Karnataka High Court
High Court Of Karnataka Rep. By Arg vs Sri. Sundresh S/O Basavanneppa Udikeri on 29 January, 2013
Equivalent citations: 2015 (2) AKR 59
Bench: K.Bhakthavatsala, B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA ®
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF JANUARY 2013
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
CRIMINAL R C No.11/2009
C/W
CRIMINAL APPEAL NOS.2516/2009 C/W 2535/2009
C/W 2536/2009
BETWEEN
CRL. R.C. NO.11/2009
High Court of Karnataka,
Rep. By Additional Registrar General,
High Court Circuit Bench,
Dharwad. Petitioner
(By Sri V M Banakar, Addl. SPP, for petitioner)
AND
1. Sri Sundresh,
S/o Basavanneppa Udikeri,
Age: 22 years.
2
2. Sri Siddappa Chandranaik
Revannavar,
Age: 28 years.
3. Sidlingappa @ Mudakappa,
S/o Chandranaik Revannavar,
Age: 26 years.
4. Kalmesh Shankreppa Udkeri,
Age: 23 years.
5. Rajshekhar @ Gangappa Udkeri,
S/o Chanbasappa Udkeri,
Age: 40 years.
6. Bhagwant Nagappa Udkeri,
Age: 32 years.
7. Chandranaik Mallanaik
Revennavar,
Age: 53 years.
8. Irappa Basavenneppa Udkeri,
Age: 20 years.
9. Shankreppa Chanabasappa Udkeri,
Age: 55 years.
All appellants are
Residing at Murkibhavi,
Tq. Bailhongal,
Dist: Belgaum. Respondents
(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik
& J Basavaraj, Adv., for respondents 1,4 to 6, 8 and 9)
(By Sri Mallikarjun S Masali, Adv., for R-2,3 and 7)
3
This Crl. R C is filed under Section 366 of the Code of
Criminal Procedure, for confirmation of death sentence
awarded to accused Nos.1 to 9 by the Presiding Officer, Fast
Track Court-II & Addl. Sessions Judge, Belgaum vide
judgment of conviction dated 4/16.12.2008 in S C
No.28/2006.
CRL.A. NO.2516/2009
1. Sri Sundresh,
S/o Basavanneppa Udikeri,
Age: 22 years.
2. Sri Kalmesh,
S/o Shankareppa Udikeri,
Age: 23 years.
3. Sri Rajshekhar @ Gangappa,
S/o Chandranaik Revannavar,
Age: 40 years.
4. Sri Bhagwant,
S/o Nagappa Udikeri,
Age: 32 years.
5. Sri Irappa,
S/o Basavaneppa Udikeri,
Age: 20 years.
4
6. Sri Shankreppa,
A/o Chanbasappa Udikeri,
Age: 55 years.
7. Smt. Gourawwa,
W/o Nagappa Udikeri,
Age: 47 years.
8. Sri Basavanneppa,
S/o Chanbasappa Udikeri,
Age: 58 years.
9. Sri Nagappa,
S/o Chanbasappa Udikeri,
Age: 57 years.
All appellants are
Residing at Murkibhavi,
Tq. Bailhongal,
Dist: Belgaum. Appellants
(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik
& J Basavaraj, Adv., for appellants)
AND
The State of Karnataka
(Through Nesargi Police Station),
Represented by its
State Public Prosecutor,
High Court of Karnataka,
Bangalore. Respondent
(By Sri V M Banakar, Addl. SPP, for respondent)
Criminal Appeal No.2516/2009 is filed under Section
374(2) of the Code of Criminal Procedure, praying to set
5
aside the judgment and order of conviction and sentence
recorded by the Fast Track-II and Addl. Sessions Judge,
Belgaum, in S C No.28/2006 by its order of conviction dated
4.12.2008 and sentence dated 16.12.2008.
CRL.A. NO.2535/2009
1. Siddappa Revannavar,
S/o Chandrakant Revannavar,
Age: 28 years.
2. Sidlingappa @ Mudakappa Revannavar,
S/o Chandrakant Revannavar,
Age: 26 years.
3. Chandranaik Revannavar,
S/o Mallanaik Revannavar,
Age: 53 years.
All the appellants are residing at
Murkibhavi, Tq. Bailhongal,
Dist. Belgaum. Appellants
(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for
appellants)
AND
The State of Karnataka
By Nesargi Police Station,
Represented by its
State Public Prosecutor,
High Court of Karnataka,
Bangalore. Respondent
(By Sri V M Banakar, Addl. SPP)
6
Criminal Appeal No.2535/2009 is filed under Section
374(2) of the Code of Criminal Procedure, praying to set
aside the judgment and order of conviction and sentence
recorded by the Fast Track-II and Addl. Sessions Judge,
Belgaum, in S C No.28/2006 by its order of conviction dated
4.12.2008 and sentence dated 16.12.2008.
CRL.A. NO.2536/2009
1. Mallawwa Chandranaik Revannavar,
W/o Chandranaik Revannavar,
Age: 47 years.
2. Sakranaik Revennavar,
S/o Mallanaik Revannavar,
Age: 54 years.
3. Doddanaik Revannavar,
S/o Mallanaik Revennavar,
Age: 50 years.
All the appellants are residing at
Murkibhavi,
Tq. Bailhongal,
Dist: Belgaum. Appellants
(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for
appellants)
7
AND
The State of Karnataka
By Nesargi Police Station,
Represented by its
State Public Prosecutor,
High Court of Karnataka,
Bangalore. Respondent
(By Sri V M Banakar, Addl. SPP)
Criminal Appeal No.2536/2009 is filed under Section
374(2) of the Code of Criminal Procedure, praying to set
aside the judgment and order of conviction and sentence
recorded by the Fast Track-II and Addl. Sessions Judge,
Belgaum, in S C No.28/2006 by its order of conviction dated
4.12.2008 and sentence dated 16.12.2008.
The Crl. R C and the Appeals coming on for hearing, the
same having been heard and reserved for pronouncement of
Judgment, Dr. Bhakthavatsala, J., delivered the following:
JUDGMENT
By order dated 16.12.2008 made in SC No.28/2006, Fast Track Court-II/Addl. Sessions Judge at Belgaum, seeks confirmation of death sentence awarded against accused Nos.1 to 9 for the offence punishable under Section 302 r/w 8 Section 149 of the Indian Penal Code, on four counts. It is registered under Section 366 of the Code of Criminal Procedure in Criminal R C No.11/2009.
2. Criminal Appeals in Nos.2516/2009, 2535/2009 and 2536/2009 have been filed by the accused Nos.1 to 15 challenging the impugned judgment of conviction and sentence passed against them for the various offences in the above-said case.
3. Since these cases arise out of the judgment of conviction and sentence dated 16.12.2008 made in SC No.28/2006 on the file of Fast Track Court at Belgaum, we have heard common arguments and proceeding to dispose off these cases by this common judgment.
4. For the purpose of convenience and better understanding, respondents Nos.1 to 9 in Crl. RC No.11/2009 and appellants in Criminal Appeal Nos.2516/2009, 2535/2009 9 and 2536/2009 are hereinafter referred to as 'Accused Nos.1 to 15' as arraigned before the trial Court.
5. Brief facts of the case leading to registering of the Reference Case under Section 366 of Cr. P C, may be stated as under:
By the impugned judgment dated 16.12.2008, learned Sessions Judge convicted all the 15 accused persons for the offences punishable under Sections 143, 147, 148, 307, 302, 506, 504 read with section 149/114 of IPC. After hearing the accused on the point of sentence, Learned Sessions Judge has passed further judgment awarding death sentence as against accused Nos.1 to 9, for the offence punishable under Section 302 r/w Section 149 of IPC, on four counts. As required under sub-section (1) of Section 366 of Cr.PC, learned trial Judge has submitted the records for confirmation of Death sentence. 10
6. Brief facts of the case leading to the filing of other three Appeals by the accused Nos.1 to 15 under Section 374(2) of Cr.P C may be stated as under:
The complainant-Suresh Siddappa Wodeyar (PW-1) and his family members are permanent residents of Murkibhavi village in Bailhongal Taluk. The complainant's father has 7 brothers and all of them were residing together in the same place. Ulavappa (husband of P.W-3) is the elder brother of the complainant. It is stated that one and half years prior to 30.8.2005 ( i.e., the date of incident), when Kasturi-P.W3, had gone to Kumbarbhavi to fetch water, accused No.3/Sidlingappa and accused No.1/Sundresh picked up quarrel with her and poured water on her; she informed about the incident to her family members; they questioned the accused No.1/Sundresh and accused No.7/Chandranaik and their family members. For which, the accused quarreled with the complainant and his family members. It is also alleged that accused No.1/Sundresh and accused No.3/Sidlingappa 11 were often teasing P.W.3 and blocking her way whenever she went to lands. It is alleged that accused No.10/Mallawwa (wife of accused No.7/Chandranaik) used to taunt and challenge the complainant's family members and threatened with dire consequences if they lodged a complaint with Police.
Further case of the prosecution is that on 29.8.2005 (Monday), at about 8.00 a m, when the complainant was washing his bullocks, Accused No.10/Mallawwa and Accused No.2/Siddappa, who were standing on the upstairs of their house, picked up quarrel with the complainant-P.W.1 and threw chappal at him. He informed about the incident to his family members, for which they told him that a complaint would be lodged on the next day. On 30.8.2005 (Tuesday) at about 6.30 AM, when the complainant-P.W1 was going to answer nature's call, Accused No.10/Mallawwa instigated the Accused to kill the complainant-P.W.1. Accordingly, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.3/Sidlingappa, Accused No.4/Kalmesh, Accused No.5/Rajshekhar, Accused No.6/Bhagwant and one Shivappa 12 Chanbasappa Udkeri, Rudrappa Shankrappa Udkeri, Sidlingappa Apanna Konnennawar, Accused No.15/Doddanaik, Accused No.14/Sakranaik, Raju Sidlingappa Konnennawar, Accused No.12/Basavanneppa and Accused No.7/Chandranaik chased the complainant-P.W.1, who raised hue and cry and went inside his house; at that time, the complainant's grand father/Siddlingappa (the deceased) and his deceased uncles Mallappa and Nagappa, who are residents of the same lane, came and complainant's wife-Ratnawwa also came out of the house holding a plastic mug to go for nature's call; she requested the Accused not to do anything to her husband(PW-
1). But on the other hand Accused No.2 assaulted Ratnawwa with kyota on left side of her chest and left arm. Seeing the incident, grand father and uncles of the complaint were proceeding towards Police Station to lodge a complaint, but the Accused accosted them and assaulted and also threatened the public with dire consequences, if they intervened in their action. Thus, the Accused assaulted Siddlingappa, Mallappa and Nagappa (grand father and uncles of the complainant) 13 with koyta, axe, sickle, jambia, stick and stone. PW-1 lodged a complaint with Nesargi Police Station. The Police registered a case in Crime No.72/2005 on 30.8.2005 at about 8.15 A.M., for the offences punishable under Sections 143, 147, 148, 302, 109 and 506 r/w section 149 of IPC. During the course of investigation, panchanamas were conducted. Accused were arrested and recorded their voluntary statement and seized the incriminating articles. After the investigation was over, charge sheet came to be laid against the Accused for the offences punishable under Sections 143, 147, 148, 307, 302, 114, 506 and 504 r/w Section 149 of IPC. Since the offence under Sections 307 and 302 of IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, where it was registered as SC No.28/2006. The trial Court, after hearing arguments, framed charges against all the 15 persons for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with Section 149 of IPC.
Accused have pleaded not guilty and claimed to be tried. The prosecution went to trial by examining as many as 48 14 witnesses and got marked 66 documents and 38 Material Objects. The defence has got marked a portion of complaint- Ext.P-1 as Ext.D1 and D2. Statement of the Accused under Section 313 of Cr.PC was recorded. Accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. They have not adduced any defence evidence. The trial Court, after hearing arguments, perusing oral and documentary evidence on record, came to a conclusion that the prosecution brought home the guilt to the Accused for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with section 149 of IPC. After hearing the accused, on the point of sentence, held that the case falls within the scope of 'rarest of the rare case' and awarded death sentence to Accused Nos.1 to 9 for the offence under Section 302 of IPC, on four counts.
Further, Accused Nos.1 to 15 were sentenced to undergo-
(i) imprisonment for 3 months and pay fine of `5,000/- each, in default in payment of 15 fine, to undergo imprisonment for 2 months for the offence under Section 143 of IPC;
(ii) imprisonment for 6 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 3 months for the offence under Section 147 of IPC;
(iii) imprisonment for 9 months and pay fine of `6,000/- each, in default in payment of fine to undergo imprisonment for 4 months for the offence under Section 148 of IPC;
and
(iv) imprisonment for a period of 10 years and pay fine of `10,000/- each, in default in payment of fine, to undergo imprisonment for 2 years for the offence under Section 307 of IPC (i.e., attempt to commit murder of P.W1-Suresh and P.W5- Maruthi;
16
Further, Accused Nos.10 to 15 were sentenced to undergo -
(a) imprisonment for life and pay fine of `10,000/- each, in default in payment of fine to undergo imprisonment for 3 years for the offence under Section 114 of IPC;
(b) Imprisonment for 2 years for the offence punishable under Section 506 of IPC; and
(c) to pay fine of `1,000/- each, in default in payment of fine, imprisonment for 2 months for the offence punishable under Section 504 of IPC.
The trial court has ordered that the substantive sentences shall run one after another.
This is impugned in these Appeals.
17
7. Sri V M Banakar, learned Addl. SPP appearing for the state, submitted that since four persons were brutally murdered with deadly weapons, the trial Court has rightly classified the case as "rarest of rare cases" and awarded death sentence as against Accused Nos.1 to 9 and the same may be confirmed. He also submitted that the trial Court, on proper appreciation of oral and documentary evidence placed on record, rightly reached the conclusion that the prosecution has proved the guilt to the accused for the charges levelled against them and awarded adequate sentence for the offences and there is no merit in the Appeals filed by the Accused and the impugned judgment of conviction and sentence. He has cited a decision reported in (2010) 1 SCC (CRI) 925 (DILIP PREMNARAYAN TIWARI AND ANOTHER Vs. STATE OF MAHARASHTRA) on the point of appreciation of evidence in so for as the discrepancies/omissions in FIR.
8. Sri R B Naik, learned Senior Counsel appearing for Sri Basavaraj, for Accused Nos.1, 4 to 6,8,9,11,12 and 13, 18 submitted that the trial Court erred in convicting the Accused solely on the basis of interested testimony of the witnesses, though all independent eye witnesses have turned hostile to prosecution. He further submits that though, the alleged eye witnesses, have not witnessed the incident, the trial Court erred in accepting their evidence as gospel truth to base conviction for the offences alleged against the accused. He further submitted that the case on hand cannot be treated as a 'rarest of rare cases' to award death sentence. He prayed that the impugned judgment of conviction and sentence awarded against the Accused may be set aside and the all the accused may acquitted of the offences alleged them. He has cited the following decisions:
(i) AIR 1958 SC 935 (PURANMAL AGARWALLA Vs. STATE OF ORISSA) on the point that the offender shall not be punished with a more severe punishment than the Court 19 which tries him could award for any one of such offences;
(ii) (1988) 4 SCC 183 (MOHD. AKHTAR
HUSSAIN ALIAS IBRAHIM AHMED BHATTI Vs.
ASSISTANT COLLECTOR OF
CUSTOMS(PREVENTION), AHMEDABAD AND
ANOTHER) on the point that the Courts must take into consideration the usual factors while imposing sentences; and
(iii) (2010) 1 SCC 573 (RAMRAJ ALIAS NANHOO ALIAS BIHNU Vs. STATE OF CHHATTISGARH) on the point that imprisonment for life sentence was substituted for death sentence.
9. Sri Masali, learned Counsel appearing for Accused Nos.2,3 and 7, 10,14 and 15, adopted the arguments of the learned Senior Counsel, Sri Ravi B Naik. He relied upon the following decisions:
20
(i) 2003(7) SCC 141 (RAM PAL Vs. STATE OF U.P.) on the point that in the case of multiple murder, death sentence was altered to imprisonment for life.
(ii) 2011(10) SCC 389 (SHAM Vs. STATE OF MAHARASHTRA on the point that death sentence was commuted to life imprisonment;
(iii) 2011(13) SCC 706 (RAJESH KUMAR Vs. STATE) on the point of mitigating circumstances relating to death penalty;
(iv) 2012(4) SCC 289 (BRAJENDER SINGH Vs. STATE OF M.P) on the point of mental imbalance of the Accused at the time of committing crime and gravity of mitigating circumstances while awarding death sentence.
10. In the light of the arguments addressed by the learned Counsels for the parties, we formulate the following points for our consideration:
21
(i) Whether the trial Court is justified in convicting Accused Nos.1 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w 149 of I P C ?
(ii) Whether the trial Court is justified in awarding death sentence as against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of IPC?
(iii) Whether the impugned order of sentence passed as against accused Nos.1 to 9 for the offences punishable under Sections 114, 143, 147, 148, 307, 504, 506 r/w Section 149 of IPC calls for interference by this Court ?
(iv) Whether the impugned order of sentence passed as against accused Nos.10 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w149 of IPC calls for interference by this Court ?
(v)What order?22
11. For the purpose of convenience and better understanding, we proceed to take up points (i) to (iv) together for consideration.
12. At the very outset, it must be mentioned that the alleged independent eye witnesses - P.Ws.6 to 15, 20 to 24 have not supported the case of prosecution. Mahazar Witnesses namely PW-16 /Subhash Honnanaik Patil, P.W- 17/Laxman Gangappa Naik, P.W18/Mallesh Basavanneppa Karennavar, P.W19/Nagappa Adeveppa Patteda, P.W27/Mallanaik Sanganaik Baganavar and P.W31/Honappa Yallappa Sattennavar also did not support the case of prosecution. P.W30 inquest mahazar witness has partly turned hostile to prosecution. The witnesses, who have supported the case of prosecution, can be described as under:
(i) P.W.1the Complainant and P.Ws.2 to 5
and 32 are eye witnesses;
23
(ii) P.Ws.25 and 26 are the inquest
mahazar witnesses with regard to the
deceased-Ratnavva;
(iii) P.W.28 is the inquest mahazar witness with regard to the deceased-
Siddlingappa;
(iv) P.W29/Pundalik Bhimappa Wadeyar is
the inquest mahazar witness with
regard to the deceased Nagappa;
(v) P.W33-Raju Nesargi is a seizure
mahazar witness regarding seizure of
motor cycle at the instance of Accused
No.2 and Accused No.6; regarding
seizure of an axe at the instance of
Accused No.6 and two longs at the
instance of Accused No2
(vi) P.Ws-13,38, P.Ws.40,41,45 and 48, are
Police personnel who assisted the
investing officers during investigation; 24
(vii) P.W-39/Ganapati is the PSI, who registered the case in Crime No.72/2005 of Nesargi Police Station and submitted FIR (Ex.P40);
(viii) P.W-44/Sharanappa and P.W47/Sonia Narang are the Investigating Officers;
(ix) P.W-42/Dr. Pushpa H R-lady Medical Officer, who conducted autopsy over the deceased Ratnavva; and
(x) P.W.43/Dr.M.S.Hottigimatt is the Medical Officer who conducted autopsy over three the deceased persons namely, Siddalingappa, Nagappa and Mallappa.
13. The bone of contention of the defence is that as all the independent eye witnesses have not supported the case of prosecution, the trial Court erred in convicting the accused for the alleged offences solely on the basis of interested 25 testimony of the witnesses who are related to deceased and the complainant. It is also contended that FIR was registered against 16 persons, but the Investigating Officer, has given up the accused viz., Accused Nos.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar mentioned in the FIR, and filed charge sheet adding three other persons, viz., accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gowrawwa Nagappa Udkeri and accused No.13/Nagappa Chanabasappa Udkeri. It is also contended that in the FIR, there was no allegation against accused No.8/Irappa.
14. Now, we proceed to state as to relationship of the Accused among them and their age at the time of incident. Accused No.7/Chandranaik and his wife-accused No.10/Mallawwa were residing in the house nearby to the complainant. Accused No.2/Siddappa and Accused No.3/Sidlingappa are the children of Accused Nos.7 and 10. 26 Accused No.14/Sakranaik and Accused No.15/Doddanaik are the younger brothers of Accused No.7. Accused No.13/Nagappa is the husband of Accused No.11/Gourawwa. Accused No.5/Rajshekhar, Accused No.9/Shankreppa and Accused No.12/Basavaneppa are brothers. Accused No.1/Sundresh and Accused No.8/Irappa are the sons of Accused No.12/Basavaneppa. Accused No.6/Bhagwant is the son of Accused No.13/Nagappa. Accused No.4/Kalmesh is the son of Accused No.9/Shankreppa. Accused No.10/Mallawwa is the sister of Accused No.5/Rajshekhar, Accused No.9/Shankreppa, Accused No.12/Basavanneppa and Accused No.13/Nagappa. Accused Nos.1 to 9 are aged about 28 years, 26 years, 24 years, 21 years, 38 years, 30 years, 51 years, 18 years and 53 years, respectively.
15. According to the case of prosecution, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.5/Rajshekhar and 11/Gowravva were armed with axe. It is pertinent to mention that the weapon 'long' is called as 'kyota' 27 in Kannada. Accused No.3/Siddlingappa, Accused No.4/Kalmesh and Accused No.7/Chandranaik were armed with 'long'/'koyta. The alleged abettors namely Accused Nos.10 to 15 are aged about 44, 45, 56, 52, 57 and 48 years, respectively.
16. From the evidence of P.Ws.1,2,3,4,5 and 32, Accused No.1/Sundresh assaulted Ratnavva, Mallappa and Nagappa with an axe; Accused No.2 assaulted Ratnavva and Nagappa with a 'long'/koitha; Accused No.3 assaulted Siddlingappa and Mallappa with a 'long/koitha'; Accused No.4 assaulted Siddalingappa on the neck with a koitha/long; Accused No.5 assaulted Mallappa on the shoulder with an axe; Accused No.6 assaulted Nagappa on the head and back with an axe; Accused No.7 assaulted Mallappa on the face with a koyta/long; Accused No.8 assaulted Siddalingappa on the shoulder with an axe and Accused No.9 assaulted Ratnavva with an axe on the left hand and Siddalingappa on the left shoulder. It is in the evidence of the complainant/P.Ws.1, 28 P.Ws.2,3,4,5 and 32 that Accused No.10/Mallawwa (wife of Accused No.7) abetted the commission of offence and also assaulted Siddalingappa on his forehead with a stone. Further, A-11 to 15 instigated the accused kill PW.1-Suresh and PW.5-Maruthi. Charge sheet reveals that accused named in FIR namely Accused No.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar were given up while adding Accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gourawwa Nagappa Udkeri and Accused No.13/Nagappa Chanabasappa Udkeri in the charge sheet. Accused Nos.9,12 and 13 are brothers. All the independent eye witnesses, viz., P.Ws.6 to 15, P.Ws.20 to 24 have not supported the case of prosecution for the reasons best known to them. Merely because those witnesses have not deposed in support of the prosecution, case of the prosecution cannot be rejected in toto. Therefore,the evidence of P.Ws.1, 2,3,4,5 and 32, who are the eye witnesses cum related to the complainant require to be scrutinized carefully. In our view, there is no 29 strong ground to reject their evidence in toto for the following reasons.
17. P.W1-Suresh, aged about 28 years, is the husband of the deceased-Ratnavva and grand son of the deceased Siddalingappa and nephew of the deceased Nagappa and Mallappa. He has deposed in evidence that the deceased Siddalingappa had 8 sons and 2 daughters. P.W-1 has deposed that his father-Siddappa died about 14 years back prior to the incident and his senior uncle-Basappa and his father though living in the same house of Siddalingappa, they had separate mess; whereas other 6 sons including the deceased Mallappa and Nagappa were living together with Siddalingappa and they had a common mess. P.W2/Bhagawwa N Wadeyar is the sister of P.W1. Ulavappa Siddappa Wadeyar is the elder brother of P.W1. According to P.W-1, about 1½ year prior to the incident, when P.W3/Kasturi (w/o P.W1's elder brother-Ulavappa Siddappa Wadeyar) had been to fetch water, Accused Nos.1 and 3 30 poured water and pulled her. She informed about the incident to her family members including deceased persons; they enquired with the Accused. Since then, Accused No.10/Mallawwa used to abuse the family members of the complainant, in vulgar language, whenever they went in front of her house; when P.W3/Kasturi was proceeding towards the land; Accused Nos.1 and 3 teased and abused her in vulgar language and also restrained her from proceeding further. She informed the incident to the family members. When they questioned the Accused, there was exchange of words. Again on 29.8.2005, at about 8.00 am, when the complainant was washing bullocks in front of his house, Accused No.10/Mallawwa, who was standing on the staircase of her house, teased him and threw slipper at him. Accused No.10 and Accused No.2 threatened him with dire consequences. Again, on 30.8.2005, at about 7.00 a m, when the complainant was going to attend nature's call, Accused Nos.1 to 9 were armed with long and axes etc., came along with other accused namely Accused Nos.10,11,12,13,14 and 15 31 and challenged the complainant and his family members and attempted to kill the complainant and his family members. It is the case of the prosecution that on 30.8.2005 at about 6.30 a.m., all the Accused started chasing the complainant; he made hue and cry and went in side his house. On hearing the hue and cry of Pw-1, his wife Ratnavva came to the entrance of their house and requested the Accused not to assault her husband-P.W.1, but Accused Nos.1, 2 and 9 assaulted her and killed at the entrance of her house. P.W1 has deposed that he was hearing and also watching the scene from inside the house. Thereafter, his grand father/Siddalingappa and uncles- Mallappa and Nagappa were proceeding towards Police Station to lodge a complain against the Accused and at that time Accused Nos.1 and 5 assaulted his uncle-Mallappa with axe and Accused Nos.3 and 7 with Koitha; Accused Nos.3 and 4 assaulted his grand father/Siddalingappa with koitha; whereas Accused Nos.8 and 9 assaulted Siddalingappa with an axe and Accused No.10 assaulted Siddalingappa with stone; his uncle- Nagappa was assaulted by Accused Nos.1 and 6 with an axe 32 and Accused No.2 with long and within half an hour, the Accused killed four persons viz., his wife, uncles and grand father. It is in his evidence that after assaulting his wife Ratnavva, grandfather-Siddlingappa, uncles Nagappa and Mallappa, all the accused chased him and PW-5 Maruthi with an intention to kill them. PW.5-Maruthi escaped through Mallari Oni whereas he (PW-1) ran away from the village; 15 minutes later came to the spot and saw dead body of his wife, grandfather and uncles The evidence of P.W-1/complainant is corroborated by eye witnesses viz., P.W1's sister- P.W2/Bhagawwa N Wadeyar; P.W-1's elder brother's wife/P.W-4-Balawwa; his sister-in-law/P.W3-Kasturi N Wadeyar and his uncles P.W5/Maruti S Wadeyar and P.W- 32/Basappa S Wadeyar.
18. Now, we refer to the evidence of the Investigating Officer-Smt.Sonia Narang-PW.47 who was the Assistant Superintendent of Police at Bailhongal. It is in her evidence that on 2.9.2005, she took up further investigation and the 33 Circle Inspector of Police at Bailhongal produced accused Nos.1 and 4 before her with a report and she arrested them and they gave voluntary statement as per Ext.P.62 and 63, respectively and produced a Scooter bearing No.KA 24/E 1908, which was used by the accused for escaping from the scene of crime. She seized the said Scooter under a panchanama in the presence of P.Ws.16 and 17 as per Ex.P12. Further, she has seized axe (M.O-12), blue colour shirt (M.O-
47) and while lungi (M.O-48) at instance of Accused No.1 under a panchanama in the presence of the above-said panchas. Likewise she has seized one long (M.O-19), shirt (M.O-50) and black and yellow checks lungi (M.O-51) at the instance of Accused NO4, under a panchayama (Ex.P-13). She has further deposed that the CPI, Bailhongal, produced three accused persons viz., accused No.7/Chandranaik, accused No.3/Siddalingappa @ Mudakappa and accused No.5/Rajashekhar @ Gangappa before her on 10.9.2005 along with a report as per Ex.P-61. She has recorded voluntary statement of Accused NO.5 and accused No.7 as per Ex.P65; 34 Ex.P66 respectively and recovered their clothes worn at the time of incident and weapons used in the commission of crime. She has deposed that on 16.9.2005, the ASI produced accused No.13/Nagappa Udakeri before her and she interrogated and produced him before the court for remand. She received post mortem report. She has sent 47 sealed articles to FSL, Belgaum for chemical examination and filed charge sheet on 8.3.2006. The FSL report has been marked as Ex.P57. IN the cross-examination of P.W-47, she has deposed that since the complainant himself gave further statement stating that the other accused mentioned in the FIR did not commit any offence, they were given up. Nothing worthwhile is elicited in her cross-examination with regard to the evidence given before the trial Court. Ex.P-47/FSL report reveals that 47 articles were subjected to chemical analysis and all the articles except two articles viz., sample mud and lungi were stained with blood. Serology report has not been produced. Ex.P.51-rough sketch of scene of crime, shows the place of crime and the place where the dead bodies were lying. All the 35 star witnesses were cross-examined by the defence at length by learned counsel for the accused, but nothing worth while was elicited to disbelieve their oral evidence as to the role of the accused in the commission of crime. There is no major omissions and contradictions elicited in the cross-examination of the prosecution witnesses.
19. It is the case of prosecution that the Accused persons are powerful members of the community in the village and the independent witnesses have not supported the case of prosecution fearing the accused. It is alleged that Accused No.10 threw chappal at the complainant and instigated the Accused persons to kill the complainant and his family members and also assaulted on the fore head of the deceased Siddalingappa with a stone. It is a fact that wife of P.W.1 was killed by the said accused in front of her house and when Siddalingappa along with his two sons-Mallappa and Nagappa were proceeding through Asundi Oni to Police Station, to lodge a complaint, the Accused persons chased them and killed and 36 the dead bodies were lying in the same lane one after another. The dead bodies lying on the street can be seen in the photographs at Exs.P26 to 29, taken at the scene of crime. Though there is no mention in the complaint about the overt acts by Accused No.8, the evidence of the eye witnesses is sufficient to hold that all nine accused ( namely Nos.1 to 9), in pursuance of the common object and at the instigation of Accused No.10/Mallawwa, they have killed Ratnavva, Siddalingappa, Nagappa and Mallappa, within half an hour. No doubt the name of Accused No.9/Shankreppa does not find a place in the FIR, but during the course of recording statement of the witnesses, he was arrested and according to the evidence of eye witnesses, Accused No.9 assaulted Ratnavva and Nagappa with an axe. The contention of the learned counsel for the accused that Accused No.9 was falsely implicated in the case falls to the ground. The prosecution has proved that all the above said four persons died an homicidal death. Evidence on record is sufficient to hold that Accused Nos.1 to 10, with a common object, Rantnavva, 37 Siddalingappa, Mallappa and Nagappa were killed and also attempted to kill PW.1-Suresh and PW.5-Maruthi and hence the order of conviction recorded by the trial court for the offence punishable under section 302 (on four counts) and 307 (on two counts) read with section 149 of IPC, does not call for our interference. The evidence of the prosecution that accused No.11 to 15 abetted the crime is not sufficient to base conviction in the absence of cogent and satisfactory evidence and they are entitled for an order of an acquittal for all the offences alleged against them.
20. The trial Court has classified the case of murder as 'rarest of rare cases' and awarded death sentence to Accused Nos.1 to 9. Brutality is involved in every murder case. Number of murders cannot be a ground to award death sentence. The facts to be considered for awarding death sentence are the magnitude and the manner and brutality. In the decision reported in 2003(7) SCC 141, supra, the Apex Court has held that "It is true that the incident in question has 38 prematurely terminated the life of twenty-one people and the number of deaths cannot be the sole criterion for awarding the maximum punishment of death." In the decision reported in (2011)10 SCC 389, supra, Apex Court has held that the appellant/Accused would not be a menace to society and no reason to believe that the appellant cannot be reformed or rehabilitated or would constitute a continued threat to society and it is not the 'rarest of the rare case' causing for extreme penalty of death. In the decision reported in (2011)13 SCC 706, supra, the Apex Court has held that murder committed in a very brutal and inhuman fashion alone cannot justify death sentence and in the absence of any evidence to show that the appellant was a continuing threat to society or was beyond reform and rehabilitation, death sentence cannot be sustained. In the case of Bachan Singh Vs. State of Punjab reported in (1980)2 SCC 684, the Constitution Bench of the Apex Court has held that "for a person convicted of murder, life imprisonment is the rule and death sentence is an exception, and mitigating circumstances must be given due consideration 39 and death sentence can be awarded only in the 'rarest of rare cases' and for special reasons to be recorded." In the decision reported in 2012(4) SCC 289, supra, the Apex Court has held that by drawing balance sheet of aggravating and mitigating circumstances and examining them in the light of facts and circumstances of the case, concluded that this was not a case where extreme penalty of death be imposed upon the accused and therefore, death sentence awarded to the accused was commuted to one of life imprisonment of 21 years. In the above-said case i.e., Brijendrasingh's case, the Apex Court has given the cases falling under the category of aggravating and mitigating circumstances. The Apex Court has laid down the principles to determine whether this case falls within the scope of rarest of rare cases for imposition of death sentence. The principles laid down by the Apex Court are as under:
" (i) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence;40
(i) In the opinion of the court, imposition of any other punishment i.e., life imprisonment would be completely inadequate and would not meet the ends of justice;
(ii) Life imprisonment is the rule and death sentence is an exception;
(iii) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances; and
(iv) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."
21. Accused Nos.1 to 6 and 8 are aged between 18 and 38 years; whereas Accused Nos.7 and 9 are aged about 51 41 and 53 years. Keeping in view the above principles laid down by the Apex Court, we are of the considered view that death sentence awarded by the trial court is contrary to the principles laid down by the Apex Court.
22. Accordingly we answer the points for consideration partly in favour of the accused.
23. For the foregoing reasons, we pass the following order:
I. Reference case in Crl. R.C. No 11 of 2009 is rejected. II. Appeal in Crl. A. No. 2516 of 2009 filed by accused No.1, 4 to 6, 8, 9 and Crl. A No. 2535 of 2009 filed by Accused No.2, 3, and 7 are rejected.
III. Appeal in Crl. A. No.2516 of 2009 filed by Accused No.11,12 and 13 and Crl.A.No.2536 of 2009 filed by Accused No.14 and 15 are allowed and the impugned 42 judgment of conviction and sentence recorded against them (accused No11 to 15) are set aside and they are acquitted of the offences alleged against them and they shall be set at liberty forthwith, if their presence is not required in any other case;
IV. The impugned order of conviction recorded by the trial court as against the Accused Nos.1 to 10 for the offence punishable under Section 114, 143, 147, 148, 307 (on two counts), 504, 506, 302 r/w Section 149 of IPC, on four counts, is confirmed;
V. The impugned order of sentence made against Accused Nos.1 to 10 for offences punishable under Section 114,143,147,148, 307 (on two counts), 504,506 read with section 149 is also confirmed.
VI. Accused Nos.1 to 10 are sentenced to undergo imprisonment for life (21 years) and pay fine of 43 `10,000/- each, on four counts, in default in payment of fine, to undergo imprisonment for a period of one year, for the offence punishable under Section 302 read with Section 114/149 of IPC;
VII. All the substantive sentences shall run concurrently.
VIII. Accused are entitled for set-off of the period of detention undergone by them under section 428 of Cr.P C. X. If the fine amount is recovered, a sum of `50,000/- shall be paid to P.W.1 towards the death of his wife; whereas a sum of `50,000/- shall be paid to the spouse of deceased Siddalingappa, Nagappa and Mallappa or their legal representatives, as the case may be, respectively, as compensation.
44
XI. Accordingly the impugned judgment of conviction and sentence are modified.
Sd/-
Sd/-
JUDGE Sd/-
Sd/-
JUDGE Bjs