Karnataka High Court
Srinivasa vs State Of Karnataka on 21 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 694 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE B.VEERAPPA
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 694 OF 2020 (C)
BETWEEN:
1. SRINIVASA,
S/O CHIKKANARASIMHAIAH,
AGED ABOUT 31 YEARS,
GOLLAS BY CASTE,
R/AT NAGADENAHALLI VILLAGE,
MASTHI HOBLI,
Digitally signed
by MALUR TALUK,
VIJAYALAKSHMI
BN KOLAR DISTRICT,
Location: HIGH
COURT OF PIN-563 139.
KARNATAKA
2. ANANDA,
S/O CHIKKANARASIMHAIAH,
AGED ABOUT 26 YEARS,
GOLLAS BY CASTE,
R/AT NAGADENAHALLI VILLAGE,
MASTHI HOBLI,
MALUR TALUK,
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CRL.A No. 694 of 2020
KOLAR DISTRICT,
PIN-563 139.
(NOW IN CENTRAL PRISON
BANGALORE)
...APPELLANTS
(BY SRI. MOHAN KUMAR.D, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY MASTHI POLICE STATION,
KOLAR DISTRICT.
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
OFFICE OF PUBLIC PROSECUTORS,
AMBEDKAR VEEDI,
HIGH COURT OF KARNATAKA,
AT BENGALURU,
PIN-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMARA MAJAGE, ADDL. SPP)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 26.11.2019, PASSED BY THE
II ADDITIONAL SESSIONS JUDGE AT KOLAR IN
S.C.NO.6/2016, CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
B.VEERAPPA J, DELIVERED THE FOLLOWING:
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CRL.A No. 694 of 2020
JUDGMENT
The accused Nos.1 and 3 who are brothers, filed the present criminal appeal against the impugned Judgment of conviction and order of sentence dated 26.11.2019 made in S.C.No.6/2016 on the file of II Addl. Sessions Judge, Kolar, convicting the Accused Nos.1 and 3 for the offence punishable under the provisions of Sections 143, 302 and 114 read with Section 149 of IPC.
2. It is the case of the prosecution that on 16.08.2015 at about 5.45 p.m., at Nagadenahalli village, Masthi Hobli, Malur Taluk near the house of the accused persons at Masthi-Dinnahalli road, due to old vengeance, accused formed unlawful assembly and planned to commit murder of Chandrappa @ Chandrashekar. Accused No.1- Srinivasa assaulted on the head of Chandrappa with sickle and Accused No.3-Ananda assaulted on the shoulder and back of Chandrappa with the same sickle, thereby caused murder of Chandrappa. Accused No.2 hikkanarasimhaiah, -4- CRL.A No. 694 of 2020 Accused No.4-Nagaraja and Accused No.5-Rathnamma abetted Accused Nos.1 and 3 in the commission of offence, thereby, they have committed the offence.
3. Based on the complaint-Ex.P1 lodged on 16.08.2015 by P.W1-Manjunatha, brother of the deceased, the PSI of Masthi Police Station registered a case in Crime No.96/2015 for the offences punishable under the provisions of Section 302 read with Section 34 of IPC.
4. The Addl. Civil Judge and JMFC, Malur, having taken cognizance of the offence against the accused in C.C.No.888/2015, supplied the prosecution documents as per Section 207 of Cr.P.C. Since the offences are exclusively triable by the Sessions Court, committed the matter to the Sessions Court as per the provisions of Section 209 of Cr.P.C. After receipt of the committal records, the case has been registered as S.C.No.6/2016. The learned Sessions Judge secured the presence of Accused Nos.1 to 5 and framed charges on 16.12.2016 and read out the same to accused in the language known -5- CRL.A No. 694 of 2020 to them, who denied the allegations, pleaded not guilty and claimed to be tried.
5. In order to prove the case of prosecution, the prosecution, in all, examined 19 witnesses as P.Ws.1 to 19 and marked documents as Exs.P1 to P24 and material objects-MOs.1 to 9. Statement of the accused, as contemplated under Section 313 Cr.P.C., was recorded. The accused have denied all incriminating circumstances adduced against him. In support of their case, accused got examined D.Ws.1 to 3 and got marked Ex.D1 and Ex.D2.
6. Based on the aforesaid material on record, the learned Sessions Judge framed the following points for consideration:
"1. Whether the prosecution proves beyond all reasonable doubt that on 16.8.2015 at about 5.45 p.m., at Nagadenahalli village, near the house of accused persons at Masthi-Dinnahalli road, all the accused persons due to old vengeance with regard to land dispute, were being members of an unlawful -6- CRL.A No. 694 of 2020 assembly, the common object of which was to kill Chandrappa @ Chandrashekar and thereby committed an offence punishable U/S 143 of IPC?
2. Whether the prosecution proves that accused persons were being members of an unlawful assembly, and did, in prosecution of the common object of such assembly, accused No.1 to 5 planned to finish Chandrappa @ Chandrashekar, at that time when Chandrappa was passing near the house of accused persons, accused No.1 Srinivasa assaulted on the head of Chandrappa with sickle, A3 Ananda also assaulted on the shoulder and back of Chandrappa with the same sickle and did commit murder and thereby intentionally or knowingly causing the murder of deceased Chandrappa @ Chandrashekar and thereby committed an offence punishable under Sec.302 r/w Sec.149 of IPC?
3. Whether the prosecution proves that accused persons were being members of an unlawful assembly, and did, in prosecution of the common object of such assembly, accused No.2 Chikka Narasimhaiah, A4 Nagaraja and A5 Rathnamma abetted the accused No.1 and 3 in the commission of the said offences and that was committed in consequence of their abetment and thereby committed an offence punishable under Sec.114 r/w S.149 of IPC?-7- CRL.A No. 694 of 2020
7. Considering the evidence and material on record, the learned Sessions Judge passed an order of acquittal against Accused Nos.2, 4 and 5 holding that the prosecution failed to prove the charges against those accused beyond reasonable doubt. It is case of the prosecution that Accused No.2-Chikkanarasimhaiah, Accused No.4-Nagaraj and Accused No.5-Rathnamma being part of unlawful assembly, with a common object of killing Chandrappa due to vengeance with regard to land dispute, abetted Accused Nos.1 and 3 in the commission of the offence. Further, the trial Court recorded a finding that the prosecution has proved that Accused No.1 assaulted on the head of Chandrappa with sickle and Accused No.3 assaulted with the same sickle on the shoulder and back of Chandrappa with an intention to cause murder of Chandrappa. Thus, Accused Nos.1 and 2 committed an offence under Sections 143, 203 and 114 read with Section 149 of IPC and the learned Sessions Judge convicted Accused Nos.1 and 3. Further, learned -8- CRL.A No. 694 of 2020 Sessions Judge acquitted Accused Nos.2, 4 and 5. Hence the present appeal.
8. We have heard the learned counsel for the parties.
9. Sri. MRC Manohar, learned counsel for the accused vehemently contended that the impugned Judgment and order of conviction against Accused Nos.1 and 3 is not sustainable as all the accused persons were part of the assembly. Accused Nos.2, 4 and 5 were acquitted by the learned Sessions Judge holding that the prosecution has not proved the charges against the accused Nos.2, 4 and 5 beyond reasonable doubt. Hence, Accused Nos.1 and 3 being part of the same assembly, are not responsible for the homicidal death of the deceased. If at all Accused Nos.2, 4 and 5 were present at the scene of offence, they could have come to the rescue of the deceased. The same is not forthcoming whether they tried to rescue the deceased or not. It is further contended that Accused No.1 also got injured in the incident and the prosecution tried to suppress the injury sustained by Accused No.1. -9- CRL.A No. 694 of 2020 Accused Nos.1 and 3 have not deposed regarding injury caused to Accused No.1. The same is covered by the evidence of P.W.17 and P.W.18. Thereby, the learned Sessions Judge ought not to have convicted Accused Nos.1 and 3. It is contended that there is a case and counter- case regarding the land dispute and the same is not taken into consideration. MO.9-sickle is also not sent to FSL. Except PW1-eye-witness, no other independent witness has been examined to prove that the incident has happened due to the land dispute between the accused persons and deceased. Thereby, Accused Nos.1 and 3 lost self-control due the altercation between them and assaulted the deceased. Hence, at the most, provisions of Section 304 Part I of IPC would attract. Further, P.W1 was convicted at the instance of accused in another case. The same has not been considered by the learned Sessions Judge and proceeded to convict the accused Nos.1 and 3 erroneously. Therefore, he sought to allow the appeal.
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CRL.A No. 694 of 2020
10. Per contra, Sri. Vijayakumar Majage, learned Addl. SPP has contended that if really Accused No.1 got injured in the incident, there was no defence is forthcoming as to what prevented him from lodging a complaint against the deceased. And also, Accused No.1 has not stated in his statement that he has sustained injuries in the same incident. He further contended that whether Accused No.1 got injured in the same incident and he has been sent for MLC is also not forthcoming. Further no documents have been produced to prove that Accused No.1 had taken treatment. Hence, the burden is on them to prove the same in view of the provisions of Section 103 of the Evidence Act as held by the Hon'ble Supreme Court in the case of STATE OF HARYANA vs. SHERSINGH (AIR 1981 SC 1021). He would further contend that evidence of PWs.1 to 5 with regard to assault by the accused Nos.1 and 3 on the deceased is consistent and it is not a fit case to modify the order of conviction and sentence against Accused Nos.1 and 3. He would further contend that under Ex.P8-mahazar, articles-MOs.1,
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CRL.A No. 694 of 20203, 5, 6, 7 and 8 were sent for FSL and human blood-stains were found on them. Therefore, he sought to dismiss the appeal.
11. 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 material documents carefully relied upon.
i) PW.1-Manjunatha has stated that accused No.1-Srinivas is his cousin, accused No.2 is uncle, other accused are the family members of the accused No.2, CW.5 Girijamma is his sister.
Sy.No.127 and 122 are the disputed properties and from the last 10 years there is civil disputes pending before civil Court and pertains to the said lands there was a quarrel between him and his uncle. His brother Chandrappa was looking after the Court proceedings. On 16.8.2015 at 5.45 p.m., accused were discussing to kill Chandrappa and at that time Chandrappa @
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CRL.A No. 694 of 2020Chandrashekar was going on road near the house of Muniyappa, accused No.1-Srinivas assaulted to his brother with sickle on the head and accused No.3 by snatching the sickle assaulted to the back and shoulder; his uncle, aunt and one Nagaraju were instigating them; then he and Shivakumar shifted his brother to Government hospital, Masthi and thereafter shifted to Malur and then to Jalappa hospital wherein he was declared as dead. The police came to hospital and taken the complaint as per Ex.P1. The police have conducted inquest and taken the photographs and then taken the clothes on the dead body. Thereafter police came to the spot for mahazar and collected the articles and seized the same. Then he was called to the police station wherein the blood- stained clothes of Ananda and Srinivasa were taken through mahazar as per Es.P8. He identified MOs 3 and 4 and also identified MOs
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CRL.A No. 694 of 2020to 8. On that day he was in the house upto 5.30 p.m., and he had been to the village at 5.45 p.m. He is not aware at what time his brother left the house, but he told that he is going to work, he is Jeep driver. He saw Shivakumar, Muniraju, Govindaraju at a distance of 100 meters. He saw accused Srinivas, Anand and his brother was coming on the road by walk. After the incident about 20 persons gathered. He went to the spot after his brother fell. When he went there already his brother had been assaulted. He took his brother and his clothes were bloodstained. The injured was immediately shifted to hospital. Accused Srinivas and Anand ran away towards their house and they have not tried to hold the accused. He denied that his brother is having the habit of consuming liquor. He denied that at the time of incident except Srinivas nobody were there and thereafter the other accused
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CRL.A No. 694 of 2020came and shifted Srinivas to hospital. He was there in the hospital till inquest and postmortem. They have shifted the dead body at 12 p.m., and went to village at 2.00 p.m., and completed the obsequies at 4-00 p.m. He himself had written the complaint. His family members were there. He told that Srinivas and Anand have assaulted his brother in the complaint. On the next day the police enquired.
ii) PW.2-Muniraju has stated that he knows Manjunath, Shivakumar and accused. On 16.8.2015 when Shivakumar, Govinda and himself were sitting near the Government school at 5.45 p.m., Chandrappa was going by walk, at that time accused Srinivas assaulted to the head of Chandrappa with sickle and Chandrappa fell. Thereafter, Ananda by taking the same sickle, assaulted to Chandrappa to the back, left hand and forehand and he sustained bleeding
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CRL.A No. 694 of 2020injuries. As they went to the spot the accused ran away. Thereafter, complainant came and they shifted Chandrappa to Masthi hospital and then to Malur and then to Jalappa hospital. At 8.30 p.m. Chandrappa died. On the next day he came to hospital at 7 a.m., The police have taken his signature to Ex.P9. He identified MO.9. According to him in view of the land dispute, this incident occurred. Accused Rathnamma and Nagaraj were abetting the other accused. He further stated that deceased is his cousin. When he went to spot, Chandrappa was on floor and nobody was there.
iii) PW.3-Shivakumar has deposed that PW2- Muniraju and Govinda were sitting near the Government School on the date of alleged incident and saw the accused persons assaulting the deceased Chandrappa. They went to the spot, but accused ran away.
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CRL.A No. 694 of 2020Thereafter, the complainant came and they shifted the deceased to hospital wherein Chandrappa was declared as dead. He has identified M.O.9. This witness has supported the case of the prosecution.
iv) PW.4-Girijamma has stated that complainant is her brother, Dodda Narasimhaiah is father, Chikkanarasimhaiah is uncle. She know accused. There is a property dispute from last 3-4 years between her father and the accused and there was a case before Malur Court. On Sunday at 5.30 p.m., when she was coming from shop of her uncle Muniyappa, she found that Srinivasa assaulted with sickle to the head of Chandrappa and Ananda by snatching that sickle assaulted to back, shoulder, hands and legs and accused ran away. Thereafter they shifted her brother to Masthi hospital and then to Malur hospital and then to Jalappa hospital.
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CRL.A No. 694 of 2020He died on the same day evening. She identified MO.9. She admits that her father and 2nd accused are brothers. She is not aware of the extent of land belongs to 2nd accused.
v) PW.5-Govindaraj has stated that he know complainant, deceased Chandrashekar and accused. Chikkanarasimhaiah and Doddanarasimhaiah are the brothers and there is property dispute between them and cases are pending before Court. Chandrashekar was the son of Dodda Narasimhappa. He, Muniraju, Shivakumar were sitting near Nagadenahalli Government school, at about 5.45 to 6-00 p.m., Chandrashekar was coming by walk infront of the house of Srinivas. The said Srinivas came from his backside and assaulted to his head with sickle and Anand by snatching the sickle assaulted to his left shoulder, hands and back. Immediately himself, Muniraju and Shivakumar
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CRL.A No. 694 of 2020went to the spot and the accused ran away. Then they shifted Chandrashekar to Masthi Government hospital and then to Malur hospital and then to Jalappa hospital and he died. He signed to inquest and he identified MO.9. He admits that he is relative of Chandrashekar.
vi) PW.6-Dodda Narasimhaiah has stated that deceased is his son and Gowramma is the wife. There is a property dispute between him and the accused. He went to the lands on Sunday and at 5.30 p.m., when he came back he came to know that the accused assaulted his son and he went to Jalappa hospital and found the dead body and there are injuries to head, left shoulder, back and hand. He identified the photos and the signature. He denied that his son was drunkard.
vii) PW.7-Venkatesha has stated that he know CW.1 and the accused. About 3 years back the
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CRL.A No. 694 of 2020police came near his house and he signed Ex.P7 and the police have seized MOs 1 & 2 from the spot. He identified Ex.P5 & 6 photos. Thereafter, the police have seized the clothes of Anand and Srinivas through mahazar Ex.P8. He came to know about the death of Chandrashekar on the same night and went to Jalapppa hospital.
viii) PW.8-Abbayyappa has stated that he know the deceased Chandrashekar who died about two years back. He went to see the dead body in Jalappa hospital. He is not aware of the injuries on the dead body and who is responsible for the death. He had given statement. He admits that he is the relative of the victim and accused. He admits that there is ill will between the father of the deceased and the accused. Nothing was written in the mahazar.
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CRL.A No. 694 of 2020
ix) PW.9-Krishnamurthy CHC has stated that on 17.5.2015 PSI Murali and himself were deputed to trace the accused and they got information that 3rd accused was in Malur railway station and they went and taken him to custody and produced before CPI. No memo was issued to PSI to take him, at that time PSI was the SHO. The PSI received intimation at 12.30 p.m., and they were coming from Malur. He is not aware that accused Srinivasa was in the hospital with grievous injuries. He denied that the other accused were looking after him in the station. He denied that the accused were taken from the hospital to the custody.
x) PW.10-Rajagopal JE, PWD, has stated that on 22.8.2015 he received intimation from CPI office to prepare the sketch and on 30.10.2015 he along with ASI Chandrashekar went to the spot and prepared rough sketch and thereafter by
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CRL.A No. 694 of 2020preparing the sketch he sent to CPI. He did not use the scale to prepare sketch. He admits that he cannot say the exact measurement. He denied that he prepared the sketch on the information of the police.
xi) P.W.11-Venkateshappa has stated that he know CWs1 to 10 and the accused. About 3 years back son of Doddanarasimhappa was murdered and the police came to the village and he shown the place of incident. Police prepared mahazar as per Ex.P7 and P8. He signed Ex.P8 at police station when the clothes of the deceased were seized. He identified MOs 3 to 8. He is not aware of the contents of Ex.P7 and P8.
xii) PW.12-Murthy has stated that he know Manjunath, Shivakumar, Muniraju, deceased and the accused. He signed Ex.P13 about 3 years back in the police station. He identified
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CRL.A No. 694 of 2020Ex.P14. In that photo it is visible that the accused was holding the sickle.
xiii) PW.13-Dr.Umesh Babu has stated that on 17.8.2015 when he was in the hospital at 11.15 a.m., Masthi police requested to conduct the post-mortem of one Chandrashekar and he conducted the post-mortem between 11.15 to 12.15 p.m., and found multiple cut lacerated injuries and fracture of skull and fissure. Further, he also certified that the deceased had sustained fracture of lower end of radius and ulna of left hand. According to him the death is due to multiple injuries sustained, which could be caused if a person is assaulted with sickle. He had not noted the age of the injuries. The Investigating Officer had not taken his opinion by showing MO.9.
xiv) PW.14-Shanthamma WPC has stated that on 17.8.2017 CPI had deputed him and
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CRL.A No. 694 of 2020Sudhakar with PSI Murali to trace the accused, they got information that accused No.5 Rathnamma was in SNR hospital compound and they took them to custody and produced before CPI. There is a distance of 15 kms., from Masthi station to CPI office. She reported to duty at
7.am., and PSI got information at 9 a.m., and taken them to Nagadenahalli and stayed upto 12 p.m., thereafter, came to SNR at 3.p.m, and taken Rathnamma to custody. They did not enquire as to why she was there. She denied that they called Rathnamma to the police station.
xv) PW.15-Sudhakar has stated that on 17.8.2015 he, PSI Murali and WHC Shanthamma were deputed to trace the accused and they went to Nagadenahalli and Masthi and after taking the information, they came to SNR hospital and secured 5th accused Rathnamma
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CRL.A No. 694 of 2020and produced before the CPI. On 18.8.2015 he and PSI, after getting the information went to Tekal railway station and arrested the 4th accused Nagaraj and produced before CPI. He and PSI have taken the accused to custody. xvi) CW.16-Venkatesh has stated that on 17.8.2015 at 9 a.m., CPI Malur instructed him to take the 1st accused to custody as he was inpatient in SNR hospital and he and PC Ramakrishnappa went to the hospital and the doctor discharged the patient at 12 p.m., and they produced him before CPI with report. CPI came at 8.45 to the station. They went in bus and directly came to SNR hospital at 12 p.m., they were there up to 12.30 p.m. They contacted the duty doctor, they went inside the ward. There were 3 sisters in the ward and they were there for 20 minutes. He does not remember as to the bandage put to Srinivas. He
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CRL.A No. 694 of 2020was aware that he sustained injuries and was an inpatient. They informed about the injuries to the higher officers. He denied that without getting proper treatment, they forcibly discharged Srinivas. He had not reported to the higher officers as to the reason for those injuries. Some relatives were with him in the hospital have taken him in the bus.
xvii) PW.17-Murali MN, PSI has stated that on 16.8.2015 at 7 p.m., he received MLC memo from Government hospital, Malur and later they came to now that the victim was shifted to Jalappa hospital. On the same day at 9 p.m., he visited the hospital and received the written complaint given by Manjunath and came back to the station and registered the case and submitted FIR. When he reached Jalappa Hospital, already Chandrappa was reported to be dead. On 17.8.2015 he and PC.527 have
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CRL.A No. 694 of 2020arrested accused No.3 Anand in Malur railway station and produced before CPI. On the same day they got information and himself, PC.478 and WHC 114 came to SNR hospital and took the 5th accused to custody. On 18.8.2015 they have taken 4th accused to custody in Tekal railway station and he identified the accused. He immediately visited the spot. He had no information about the injuries of 1st accused and the treatment given to him. He is not aware as to where the accused was admitted. He shown ignorance that 1st accused sustained injuries to the back of head, chin and there is fracture of one hand. He denied that in order to concoct the information he caused delay in sending the FIR. They have shown in the remand application about the injuries of 1st accused. At 10.30 a.m., they left the station and went to Malur railway station between 1.30 to 2 p.m., He came to Kolar and found the accused Rathnamma.
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CRL.A No. 694 of 2020xviii) PW.18-Shivakumar TM, CPI has stated that he took further investigation from PSI Murali on 17.8.2015 and deputed the staff to trace the accused. On the same day he recorded the further statement of Manjunath, he had stated that accused Chikka Narasimhaiah, Nagaraju and Rathnamma have instigated. He conducted inquest in the mortuary in the presence of Srinivas, Muniraju, Rajagopal. He recorded the statement of Dodda Narasimhaiah, Gowramma, Govindaraju and Abbayyappa. He sent requisition to the doctor through P.C.Kodandapani to conduct postmortem examination. He identified Ex.P2 to P4. Thereafter he went near the house of Venkateshappa at Nagadenahalli and he prepared mahazar in the presence of Venkateshappa and Venkatesh as per Ex.P7, at that time he seized MOs 1 and 2. He identified MOs 7 & 8. On the same day accused Anand
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CRL.A No. 694 of 2020was produced by PSI Murali and his staff, he recorded his voluntary statement wherein he has stated that he is going to show the place of incident and the place where the sickle was thrown. On 18.8.2015 he recorded the statement of Shivakumar, Muniraju, Govinda, Girijamma and PC Sudhakar. On 22.8.2015 he had given requisition to PWD requesting to prepare rough sketch, thereafter on 31.8.2015 he received postmortem report. He sent articles to RFSL and handed over further investigation to CPI Raghavendran and that, Raghavendran had filed charge sheet. On 18.8.2015 he arrested accused No.4 Nagaraj and produced before Court. It is not found in the investigation that Narasimhappa, Anand, Nagaraj were holding Chandrashekar and Srinivas assaulted with sickle. He came to know about the registration of the complaint at 11 p.m. He went to the hospital on the next day. He admits that immediately
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CRL.A No. 694 of 2020they have to submit the FIR to Magistrate. There is no such instructions to send the FIR immediately to the Court. He went to Jalappa hospital at 7 a.m., and he was there upto 10.30 a.m., He is not aware at what time body was shifted. He had no information up to what time the dead body was in the hospital. He did not enquire as to how he sustained injuries. He did not enquire about the antecedents of the deceased. He did not enquire about the cases registered against him. He denied that deceased Chandrashekar and his team, under the influence of alcohol, have assaulted the accused No.1 and thereafter they themselves quarreled and Chandrashekar sustained injuries and died. He admits that there are civil disputes between them.
xix) PW.19-Dr.Radha has stated that on 20.10.2015 nine sealed items were brought for
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CRL.A No. 694 of 2020examination, the same were received and bloodstains found on articles 3,6,7 and 8 and article 5 is not subjected for serology examination. She could not able to trace the blood group in Article No.1. She identified MOs 1 to 9. On 30.11.2015 the report sent to police. It is also deposed that sometimes mud will not respond to the test because of existence of micro organs. She did not identify the blood group of deceased since the police have not given the blood sample of deceased.
12. On the contrary, accused persons have examined DW.1 to DW3 as follows:
i) DW.1 who is Jail Superintendent, has deposed that accused Srinivas came on 17.8.2015. He was sent to SNR hospital on 22.8.2015 as he was having injury to hand and having pain. There are documents to show that he was treated since he sustained injury to right
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hand. The doctor had opined that he is abnormal and sent to further treatment. He is not aware that the injuries sustained to his hand was a fracture or not. The accused was normal with other jail-mates and he was taking food. As accused Srinivas told that he is having pain, he was sent to hospital, He did not found any bleeding injuries when he was referred to jail. Generally, if any inmate of the jail complains about ill health, they used to send to hospital, likewise they have sent accused Srinivas to hospital. There is no court order in that regard.
ii) DW.2-Dr.Balasundar has stated that on 16.8.2019 at 8.00 p.m., at SNR hospital, one Srinivas aged 26 years came with the history of assault by Chandrashekar and others and he told that he took treatment in Malur Government hospital and he was conscious at the time of examination and was responding
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CRL.A No. 694 of 2020well. Those injuries are simple in nature. There was no bleeding injury in the hand. There are no grievous injuries to the head and chin.
iii) DW.3, Dr. Naveen Kumar has stated that generally if any patient is suffering from nervous disorder they are sent to their hospital and if any injury to head also they were sent to their hospital. One Srinivas s/o Chikka Narasimhaiah came to their hospital and took treatment. There was serious injury to his occipital region which could be caused if a person assaulted with sharp-edged weapon and if a person assaulted with blunt edged weapon there is chances of fracture. He has produced the case sheet. He further stated that on 8.12.2017 he examined Srinivas. That injured was badly hit. He is unable to note the age of the injury. He was sent to know about the mental condition of Srinivas and when they
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CRL.A No. 694 of 2020examined he was mentally fit. He did not tell as to how the injury occurred. He had not given any certificate. He told that one Girijamma and Chandrashekar assaulted him with rod.
13. On careful perusal of Ex.P1-complaint by P.W.1- brother of the deceased and deposition of P.Ws.2 and 4, there was a land dispute before the Civil Court for more than ten years between the complainant and his uncle. A panchayath was also conducted. In spite of that, his uncle and his sons used to quarrel with the complainant and others. Therefore, there was an ill-will between accused persons and deceased. On 16.08.2015, when the deceased Chandrappa was walking in front of house of accused, they were hatching a plan to kill the deceased. When Chandrappa came near the house of accused, Accused No.1-Srinivasa assaulted on the head of Chandrappa with sickle and Accused No.3-Ananda assaulted on the shoulder and back of Chandrappa with the same sickle, thereby caused murder of Chandrappa.
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CRL.A No. 694 of 2020Accused No.2-Chikkanarasimhaiah, Accused No.4- Nagaraja and Accused No.5-Rathnamma abetted Accused Nos.1 and 3 in the commission of offence. Therefore, the jurisdictional police registered a case in Crime No.96/2015 on the basis of the complaint, for the offences punishable under Sections 143, 302, 114 read with Section 149 of IPC.
14. According to the learned counsel for the appellants, the prosecution suppressed the fact of injury sustained by Accused No.1 in the same incident even though deposition of P.Ws.1 and 3 supported the case of prosecution that Girijamma and Chandrappa assaulted Accused No.1 on his head and hand and he sustained injuries. P.W.4-Girijamma is the sister of the deceased and P.W.1-Manjunatha, who is the complainant. Though prosecution examined Griijamma, there was no cross- examination to the effect that Accused No.1 also sustained injuries in the same incident and no documents are produced to prove that the Accused No.1 has also
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CRL.A No. 694 of 2020taken treatment. Though learned counsel for the appellants submits that the jurisdictional police refused to receive complaint from Accused No.1, but there is no such proof to support his contention. Accused No.1- Srinivasa assaulted on the head of Chandrappa with sickle and Accused No.3-Ananda assaulted on the shoulder and back of Chandrappa with the same sickle, thereby caused murder of Chandrappa. But there is no proof for assault on Accused No.1. Though DWs.1 to 3 have been examined to prove that there was a quarrel between accused and the deceased, the same has been retaliated by Chandrappa. It is also not forthcoming MO.9-sickle was sent for FSL and human blood-stains are found on MO.9. There was a land dispute between accused and deceased since ten years, which is supported by the prosecution witnesses. It is further submitted that due to old vengeance and in sudden provocation, the incident has happened and there is no intention to eliminate the deceased. The material on record clearly depicts that out of sudden provocation, Accused Nos.1
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CRL.A No. 694 of 2020and 3 assaulted the deceased with MO.9-sickle. Thereby, it is a clear case which does not fall under Section 302 of IPC and falls under Exception 1 of Section 300 which reads as under:
Section 300: Murder:
xxx xxx xxx xxx Exception I - When culpable homicide is not murder.-- Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
15. A careful perusal of the said provision makes it clear that the incident has happened due to sudden provocation, which amounts to culpable homicide not amounting to murder. In the present case, Accused No.1 assaulted the deceased with MO.9-sickle and Accused No.3
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CRL.A No. 694 of 2020snatched the same sickle from Accused No.1 and assaulted the deceased. It was not a pre-planned murder. There is no proper evidence draw the conclusion that the case falls under Section 302 of IPC, but it falls under Exception 1 of Section 300 of IPC. In the statement recorded under Section 313 of Cr.P.C., they have taken a defence that Accused No.1 also got injured, but no such evidence is produced. Accused No.4 has deposed in his statement that due to the long pending land dispute between accused and deceased, the incident has happened.
16. Admittedly, the entire evidence of the prosecution witnesses and the complaint clearly depicts that the land dispute is still pending between the parties. Looking to the nature of injuries sustained by the deceased and circumstances enumerated, we come to the conclusion that the case comes under Section 304 Part I of IPC and not under Section 302 of IPC. Therefore, the conviction of the accused under Sections 143, 302 and 114 read with Section 149 of IPC is liable to be set aside.
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CRL.A No. 694 of 2020It is also not in dispute that the common charge was made against accused Nos.1 to 5, Accused Nos.2, 4 and 5 are acquitted by the judgment and order of acquittal dated 27.11.2019. Admittedly, the State has not filed any appeal against the said acquittal. Taking into consideration the age of the accused No.1 who was 26 years and the Accused No.3 who was 21 years at the time of commission of the offence and they have come from a rural back- ground and the State has not adduced any evidence against them that there is no chance of reformation and rehabilitation, the offence has to come under Section 304 Part 1 of IPC. The incident has occurred due to sudden provocation on the basis of land dispute between the accused and deceased. Admittedly, accused and deceased are relatives. The Hon'ble Supreme Court in STATE OF M.P. V. SURESH, (2019) 14 SCC 151 in Para Nos.13 and 14, has held as under:
13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be
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commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.
17. The Hon'ble Supreme Court while considering the provisions of Sections 235(2) and 465 of Cr.P.C., reported
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CRL.A No. 694 of 2020in SANTA SINGH vs. STATE OF PUNJAB (1976) 4 SCC 190 has held that:
XXXXXX XXXXXX A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances, extenuating or aggravating the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after
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conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence the new provision in Section 235(2).
18. Keeping in view the aforesaid principles and in the light of the mitigating circumstances, as the unfortunate incident occurred due to the long-standing land dispute between the accused and deceased who are relatives and not with an intention to eliminate the deceased, this case would attract the provisions of Section 304 Part I of IPC instead of Section 302 of IPC.
19. For the reasons stated above, the point raised in the present appeal has to be answered partly in the affirmative holding that that the impugned judgment of conviction and order of sentence passed by the Sessions Court calls for modification whereby the appellants/accused who are convicted for the offence punishable under Section 302 of IPC has to be modified and altered as one falling under Section 304 Part I of IPC and the appellants/accused shall be sentenced to undergo
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Rigorous Imprisonment for a period of TEN YEARS with a fine of Rs.1,00,000/- (i.e Rs.50,000/- each) and in default to pay fine, to undergo Simple Imprisonment for two years, in the peculiar facts and circumstances of the present case.
20. In view of the above, we pass the following order:
The impugned Judgment of
conviction and order of sentence
dated 26.11.2019 made in S.C.
No.6/2016 on the file of the II Addl. Sessions Judge at Kolar, convicting the appellants - accused Nos.1 and 3 for the offence punishable under Section 302 of IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs.25,000/-
each is hereby modified and the appellant/accused Nos.1 and 3 are convicted for the offence punishable under Section 304 Part I of IPC
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CRL.A No. 694 of 2020 and sentenced to undergo Rigorous Imprisonment for a period of TEN YEARS and to pay a fine of Rs.1,00,000/-(Rupees one lakh only) (i.e Rs.50,000/- each); in default of payment of fine, they shall undergo Simple Imprisonment for a period of two years.
The appellant - accused Nos.1 and 3 are entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
In exercise of the powers under Section 357(3) of the Code of
Criminal Procedure, we direct that if the fine amount of Rs.1,00,000/- is deposited, out of the said amount, a sum of Rs.50,000/- (Rupees fifty thousand only) shall be paid to father and mother of the deceased.
Further, if the deceased was married, Rs.50,000/- shall be paid to his wife and children. If the deceased was unmarried, the entire fine amount of
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CRL.A No. 694 of 2020Rs.1,00,000/- shall be paid to the parents of deceased.
Registry is directed to return the records of Sessions Court, forthwith. Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE BNV