Karnataka High Court
K.D.Benakashetty vs State Of Karnataka By on 25 April, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.1397 OF 2012
BETWEEN:
1. K.D.BENAKASHETTY
S/O VENKATASHETTY
AGED ABOUT 50 YEARS
AGRICULTURIST
2. K.V.RAVISHETTY
S/O VENKATASHETTY
AGED ABOUT 35 YEARS
AGRICULTURIST
3. UMESH SHETTY
S/O VENKATASHETTY
AGED ABOUT 40 YEARS
AGRICULTURIST
4. PAPU @ THIMMAPPASHETTY
S/O VENKATASHETTY
AGED ABOUT 36 YEARS
CARPENTER
5. UMESHRAJ URS
S/O KARIRAJU URS
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AGED ABOUT 35 YEARS
AGRICULTURIST
ALL ARE RESIDENTS AT
KARTHIKERE VILLAGE
KASABA HOBLI
CHIKMAGALURU TALUK
CHIKMAGALURU DISTRICT. ...APPELLANTS
(BY SRI HASHMATH PASHA, ADV.)
AND:
STATE OF KARNATAKA BY
CHIKMAGALURU RURAL POLICE
(REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA) ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRL.APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET THE JUDGMENT AND ORDER OF
CONVICTION DATED 03.08.2012 PASSED BY THE PRL.S.J.,
CHIKMAGALUR IN S.C.NO.7/2011 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 144,
147, 148, 341, 302, 307 AND 324 R/W SEC. 149 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, BUDIHAL R.B. J., DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal is preferred by the appellants-accused Nos. 1 to 5 being aggrieved by the judgment and order of conviction and sentence dated 08.08.2012 passed by the Principal District and Sessions Judge, Chikkamagaluru in S.C.No.7/2011 under which the appellants herein were convicted for the offences punishable under sections 143, 144, 147, 148, 341, 302, 307, 324 r/w 149 of I.P.C.
2. Brief facts of the prosecution case before the Police by way of complaint under Ex.P.1 are:
P.W.1 Lakshmikantharaju lodged a complaint as per Ex.P.1 wherein, he has stated that he is residing in the address mentioned in the complaint and he is doing hamali work. On 8.10.2010 at morning 9.15 a.m. in order to bring the water he went to the borewell which is on the Belur road, at the same time his elder brother Jaganatha raj Urs and his wife Hemavathi were 4 proceeding on the tar road in order to go to the land and near the house of Venkatashetty accused Nos.1, 2, 3, 4 and 5 after seeing Jaganatha raj Urs and his wife Hemavathi all of a sudden holding the deadly weapons namely Katti and club in their hands abusing them in a filthy language that they have also come for the galata, so saying accused No.1 assaulted Jaganatha raj Urs with the Katti and others also started assaulting him with katti and club seeing the same immediately he went to pacify the quarrel at that time accused No.1 also assaulted him on the left palm portion. In the meanwhile, the people gathered at the spot and by the time the injured Jaganatha raj Urs who collapsed was shifted and before he was brought near by house he expired because of heavy bleeding. Thereafter wards they took the injured complainant in the motor bike belonging to one Chandrashekar to M.G. Hospital, Chikkamagaluru and got admitted there. In this regard, in the month of April quarrel took place in between accused persons and 5 Jaganatha raj Urs at the time of village jatra and even Police complaint was also filed and the case is pending in the Court.
From that time accused persons were having enmity towards them and on the date of the incident in the morning near ABC Coffee Curing company, Chikkamagaluru city accused No.2 Ravishetty assaulted Yogesh and in that connection his sister and brother-in- law went and asked and because of that reason the accused persons having enmity and assaulted him with katti and when he went to pacify the quarrel they assaulted him also with an intention to commit his murder. Therefore he requested to take legal action against the accused persons and in the said galata his brother-in-law Lingaraju also sustained injuries.
3. On the basis of the said complaint, case came to be registered in Crime No.410/2010 for the offences 6 punishable under sections 143, 144, 147, 148, 341, 302, 307, 324 r/w 149 of I.P.C.
4. After conducting investigation, I.O. filed charge sheet against all the accused persons i.e., accused Nos.1 to 5 for the offences punishable under sections 143, 144, 147, 148, 341, 302, 307, 324 r/w 149 of I.P.C.
5. After hearing both sides, the Court framed the charges against accused Nos.1 to 5 and when the charges were read over and explained they denied the charges against them and claimed to be tried in the matter. Accordingly the matter was posted for trial.
6. Prosecution in support of its case in all examined 22 witnesses as P.W.1 to P.W.22 and got marked the documents Exs.P.1 to P.26 so also got marked material objects M.O.1 to M.O.16. Then the accused persons were examined under Section 313 Cr.P.C and their statements came to be recorded. On the side of the 7 defence, one witness has been examined as D.W.1 who is the wife of accused No.2 and Ex.D.1 was got marked during the course of examination of P.W.3.
7. After hearing the arguments on both sides and also considering the materials placed on record both oral and documentary evidence ultimately, trail court held that the prosecution has proved its case beyond all reasonable doubts holding accused No.1 to 5 as guilty for the said offences and accordingly they were sentenced.
8. Being aggrieved by the judgment and order of conviction and sentence passed by the Court below so also challenging the legality and correctness of the said judgment and order of conviction and sentence passed by the Court below on the ground as mentioned at grounds No.6 to 14 of the appeal memorandum, the appellants are before this Court.
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9. We have heard the arguments of the learned counsel appearing for appellants-accused No.1 to 5 and also learned Addl. S.P.P. for the respondent-State.
10. Learned counsel for the appellants submits that looking to the prosecution materials, the prosecution has not proved its case beyond all reasonable doubts of any of the offences but even then the learned Sessions Judge wrongly held that all these offences have been proved by the prosecution beyond all reasonable doubts. He submits that as per the complaint averments and other materials produced by the prosecution in the case, the place of the offence is in front of the house of accused No.1 which goes to show that it is the deceased and his wife along with others came to the house of the accused No.1 in order to enquire about the alleged assault made by the accused No.2 on P.W.6 which clearly goes to show that the incident took place in front of the house of accused No.1 which is also deposed by the Investigating Officer in 9 his evidence and there is no other place of offence. Even though the prosecution has placed the material that blood stains have been spotted on different places but it is his contention that only on that ground it cannot be said that there is another place of offence shown by the prosecution.
He further submits that even the accused persons have sustained injuries and they have been treated in the hospital by the doctor and the doctor has issued injury certificates as per Ex.P.8 and Ex.P.9. In this connection the learned counsel submits that it is one of exercising right of private defence the accused persons even after the alleged previous incident, should have committed the alleged offence, but, it is to protect their persons when the deceased along with other persons came to the house of accused No.1 and at that time only the wife of the accused No.1 was present in the house. Hence, he submits that looking to the cross examination of the defence and answer given by the prosecution witnesses also goes to 10 show that there was a case and counter case even if the complaint is not filed by the defence about the assault made on them but only because of that reasons the material brought on record cannot be ignored by the Court which goes to show that it is the injured deceased and other persons on the side of the complainant, in fact tried to assault the accused persons and accused persons have not at all committed the alleged offence by assaulting either the deceased or injured persons.
He also made submission that so far as common object is concerned, prosecution has failed to place satisfactory material. It is his contention that accused No.3 and 4 have not at all holding any weapons and not at all participated in the alleged act of assaulting the deceased as well as the injured persons and the material also goes to show that accused No.2 was not present even according to the prosecution and also averments made in the complaint. Therefore it is his contention that in view of these materials placed on record it cannot be inferred 11 that all the accused persons having common object of eliminating the deceased Jaganath raj Urs and to assault other injured persons in the said case. He also made submission referring to the decision that he has proved in support of his contention when the deceased along with the injured and other persons came to the house of accused No.1 there are no steps they kept mum and even if there is any fight that took place between the two it cannot be said that accused were having any intention to commit the murder of Jaganatha raj Urs and the incident took place in the sudden fight and both sides were injured. Therefore, he submits that the ingredient of Section 302 of I.P.C. will not attract in this case, at the most the case may fall under section 304 (b) of I.P.C. Referring to material recorded in the case also submits that the deceased person sustained the injury to the palm portion and the 3rd injury is on the thigh portion. Therefore the injuries on the deceased persons are not on the vital parts of the body. The doctor who has been 12 examined and who has conducted autopsy over the dead body has opined in his evidence and not specifically stated that the injury itself is sufficient in the ordinary course of nature to cause of death of a person. Therefore unless and until shows the manner in which the said injury is caused is sufficient in the ordinary course of nature to cause the death, it cannot be said that offence under Section 302 of IPC is proved. Even for that also learned counsel made submission that the offence cannot fall under Section 302 of I.P.C. He also referred to the injury certificates Ex.P.8 and Ex.P.9 and made submission that though the said accused persons sustained even other injuries also but they were not explained. It is contended that the prosecution was not able to explain how the injures have been sustained to two accused persons which also clearly goes to show that the prosecution has not come up with clean hands before the court and it has suppressed the material facts in the case. Hence he submits that in the defence, the accused persons were 13 able to make out a case that it is when the deceased as well as injured persons have come to assault the accused persons in that process the deceased and the injured might have sustained injuries and not by the assault made by any of the accused persons. It is also his submission that so far as the recovery aspect, the material object katti seized which is said to have been held by accused No.1 and that there are blood stains said to be present on the weapon Katti but looking to the Serology report the blood grouping on the said weapon used for offence is not at all ascertained even by the Laboratory.
Learned counsel also submits that the recovery is from the house of accused No.1 it is the case of the prosecution that all the three accused persons went in side the house and having took out the weapons i.e., accused No.1 took out katti, accused No.2 Sickle and accused No.5 cricket bat and produced before the Investigating Officer. He further submits that accused No.5 is having house at different places and from which 14 house he took up the cricket bat before the I.O. is not in the house belongs to him but it is the house belongs to accused No.1. Hence he made submission that even recovery is also not believable. The investigating Officer has also not given his evidence narrating what the submission is made by each of the accused persons before him in connection with the production of the weapons are concerned. Hence he submits that recovery has not been properly established by the prosecution with acceptable material. Learned counsel further made submission that the deceased injured and other witness belonging to one community and because of the community clashes also they come to accused No.1 and they themselves took up the quarrel and they are responsible for the cause of the incident as such. They are the aggressors in the said incident, the accused just defended in the assault said to have been made by the deceased as well as the injured on the accused persons. Therefore, the accused persons are not at all aggressors and they are not responsible for the 15 initiation of the said incident. These aspects were not properly appreciated by the learned Sessions Judge and he has not read the evidence properly and wrongly comes to the conclusion that prosecution is able to establish its case with the worth believable material. Hence submitted that there is illegality committed by the learned Sessions Judge in coming to such conclusion. It is also his submission that so far as accused No. 2 is concerned he was not at all present at the spot of the alleged incident. In that connection the evidence of D.W.1 who is the wife of the accused No.2 also clearly goes to show at the time of the incident he was not present at the spot he was working with Narayana in spite of that, even detailed report/statement is filed along with the 313 statement of Cr.P.C. All these material were ignored by the learned Sessions Judge and he has wrongly convicted the appellant accused No.2 for the said offence. Hence the counsel made submission that appeal be allowed, impugned judgment and order of conviction passed by the 16 Court below be set aside by acquitting the appellants- accused persons from the charges leveled against them.
Learned counsel also further made submission that in case, if the court comes to the conclusion that the accused persons were present and they have committed the offence in that case also the offence is at the most will be under Section 304 (2) of I.P.C. and not under section 302 of I.P.C. In support of his contention he relies upon the decision filed along with the memo of authorities. Totally he has produced 12 decisions and he has referred to the relevant paragraph in the said decisions while arguing the matter.
11. Per contra, learned Additional S.P.P. made submission that contention of the other side that the place of offence is in front of the house of accused No.1 is not only the spot in this case, in this connection he draws our attention to the inquest proceedings wherein also the two places have been shown one in front of the house of the 17 accused No.1 and another near by borewell i.e., in front of the house of Manjunatha in this connection also he draws our attention to the oral evidence of the prosecution witnesses and referring to the material also he made submission that he also draw our attention to the spot mahazar wherein also two places have been shown as place of offence. Hence he submits that the place of offence are two and even third place is also mentioned where the dead body of the deceased Jaganatha raj Urs was kept immediately after the incident before taking the dead body to the hospital. Hence he submitted that the prosecution material clearly goes to show regarding the place of the offence.
He further refers to the oral evidence of prosecution witnesses and made submission that the evidence of the complainant P.W.1 which goes to show that he was collecting water from the borewell and at that time he heard the screaming noise and saw accused person chasing the deceased and his wife who were proceeding to 18 the land and after seeing the same he went to pacify the quarrel and in this connection he submits that the evidence of P.W.1 and Lingaraju goes to show the accused caused the injuries. It is his submission that though it is contented by the other side that accused No.2 Ravi Shetty was not at all present at the spot in this connection also he refers to the evidence of the prosecution witnesses and made submission that all have deposed on oath about the presence of accused No.2 also and it is his submission that they all were waiting for accused No.2 and as soon as accused No.2 arrived at the spot they all started to assault the deceased and also the complainant and the other injured persons. Regarding the place of offence, the presence of accused No.2 is concerned he made submission that firstly the prosecution witnesses have deposed about his presence at the spot and having examined D.W.1 wife of accused No.2 that all the accused have entered into the house to discuss about the said fact. Hence it is his contention that prosecution has 19 established the fact with acceptable materials. Therefore the said contention is rightly rejected by the Court below.
Regarding the common object is concerned, the learned Addl. S.P.P. referring to the prosecution material submits that accused Nos.1, 2 and 5 were armed with deadly weapons and even with regard to accused No.3 and 4 are concerned the evidence of the prosecution witnesses clearly goes to show that they have actually participated in the incident by holding the deceased. Therefore, he submits that the acts done by the accused persons clearly goes to show that they all having the common object of eliminating the deceased Jaganatha raj Urs. Hence it is his contention that they have such common object.
He also refers to the medical evidence of doctor who conducted autopsy over the dead body and referring his evidence he submits that death is caused due to the injuries sustained and the third injury is very serious in nature the doctor also deposed in his evidence that because of the said injury death is taken place. He refers 20 to the doctor's evidence and submits that the doctor denied the suggestion made to the witnesses that all the three injuries will be sustained in one blow. Therefore he submitted that there is an assault made by all the three accused persons with the deadly weapons with regard to the injuries said to have been sustained and referring to the medical certificates under Ex.P.8 and Ex.P.9 he made submission it is not the case of the defence in the cross examination or in evidence of D.W.1 that deceased and injured were possessing any of the weapons in their hands and with such weapons they have assaulted the accused persons. He also refers to the oral evidence of P.W.15, the doctor who examined the injured accused 3 and 5 and he made submission that doctor deposed that the injured themselves gave the history that they have sustained the said injuries when they were assaulting Jaganatha raj Urs. Hence he submits that this evidence of injured themselves clearly goes to show that they were having the intention to eliminating the deceased by assaulting the 21 deceased. With regard to the right of private defence theory is concerned the learned Addl. S.P.P also made submission that having not placed any such material and it is also not their case that they are ready to accept that they have caused injuries to the deceased as well as the injured persons. He further submits that looking to the cross examination of the witnesses they denied that whether they were possessing any weapons. Therefore he made submission that claiming right of defence arises only after, if they accept that they have caused the injures and under what circumstances they have caused such injuries they denied the injuries. The case of the prosecution claiming the right of defence does not arise at all. Hence he made submission that looking to the oral evidence of the prosecution witnesses the post mortem report and injury certificates issued by the doctor and also FSL report and serology report the prosecution has established all the charges against the accused persons about the injury in committing the alleged offence. Hence he lastly submits 22 that the learned Sessions Judge taken all these aspects into consideration and rightly appreciated the entire materials. There is no illegality committed in the judgment and order of conviction passed by the Court below. No grounds for this court to interfere into the judgment of the Court below and hence he submits to dismiss the appeal.
12. We have perused the grounds urged in the appeal memorandum, impugned judgment and order of conviction passed by the Court below, oral evidence of P.W.1 to P.W.22, documents Exs.P.1 to P.26 so also oral evidence of D.W.1 and document Ex.D.1 on the side of the defence. We have also perused the written statement of the accused persons produced along with statement under Section 313 of Cr.P.C. also the decision relied upon by the learned counsel for the appellants which are referred above and also considered the oral submission made by both sides at the bar.
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13. Let us examine the materials placed on record by the prosecution whether the material is sufficient to establish the charges against all accused persons as contended by the learned Addl.S.P.P., that P.W.1 Lakshmikantharaju who is the complainant in this case, so far as the contents of the complaint Ex.P.1 which we have already made detailed reference to the complaint and looking to the oral evidence of P.W.1 who deposed in his evidence in examination-in-chief that about one year nine days back deceased Jagannath Raj Urs died due to murder. He was working as Hamali (coolie). On 08.10.2010 at about 9 or 9.10 a.m. he was bringing water from the borewell which is in front of house of accused No.1-Benaka Shetty he saw deceased and C.W.3 going towards the land. Deceased Jagannatha Raj Urs came back with the injuries on his left hand with ring finger cut and middle finger was also cut and hanging. He also heard the screaming voice of C.W.3. By keeping the pot 24 on the ground he rushed towards accused No.3 Umesha Shetty, accused No.4 Papu @ Thimma Shetty caught hold of the trunk. At that time accused No.1 assaulted him with Katti on his neck and when he tried to avoid and brought his left hand and the said blow hit him to his left palm and he sustained injuries. After sustaining injuries deceased Jagannath Raj Urs run away towards Manju Shetty's house and he followed him. In front of Manju Shetty's house accused No.2/Ravi Shetty, accused No.5/ Umesh Raj obstructed the deceased. Then accused No.5/Umesh Raj assaulted with bat on his back. Immediately he fell down facing towards the sky by raising his hands up. The deceased was telling not to assault him. At that time accused No.2 Ravi Shetty assaulted with sickle on right thigh of the deceased and caused the injuries. By hearing the same, C.W.5/Ramesh Raj came running from the house, C.W.12/Srinivas Raj Urs also came running from the land. By seeing the same accused persons ran away towards their house by holding the 25 weapons. C.W.5 tied the injury on the thigh with his white lungi and intended to bring him to the house of C.W.4. On the way due to the injuries Jagannatha Raj Urs died on the road and they kept the dead body there itself. Since he also sustained injuries C.W.15 took him to the Government Hospital on a bike. C.W.2 also sustained injuries in the said galata and he was also taken to the hospital by his son. When he was in the hospital at about 10 or 10.30 a.m. Police came and recorded his statement Ex.P.1 and he also identified his signature on the said statement. Since the doctor told that he cannot be treated there he along with C.W.15 went to Wenlock Hospital, Mangalore and he was there as inpatient for 45 days. He further deposed that after discharge he also there for another 20 days in the room of his relatives for the purpose of treatment. After coming back Police made enquiry with him that he can identify the weapons with which accused persons have assaulted on that day and he identified M.O.1 to M.O.3. He further deposed that there 26 was some galata about 1 ½ years back in the Durgamma Devi Jatra between accused No.1 to accused No.4 and C.W. 14 Vinaya Raj Urs and the accused persons having vengeance against his family on the ground that they are not supporting the accused persons.
In the cross-examination, this witness deposed that the house of P.W.2 is adjacent to his house and he admitted the suggestion, in order to go to the house of accused No.1, they have to go towards Belur road. From his house, the house of accused No.1 is at the distance of 1 and ½ furlong. If any person stands in front of his house and see the house of accused No.1 will not be visible. In the galata that took place at Durgamba Devi Jatra, they have not supported either the accused persons or C.W.14. He also admitted the suggestion as true in the said village that there are more number of persons belonging to his community and there are 25 to 30 house of the community of the accused persons. He admitted the suggestion as true that there are more number of 27 persons belonging to his community. In the election the persons on the side of the accused were succeeded. He admitted the suggestion as true that in front of his house near Panchayath Office there is borewell. When the incident took place he was present near the borewell and pressing the handle of the borewell and at that time he did not observe whether there was deceased Jaganatha raj Urs and P.W.3 were present at the said place or not. He admitted the suggestion that in front of the borewell there is the house of accused. He admitted the next suggestion as true that if any persons stand in front of the said borewell, the house of accused No.1 is visible. When P.W.3 screamed except P.W.2 to P.W.4 no other persons were present there. He deposed that he has not seen any other things before his brother and P.W.3 coming to the said place. He cannot say that, the persons gathered at the said place belong to which community. When P.W.3 screamed, at that time his brother and P.W.3 were running towards his house. When his brother fell on the 28 ground, P.W.3 was at some distance in front of the house of Manju Shetty's house. When Ravi Shetty-accused No.2 assaulted the deceased with the sickle at that time he was near by the borewell. The place of the incident is at the distance of 15 feet from the said borewell. When he saw, C.W.5 Ramesh Raj was running near by the school. Immediately after the incident he wanted to shift the Jaganatha Raj Urs to the hospital but he expired. He denied the suggestion that in connection with accused No.2 assaulting C.W.6 they all went in front of the house of accused No.1 with the community people and they were making galata, the said suggestion was denied by the witness. He denied the suggestion that in order to make galata holding weapons they collected in front of the house of accused No.1. He further deposed that, he did not know whether accused Nos.3 and 5 sustained injuries in the said galata. But he voluntarily deposed that after making galata when they were running at that time they might have sustained abrasion injuries. He denied the 29 suggestion that when the incident took place accused No.2 was not present in the village. He denied the suggestion that there was no necessity of water to him on that day and falsely he is deposing that he went to the borewell to collect the water.
14. Coming to the evidence of P.W.2 Lingaraju, he deposed in his examination-in-chief that about 1 ½ years back during Durgamma Devi Jatra there was galata between accused No.1 and accused No.4 and C.W. 14 Vinaya Raj Urs. Accused persons requested to support them. As they did not support there was some ill-will between the accused and themselves. Deceased Jagannatha Raj Urs died due to murder by the accused. Five days prior to 08.10.2010 when his Son C.W.6 Yogeshraj was waiting for the bus at Belur circle bus shelter at about 10.30 p.m. accused No.1 Benaka Shetty and another Venkatesh were coming on a motorbike by seeing P.W.6 near the bus stop they stopped their 30 motorbike and accused No.1 got down and slapped him for having not supported in the galata held in Durgamma Devi Jatra. When himself and his wife C.W.4 were waiting for arrival of accused No.1 and Venkatesh after some time both came on motor bike and they told that his son has been operated and told that he has not committed anything and why they are assaulting him and telling that they have not assaulted they went on a motorbike. On the day of incident at about 8 or 8.15 a.m. C.W.6 left for his work to ABC company and at about 8.45 a.m.C.W.6 informed over the phone that accused No.2 Ravi Shetty has assaulted him near ABC company gate and he is going to hospital as he has been assaulted with knife on his right hand and back. Within 5-10 minutes in order to ask why they have assaulted C.W.6, himself and his wife C.W.4 went to the house of accused No.1 Benaka Shetty. At that time, accused Nos. 1, 3, 4 and 5 were there and they went and asked why their son C.W.6 has been assaulted. By that time accused No.2 Ravi Shetty also 31 came there on a motor bike. Accused No.1 by telling that they have come to ask about the assault committed to C.W.6, accused No.1 caught hold of the color of his shirt and accused No.2 Ravi Shetty pushed C.W.4 his wife and she fell down from the katta and by that time accused No.1 Benaka Shetty brought a bat and assaulted him on the back side of the waist with the said bat. He fell down at that time accused No.2 Ravi Shetty wanted to put a stone on his head but C.W.4 rescued him from putting the stone by accused No.2. By that time he lost his consciousness and regained his consciousness after 5 or 10 minutes. His wife C.W.4 was also sitting there. He identified the material object M.O.3 bat.
In the cross examination, he deposed that he admitted the suggestion that accused No.5 is of his community. When he went to the house of accused persons, accused Nos.1, 3 to 5 they were standing on the katte in front of the house. Before coming to the house of the accused person, he has not seen P.W.1. Immediately 32 after coming to the house of accused No.1 he asked why they have assaulted C.W.6. He further deposed that after arrival of accused No.2 Ravi Shetty within two minutes the incident took place. He denied the suggestion that in connection with the assault on C.W.6 by accused No.2 near by ABC Company they all together went near by house of accused No.1 and they were making galata, witness denied the said suggestion. But he admitted the suggestion as true that in the Durgamma Devi Jatra when the galata took place and in connection with the injuries sustained to the head of the accused No.1 there was case registered on the people of his community, witness admitted the said suggestion. He denied the suggestion on the date of the incident people of his community with an intention of committing the murder of accused persons went and gathered in front of the house of the accused. Witness denied the further suggestion that while going to the house of the accused they were holding deadly weapons like Katti and other weapons. He denied the 33 suggestion that while they were making such galata the accused persons came from the land property and went inside his house. He denied the suggestion that in the said galata accused No.3 Umesh Shetty and accused No.5 Umesh Raj also sustained injuries. He denied the further suggestion that P.W.1 and deceased Jaganatha Raj Urs by making galata put the size stone on the leg of accused No.5 and caused injuries.
15. Looking to the evidence of P.W.3 Hemavathi who is the wife of deceased deposed in her evidence in examination-in-chief that on 08.10.2010 C.W.12 Srinivas Raj Urs had been to land by taking the fertilizer. She and deceased were proceeding to the land at about 9 or 9.15 a.m to go to the land. P.W.1 was near the borewell, filling the pot to bring the water. When they were so proceeding they saw P.W.2 fallen on the ground and C.W.4 Premavathi was making hue and cry in front of the house of accused No.1. By seeing the same they proceeded 34 towards Belur to go to their land. At that time accused No.1 to accused No.5 came and obstructed them. Accused persons by abusing "¸ÀƼɪÀÄPÀ̼ÉÃ, UÀ¯ÁmÉUÉ ¤ÃªÀÇ §A¢¢ÝÃgÁ?" By telling so accused No.1 tried to assault with katti which was in his hand to the deceased Jagannath Raj Urs, when he put his left hand to save himself the ring finger chopped and the middle finger of the left hand was cut and was hanging. At that time accused No.2 was holding sickle and accused No.5-umesh Raj was holding bat. By seeing the same P.W.1 came there. When P.W.1 came there, accused No.3 Umesh Shetty and accused No.4- Papu shetty by saying "¤Ã£ÀÄ §A¢AiÉÄãÉÆÃ?" caught hold of the trunk of P.W.1, at that time accused No.1 tried to chop the neck of P.W.1. At that time P.W.1 brought his left hand for his rescue. The said assault of Katti caused injury to his palm. Due to the injuries deceased Jaganatha Raj Urs by telling that he has not committed anything ran towards his house. Near the house of Manjunath accused No.2 Ravi Shetty and accused No.5 Umesh Raj Urs came 35 and obstructed the deceased, accused No.5 Umesh Raj Urs assaulted on the back of the deceased with bat. As a result of the same he fell down facing towards sky. Deceased was telling not to assault. At that time accused No.2 Ravi Shetty came and assaulted with sickle on the right side of the thigh of the deceased. By that time C.W.12 came from the side of the land, C.W.5 Ramesh Raj Urs came from the side of the house. By that time accused No.1 by holding katti, accused No.2 by holding sickle, accused No.5 by holding the bat with the remaining accused persons went towards their house. C.W.12 by removing his white panche tied to the thigh where the injury has been caused. She further deposed that 1 ½ years prior to the incident there was some galata between accused and C.W.14, accused persons requested her deceased husband to support them, but the deceased told that he will not come out of the community to support them. She identified the weapons M.O.1 to 3 held by accused Nos. 1, 2 and 5. She also identified the clothes of 36 the deceased that M.Os.1 to 7 and also identified blood stained towel M.O.8 and blood stained white lungi of C.W.12 M.O.9. The sacred thread/Janivara M.O.10 In the cross examination, she deposed that her land is near by the Chandala Katte tank. In order to go to the land property and to reach the right side of their house is a shortest route. Witness admitted the suggestion that if they go in front of the house of the accused to their land at Chandala Katte it is little far away. Witness admitted the suggestion in order to go to their land they were using the route from the right side of their house. Witness denied the suggestion at the instance of the Police she deposed that, on the date of the incident they were going to the Chandala Katte land by passing in front of the house of the accused. Generally after having the breakfast or meals they will go to the land and on the date of the incident after having food they were going from their house. At the time of the assault on her husband she was very close to him and P.W.1 also came running and within 37 five minutes of the said assault he expired. She admitted the suggestion that the accused No.5 is her relative and admitted the further suggestion that accused No.5 is her relative but he is friendly with other accused persons. Witness denied the suggestion that accused Nos.3 and 4 came to the place of the galata and made an attempt to prevent the same and at that time deceased Jaganatha Raj Urs took one size stone and made an attempt to put on accused No.5, accused No.5 when tried to escape, it fell on the leg and there was injury. Witness denied the further suggestion that if they did not go in front of the house of the accused the said incident would not have taken place. Herself, deceased Jaganatha Raj Urs and P.W.2 and 4 when screamed at that time P.W.1 collected the water from the bore well and accused 2 and 5 chased her husband and accused No.5 with the bat, accused No.2 with the sickle assaulted him. She denied the suggestion that she is falsely deposing about the same. She denied the suggestion that she is falsely deposing the accused 38 No.1 assaulted her husband with mattchu on the left palm portion and at the same time C.W.5 and C.W.12 came running to the said place. She denied the suggestion when the incident took place accused No.2 Ravi Shetty was not in the Village. She denied further suggestion that her husband Jagannath Raj Urs sustained injuries to his leg when he was in front of the house of accused No.1.
16. P.W.4 has deposed in her evidence that she knows accused Nos.1 to 5. P.W.2 is her husband. Six days earlier to this incident, her son Yogeshraju (P.W.6), after attending the work at ABC company and in order to come to house, was waiting at Belur Bus stop and night at 10.00 o' clock, accused No.1 and another Venkatesh came on the motor cycle. For the reason that in respect of the earlier incident, P.W.6 has not supported them, they assaulted him with hands and they also kicked him. After coming to house, P.W.6 informed her about the assault on him. She and P.W.2 in order to enquire accused No.1, 39 came on the road. Within short time, accused No.1 came on the motor cycle to the said place and when enquired, he told that he has not assaulted P.W.6. on 8.10.2010 at 8.00 a.m. or 8.15 a.m. C.W.6 went to attend the work at ABC Company. Within short time, her daughter-in-law received phone call informing that accused No.2 came on the motor cycle and assaulted C.W.6 near the gate of ABC Company with knife and caused injury on the right hand and also on the back portion. After coming to know about the said information, herself and P.W.2 went nearby the house of accused No.1 in order to ask about the same. At that time, Benaka Shetty (accused No.1), Umesh Shetty (accused No.3), Papu (accused No.4) and Umesh Raju (accused No.5) were present there. She and P.W.2 told accused No.1 that he has stated that he has not assaulted, but accused No.2 on that day assaulted C.W.6 on his cheeks and he has caused injury with knife. At that time, Ravi Shetty (accused No.2) stating that they have come nearby the said place, Benaka Shetty (accused 40 No.1) caught hold the color of the shirt of P.W.2 and pushed him. Benaka Shetty (accused No.1) assaulted on the left side waist portion of P.W.2 with bat. P.W.2 fell on the ground. Accused No.2 tried to throw stone on P.W.2. At that time, she screamed. P.W.1 was collecting water near the borewell. At that time, deceased Jagannathraj Urs and P.W.3 were proceeding at the said place. After hearing her scream, they came towards her. At that time, accused No.1 was holding the katthi. He assaulted on the left hand of deceased Jagannathraj Urs and his little finger was cut. Even the middle finger was also cut. The other accused persons also came to the said place. After hearing the screaming noise of the deceased Jagannathraj Urs, P.W.1 also came to the said place. Accused Nos.3 and 4 caught hold P.W.1 tightly. Accused No.1 said that he had also come abusing him in filthy language. Stating that he will finish him also, hit katthi towards the neck of P.W.1. P.W.1 brought the left hand to prevent same, but sustained injuries towards left hand with the said katthi. 41 Jagannathraj Urs asked as to why they are doing so against them and when Jagannathraj Urs was running nearby the house of Manjunath Shetty, the accused stopped him stating that he wanted to escape. Umeshraj Urs (accused No.5) assaulted on the back portion of the deceased. Then he fell down on the ground in a Supine position and then he was requesting not to assault him. Accused No.2 assaulted Jagannathraj Urs with sickle on the right thigh. CW12 was also coming to the said place from Belur Gadde and CW5 was also coming from the village. After seeing them, the accused persons ran away towards their house holding Katthi, sickle and Bat. At that time, her husband was unconscious. After regaining consciousness, he asked as to what has happened. They explained to him about incident. Then CW8, Manjunath took PW2 on the motor cycle to the Hospital. CW15 took PW1 to the hospital. Many people gathered on the spot. She has deposed that she can identify the weapons used 42 by accused No.1 to assault her husband. MO3 is the bat. Accused No.1 assaulted with MO1.
In the cross examination, PW4 has deposed that after assaulting Jagannathraj Urs and before running away, accused No.2-Ravi Shetty went inside the house. At that time, the deceased Jagannathraj Urs sustained injury to his hand and he was on the road. The deceased was at that place for about 5 minutes after he sustained blows. When they were on the road, P.W.1 Lakshmikanth Urs came from the side of the borewell to the spot. When they went to the house of the accused to enquire about the incident, at that time, there were no weapons in the hands of the accused. She denied the suggestion that galata was going on in between accused Nos.3 and 5 and their community people came there and told them not to make galata. The witness denied further suggestion that they went to the said place for making galata holding weapons in their hands. She denied further suggestion that in the push and pull at the said place, they sustained injuries 43 with the said weapons. CW14 Vinay Raj Urs is her relative. They have not supported anybody in the galata that took place in Durgamba Jatra. She denied the suggestion that she has not stated before police in her statement that, at the same time, accused No.1 was asking whether he has also come abusing as "¸ÀƼɪÀÄUÀ£É" and that they are going to eliminate them. The witness denied the suggestion that she has not stated before the police in her statement about the fact that the deceased Jagannathraj Urs was asking as to why they are doing so to them. Similarly, the witness denied the suggestion that she has not stated before the police that after stopping, he escaped and ran away from the place.
17. Ramesh Raj Urs (P.W.5) is another eye witness. He has deposed that during April 2010, there was jatra of Durgamma Devi. There was galata between the accused and C.W.14 and in that context; a case was also registered before the police. Accused persons were having ill will and 44 grouse against deceased and their caste people, as they had not supported the accused persons in the said galata. He has further deposed that the deceased Jagannatha Raj Urs died 1½ year back by murder. On that day, he was standing on a road at about 9.10 a.m. The deceased and P.W.3 were proceeding towards the land. He was also hearing some galata in front of the house of accused No.1 and deceased and P.W.3 also went towards that and by seeing the same, he also went there. He saw the deceased Jagannatha Raj Urs was coming running from the side of house of the accused. He was also proceeding by running. When deceased came in front of the house of Manjunath, at that time he also saw accused No.2-Ravi Shetty holding a sickle and accused No.5-Umesh Raj Urs holding a bat coming behind the deceased. Accused No.5 assaulted the deceased on his back with the bat. Immediately, deceased fell down on the ground by facing towards sky. At that time, accused No.2-Ravi Shetty assaulted the deceased with sickle on inside portion of the right thigh. He also 45 saw accused No.1-Benaka Shetty standing in front of his house by holding a Machu. He also saw C.W.12 Srinivas Raj Urs coming from his land side. He immediately proceeded towards the deceased and accused No.2 and accused No.5 by holding sickle and bat, went towards the house of accused No.1. C.W.12 also came there. P.W.5 has further deposed that they saw that the blood was oozing from the thigh of deceased and he was struggling. He also saw that the left side ring finger was cut and hanging and middle finger was also injured. Immediately, P.W.5 tied his white lungi to the thigh to stop the oozing of blood. Immediately, P.Ws.3 and 4 also came there and many persons gathered. Himself and C.W.12 lifted the deceased and were proceeding to take to their house. When they were proceeding in front of the house of Lingaraju-P.W.2, at that time, the deceased breathed his last. He saw that P.W.1 had also sustained injury to his left palm. There itself, they kept the dead body. By seeing the injuries of P.W.1, C.W.15-Chandrashekhar took him to 46 hospital on his motorbike. As P.W.2 was also injured, he was taken to hospital by C.W.8-Manjunath. P.W.5 has further deposed that the alleged incident has taken place when P.Ws.2 and 4 went to the house of accused No.1 to ask as to why they have obstructed and assaulted C.W.6- Yogesh Raj Urs in front of gate of ABC Coffee curing and incident taken at Belur Bus stop due to earlier ill-will and revenge. P.W.5 has also deposed that on the same day, at about 2.45 p.m., police came to the place of incident and there, he showed the place of galata and assault. P.Ws.10 and 11 were also there as panch witnesses. First, he showed the place of incident in front of house of accused No.1 and thereafter, he showed the place in front of the house of Manjunath Shetty, where the blood had also scattered on the ground. There, police seized the stained and unstained mud. Thereafter, he also showed the place in front of the house of P.W.2 where the deceased died. There also, police seized stained and unstained mud. When he showed the place of incident, 47 already, the body was taken to the hospital. Spot mahazar was also drawn which is marked as per Ex.P-2. Ex.P-2(a) is his signature. At the time of drawing the mahazar, photographs were also taken by the police and the said six photographs were marked as Ex.P-3. P.W.5 has further deposed that he can identify the weapons used by accused Nos.2 and 5, and also the cloths worn by deceased Jagannatha Raj Urs and accordingly, he identified them as M.Os.2 to 10.
In the cross-examination, P.W.5 has admitted the suggestion that all of their relatives were gathered at their place as there was elderly person's festival. He has admitted the suggestion that in front of his house, there is a bus stop and it is a bus stop for 2-3 villages. He did not observe whether any persons were waiting for the bus in the said bus stop at the time of the alleged incident. His house is on the main road facing to the road. Deceased and P.W.3 might have gone at about 8.45 or 8.50 a.m. to go to land. When he came out of the house, already they 48 were proceeding towards land and he saw them going. Immediately, after they went, he heard the galata. He knows as to where their lands have been situated. He has admitted the suggestion that one land is at Chandalghatta and another land is at Beeradevarahalli. He has further admitted the suggestion that in order to go to the land of Beeradevarahalli, they have to proceed towards right side of their house and the house of accused No.1 is towards left side of their house. He has further admitted the suggestion that the Chandalghatta kere is also towards right side of their house and Lakshmipura kere is towards the right side of Chandalghatta kere. P.W.5 has further deposed that the police came to the place of incident within 10 or 15 minutes after the incident. He came to know about the incident which took place between C.W.6 and the accused in front of the gate of ABC coffee curing factory. After the incident, when they were talking with the deceased in front of the house of P.W.2, P.W.4 came and told the said fact. Police were present on the place of 49 incident up to 4 or 4.30 p.m. When police were present, all the five accused persons were also present in their house. Within five to ten minutes after police arrived to the place of incident, they shifted the body of the deceased to the hospital. He knew about the galata, as such he has shown the place of incident to the police. P.W.5 has also stated in the cross examination that after going through the contents of Ex.P-2, he has signed the same and the contents are true and correct. He had lifted the deceased when he had seen injured only once in front of the house of Manjunath Shetty. When himself and C.W.12 shifted the deceased in front of the house of Manjunath Shetty, their cloths were also stained with blood. P.W.5 has denied the suggestion that he has not stated before the police that when he went near the place of incident, when accused Nos.2 and 5 assaulted, at that time, accused No.1 was standing in front of his house by holding a machu. When accused Nos.2 and 5 were assaulting the deceased, at that time P.Ws.1 to 4 were at a short distance away 50 from accused No.1. P.Ws.1 to 4 were standing at a distance of 15 feet away from accused No.1. He has denied the further suggestion that all Shetty community people were gathered there and there was galata between their caste people and Shetty community people and they were telling not to trouble and make galata to the members of the accused family and in the said pull and push, the deceased sustained injuries and as a result of the same, he succumbed to the death.
18. Now coming to oral evidence of the prosecution witnesses, who claim to be the eyewitness to the incident, we have made a detailed reference. The contention of the defence is that the place of incident is in front of the house of accused No.1. But in this connection, we have referred to the oral evidence of PWs1 to 5 and PW12. We have also referred to the contents of spot mahazar and inquest mahazar proceedings. All these materials show that the place of incident is not only in front of the house of 51 accused No.1, but also in front of the house of Manjunath. The materials show that when the deceased and other witnesses went to the house of accused to enquire about the assault made on Yogesh Raj, at that time, accused persons came holding the deadly weapons and they chased the deceased and his wife. The incident took place nearby the borewell when PW1 was collecting the water. Therefore, looking to the prosecution material both oral and documentary, they show that the incident of assault on the deceased Jagannathraj Urs, took place not in front of house of accused No.1 but it was in front of the borewell when PW1 was collecting the water. Therefore, the contention of the defence that the place of incident was only one place that is in front of the house of accused No.1 cannot be accepted at all.
19. It is the contention of the defence that accused No.2 was not at all in the village on that day. In this regard, we have already referred to the prosecution 52 material i.e., the oral evidence of the eye witnesses. All the witnesses have stated about the presence of Ravi Shetty (accused No.2) and his participation in the said incident. We have also perused the contents of complaint (Ex.P.1) lodged by the Laxmikanth Raj. Even in the complaint also, he has mentioned the presence of Ravi Shetty (accused No.2) and the assault made on the deceased by him with sickle is also figured in the complaint and FIR came to be registered even against accused No.2 to show and to prove that he was in the village on the date of incident. The defence has also examined the wife Ravi Shetty as D.W.1. We have perused the evidence of D.W.1. Poornima, wherein she has deposed that, She is the wife of accused NO.2. She has deposed that on 08.10.2010, at about 9.45 a.m., the people belonging to Urs community came to their house and pelted the bricks to the door of their house. In the house herself, the wife of accused No.1 and their children were there. Due to fear immediately, she called her 53 husband (accused No.2) and she informed him about the galata in front of their house and she asked as to where exactly he is. Accused No.2 told her that he is working in the house of one Narayana. Further, he told that he is unable to come and as accused No.1-Benaka Shetty is there in the paddy land, he will come there. Immediately, accused No.1 came near the house and saw sickle and machu in the hands of Urs community. Accused No.1 asked them why they are making galata. When Urs community people tried to assault accused No.1, he came inside the house and closed the door by latching the same with bolt and thereafter, he made a call to his brother accused No.2 and told to go to the Police Station and lodge a complaint.
20. While Poornima is concerned, except her say, no material has been placed by the defence. Apart from that accused No.2 himself could have entered into the witness box, but he has not entered into witness box and 54 his wife gave evidence. Though it is stated that on that day, he was working in the house of Narayana, the said Narayana was also the best evidence on the defence side to establish the said fact, but Narayana was not examined before the Court. Apart from that, we have also referred to the evidence of eye witnesses of the prosecution. They have deposed about the presence of accused No.2 and his participation in the incident. The prosecution material also goes to show that investigating officer recorded his voluntary statement and at his instance, the sketch has been produced from the house of accused No.1. It was seized under the mahazar. The panch witness P.W.17 who has been examined on the side of prosecution has supported the case of prosecution deposing consistently that accused Nos.1, 2 and 5 produced the material objects M.O. Nos.1 to 3 respectively from the house of accused. No.1. Therefore, these materials put together, the cumulative effect of these materials clearly show the presence of accused No.2 at the spot and his participation 55 in the said incident. Therefore, the contention of the defence that accused No.2 was not present itself cannot be accepted at all.
21. The theory of defence that whatever the injuries sustained by the deceased, P.Ws.1 and 2, it is in exercise of their private defence, as argued by the learned counsel for the appellant accused. To claim the right of private defence, firstly the accused persons should admit their participation in the incident, holding the deadly weapons, assaulting the persons on the other end. Then they can claim right of private defence explaining the circumstances under which they were forced to assault on the persons on the other end and to cause the injuries. But looking to the cross examination of the prosecution witnesses itself, their involvement in participating in the said incident and holding the deadly weapons is denied. Looking to the cross examination of the prosecution witnesses, it was also suggested that it is the deceased, 56 P.Ws.1 and 2 holding such deadly weapons in their hands while coming to the house of accused No.1. The further suggestion that when they have been holding the weapons, in the push and pull, they sustained such injuries. This theory itself clearly goes to show that it is the false defence that has been taken and this theory cannot be accepted by the Court. If they could have fairly admitted about them causing injury to the deceased, as well as P.W.1 and other prosecution witnesses but explaining circumstances, according to them, it was necessary for them to protect the person and only they can exercise the right of private defence and caused injury that could have been appreciated by the Court but that is not their defence. Apart from that, perusing the prosecution material, one Dr.Shivakumar (P.W.15) has examined the injured accused NOs.3 and 5. In his evidence, P.W.15 has deposed that on 8.10.2010, he received a requisition at about 8.20 p.m. from Chikmagalur Rural Police to examine one Umesh Shetty- 57 accused No.3 and Umesh Raj Urs-accused No.5, who have been brought by P.C.No.35-Jayaramegowda. On examination of accused No.3-Umesh Shetty, he found fresh abrasion over the left elbow measuring 8 c.m. He has further deposed that according to him, the above injury is simple in nature. He has issued the wound certificate of accused No.3, which is marked as per Ex.P-8 and Ex.P-8(a) is his signature.
22. P.W.15 has further deposed that on the same day, he examined accused No.5-Umesh Raj Urs and found abrasion over the left foot measuring one inch with bleeding. He is of the opinion that the above injury is simple in nature. He has issued the wound certificate of accused No.5 as per Ex.P-9. Ex.P-9(a) is his signature.
23. The history given by the injured persons was that they had sustained the above injuries at the time of assaulting Jagannatha Raj Urs.
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24. This evidence of P.W.15 in examination in chief was tested in the cross examination by putting questions. He has deposed that in the history of the injuries, it has not been mentioned that the said injuries have been sustained at the time of going running and due to fall at that time. P.W.15 has admitted the suggestion as true that Exs.P.8 and P.9 have not been issued on the same day when he examined accused Nos.3 and 5. The history has been mentioned in M.L.C. register as per the say of the injured or the patient. Even though the name of the person who has furnished the history has not been mentioned in M.L.C. register, but he has deposed the usual practice followed by them. He denied the suggestion that he has mentioned the history as stated by the police constable who has brought accused persons accused Nos.3 and 5. He has denied the further suggestion that even though there were many more injuries on accused Nos.3 and 5, he has not fully examined and issued the certificate. He has also denied the suggestion that at the 59 instance of police, he has issued the certificate as simple injuries.
25. So the evidence of P.W.15 makes it clear that the history as furnished by accused Nos.3 and 5 that they sustained injuries when they were assaulting Jagannathraj Urs. Regarding the contention of the defence that though they sustained more injuries but the police, in collusion with doctor, have mentioned the injury as simple in nature. If that is the case, the accused persons, when they were produced before the Magistrate Court, could have made detailed statement about how many injuries they sustained and the nature of injury as they told before the Magistrate that at the first instance and the Magistrate could have referred them to the medical officer for examination and report, which was not done in this case. Therefore, looking to this materials also, the prosecution can submit that it is the accused who assaulted the deceased and P.Ws.1 and 2 and others. 60
26. With regard to the injuries said to have been sustained by accused Nos.3 and 5, it is the case of the defence that the deceased, P.Ws.1 and 2 were holding weapons in the hands and no material has been placed in that regard during the course of investigation. Therefore, except such material, only on the say of these two persons, it cannot be accepted that it is the deceased and P.Ws.1 and 2 who have caused the injuries to accused Nos.3 and 5. On the side of the accused, none of the accused have filed complaint in that regard making such allegation by way of counter complaint, if not, D.W.1 who is wife of accused NO.2, who has given her evidence in support of the defence of accused, she could have filed complaint before the police. Therefore, in the absence of such material, learned Addl. SPP is justified in making the statement that defence has not established the fact that it is the deceased and P.Ws.1 and 2 were holding deadly weapons and it was they who assaulted the accused and caused injuries to the accused persons.
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27. The incident took place in the broad day light on 08.10.2010 at about 9.15 a.m. on the road. There is no any sort of difficulty for clear identification of the accused by the prosecution witnesses. The complaint came to be filed which crime was registered at 11.30a.m. and FIR was dispatched and it was delivered to the magistrate court at about 2.30 p.m. on 8.10.2010. Therefore, looking to the oral and documentary evidence placed by the prosecution, everything was in the quick succession. There is no any short of time gap to manipulate things.
28. So far as the recoveries are concerned, the evidence of investigating officer (P.W.22) is to the effect that on 08.10.2010, at about 12 noon, he went to Karthikere and saw the dead body of deceased Jagannatha Raj Urs and thereafter, he secured P.W.7, C.Ws.9 and 11 to act as inquest mahazar panchas and in their presence, he drew the inquest mahazar as per 62 Ex.P.4. He has also deposed that he has seized M.Os. under P.F. No.257/2010. He apprehended accused Nos.1 to 5 and also interrogated them. At the time of apprehending the accused, he noticed that the cloths of accused Nos.1 and 4 have been stained with blood. In order to seize the said cloths, he secured P.Ws.13 and 14 and in their presence, he seized the shirts of accused Nos.1 and 4 by drawing a mahazar as per Ex.P-6 and his signature is as per Ex.P-6(c). He has deposed that he can identify the said shirts. The said shirts have been already marked as per M.Os.15 and 16. He subjected M.Os.15 and 16 to P.F. No.258/2010. He recorded the voluntary statement of accused Nos.1, 2 and 5. In their voluntary statement, they volunteered that they will produce the weapons which have been used for the purpose of assault of deceased and P.Ws.1 and 2. The relevant admissible portion of voluntary statement of accused No.1 is marked as per Ex.P.22. The relevant admissible portion of voluntary statement of accused No.2 is marked as per 63 Ex.P.23. The relevant admissible portion of voluntary statement of accused No.5 is marked as per Ex.P.24. After recording the voluntary statement of accused Nos.1, 2 and 5, he secured P.W.17 and C.W.19 to act as panch witnesses. Thereafter, accused Nos.1, 2 and 5 led them to Karthikere. When they reached in front of the house of accused No.1, accused No.1 asked them to stop the jeep and told that the said house belongs to him and in the said house, he has kept the weapon which has been used for the purpose of commission of the offence. After alighting from the jeep, accused No.1 led them inside the house and thereafter, he went inside the room by the side of Pooja room and there from beneath the Godrej almirah, he took out a katthi with wooden handle and produced the same before them. When they observed, the said katthi was stained with blood. The said katthi was seized and sealed with a seal 'C.I.' by putting it into a cover. Thereafter, accused No.2 led them to the kitchen in the same house and from there, he produced a sickle which 64 was blood stained and thereafter, they also seized and sealed with seal 'C.I.' by putting it into a cover. Thereafter, accused No.5 led them to a hall and from beneath the sofa set, he took out a broken bat and produced before them which was also blood stained. The said bat was also seized and sealed with a seal 'C.I.' by putting it into a cover. There he also drew the mahazar as per Ex.P-11. Ex.P-11(b) is his signature. He can identify the seized weapons if shown to him. The said katthi, sickle and bat have been already marked as per M.Os.1 to
3. During the course of the said seizure proceedings, he has also taken the photographs. Six photos have been already marked as per Ex.P.12. Thereafter, along with the accused and seized articles, he came back to the Police Station and subjected the seized articles to P.F.No.259/2010. Thereafter, he sent accused Nos.3 and 5 to M.G.Hospital, Chikmagalur as they were found with injuries.
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In the cross examination, P.W.22 has deposed that he instructed P.W.19 and his staff to apprehend the accused in this case after reaching the spot. He did not see P.W.19 apprehending and taking the accused on the spot. When he visited the spot, he came to know as to which was the house of accused No.1. But at that time, he did not visit the house of accused No.1 and made enquiries. He has admitted the suggestion as true that by the side of the house of accused, there are residential houses and they have all gathered. He has admitted the suggestion as true that in Ex.P.21, the place of incident has been shown in front of house of accused No.1. M.O.15 is not the same shirt which is worn in the photo-Ex.P.12. He has denied the suggestion that the shirt M.O.15 is the same shirt which has been worn by accused No.1 in Ex.P.12. He has admitted the suggestion as true that the eye witnesses are the relatives of the deceased. He made enquiries with the gathered people and thereafter, he came to know that the eye witnesses whom he has 66 mentioned in the charge sheet are the only eye witnesses. He has also made enquiries with the neighbours of the house of the accused. But he has not mentioned in his case diary. He has denied the suggestion that intentionally, he has made all the relatives of the deceased as witnesses in this case. He has admitted the suggestion as true that P.W.3 has stated before him as per Ex.D.1. He has admitted the suggestion as true that P.W.1 has not stated before him that when deceased fell down and was seeing the sky and at that time, he was telling 'not to assault', 'not to assault'. He has admitted the suggestion as true that P.W.3 has not stated before him that on 08.10.2010, P.W.12 has gone to the land with fertilizer. P.W.22 has further admitted the suggestion as true that P.W.5 has stated before him that "when he went near the place of incident where accused Nos.2 and 5 assaulted, at that time, accused No.1 was standing in front of his house by holding a machu". He has further admitted the suggestions that P.W.10 has stated before him that by the 67 time, when he came out of the house, the deceased Jagannatha Raj Urs was also brought by shifting from the place of incident, P.W.12 has not stated before him that when accused Nos.3 and 5 were crossing the barbed fencing, at that time, accused No.3 sustained injury to his knee and accused No.5 to his foot. He has also admitted the suggestions that during his investigation, he came to know that the alleged incident has taken place in front of the house of accused No.1. After the incident, the deceased has been tried to be taken from the front of the house of accused No.1 to their house when he sustained the injuries. P.W.22 has denied the suggestion that during his investigation, he came to know that the deceased and other his relatives made attack to the house of the accused with weapons. It is denied that even though the deceased and their relatives are at fault, he has falsely investigated and stated that the accused are at fault. It is also denied that in order to protect themselves when deceased and their relatives attacked over the house 68 of accused Nos.1, 3 to 5 were there inside the house. The suggestion that P.W.1 has gone to the borewell to bring the water intentionally was also denied. He has also denied that even though accused No.2 was not there at the time of incident and he came to the Police Station, subsequently, by asking him to sit there, they had included him at the behest of the members of the deceased. P.W.22 has also denied suggestion that accused Nos.1, 2 and 5 have not volunteered before him as per Ex.Ps.21 to 23 and have not produced M.Os.1 to 3. He has also denied the suggestion that he has secured M.Os.1 to 3 from P.Ws.1, 2, 6 and 12 and falsely deposing before the Court that they have been recovered from the accused. He has further denied the suggestion that the blood of the deceased has been smeared to M.Os.1 to 3 and thereafter, they have been sent to R.F.S.L. to obtain the certificate.
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29. In this regard, we have also perused the evidence of P.W.17 who has supported the seizure of articles in his presence at the instance of accused NOs.1, 2 and 5. We have also perused the documentary evidence i.e., FSL report which is marked as per Ex.P.25, totally, 16 articles were sent as per Ex.P.25 and the opinion at item at Sl. No.2. The Articles sent in Cr.No.410/2010 of Chickmagalur Rural PS, U/S 143, 144, 147, 148, 341, 302, 326, 324 r/w 149 of IPC, were received in the Laboratory for examination on 02 Nov.2010 through P.C. 300 Shri H.G.Kumarswamy. The seals found on the article/s were infact and tallied with sample seal. The description found on the article/s correspond to that of those present in the invoice.
30. Specimen samples/cuttings/scrapings from the suspected areas on the articles were tested for blood using presumptive tests namely, Benzidine/Phenophithalein/Leuco Malachite-green test. 70 The presence of blood stains was further confirmed by conducing Takayama crystal.
31. The nature of the stains, their extent/size and location were also noted. The results of the examinations are furnished below:
In another document serology report (Ex.P.26) wherein it is stated regarding the origin of stains, in continuation of the report cited under reference, the specimen samples/cuttings/scrapings of the blood stained articles were subjected to serological analysis. The origin was determined by Gel Diffusion method, Cross Over Electrophoresis and the blood grouping was determined by the Absorption Elution method. The results are furnished below:
Item Nos.5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are stained with human blood. The stains in item Nos. 1 and 3 were disintegrated hence their origin could not be determined.71
Regarding blood grouping of stains, it is mentioned that item Nos.5,6,8,9, 10, to 16 are stained with 'O' group blood.
It is also mentioned that blood group of the stains in item No.7 could not be determined because of the results of the tests were inconclusive.
32. Therefore, the materials seized at M.Os.1 to 3 were stained with human blood. With regard to Katthi (M.O.1), it is no doubt true that grouping is not ascertained by the laboratory, when there are eye witnesses to the incident who have deposed consistently that they have seen accused No.1 assaulting deceased with katthi (M.O.1.). Even if there is no blood group ascertained by the laboratory that will not come in the way of prosecution witnesses in relying upon Ex.P.26.
33. So far as M.Os.2 and 3 are concerned, they are also stained with human blood and even the grouping of blood is also ascertained. Therefore, looking to this 72 material produced by the prosecution, recovery is also established by the prosecution.
34. So far as cross examination of P.W.22 investigating officer is concerned, no doubt, it has been elicited in the cross examination that there were other persons who were also gathered at the said place and the Investigating Officer has not recorded the statement of those witnesses and he has recorded the statement of only the witnesses who have not been examined before the court and it is contended that they are the relatives of injured. In this connection, looking to the evidence of P.W.1 who is the injured witness so also P.W.2 even if the other witnesses are said to be the relatives, but the injured witnesses have deposed before the court consistently and injured witnesses cannot substitute some other person in place of real culprit. For that the defence has not made out case. Simply because the witness examined on the side of prosecution are relatives 73 of deceased as well as P.W.1. Only on that ground their evidence, cannot be rejected. Their evidence is worth believable which is supported by the other documentary evidence and looking to the judgment and order of the court below, all these aspects were properly appreciated and considered by the Court below.
35. It is contended by the learned counsel for accused that the material will not attract the ingredients of offence under Section 302 of IPC but at the most it may fall under section 304-II of IPC. In this connection, we have perused the evidence of doctor, who conducted autopsy over the dead body of the deceased and he has been examined as P.W.18. Perusal of the evidence of Doctor (P.W.18), who has conducted autopsy over the dead body of the deceased, she has deposed in the examination chief that on 08.10.2010, she received a requisition from Rural Police Station, Chikmagalur with dead body of Jagannatha Raj Urs through P.C.576 74 K.Harisha (C.W.24) for the purpose of conducting the post-mortem. She conducted the post-mortem in between 2.30 and 4.30 p.m. Rigor mortis was just setting in. On clinical examination, she found the injuries that were noted in her evidence. P.W.18 further deposed that after post-mortem examination, all the internal organs were intact and pale. In the abdomen, she found the digested food. She is of the opinion that the cause of death is due to shock and hemorrhage. She has issued the post- mortem report as per Ex.P-13. Ex.P-13(a) is her signature. According to her, the death might have occurred within 8 to 10 hours before the post-mortem. According to her, injury No.3 may cause the death. The injuries mentioned in Ex.P.13 may occur with any weapon of sharp edge.
In the cross-examination, P.W.18 has deposed that the food will be fully digested within 4 to 6 hours depending upon the type of food. She has admitted the suggestion as true that hemorrhage means profused 75 bleeding. She has denied the suggestion that in case of profused bleeding, the person will survive at least half an hour. She has also denied the suggestion that injury Nos.1 to 3 may occur at one stroke of assault with single weapon. If it is suggested to her that injury Nos.1 and 2 may be at the time of assaulting at one time, her answer is that "it may or it may not".
36. We have considered the submissions made by the learned counsel for the defence during the course of his arguments. The doctor has not mentioned that even the injury said to have been caused on the deceased is sufficient in the ordinary course to cause the death of the person. The medical evidence is also not clear on the said point. In this regard, we have considered the oral evidence adduced by the prosecution witnesses that immediately after the assault on the deceased Jagannathraj Urs, there was profuced bleeding and they tried to prevent it by tying the white cloth to the said 76 portion, but, in spite of that, within five minutes, Jagannathraj Urs expired. Therefore, the death has taken place immediately after the assault on the deceased. The doctor's evidence also shows that because of the shock and hemorrhage, the death has taken place and it is because of injury No.3. The doctor might have not mentioned specifically that the said injury is sufficient in the ordinary course of nature to cause the death of a person. But looking to the cross examination of the doctor, there was no specific suggestion on that point. It was only suggested that all the three injuries can occur at one stroke of assault with single weapon. The said suggestion has been denied by the doctor, when there is material to show that immediately after the said assault and within five minutes, the deceased expired at the spot. The doctor's evidence also sufficient to come to the conclusion that it is because of the injuries, more particularly injury No.3, which caused the death of deceased Jagannathraj Urs. Therefore, the contention 77 that as the doctor has not specifically mentioned about injury No.3 that it is sufficient in the ordinary course of nature to cause the death of a person, only on that ground, his evidence and the prosecution material cannot be rejected by the Court when the evidence through the mouth of the eye witness is also worth believable that it is because of the assault made on the deceased, with deadly weapon, immediately, he expired at the spot itself.
37. We have also perused the decisions relied upon by the learned counsel for the appellant accused. After careful perusal of the factual story involved in the said decision, it is not exactly one and same of the factual story involved in the case on hand. Therefore, the principles enunciated in the said decision will not come to the aid and assistance of the case of the appellant herein. Looking to the material, we are of the opinion that we do not find any illegality in the judgment and order of the court below in coming to such conclusion nor there is 78 perverse or capricious view taken in coming to such conclusion. We do not find any valid and justifiable ground for this Court to interfere with the judgment and order of conviction passed by the court below. No merit. The appeal is dismissed.
Since the main appeal itself is disposed of, I.A. Nos.1/2016 and 1/2017 do not survive for consideration, accordingly they are hereby rejected.
Sd/-
JUDGE Sd/-
JUDGE HR/Cs/-