Karnataka High Court
The State Of Karnataka vs Siddappa @ Siddanna S/O Saibanna Niloor ... on 13 July, 2012
Bench: K.Sreedhar Rao, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 13TH DAY OF JULY 2012
PRESENT
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
CRL.A.No.3694/2011
C/W
CRL.A.No.3552/2012
IN CRL.A.NO.3694/2011
BETWEEN:
1. Siddappa @ Diddanna
S/o Saibanna Niloor
Age: 40 years
Occ: Agriculture
R/o Kudaki, Tq. Aland
Dist. Gulbarga
2. Mallamma
W/o Siddappa Niloor
Age: 30 years
Occ: Household work
R/o Kudaki, Tq. Aland
Dist. Gulbarga
3. Mallamma
2
W/o Saibanna Niloor
Sugur, Age: 22 years
Occ: Household work
R/o Kudaki, Tq. Aland
Dist. Gulbarga
4. Shivappa
S/o Sharanappa Bailoor
Age: 32 years, Occ: Auto Driver
R/o Gudoor, Tq. Afzalpur
Dist. Gulbarga
.. Appellants
(By Sri. Baburao Mangane, Adv.)
AND:
The State of Karnataka
Through Nimbarga P.S.
Tq. Aland, Dist. Gulbarga
.. Respondent
(By Smt. Anuradha M. Desai, Addl. SPP)
This Crl.A. is filed under Section 374(2) of Cr.P.C.
praying to set aside the judgment and order passed in S.C.
No.299/2010 on the file of 1St Addl. Sessions Judge,
Gulbarga, dated 03.11.2011 convicting the appellant for
the offences U/S.148, 304(II) and 506 R/w Section 149 of
IPC and acquit the accused/appellants of the alleged
offences, in the interest of justice.
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IN CRL.A.NO.3552/2012
BETWEEN:
The State of Karnataka
Through Nimbarga Police
Rpted. by its
Addl. State Public Prosecutor
.. Appellant
(By Smt. Anuradha M. Desai, Addl. SPP)
AND:
1. Siddappa @ Siddanna
S/o Saibanna Niloor
Age: 42 years, Occ: Agri
R/o Kudaki, Tq. Aland
Dist. Gulbarga
2. Smt. Mallamma
W/o Siddappa Niloor
Age: 32 years, Occ: Household
R/o Kudaki, Tq. Aland
Dist. Gulbarga
3. Smt. Mallamma
W/o Saibanna Niloor
Age: 24 years, Occ: Household
R/o Kudaki, Tq. Aland
Dist. Gulbarga
4. Malappa
S/o Saibanna Niloor
Age: 17 years, Occ: Agri.
R/o Kudaki, Tq. Aland
Dist. Gulbarga
4
5. Shivappa
S/o Sharanappa Bailoor
Age: 34 years, Occ: Auto Driver
R/o Gudoor, Tq. Afzalpur
Dist. Gulbarga
.. Respondents
This Crl.A. is filed under Section 377 of the Cr.P.C.
praying to grant leave to appeal against the judgement
and order dated 03.11.2011 passed by the I Addl.
Sessions Judge, Gulbarga, in Session Case No.299/2010
in so far as it relates to imposition of inadequate sentence
of imprisonment on the respondent - accused for the
offences P/U/S. 148, 304-II and 506 R/w Sec. 149 of IPC.
These appeals having been heard and reserved for
judgment this day, B.S.INDRAKALA, J., delivered the
following:
JUDGMENT
The appellants in Criminal Appeal No.3694/2011 were charge sheeted by the Nimbarga Police, for the offence under Sections 143, 147, 148, 504, 506 and 302 R/w Section 149 of IPC alleging that on 06.12.2009 at 1.00 p.m., in the land bearing Sy. No.364 at Madyal village, accused Nos.1 to 3 and 5 along with juvenile accused No.4 by forming themselves into an unlawful assembly with common intention being armed with lethal weapons like stones, intentionally insulted and provoked one Sharanappa and accused Nos.2 and 4 held the hands of 5 said Sharanappa, while accused Nos.1 and 5 fisted on the head of Sharanappa, accused No.3 assaulted said Sharanappa by means of small stone on his left hand and below left leg knee and caused bleeding injury and killed him. Besides, they also threatened and intimidated CW.1 Pundalik in the said incident.
2. After the committal of the case, following due procedure of framing charges against the accused and on completion of evidence and recording the statement of accused under Section 313 of Cr.P.C., and on hearing the prosecution and counsel for the accused, the learned I Additional Sessions Judge, Gulbarga deemed it fit to convict accused Nos.1 to 3 and 5 for the offence under Sections 148, 304 part (II) and 506 R/w Section 149 of IPC and sentenced them for simple imprisonment for 6 months for the offence under Section 148 R/w Section 149 of IPC, simple imprisonment for 3 years with fine amount of Rs.10,000/- each for the offence U/Sec. 304 part (II) R/w Sec. 149 of IPC and further simple imprisonment for 6 months for the offence U/Sec. 506 6 R/w Sec. 149 of IPC and besides ordered that all the sentences of imprisonment shall run concurrently. They are also sentenced for simple imprisonment for 1 year in case, they default in payment of fine.
3. Aggrieved by the said judgment and order of conviction, the accused preferred Crl.A. No.3694/2011 seeking setting aside of the judgment, while the State preferred Crl.A. No.3552/2012 seeking conviction of the accused for the offence U/Ss.148, 302 and 506 R/w Sec.149 of IPC.
4. As both the appeals are filed against one and the same judgment, they are taken up together for consideration.
5. Heard the learned Additional SPP for the State as well as the counsel for the accused in both the appeals. 7
6. In view of the submissions, the points that arise for consideration are:
1) Whether the impugned judgment dated 03.11.2011 passed in S.C. No.299/2010 on the file of the I Addl.
Sessions Judge, Gulbarga, is liable to be set aside?
2) What order?
7. It is a case of the prosecution that the land of the victim and the land of the accused are lying adjacent to each other and for going to the land of the accused, they have to pass through the land of the victim; there always used to be quarrel between the family members of the victim on one side and the accused on the other side with regard to use of the said land. Thus, it is a case of the prosecution that such dispute with regard to access to the land of the accused is the motive for the accused to commit the murder of the victim in the case. 8
8. To prove the homicidal death of the victim, the prosecution has relied upon the contents of the post mortem report marked as Ex.P15 and the evidence of Medical Officer, who conducted the autopsy who is examined as PW.17, besides, the inquest mahazar marked as Ex.P6.
9. PW.17 has deposed that he conducted the autopsy of dead body of the victim Sharanappa on 09.12.2009 and has deposed about the contents of the P.M. report and stated that the said P.M. report is marked as Ex.P15. He further deposed that after the receipt of report of FSL, the IO shown the same to him and sought opinion with regard to the cause of death and on perusal of the same, he opined that the death was due to shock on account of secondary to the blood clot in the center of cerebellum and gave the opinion as per Ex.P16. 9
10. Considering the evidence of PW.17 coupled with Exs.P15 and P16, it is held that the prosecution has established the homicidal death of the victim.
11. To prove its case, the prosecution has relied upon the evidence of direct witnesses to the incident. The prosecution has chosen to examine the complainant as PW.1 and the persons who, on hearing the altercations went to the spot and pacified the altercations as PWs.2 and 4.
12. Admittedly, though it is a case of the prosecution that the alleged incident occurred on 06.12.2009 at about 1.00 p.m., the FIR is lodged on 08.12.2009 at 11.30 p.m., and the same reached the Magistrate on 09.12.2009 at 11.20 a.m. Thus, prima-facie it is seen that there is an unexplained inordinate delay in lodging the FIR.
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13. The complainant, who is examined as PW.1 has deposed that he knows the accused, the deceased Sharanappa in this case was his elder brother, CW.6 (PW.11) is his another brother and the accused are also their relatives. Further he has deposed that at Madyal village, they have 5 acres 9 guntas of land in Sy. No.364 and likewise, the accused also have land adjoining the said land; with regard to entering into the said lands, there use to be frequent quarrels between the accused and themselves; accused for going to their land have to pass through the land of the victim; except the said way from their land, accused are not having any other access to their property; in that regard, there use to be quarrel between them since 5 to 6 years.
14. With regard to the alleged incident, he has deposed that on 06.12.2009 at 10.00 a.m., himself and his elder brother/the victim had gone to their land; at that time, they had grown sunflower crop in their land, while 11 accused sown green grams; at that time, accused No.1 came with his cattle's to their land and on seeing that, his brother asked accused No.1 as to why he was taking cattle's in his land and destroying their crops; for which, accused No.1 told that the victim obstructed his way to his land, in such, he will destroy the sunflower crops and so saying, he started quarreling with his bother; accused No.2 Mallamma the wife of accused No.1 and accused No.4 held both the hands of his brother, while accused No.1 fisted on the head of his brother/victim; at that time, accused No.3 who came there with two stones of fist size, assaulted on left knee and hands of the victim and he suffered bleeding injuries; accused No.5 Shivappa who came there also fisted on the head of his elder brother twice. Further, he has deposed that he tried to pacify the quarrel, but the accused threatened him; on hearing the screaming of himself and his brother/victim, one Shanthappa, Shrimanth (PW.4) and Mallikarjun (PW.2) who had gone there to work in the lands, came there and 12 pacified the altercations; his brother fell; after the said three persons namely, Shrimanth (PW.4), Mallikarjun (PW.2) and Shanthappa who pacified the altercations went away from the spot, accused started chasing him (PW1) and being afraid, he ran to the village thinking that his elder brother/victim will return home.
15. Further, he has deposed that by 4.00 p.m., when the said Shanthappa, Mallikarjun (PW.2) and Shrimanth (PW.4) returned to the village, he enquired them about his elder brother for which, they questioned him only as to whether his elder brother had not yet come; for the said question, he answered them that after they pacified the quarrel, he escaped from the accused and returned home; thereafter, he went to the land looking for his brother, his brother was not there at the spot; he searched for him till 7.00 to 8.00 p.m., his brother was not found anywhere and returned to village by 8.00 p.m.; he searched for his elder brother in the village; enquired his 13 relatives and friends, but, he could not find him anywhere; as it was dark, he returned hoping to search him on the next morning. Further he has deposed that on 07.12.2009, again he went to the land and searched for his elder brother, but, he was not found there; as the accused were also searching for him, being afraid, he did not go to police station to lodge any complaint; thereafter, he returned home and informed this fact to his brother Yellappa (PW.11); meanwhile, he came to know that the accused had filed the complaint against them (his elder brother and himself) and on 08.12.2009 at 5.00 p.m., again he went to the land and searched for his brother and while so searching, in the bunds of the land belonging to one Malkappa (PW.10) near the Neem tree, he noticed the dead body of his elder brother; his cloths were blood stained and being scared, he returned home weeping and thinking that accused will assault him being afraid, he went to the Nimbarga police station and narrated the incident to the police; the police wrote the same; read 14 over it to him and took his signature; the police came to the spot on the same night and left there a police to guard the dead body; on the next morning, the police held the panchanama and carried the dead body to the hospital for P.M. examination, the police also held the spot mahazar and thereafter, they also asked him to show the land, where the quarrel took place on 06.12.2009; the police held the mahazar at the said spot also and he showed the stones with which, accused No.3 assaulted his brother and the police seized the said stones etc. Further he has deposed that in the place, where the dead body was found, there was a plastic water bottle; etc.
16. The other witness examined by the prosecution, who went to pacify the altercations, is PW.2 namely, Mallikarjun. He has deposed that he has land at Madyal village; there used to be quarrel between the accused and deceased Sharanappa with regard to the access to the land of the accused for the past 4 to 5 years; 15 the accused for reaching their land have to pass from the land of deceased Sharanappa; except the said way, they have no other access to their land. Further, he has deposed that on 06.12.2009 at 10.00 a.m., himself, Shirmanth (PW.4) and Shanthappa had gone to his land together; around 11.30 or 12.00 noon, they heard screaming from the land of Sharanappa; on hearing that, all the three of them went to the said place and when they went there, the accused were abusing Sharanappa in filthy language. Further, he has deposed that accused Nos.3 and 4 assaulted deceased Sharanappa with stones on elbow and knee; accused No.1 had fisted Sharanappa on his head; the wife of accused No.1 namely, accused No.2 had held the hands of Sharanappa; accused No.5 fisted on the head of Sharanappa; all the three of them pacified the quarrel; PW.1 was also present at the spot at that time; because the accused threatened him (PW.1) that they would assault him also, he ran away and Sharanappa on account of the assault made by the 16 accused fell at the spot. Further, he has deposed that after pacifying the altercations, all the three of them returned to their lands; around 4.00 p.m., all the three of them returned to the village and the complainant enquired them about Sharanappa for which, they told him that Sharanappa was near the land and thereafter, himself, PW.1, Shanthappa and Shrimanth (PW.4) went in search of Sharanappa, but they could not find him anywhere as such, they returned to village at 7.00 p.m. but, Sharanappa did not return; again on the next day, himself and PW.1 searched for him, but, they are unable to find out Sharanappa on that day also; on 08.12.2009, when he enquired the complainant about Sharanappa through phone call, he told him that the dead body of Sharanappa was found in the land of Malkappa.
17. PW.4 Shrimanth who is another witness to the incident, who had gone to pacify the quarrel has deposed corroborating the evidence of PW.2 on material aspect; 17
18. The owner of the land, where the dead body is found is examined as PW.10 namely, Malkappa. He has deposed that about 1 year 2 months ago, in his land, the dead body of the Sharanappa was found; he learnt about the same from the villagers; the police recorded his statement; his land and the land of Sharanappa are adjacent to each other and the land of accused Siddappa is after the land of Sharanappa; which means, the land of the victim is in between the land of PW.10 and the land of the accused. In any event, it is seen that the land of the accused is adjacent to the land of the victim.
19. Thus, the evidence of PWs.1, 2 and 4 which corroborates with each others evidence establishes about the altercations which took place between the victim and the accused on 06.12.2009 at about 1.00 p.m.
20. With regard to the presence of the accused at the said spot at the particular time, apart from the 18 evidence of the PWs.1, 2 and 4 that the accused themselves registered the case against the victim himself as per the reply given by accused No.1 while answering the statement recorded under Section 313 of Cr.P.C, the presence of the accused at the said spot is established.
21. Further, on perusal of the P.M. report it is seen that the time seems death is given as 48-72 hours earlier to the P.M. examination which also aptly corroborates the case of the prosecution that the victim died on 06.12.2009 at about 1.p.m.
22. With regard to the delay caused in lodging the FIR it is seen that on perusal of the FIR marked as Ex.P14 it is seen that the FIR is registered on 08.12.2009 at 22.30 p.m., but the said FIR has reached the Magistrate on 09.12.2009 at 11.20 a.m.
23. The police constable as who carried the FIR is examined as PW.13 by name Mallikarjun S/o Siddaraya. 19 He has deposed that on 09.12.2009, he received the FIR in this case at 10.00 p.m. and on the next day at 11.20 a.m., he submitted the FIR to the Court and also submitted the report in this regard as per Ex.P10.
24. On perusal of the Ex.P10 report so submitted by PW.13 it is seen that he has stated in the report that he received the FIR from the Nimbarga police station on 09.12.2009 at 01.00 a.m. i.e., the intervening night of 08.12.2009 and 09.12.2009, there was no vehicle available to him in the night therefore, he submitted the FIR to the Court at 11.20 a.m.
25. In the circumstances, considering the evidence of PW.1 and the evidence of PW.13 it is seen that the delay caused in lodging the FIR is properly explained.
26. The learned Sessions Judge considering the aforesaid aspects and also by observing that even as per the admissions of the accused themselves, it is seen that 20 the deceased was last seen with the company of the accused.
27. Further it is seen that the cause of death as opined by the Doctor, who conducted the Autopsy i.e., shock as a result of secondary to blood clot in the cerebellum also proved by the evidence of aforesaid witnesses with regard to fisting to the victim by the accused with a fist size stone on his head.
28. In the aforesaid circumstances, the learned Sessions Judge by observing that entire incident has occurred in the spur of the moment which has resulted in the death of the victim and the acts of accused Nos.1 to 3 and 5 does not fall under Sections 302 of IPC or 304(I) of IPC and the same falls under Section 304(II) of IPC, has deemed it fit to hold that accused Nos.1 to 3 and 5 committed the offence under Sections 148, 304 part (II) and 506 R/w Section 149 of IPC which does not call for any interference.
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29. Even with regard to the sentence, it is seen that the sentence imposed by the learned Sessions Judge is adequate and proper. For all these reasons, both the appeals are liable to be dismissed.
Accordingly, both the appeals are dismissed and the judgment of conviction and the order of sentence passed by the I Additional Sessions Judge, Gulbarga in S.C. No.299/2010 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE LG