL APPEAL NO.2089 OF 2016
In Crl.A.No.199/2017
BETWEEN:
U. R. Kantharaju
S/o Sri Ramanna,
Aged about 48 years,
R/o Ummadahalli Village,
Mandya Taluk,
Mandya District-571 404.
...Appellant
(By Sri. Harsha Kumar Gowda H.R., Advocate)
Digitally signed AND:
by SRIDEVI S
Location: HIGH
COURT OF 1. State by Mandya Rural
KARNATAKA
Police Station
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-560 001.
2. Prakasha
S/o late Sri Boraiah
Aged about 29 years,
R/o Ummadahalli Village,
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NC: 2024:KHC:4078-DB
CRL.A No. 199 of 2017
C/W CRL.A No. 2089 of 2016
Mandya Taluk,
Mandya District-571 404.
...Respondents
(By Sri. Vinay Mahadevaiah, HCGP, for R1;
Sri. Lokapal Rao H.S., Adv., for R2)
This Criminal Appeal is filed under Section 372 Cr.P.C
praying to set aside the judgment dated 22.11.2016 passed by
the V Additional District and Sessions Judge, Mandya, in
S.C.No.19/2014 for the offence p/u/s 307 IPC and convict the
respondent/accused No.2 and etc.
In Crl.A.No.2089/2016
BETWEEN:
1. Kantharaju
Aged about 48 years,
S/O Ningaji Ramaiah @ Dallali Ramaiah,
2. R. Chandru
Aged about 51 years,
S/o Ningaji Ramaiah @ Dallali Ramaiah,
3. Siddaramu
Aged about 45 years,
S/o Ningaji Ramaiah @ Dallali Ramaiah,
All are residents of
Ummadahalli Village,
Mandya Taluk and District-571 401.
...Appellants
(By Sri. S.G.Rajendra Reddy, Advocate)
AND:
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NC: 2024:KHC:4078-DB
CRL.A No. 199 of 2017
C/W CRL.A No. 2089 of 2016
State of Karnataka,
By Mandya Rural Police Station
Represented by:
State Public Prosecutor,
High Court Building,
Bengaluru-560 001.
...Respondent
(By Sri. Vinay Mahadevaiah, HCGP)
This Criminal Appeal is filed under Section 374(2) Cr.P.C
praying to set aside the judgment and order dated 22.11.2016
passed by the V Additional District And Sessions Judge,
Mandya, in S.C.No.53/1999 - convicting the appellant/accused
No.1 to 3 for the offence p/u/s 302 and 307 r/w 34 of IPC and
etc.
These Criminal Appeals having been heard & reserved on
03.11.2023, coming on for pronouncement this day,
Sreenivas Harish Kumar J., pronounced the following:
JUDGMENT
These two appeals have arisen from judgments dated 22.11.2016 in two sessions cases, S.C.53/1999 and S.C.19/2014 on the file of V Additional District and Sessions Judge, Mandya. The appellants in Crl.A.2089/2016 faced trial in S.C. 53/1999 for the offences punishable under sections 302 and 307 read with -4- NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 section 34 IPC and have stood convicted and sentenced for those offences. The appellant in Crl.A.199/2017 has questioned the correctness of judgment in S.C.19/2014 acquitting accused no.2 of the offence under section 307 of IPC.
2. The case projected in S.C.53/1999 was, three brothers namely Kantharaju, Chandru and Siddaramu were transporting harvested sugarcane in a bullock cart. When the cart came near the land of Ganesh (DW3), Ramaiah, the deceased in this case stopped the cart, took objection for driving the bullock cart through his land and questioned Kantharaju, Chandru and Siddaramu about it. At that time the three brothers assaulted Ramaiah with weapons such as a pickaxe and a chopper. When Prakasha, the nephew of Ramaiah interfered for the rescue of his uncle i.e., Ramaiah, Kantharaju and Chandru assaulted him. Ramaiah was first taken to District Hospital, Mandya. On the advice of doctors, when he was being shifted to Nimhans, Bengaluru, he died. Prakasha -5- NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 sustained grievous injury. On the basis of a report made by Rathnamma, the wife of the deceased, FIR was registered in Cr.No.271/1998 and after investigation, Kantharaju, Chandru and Siddaramu were charge sheeted for the offences punishable under sections 302, 307 read with section 34 IPC.
3. S.C.No.19/2014 also relates to the same incident. Report given by Kantharaju was registered in Cr.No.270/1998. He complained to the police that his two brothers viz., Chandru and Siddaramu had been to the land to transport the harvested sugarcane to the Alemane (jaggery factory) in the morning of 19.10.1998. Since they did not return from the land for quite a long time, he went towards the land with his labourer Siddaraju on a scooter. On the way he saw Ramaiah and Prakasha having stopped the bullock cart and questioning his brothers as to why they brought the bullock cart passing through his land. In that course Ramaiah pulled out Chandru from the cart and then tried to assault him with a -6- NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 machete. Seeing this Kantharaju interfered to his brother's rescue, and at that time Ramaiah gave a blow on his forehead and right cheek. When Siddaramu rushed to his rescue, Ramaiah assaulted him with the same machete on his chest and left forearm. The labourer Siddaraju interfered to pacify the situation. Kantharaju took his brother Siddaramu to the hospital at Mandya. While they were in Mandya, they received information from Krishnegowda and Nagaraju that the supporters of Ramaiah had set fire to their sugarcane fields and the Alemane.
4. Pertaining to Crime No.270/1998, the police filed 'B' report after investigation. Therefore Kantharaju filed a protest petition to the 'B' report. After holding an enquiry on the protest petition the Magistrate took cognizance of the offence punishable under section 307 IPC and secured the presence of Prakasha by issuing process. He committed the case to Sessions Court where it was registered as S.C.No.19/2014.
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5. Two cases having arisen from the same incident, were tried by V Additional District and Sessions Judge, Mandya. In S.C.No.53/1999 Kantharaju, Chandru and Siddaramu were arrayed as accused 1 to 3 respectively. In S.C.No.19/2014 Prakasha faced trial as accused no.2.
6. In S.C.No.53/1999 the prosecution examined 18 witnesses, PWs1 to 18 and got marked the documents as per Exs.P1 to P17 and the material objects as per MOs1 to
9. The defence also examined three witnesses DWs1 to 3 and got marked Exhibits as per Exs.D1 to 22. After assessing the evidence the trial court held the three accused guilty of the offences punishable under sections 302 and 307 of IPC, and sentenced each of them to life imprisonment with fine of Rs.50,000/- each for the offence under section 302 IPC, and rigorous imprisonment for ten years with fine of Rs.10,000/- each for the offence under section 307 IPC.
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7. In S.C.No.19/2014, five witnesses PWs1 to 5 adduced evidence and got marked documents as per Exs.P1 to P14. DW1 and DW2 are the defence witnesses. Exs.D1 to D3 are the documents marked by them. The trial court acquitted accused no.2 Prakasha of the offence punishable under section 307 IPC.
8. We have heard the arguments of Sri. S.G. Rajendra Reddy, learned counsel for the appellants in Crl.A.No.2089/2016, Sri. Harshakumar Gowda H.R., learned counsel for the appellant in Crl.A.No.199/2017, Sri. Vinay Mahadevaiah, learned HCGP for respondent/ State and Sri. Lokapal Rao H.S., learned counsel for respondent No.2 in Crl.A.No.199/2017.
9. Before we take up discussion, we make it very clear that though the position of law is that the case and the counter case are to be decided by the same court holding independent trials and rendering separate judgments without being influenced by evidence in one case on the other, the learned advocates addressed -9- NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 common arguments before us and requested us to dispose of the two appeals by a common judgment, and they referred to evidence in both the cases while arguing. And we too are of the opinion that a common judgment avoids conflicting findings.
10. The evidence in S.C.No.53/1999 may be evaluated first. PW2 to PW6 are the main witnesses. As the incident is not disputed, what requires to be examined is to what extent oral testimonies of the main witnesses, PW2 to PW6, can be believed. The testimonies of certain other witnesses help draw inferences.
11. PW2 is the wife of Ramaiah, but she was not an eye witness. Her testimony is that at about 7.00 a.m. on 19.10.1998, her son Ravikumar (PW4) and Prakash (PW3) went to agricultural fields in connection with some work, and around 10.00 a.m., her husband left the house carrying food to PW3 and PW4. Around 10.30 or 11.00 a.m., PW4 came to house and told her about assault on his father and PW3 by Kantharaju, Chandru and
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 Siddaramu with an axe and a machete. Immediately she rushed to the spot where she saw her husband being fallen down unconscious. She saw injuries on his head, back of neck, back of right ear, knees and shoulders. She also saw PW3 having fallen down sustaining injuries on his left thigh, left knee and left forearm, but he had consciousness. She saw PW5 - Kalegowda, PW6- Srikanth @ Kantha, Mariyanna and Shivaratnamma being there and trying to stop bleeding by tying a cloth to the injuries sustained by her husband. By that time, somebody brought a vehicle and shifted her husband and Prakasha to District Hospital, Mandya. She too went to hospital around 12 O' clock, but by the time she went there, her husband had been shifted to a hospital at Bengaluru. Later on she came to know that her husband died on the way to Bengaluru. She has stated that she herself did not give complaint to police, but the police themselves came to her house around 3.00 p.m. on that day and obtained her statement, which she identified at Ex.P1. She states about motive which was that for over 10-15 years, there
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 was a dispute between her husband and the accused with respect to a cart track. Her husband was not allowing the accused to take the cart through his land, yet the accused brought their cart and when this was questioned by her husband, the accused assaulted him and Prakasha. She has also given description of specific overt act of Kantharaju, Chandru and Siddaramu about which she came to know from her son - PW4.
12. The evidence of PW3 - U.B.Prakasha is that he and PW4 - Ravikumar went to agricultural field around 7.00 a.m. on 19.10.1998 and worked till 9.30 a.m. As they felt hungry, both went towards the house for taking meal and when they were coming on Chamalapura - Ummadhalli Road, they saw a cart loaded with sugarcane going towards Ummadahalli. Three accused persons viz., Chandru, Kantharaju and Siddaramu were sitting on the cart. By that time his uncle Ramaiah was seen coming from Ummadahalli carrying food with him. As he came near the land of Ganesha, the cart also reached that place.
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 He and PW4 were behind the cart at a distance of 100-150 ft. Ramaiah asked the three accused in a loud voice as to why they had brought their cart passing through his land even though they had been told several times not to pass through his land. The accused also replied and thus started an oral altercation. At that time Kantharaju hit on the head of Ramaiah with an axe, Chandru with a machete on Ramaiah's head and back, and Siddaramu with a machete on Ramaiah's back and neck. Seeing this, as he rushed to rescue Ramaiah, Kantharaju assaulted on his thigh with the axe, Chandru with a machete on his left knee and Siddaramu with a machete on his left forearm. Ramaiah fell down unconscious because of injuries inflicted to him. He too fell down, but he had consciousness. PW4 came running to that place. When all the three accused tried to assault him, he asked PW4 to go home immediately and bring his mother. All the three accused ran away from that place with weapons. Ganesha, Kanta, Kalegowda, Mariyappa and Shivaratnamma were present at that time. They all tried to stop the bleeding by tying
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 the panche that Ramaiah was wearing. Thereafter Nagaraju came and took Ramaiah to District Hospital. The doctors advised to shift them to Bengaluru hospital immediately. When the ambulance reached Bengaluru hospital, the doctors there examined Ramaiah and said that he had already died. He too has stated that the dispute with regard to cart track was the reason for the incident to take place.
13. PW4 - Ravikumar is the son of Ramaiah and he has also given evidence on lines with PW3.
14. PW5 - Kalegowda is an eye witness according to prosecution. His evidence is that on 19.10.1998, while returning home from his agricultural field, he heard some shouting voice from the side of Chamalapura road. He went to that place i.e., near the land of Ganesha. He saw Ramaiah altercating with Kantharaju, Chandru and Siddaramu taking objection for driving the bullock cart through his land. The time was around 10.00 a.m. He saw all the three brothers having weapons such as axe and
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 machetes in their hands. Kantharaju inflicted blows with the axe on the back side of the head, and the back of Ramaiah. The other two also inflicted injuries to Ramaiah with machetes. Ramaiah's sister's son Prakasha interfered to pacify the situation and at that time Kantharaju assaulted Prakasha with the axe on his thigh. Then Chandru assaulted on Prakasha's left knee and Siddaraju on left forearm. Prakasha fell down and asked PW4 to bring his mother. Shivaratnamma, Ganesha and Srikanth came running to that place and tried to stop bleeding from the injuries by tying clothes. All the three accused ran away from that place with the weapons. Then both the injured were taken to hospital.
15. PW6 - Srikanth is an eye witness. His evidence is that when he and his mother Shivaratnamma were cutting grass in their lands around 10.30 a.m. he saw Ramaiah and Prakasha going towards Chamalapura. Ramaiah had a machete and Prakasha was carrying a sickle. Chandru and Siddaramu were coming in the
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 opposite direction. Chandru was sitting on the cart and Siddaramu was walking behind the cart. As the cart came near the land of Ganesha, Ramaiah and Prakasha stopped the cart and started scolding Chandru and Siddaramu. By that time Ganesha came to that place and told them that they should not quarrel and instead resolve their dispute amicably. But Ramaiah did not listen to Ganesha. Soon Kantharaju and his labourer Siddaraju also came to that place. Ramaiah rushed to assault Chandru who was sitting on the cart. Siddaramu came to the rescue of Chandru and tried to catch hold of Ramaiah's hand and in that course the blow fell on Siddaramu's left hand. Kantharaju interfered and tried to stop Ramaiah and at that time Ramaiah assaulted on the right hand of Kantharaju. Prakasha who was standing there also assaulted on the forehead of Kantharaju and as a result the latter fell down. Siddaramu fell to the feet of Ramaiah and requested him not to do so, and at that time Ramaiah assaulted on the chest portion of Siddaramu who also fell down. Seeing this Siddaraju and Chandru cried loudly for help. As
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 Ramaiah tried to assault Chandru once again, Kantharaju held Ramaiah's stomach. Prakasha came forward to assault with a sickle which was snatched by Kantharaju. Again Ramaiah rushed to assault Siddaramu. But Siddaramu snatched sickle from Ramaiah. As Ramaiah started kicking and fisting Siddaramu and Kantharaju, Siddarmu gave a blow on Ramaiah's head and back with the macchhu, Kantharaju assaulted on the left knee and thigh of Prakasha with the axe. They started bleeding. Siddaramu and Kantharaju left that place and went towards Chamalapura. Siddaraju and Chandru went towards Ummadahalli. PW6, his mother Shivaratnamma and Ganesha tied the clothes to the injured to stop bleeding. Since he did not support the prosecution in the expected manner, the public prosecutor treated him hostile with the permission of the court and cross- examined him. In the cross-examination it was elicited that the daughter of his paternal uncle was given in marriage to Siddaramu. PW6 admitted this suggestion, but denied the further suggestion that because of this
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 close relationship he did not fully support the case of prosecution.
16. The evidence of PW7 - Nagaraju is that after coming to know of the incident from somebody in the village, he went to the spot and saw Ramaiah and Prakasha having fallen down with injuries. He arranged for a vehicle and shifted the injured to the hospital at Mandya. The doctor gave first aid treatment and advised that the injured should be shifted to Bengaluru Hospital. Then he brought them to NIMHANS at Bengaluru. The doctor examined Ramaiah and declared that he was dead. Therefore in the same ambulance he returned to Mandya with dead body of Ramaiah, and the injured Prakasha.
17. DW1 to DW3 are the defence witnesses. DW1 and DW2 are Kantharaju and Siddaramu respectively. DW3 is U.K.Ganesha whom the prosecution did not examine although he was cited as a witness in the charge sheet. DW1 and DW2 admit the incident. The evidence of DW1 is that when his brothers, Chandru and Siddaramu
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 did not return home, his mother asked him to go and see them. He first went near jaggery factory on the scooter. His brothers were not seen there, and therefore, from that place, he along with labourer Siddaraju went towards his land. On the way, near the land of Ganesha, he saw Ramaiah and Prakasha altercating with Chandru and Siddaramu having stopped the bullock cart. He has stated that Ramaiah had a machete and Prakasha, an axe; that Ramaiah took objection for bringing the cart through his land, pulled out Chandru who was sitting on the yoke of the cart and tried to assault him with a machete. Siddaramu who was behind the cart, came forward to prevent Ramaiah from assaulting Chandru, and at that time the blow fell on his left hand. When he also came forward to the rescue of his brothers, Prakasha assaulted on his right hand with the axe. Ramaiah and Prakasha became furiated; Prakasha tried to assault him with a sickle. As he tried to escape, the sickle blow fell on his head and he fell down. Chandru and Siddaramu cried for help. Ganesha, Shivaratnamma, Srikanta who were all
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 present there attempted to interfere for pacification of the situation, but Ramaiah and Prakasha threatened them. When Siddaramu came to see him (DW1), Ramaiah assaulted on the left side of the chest of Siddaramu with the machete. Siddaramu fell down. DW1 got up and held Ramaiah from behind to stop him. Prakasha rushed to assault DW1, but when he escaped, that blow fell on Ramaiah. At that time DW1 snatched the sickle from Prakasha and Siddaramu snatched the machete from Ramaiah. Yet both of them did not stop abusing them; Ramaiah took a stone to assault them. DW1 has stated that he had to think at that moment that he should save his life from the onslaught of Ramaiah and Prakasha and therefore gave a blow on the leg of Prakasha with a machete. Prakasha fell down. As Ramaiah had not stopped the assault he had to give a machete blow to Ramaiah. After this incident, DW1 and Siddaramu left that place on the scooter and on the way, they threw away the weapons into the channel.
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18. DW2 is Siddaramu. As regards the incident his oral testimony is same as that of DW1. He has also further stated that he and his brother went to their sugarcane field around 6.00 or 6.30 a.m., transported one cart load of sugarcane to the jaggery factory, and when they came to their land again to transport the sugarcane in the second trip, he saw Prakasha working in the land of Ramaiah and watching their movements. DW2 has stated that Prakasha went to bring Ramaiah seeing them passing through the disputed land and on the way near the land of Ganesha, Ramaiah and Prakasha stopped their cart.
19. DW3 - Ganesha has supported the version of DW1 and DW2 in examination-in-chief.
20. In S.C.No.19/2014 Kantharaju, Siddaramu and Ganesh adduced evidence as PW1, PW2 and PW5 respectively. PW3 is K.S. Murthy, a doctor who treated Kantharaju and Siddaramu. PW4 - R.S.Narayanappa was the PSI at Mandya Rural Police Station, and he adduced
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 evidence as PW1 in S.C.No.53/1999. The evidence given by PW3 K.S.Murthy and PW4 R.S.Narayanappa will be discussed later.
21. DW1 and DW2 in S.C.No.19/2014 are Prakash and Dinesh respectively. These two witnesses adduced evidence as PW3 and PW17 respectively in S.C.No.53/1999.
22. Relating to S.C.No.19/2014 both Kantharaju and Siddaramu have deposed evidence about the genesis of the incident. But here they do not give full account of the entire incident in which there was mutual assault. There is some variance in their evidence when compared with their evidence in S.C.No.53/1999. Having stated that Ramaiah and Prakash stopped their cart, picked up quarrel and assaulted them, they just stated that they snatched the weapons from Ramaiah and Prakash and requested them not to precipitate the matter. When they did not heed to their request, they went to police station to lodge complaint against Ramaiah and Prakash. That means they
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 do not state anything about the assault made by them on Ramaiah and Prakash. PW5 Ganesh has also not given full account of the incident. His statement before the court was that after the quarrel broke out between two sides, he saw Ramaiah and Prakash giving blows to Kantharaju, Chandru and Siddaramu and then Kantharaju snatched the machete from Ramaiah and sickle from Prakash. Thereafter Kantharaju and Siddaramu went towards Chamalapura. That means he too has not stated anything about the assault made by Kantharaju, Chandru and Siddaramu on Ramaiah and Prakash.
23. Now in order to draw inferences, the evidence of prominent witnesses is to be collated with each other. The evidence of other witnesses may be incidentally looked into.
24. The question that arises is whether the assault made by Kantharaju, Chandru and Siddaramu was to protect themselves from Ramaiah and Prakash. In other words have they been successful in defending themselves.
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25. There is no dispute that there was no good relationship between Ramaiah and the family of Kantharaju because of a dispute relating to existence of cart track. Ramaiah claimed that there did not exist cart track and that the land belonged to him which was being disputed by the other side. Likewise there is no dispute about the happening of the incident at about 10.00 a.m. on 19.10.1998 near the land of Ganesha on Chammalapura - Ummadahalli Road. Another aspect whether Ravikumar and Kalegowda were really eye witnesses to the incident incidentally arises for consideration since the defence has disputed their presence as eye witnesses.
26. If the entire evidence is assessed in the light of answers given by PW2 to PW6 in their cross-examination and the answers elicited from PW17-the investigating officer, inferences that can be drawn are these :
PW2-Rathnamma was not an eye witness to the incident. She came to the scene of incident after coming
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 to know of it. Description of the incident given by her with reference to the overt act of each accused is only hearsay.
So no weight can be attached to it. About her assertion in examination-in-chief that her son Ravi-PW4 and Prakash-
PW3 left the house for fields at 7 a.m. on 19.10.1998 and its reiteration in the cross examination, PW17 has stated in his cross-examination that PW2 has not given such a statement before him during investigation. That means she made an improvement in her version while deposing before court. The effect of this improvement is that presence of PW4 at the time of incident can be doubted.
However same inference cannot be drawn as regards presence of PW3 in spite of this improvement because presence of PW3 cannot be doubted. PW2 has stated that Kalegowda i.e., PW5 was very much present and saw the incident. Regarding this version also, it has been elicited from PW17 that PW2 has not given such a statement before him. Then with reference to the evidence given by PW3, certain answers are elicited from PW17. The significant contradictions in the nature of omission are as
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 to Ramaiah's carrying food in a basket and presence of PW4 with him. These two have significant bearing in the sense that PW17 has admitted that he did not notice food basket at the place of incident while drawing spot panchanama. If Ramaiah really carried food with him, he should have kept the basket on the ground before intercepting the cart and altercating with Chandru and Siddaramu. The evidence of DW2-Siddaramu is that PW3 was working in the land of Ramaiah and watching them, and as their loaded cart left that place, immediately PW3 also left that place to inform the same to Ramaiah. From this answer of PW3, the meaning that can be gathered is that PW3 might have gone and informed Ramaiah, and only thereafter both Ramaiah and PW3 might have come and stopped the cart. If Ramaiah had left the house without any information given to him by PW3, the evidence of PW2 and PW3 that Ramaiah left the house at 9.30 a.m. on 19.10.1998 carrying food with him, and on the way he happened to intercept the cart can be believed.
It is for this reason noticing the food basket or food
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 particles at the place of incident assumes significance. If the investigating officer states that he did not find the basket, the evidence of DW2 that PW3 went and informed Ramaiah becomes believable, and the next probable inference is that PW3 might have brought Ramaiah to question the accused. DW2 does not state that PW4 was also working with PW3 in the land when they were loading the harvested sugarcane to the cart. This statement of DW2 coupled with answer elicited from PW17 about omission in the evidence of PW2 about PW4 leaving home in the morning also leads to an inference to doubt the presence of PW4 at the time of incident.
27. PW5-Kalegowda has asserted to have seen the incident. His presence at the time of incident is doubtful to be accepted because of two reasons, firstly that in the cross-examination he has stated that Ramaiah was standing behind the cart and that he had no weapon in his hand. He has also stated that Kantharaju and Siddaramu did not sustain any injury. On the face of it, this answer
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 cannot be accepted because Ramaiah came from the opposite direction to stop the cart and it is a fact that Kantharaju and Siddaramu sustained injuries. The second reason is that the defence has seriously disputed the presence of Kalegowda and this becomes clear from the evidence of PW17 who has answered in the cross- examination that PW3 has not given statement before him that Kalegowda was present and saw the incident. It is also another answer of PW17 that PW6 and other charge sheet witnesses namely Mariyanna, Shivaratnamma and Ganesh who were not examined by the prosecution, have also not stated before him that both Ravi Kumar and Kalegowda were present and saw the incident. When PW17 was questioned as to how he could cite Kalegowda as a charge sheet witness, his answer was that his informants brought to his notice that Kalegowda was present. And his another answer is that he did not ascertain from the other eye witnesses about the presence of Kalegowda. It was required that PW17 should have ascertained about Kalegowda's presence from the
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 witnesses who were admittedly present at the time of incident, not from the police informants. The evidence of Kalegowda, PW5, becomes relevant to be acted upon only if other eye witnesses spoke of his presence, otherwise not. It is pertinent to mention here that the statement of Kalegowda as according to PW17 himself was obtained on 23.10.1998, that means four days after the incident even though Kalegowda was a resident of Ummadahalli Village. In this view it is not safe to rely upon the evidence of PW5.
28. There is no dispute that PW6-Shrikanth was an eye witness. PWs2, 3 and 4 and even PW5 for that matter do state that Shrikanth was present. But the evidence of PW6 is quite contrary to the evidence of PWs2, 3, 4 and
5. His clear evidence is that it was Ramaiah who first resorted to assaulting Chandru who was sitting on the cart. The public prosecutor treated him hostile and cross- examined him in vain. PW6 admits that his uncle's daughter was given in marriage to third accused-
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 Siddaramu. The purpose of putting this question was to impeach his creditworthiness by bringing to fore his close relationship with the accused being the reason for deposing against the prosecution. But the scrutiny of the evidence of PW6 does not indicate his relationship with the accused being the reason for giving evidence in the other way that the entire incident took place on account of aggressiveness of Ramaiah and Prakash. There are other circumstances which we will discuss later do indicate that evidence given by PW6 may be the truth.
29. The evidence given by DW1 and DW2 is supported by DW3-U.K.Ganesh who is actually a charge sheet witness, but not examined by the prosecution. Both DW1 and DW2 have withstood the cross-examination by the public prosecutor who has made all the efforts to elicit from them that they were carrying a pickaxe and two machetes while transporting the sugarcane, and they assaulted Ramaiah and Prakash with those weapons. But DW1 and 2 have refuted the suggestion that they were
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 carrying the weapons and instead assert that weapons were being carried by Ramaiah and PW3 Prakash. DW1 and DW2 have not been discredited in the cross- examination. It is quite strange that the prosecution did not think of examining U.K.Ganesh in support of its case as a witness, instead he was given up. When the public prosecutor cross-examined DW3, he made an effort to extract answers from him that Kantharaju, Chandru and Siddaramu were all sitting on the cart, that they were carrying weapons and they first sprung on Ramaiah and Prakash by inflicting injuries. But DW3 did not accept these suggestions and made it clear that the three brothers did not have weapons with them, and the incident erupted on account of the injuries inflicted by Ramaiah and Prakash. He asserted in the cross- examination that Ramaiah and Prakash had brought the weapons.
30. In S.C.19/2014, as discussed above, Kantharaju, Siddaramu and Ganesh examined as PWs1, 2
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 and 5 respectively have not given evidence in the way they have given evidence in S.C.53/1999. That means it is not that they do not speak about the incident, but what they have stated is that PWs1, 2 and Chandru left that place after Ramaiah did not heed to their request. They appear to have suppressed infliction of injuries by them to Ramaiah and Prakash. Ganesh also speaks in the same way. For this reason alone these three witnesses do not become unreliable. Their evidence as defence witnesses in S.C.53/1999 and prosecution witnesses in S.C.19/2014 must be considered. It is quite evident that either side parties appear to be interested in themselves and they have given evidence to their convenience, and it is quite natural in a case of this type. Assessment of the oral testimonies of PWs1 to 6 and DWs1 to 3 in S.C. 53/1999 in collation with the evidence in S.C.19/2014 leads to draw an inference that the entire incident would not have taken place unless Ramaiah and Prakash had intercepted the transportation of sugarcane by stopping the bullock cart and altercating with Chandru and Siddaramu. The
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 evidence does not show that Kantharaju was sitting on the bullock cart. His evidence that he came to the place of occurrence on his scooter with Siddaraju from Ummadahalli is very much believable. It is unfortunate that the investigating officer did not make any effort to ascertain the truth from Siddaraju by interrogating him. PW17 has admitted in the cross-examination that he did not summon and examine Siddaraju. The evidence on record is so apparent that even the police officers did not investigate the matter impartially and this inference can be drawn from the following evidence.
31. In S.C.53/1999, PW1-R.S.Narayanappa was the PSI at Mandya Rural Police Station and he registered the FIR in Crime No. 271/1998 against Kantharaju, Chandru and Siddaramu on the basis of statement of PW2- Ratnamma for the offence under section 307 read with section 34 IPC. It is not in dispute that Kantharaju made a report of the incident by going to police station and his report was registered in Crime No. 270/1998. PW1-
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 Narayanappa investigated and filed 'B' report in Crime No. 270/1998. 'B' report was challenged by Kantharaju before the Magistrate who after enquiry rejected the 'B' report and took cognizance of the offences, thus Prakash came to be prosecuted.
32. The way PW1 has given answers in the cross- examination clearly indicates that he did not show as much interest to investigate the crime reported by Kantharaju as he showed in the counter case in Crime No. 271/1998. It also becomes very clear from the evidence of PW17 that he too was totally disinterested in deciphering the truth, his interestedness in filing charge sheet in FIR No. 271/1998 can be figured out. When he was extensively cross-examined with regard to FIR 270/1998, at one stage he takes total ignorance about FIR 270/1998 and at a later stage he admits to be having knowledge about it and instructing PW1 to file 'B' report in respect of the FIR in Crime No. 270/1998.
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33. Another important aspect to be mentioned here is that according to Kantharaju, he and his brother Siddaramu both went to police station to lodge FIR about the incident and they were advised by the police who were present in the police station to go to hospital for taking treatment for the injuries they had sustained. He has stated that the police took them to hospital where they were inpatients. PW3 in S.C.19/2014 is Dr.K.S.Murthy. He examined Kantharaju on 19.10.1998 at 12.10 p.m. and noticed two injuries. Kantharaju was inpatient at the District Hospital, Mandya, from 19.10.1998 to 4.11.1998. On the same day he also examined another injured namely Siddaramu and noticed presence of two injuries. Siddaramu was also an inpatient in the hospital from 19.10.1998 to 4.11.1998. Both the police officers PW1 and 17 stated firstly that they were not aware of the injuries sustained by Kantharaju and Siddaramu, but at a later stage of cross examination they admitted of coming to know about it. If according to the doctor both Kantharaju and Siddaramu were inpatients in the hospital
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 till 4.11.1998, it is the evidence of PW17 that both of them were arrested at Mandya bus stand on 22.10.1998. This is quite contrary to the evidence of the doctor and clearly indicates that they were more interested in filing charge sheet with respect to Crime No. 271/1998 than finding out the truth by conducting the investigation impartially. Their partisanship becomes evident from the fact of planting Kalegowda as an eye witness just on the basis of the information given by police informants instead of ascertaining his presence from the other eye witnesses.
34. The evidence on record shows that Kantharaju suffered two injuries namely a cut wound measuring 2 x 1 cm on the right forehead and a cut wound 2 x 1 cm on the right forearm. The x-ray revealed fracture of frontal bone. Siddaramu also suffered two injuries namely cut wound measuring 3 x 2 cms on the left forearm and a cut wound measuring 1 x 1 cm on the left side chest.
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35. As regards the injuries sustained by Kantharaju and Siddaramu, in para 42 of the judgment, the trial court has held that the prosecution has not explained as to how they sustained injuries. Having held so, the trial court further proceeded to hold that the eye witnesses have clearly deposed that the accused i.e., Kantharaju and Siddaramu left the place of incident themselves without the assistance of any third person, and this fact would show that even if they had sustained injuries in the same incident, they were not serious in nature. In para 43, the observation found is that injuries were not fatal even though injury No.1 sustained by Kantharaju is shown as grievous owing to fracture of bone. As they left that place on the scooter for the hospital, in spite of the fact that the prosecution has to explain the injuries found on body of the accused, that does not mean that this could be considered as the sole basis to reject the cogent and reliable testimony of the injured and eye witnesses, this is another finding of the trial court.
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36. The above findings evince that the trial court has also concluded that Kantharaju and Siddaramu sustained injuries in the same incident, but what it has not attempted to decipher is as to who were the persons who first resorted to assaulting with weapons. This was essentially expected of the court trying two cases being counter to each other. It appears, overwhelmed by multiple injuries found on the body of Ramaiah, and his death owing to injuries, the trial court might have taken the view not to accept the defence version of private defence. The trial court is of the opinion that the accused should have obviously possessed the weapons as they were harvesting the sugarcane crop, and conversely, Ramaiah did not carry any weapon. These findings are contrary to the evidence on record. The trial court has not read the evidence of PW1 - R.S.Narayanappa, the PSI who registered FIR in Cr.No.271/1998. He was the investigating officer with respect to Cr.No.270/1998. It was elicited from him in the cross examination that when he was investigating Cr.No.270/1998, it came to his notice
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 that Ramaiah had a macchhu i.e., machete with him and he did not enquire further as to what happened to the machete which Ramaiah had held in his hand. It is also elicited from him that actually there existed a cart track in the land belonging to Irrigation Department situate between the lands of Ramaiah and the three accused viz., Kantharaju, Chandru and Siddaramaiah. That means Ramaiah claimed that land where the cart track existed to be belonging to him. Anyway it is forthcoming from the evidence of PW1 that Ramaiah had a machete with him. Therefore the finding of the trial court that Ramaiah and Prakash were unarmed cannot be accepted. If this evidence of PW1 is considered, definitely it can be stated that the evidence of PWs2, 3, 4 and 5 that Kantharaju, Chandru and Siddaramu sprung on Ramaiah and Prakash cannot be accepted and this takes us to conclude that Ramaiah and Prakash were the aggressors and they were the persons who first assaulted Kantharaju and Siddaramu and only thereafter, the latter must have retaliated to protect themselves.
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37. It is the clear evidence of Kantharaju and Siddaramu being DW1 and DW2 respectively in S.C.No.53/1999 and PW1 and PW2 in S.C.No.19/2014 that they had to assault Ramaiah and Prakash to protect themselves. The evidence of these witnesses finds corroboration from the testimony of Srikanth (PW6) in S.C.No.53/1999 and Ganesh (DW3 in S.C.No.53/1999 and PW5 in S.C.No.19/2014). These witnesses have stated that Kantharaju and Siddaramu snatched the weapons from Ramaiah and Prakash. From this a clear conclusion can be drawn that Kantharaju and Siddaramu did not have weapons with them.
38. In S.C.No.53/1999, the prosecution produced three weapons, viz., an axe as per MO1 and two choppers
- MO2 and 3. The believable evidence of Srikanth and Ganesh shows that Ramaiah brought a machete and Prakash brought a sickle. The evidence shows that Kantharaju and Siddaramu snatched these weapons from Ramaiah and Prakash. That means only two weapons
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 were employed for inflicting injuries. The prosecution introduced three weapons. It is not known how the axe was introduced by the prosecution. Added to this Kantharaju and Siddaramu have deposed that when they left the spot on the scooter, they threw away the two weapons into the channel. But according to PW17 - the investigating officer, Kantharaju and Siddaramu gave voluntary statements and disclosed that they would show the place where they had hidden the three weapons. Ex.P13 and P14 are the portions in their voluntary statements leading to discovery. PW17 stated that PW11 and one Srinivas were the panch witnesses for the recovery. He has stated that Siddaramu led the police team and removed one axe and two machetes hidden in a bamboo shrub and produced the same before him. PW11 in the examination-in-chief also stated that Siddaramu produced the weapons in his presence. But in the cross- examination it was elicited from him that his signature on the panchanama - Ex.P8 was taken at the police station. When he was subjected to lengthy cross-examination he
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 revealed that his auto rickshaw had been seized by the police. When he went to police station with one Srinivas for getting the auto rickshaw released, the police obtained their signatures. That apart, the other answers in the cross-examination disclose that before he came to court for giving evidence, one Ravi took him to the office of two advocates where he was given a xerox copy of a document. The two advocates read over the contents of the document and asked him to depose in the same manner in the court. He was also asked to read that document before going to court. He took complete ignorance of seizure of the weapons as produced by Siddaramu. The public prosecutor subjected him to cross examination as he resiled completely from what he had stated in the examination-in-chief. He refuted all the suggestions given by public prosecutor that he was very much present at the time when panchanama as per Ex.P8 was drawn in connection with recovery of three weapons. Now what is to be stated is, whether or not PW11 supported the prosecution, the evidence of PW17 with
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 regard to recovery cannot be believed at all. It appears that the axe was introduced during investigation. It is already noted that the investigation was not impartial and there is all probability that the third weapon might have been planted in as much as there were three accused persons, and to create an impression that each one of them had a weapon. It is highly impossible to believe the evidence with regard to recovery when Kantharaju and Siddaramu stated that they threw away the weapons into the channel water. Therefore from this discussion the inference that can be drawn is that but for the assault made by Ramaiah and Prakash inflicting injuries to Kantharaju and Siddaramu, the whole incident would not have taken place. Ramaiah and Prakash were the aggressors. In this background, the specific defence available under section 100 of IPC has to be examined.
39. Sri. S.G. Rajendra Reddy, learned counsel for the appellants argued that the whole case falls within the ambit of section 100 of IPC. The evidence clearly discloses
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 the nature of injuries sustained by Kantharaju and Siddaramu. They had to retaliate to protect themselves as reasonable apprehension arose in them that unless they would show retaliation, there was danger to their life. They appear to have exceeded their limits for protecting themselves, but still their act was that of a private defence permitted under law and therefore they should not have been convicted. The finding of the trial court in this regard is erroneous, he argued. In support of his argument he has placed reliance on four decisions of the Supreme Court to which we will refer to later.
40. Countering his argument, Sri Lokapal Rao H.S submitted that the entire incident indicates that the three brothers attacked Ramaiah and Prakash intentionally. They cannot put forward the theory of private defence. Even if it is assumed for argument sake that private defence was available, they certainly exceeded their limits by causing death of Ramaiah and in this view section 100
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 of IPC is not applicable. According to him the evidence given by PWs2 to 5 in S.C.No.53/1999 cannot be ignored.
41. Section 100 of IPC reads as below:
"100. When the right of private defence of the body extends to causing death:-The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
3. An assault with the intention of committing rape;
4. An assault with the intention of gratifying unnatural lust;
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5. An assault with the intention of kidnapping or abducting;
6. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
7. An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act."
42. PW13 - Dr. Mohammed Vali Pasha who conducted postmortem examination of the dead body of Ramaiah noticed the following external injuries as mentioned in the Ex.P.10 - the P.M. report.
"1. Surgically sutured incise wound 'L' shape over the top of the head measuring 11cm x 14cm x1.5cm bone depth.
2. Surgically sutured incise wound behind the left ear 5cm x 0.5cms.
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3. Surgically sutured incise wound over the occipital region of the back of the head oblique in direction 5cm x 0.5cm.
4. Surgically sutured incise wound over the left upper part of the shoulder 10cm x 0.5cm.
5. Surgically sutured incise wound 6cm x 0.5cm over the posterior part of the upper 1/3 of the right arm.
6. Surgically sutured incise wound over the right supra scapula region 3cms x 0.5cms obliquely placed.
7. Surgically sutured incise wound obliquely placed on the right scapula region of the back 10cms x 0.5cms.
8. Surgically sutured incise wound 7.5cms x 0.5cms over the left shoulder.
9. Surgically sutured incise wound over the left scapular region of the back 9cms x 0.5cms.
10. Surgically sutured incise wound 10cms x 0.5cms on the left scapular region.
11. Surgically sutured incise wound obliquely present over the back of the left lumbar region measuring 10cms x 0.5cms.
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12. Abrasion of 8cms over the back of left lumbar region.
13. Surgically sutured incise wound 9cms x 0.5cms over the left fore arm.
14. Surgically sutured incise wound 7cms x 0.5cms over the right fore arm.
15. Multiple Abrasions over right knee (4cm X 1cms) 4cm x 4cm : 4cm x 5cms.
16. Surgically sutured incised wound 4cms x 1cms over the left thigh."
43. PW18 - Dr. K.S. Murthy examined PW3 - U.B.Prakash on 19.10.1998 and noticed the following injuries which are mentioned in the wound certificate Ex.P.15.
i. A lacerated wound 3 x 2 cm on the left side knee ii. Cut wound 2 x 1 cm on the back of the thigh iii. Pain and swelling in the left shoulder iv. Cut wound 3 x 2 cm in the left arm, fracture of left clavicle 1/3rd
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44. PM report shows 16 injuries on the person of Ramaiah, but it was the argument of Sri S.G. Rajendra Reddy that all the injuries were not inflicted by Kantharaju and Siddaramu. Ramaiah fell down on a thorny plant called Bhutale (Agave in English). Some of the injuries like abrasions on the back and the limbs occurred when he fell down on the plant. He refers to the evidence of PW17 to argue that there existed Bhutale plants at that spot and that the blood stains were found on a leaf of that plant.
45. It is true that PW17 has stated that he noticed a Bhutale plant and blood stains on the leaf. Therefore in all probability Ramaiah might have fallen on the Bhutale plant and the abrasions might be due to fall on the thorny plant. But it is not that all the injuries occurred due to fall on the thorny plant. It is evident that the major injuries were on account of assault made by Kantharaju and Siddaramu, which they too admit. A question would arise whether Kantharaju and Siddaramu had exceeded their limits while protecting themselves. To a situation like this, reference
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 may usefully be made to two decisions of the Supreme Court. In the case of Mohammed Ramzani Vs. State of Delhi [1980 (Supp.) SCC 215], the following is the observation:
"19. It is trite that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence which the accused is charged, beyond reasonable doubt. It is further well-established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in "golden scales" the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind the law makes due allowance for it.........."
(emphasis supplied)
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46. Another decision is in the case of Subramani and Others Vs. State of Tamil Nadu [(2002) Crl.LJ 4102]. It is held:
"21. The question still arises whether the appellants can be convicted for having exceeded their right of private defence. In the instant case we are inclined to hold that the appellants had initially acted in exercise of their right of private defence of property, and later in exercise of right of private defence of person. It has been found that three of the appellants were also injured in same incident. Two of the appellants, namely - appellants 2 and 3 had injuries on their head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted with more force, it may have resulted in the fracture of the skull and proved fatal. What is, however, apparent is the fact that the assault on them was not directed on non-vital parts of the body, but directed on a vital part of the body such as the head. In these circumstances it is reasonable to infer that the appellants entertained a reasonable apprehension that
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death or grievous injury may be the
consequence of such assault. Their right of
private defence, therefore, extended to the voluntarily causing of the death of the assailants.
22. While it is true that in exercise of the right of private defence only such force may be used as may be necessary, but it is equally well settled that at a time when a person is faced with imminent peril of life and limb of himself or other, he is not expected to weigh in golden scales the precise force needed to repeal the danger. Even if he, in the heat of moment, carries his defence a little further than what would be necessary when calculated with precision and exactitude by a clam and unruflled mind, the law makes due allowance for it. "
(emphasis supplied)
47. Now in the light of the principles laid down in the above two cases, if the case on hand is examined, no sooner Ramaiah and Prakash inflicted injuries to Kantharaju and Siddaramu as reflected in their wound
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 certificates, than arose an apprehension in them that there was danger to their lives. In fact the evidence of Kantharaju discloses that they had to assault Ramaiah and Prakash for their self protection. It is true that Siddaramu had stated that the axe stuck on his chest portion when Ramaiah assaulted him. This could be an exaggeration, but his wound certificate (Ex.P11) in S.C.No.19/2014 shows cut wound on the left side of the chest. That means an injury was inflicted on his chest portion. The wound certificate of Kantharaju i.e., Ex.P.10 in S.C.No.19/2014 shows fracture of frontal bone corresponding to injury no.1 on the right fore head. If these injuries mentioned in Ex.Ps10 and 11 are considered, without any hesitation a conclusion can be drawn that both of them exercised right of private defence apprehending danger to their lives. An exaggerated version given by Siddaramu cannot be a reason for discarding his evidence. The evidence clearly shows that the whole situation can be brought within the ambit of section 100 of IPC.
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48. We have already observed that the prosecution has not provided explanation for the genesis of the incident and the investigator did not find it essential to ascertain the cause for the injuries found on the person of Kantharaju and Siddaramu. Relevantly we may mention here that when PW3 Prakash was specifically questioned about the injuries inflicted by Kantharaju and Siddaramu to protect themselves, he gave evasive answers stating that he did not know. This has a bearing on his conduct which shows that he has suppressed the reality. Aptly applicable to a situation like this, the Hon'ble Supreme Court in Lakshmi Singh and Others Vs. State of Bihar [(1976) 4 SCC 394] has held as below:
"12. ....... It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 stating that they did not see any injuries on the person of the accused."
(emphasis supplied)
49. In Bhagwan Sahai and Anr. Vs. State of Rajasthan [AIR 2016 SC 2714], it is held :
"8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case."
50. As has been discussed above, the prosecution having failed to explain injuries sustained by Kantharaju and Siddaramu and the investigation being not impartial, not only benefit of doubt must be given to the accused in S.C.No.53/1999, but it can also be stated that the facts and circumstances clearly indicate that they exercised right of private defence. The trial court has failed to appreciate the evidence in proper perspective. It appears that because of death of Ramaiah, it might have come to conclusion that the accused had intention to cause death. This finding cannot be sustained.
51. In S.C.No.19/2014 the reason for acquitting Prakash, accused no.2 therein, is that the witnesses PW1 - Kantharaju, PW2 - Siddaramu and PW5 - Ganesh did not
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 whisper or state as to how Ramaiah died in the incident. Though they stated about the assault made by Ramaiah, they ought to have explained as to how Ramaiah sustained injuries and died later on. Thus PWs1, 2 and 5 suppressed the actual facts. Another reason is that PWs1 and 2 did not explain as to what happened to the weapons which they snatched from Ramaiah and Prakash. Non production of the weapons in the case and silence of the witnesses would create a doubt. It is also held that even if the evidence of PW5 is believable, it is the other view possible to be taken and hence when two views are possible benefit must be given to the accused.
52. It is quite surprising that the trial court has lost sight of the fact of investigating officer i.e., PW17 being questioned extensively in relation to counter case arising out of Crime No. 270/1998 while being cross examined in S.C. 53/1999. PW1 in S.C.53/1999 has also been questioned relating to counter case. For this reason nothing prevented the trial court from at least considering
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 the testimonies of PW1 and PW17 to draw proper inferences in both the cases.
53. The evidence in S.C.No.19/2014 shows that second accused Prakash assaulted Kantharaju with a sickle on his right forearm and forehead. Siddaramu sustained injury when he stretched his hand to prevent a blow from being given to his brother Chandru. In the cross- examination PW1 admitted a suggestion that in Ex.P1 (marked in S.C.No.19/2014) he has only stated that Prakash assaulted him with his hands and kicked him. PW2 Siddaramu's evidence also shows that Prakash assaulted Kantharaju on his right hand and head. Being defence witnesses in S.C.No.53/1999 they have given the evidence in the same way. Their evidence is supported by Ganesh and Srikanth. Therefore Prakash should have been convicted by the trial court. Having regard to the nature of the injury sustained by Kantharaju and Siddaramu, and as it appears that the overt act in causing injuries to them is more attributable to Ramaiah than
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 Prakash, we may state that Prakash can be convicted for the offence under section 324 of IPC .
54. From the above discussion we proceed to pass the following:
ORDER Crl.A.2089/2016 is allowed. The judgment of the Sessions Court in S.C.No.53/1999 is set aside. Accused therein namely Kantharaju, Siddaramu and Chandru are acquitted of the offences charged against them.
Crl.A.No.199/2017 is partly allowed. The judgment of the Sessions Court in S.C.No.19/2014 is reversed.
Accused no.2 therein i.e., Prakash is held guilty of the offence punishable under section 324 IPC.
When we hear Sri. Lokpal Rao H.S., advocate for accused no.2 on the sentence to be imposed, his submission is that accused no.2 be released on probation.
Since we have recorded conviction under section 324 IPC against accused no.2, before deciding whether the benefit
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 under the Probation of Offenders Act can be extended or not, it is better to obtain report from the Probation Officer.
Therefore the Probation Officer, Mandya, is hereby directed to submit a report about the antecedents, the reputation and standing of accused no.2 in the society.
This report shall reach us by 16.02.2024.
List this matter on 16.02.2024.
Sd/-
JUDGE Sd/-
JUDGE SD/CKL List No.: 1 Sl No.: 1
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016 SHKJ & VNTJ:
16.02.2024 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON SENTENCE IN CRL.A.No.199 OF 2017 The Probation Officer, Mandya, has submitted his report.
Perusal of the same shows that respondent No.2 Prakasha U.B in Crl.A.No.199/2017 is resident of Ummadahalli village, Mandya Taluk, Mandya District. Besides doing agriculture, he runs a flour mill and a bakery. He has good relationship with his neighbours. Nobody in the vicinity has expressed bad opinion about respondent No.2. Except the present case, he is not involved in any other case.
Having regard to the report given by the Probation Officer, we are of the opinion that respondent No.2 Prakasha U.B. can be released on probation instead of sentencing him for the offence punishable under section 324 IPC. In this view, it is hereby ordered that respondent No.2 Prakasha U.B., is ordered to be released on probation. He is subjected to the following conditions:-
1. Respondent No.2 shall execute a bond for a sum of Rs.1,00,000/-(Rupees One Lakh only) with two sureties to the satisfaction of the trial court;
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NC: 2024:KHC:4078-DB CRL.A No. 199 of 2017 C/W CRL.A No. 2089 of 2016
2. He shall give an undertaking that he shall keep peace and be of good behaviour in the village;
3. In case of violation of the conditions, he must be ready to appear before the Court to receive sentence;
4. He shall be under the surveillance of the Probation Officer for a period of one year from today; and Respondent No.2 Prakasha U.B., shall appear before the trial court on 01.03.2024 for the purpose of execution of bond, as directed.
The trial court shall submit a report about execution of the bond.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 1r