Karnataka High Court
Shekharappa vs State Of Karnataka on 16 December, 2022
Author: K. Somashekar
Bench: K. Somashekar
CRL.A.1736/2018 C/W
CRL.A.1349/2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.1736 OF 2018 C/W
CRIMINAL APPEAL NO.1349 OF 2018
CRL.A NO.1736 OF 2018
BETWEEN:
1 . AVINASH
S/O HALESHAPPA
AGED ABOUT 20 YEARS
BHADRAPURA VILLAGE
SHIVMOGA TALUK.
2 . MARUTHI
S/O HALESHAPPA
AGED ABOUT 21 YEARS
BHADRAPPA VILLAGE
SHIVMOGA TALUK
PIN CODE-577431. ...APPELLANTS
(BY SRI RANGANATH REDDY, ADVOCATE)
AND:
STATE BY
HOLEHONNUR POLICE STATION
BHARAVATHI TALUK
REPRESENTED BY
STATE PUBLIC PROSECUTOR
(HIGH COURT OF KARNATAKA)
BANGALORE-560 001. .. RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
CRL.A.1736/2018 C/W
CRL.A.1349/2018
2
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 24/26.05.2018 PASSED BY
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVMOGA, SITTING AT BHADRAVATHI IN S.C.NO.219/2013,
CONVICTING THE APPELLANT/ACCUSED NO.6 AND 7 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 143, 144, 147, 148, 302
READ WITH SECTION 149 OF IPC.
CRL.A. NO.1349 OF 2018
BETWEEN:
1 . SHEKHARAPPA
S/O MANJAPPA
AGED ABOUT 43 YEARS
2 . HANUMANTHA
S/O MANJAPPA
AGED ABOUT 37 YEARS
3 . PARAMESHI
S/O MANJAPPA
AGED ABOUT 35 YEARS
4 . HARISHA
S/O MANJAPPA
AGED ABOUT 34 YEARS
5 . GOPI
S/O MANJAPPA
AGED ABOUT 30 YEARS
ALL ARE R/O BHADRAPURA VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 427. .. APPELLANTS
(BY SRI KARTHIK YADAV, ADVOCATE FOR
SRI S.K.VENKATA REDDY, ADVOCATE)
AND:
STATE OF KARNATAKA
BY HOLEHONNUR POLICE STATION
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 227
CRL.A.1736/2018 C/W
CRL.A.1349/2018
3
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560 001. ...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 24.05.2018 AND ORDER OF SENTENCE
DATED 26.05.2018 PASSED BY THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI
IN S.C.NO.219/2013 - CONVICTING THE APPELLANTS/ACCUSED
NO.1 TO 5 ARE SENTENCED TO UNDERGO 143, 144, 147, 148
AND 302 READ WITH SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 28.09.2022 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are against the judgment of conviction and order of sentence dated 24.05.2018/26.05.2018 in S.C.No.219/2013 passed by the Court of IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi.
2. Criminal Appeal No.1349/2018 is filed by the accused Nos.1 to 5 and Criminal Appeal No.1736/2018 is filed by the accused Nos.7 and 6. For the sake of CRL.A.1736/2018 C/W CRL.A.1349/2018 4 convenience, the parties shall be referred as per their status before the trial court.
3. In brevity, the case of the prosecution is, Sy.No.98/1 of Koodli village, Bhadravathi taluk ('land in question' for brevity) belonged to the accused. CW- 1/Nagappa is the complainant. He along with his family owns a land abutting to the land in question. As per the survey sketch, there is a pathway in the land in question, which is being used by the complainant, his family members and fellow villagers as an approach road to reach their respective lands. There is a dispute in respect of the said pathway, the accused allege that no pathway is in existence, but complainant, his family members and fellow villagers claim that there is a pathway.
4. This dispute prompted frequent quarrels between both the families and matter reached the Tahasildar, Shimoga in RRTCR No.817/2011-12. He has passed an order on 14.05.2012 directing the CRL.A.1736/2018 C/W CRL.A.1349/2018 5 accused, that they shall not disturb the pathway in existence in the said land till completion of proper phodi work. The accused were not happy with the said order, they started obstructing everybody from using the pathway. Thereafter the dispute intensified, frequent quarrel took place between the accused and complainant and his family members. On 11.8.2012 in the said survey number, there was a quarrel, resulting in case being registered in Crime Nos.167/2012 and 168/2012 at Holehonnur Police Station for the offences punishable under Sections 504, 323 read with Section 34 of IPC and after investigation, charge sheet was also filed in C.C.No.1226/2013 and C.C.No.2105/2013, which are pending before the I Additional Civil Judge and JMFC., Bhadravathi. In addition, there were also civil suits filed between both the parties, same were also pending for consideration before the Civil Court.
5. Because of these criminal and civil cases and order being passed against them by the Tahsildar, CRL.A.1736/2018 C/W CRL.A.1349/2018 6 Shimoga, the accused were waiting for an occasion to meddle with the complainant and his family members. The day was come to them on 15.07.2013. On that day, at about 1.00 p.m., Prakash, son of the complainant came in the pathway in his motor cycle, at that time, the accused with a common object of committing his murder formed an unlawful assembly, armed with weapons like pickaxe and sickle committed rioting, attacked on Prakash, dragged him out of the motor cycle, in furtherance, accused Nos.3, 4 and 7 with sickle and accused Nos.1 and 5 with pickaxe assaulted and inflicted injuries over the head, chin, chest and hands of Prakash, due to which, he succumbed at the spot.
6. Ramesh and Chandrappa, the brothers of Prakash, who were working in the land nearby, seeing the same rushed to rescue their brother, but accused Nos.1 to 7 in prosecution of their common object, did not allow them to rescue, attacked them also with CRL.A.1736/2018 C/W CRL.A.1349/2018 7 sickle, pickaxe and inflicted fatal injuries over their head, back and legs, they too succumbed to death at the spot. Soon after, the accused threw the sickle at the spot and escaped from the scene of offence. CW- 1/Nagappa, who had witnessed the incident, filed a complaint to the Holehonnur Police, same was registered in Crime No.211/2013. PW-31/ Parashuramappa and PW-36/Ramesh, Circle Inspectors of Police, have investigated the case, arrested the accused, seized the weapon of offence, recorded the statement of witnesses and collected all the evidence and after completing the investigation, filed the final report.
7. After receipt of the charge sheet, the learned Additional Civil Judge and JMFC, Bhadravathi, registered the case in C.C.No.3705/2013, complying Section 207 of Cr.P.C., committed the case to the Court of Sessions acting under Section 209 of Cr.P.C. Learned Principal District and Sessions Judge, Shimoga CRL.A.1736/2018 C/W CRL.A.1349/2018 8 registered the case in S.C.No.219/2013 and assigned it to the Fast Track Court, Bhadravathi. After abolition of Fast Track Courts, the matter was assigned to IV Additional District and Sessions Judge, Shimoga sitting at Bhadravathi.
8. The accused were represented by their counsel. Before the Trial Court the accused pleaded not guilty of charge for the offences under Sections 143, 144, 147, 148, 149 and 302 of IPC. The Prosecution examined PWs-1 to 36, Exs.P1 to P83 and M.Os.1 to 52 marked. Exs.D1 to D14 came to be marked on behalf of the accused. The accused were questioned under Section 313 of Cr.P.C., they denied the incriminating circumstances pointed to them. They did not choose to lead any evidence as required under Section 233 of the Cr.P.C.
9. The trial Court after hearing both sides and considering the evidence on record passed the CRL.A.1736/2018 C/W CRL.A.1349/2018 9 impugned judgment convicting the accused Nos.1 to 7 for the offences under Sections 143, 144, 147, 148, 302 read with Section 149 of IPC. Accused Nos.1 to 7 were sentenced to undergo S.I. for six months, one year, one year and two years each for the offences under Sections 143, 144, 147, 148 read with Section 149 of IPC, respectively. Further, accused Nos.1 and 5 were sentenced to undergo life imprisonment for their entire life time i.e., till their death and to pay fine of Rs.25,000/- each for the offence punishable under Section 302 read with Section 149 of IPC and in default of payment of fine, to undergo R.I. for one year. And accused Nos.2, 3, 4, 6 and 7 were sentenced to undergo life imprisonment and to pay fine of Rs.25,000/- each for the offence punishable under Section 302 read with Section 149 of IPC and in default of payment of fine, to undergo R.I. for one year with all the sentences to run concurrently.
10. Grounds urged in these appeals are:
CRL.A.1736/2018 C/W CRL.A.1349/2018 10 The trial court has committed an error in appreciating the evidence on record. The trial court has failed to take note of the pathway dispute. There is an allegation that the women folk had also joined hands with the accused persons in assaulting the deceased, but the evidence speaks differently. The trial court has failed to appreciate that the incident has taken place in a scuffle. The trial court has failed to take note that the real aggressors were deceased themselves and not the accused. There was an enormous delay in filing the FIR and that the appellants were falsely implicated on the background of the dispute, recovery effected by the Investigating Officer at the instance of one accused has been placed against the other accused, which is contrary to law.
The accused are in no way involved in the crime and the prosecution has failed to examine the material witnesses viz., CW-2/Nagarathna and CW-7/Ganesha H.S., there is a secondary hypothesis available, case CRL.A.1736/2018 C/W CRL.A.1349/2018 11 does not fall within the purview of Section 302 of IPC, the order of conviction is erroneous and calls for interference.
11. We have heard the arguments of Sri.Karthik Yadav, learned Counsel for appellants/accused Nos.1 to 5, Sri.Ranganath Reddy R., learned counsel for appellants/accused Nos.6 and 7 and Smt.Rashmi Jadhav, learned HCGP for the State and also perused the impugned judgment, evidence led by the prosecution and other material placed before the Court.
12. Learned counsel for appellants/accused Nos.6 and 7 strenuously argued that prosecution out of six eye-witnesses listed examined only two. PW-1 is chance witness only, she was in the house at the time of incident, after hearing the news, she visits the spot and saw the dead bodies. PW-2 came to the spot later, he did not state accused Nos.6 and 7 assaulting the deceased. PWs-3 to 7 though chance witnesses, CRL.A.1736/2018 C/W CRL.A.1349/2018 12 they did not support the prosecution against accused Nos.6 and 7. There is a clear contradiction between the evidence of PW-1 and PW-2 regarding place of mahazar, location, and they shifted it to a different place.
13. Learned counsel also argued that there is inordinate delay in reaching FIR though it was registered at 2.00 p.m., as it reaches the learned Magistrate at 9.00 p.m., during which, witnesses have been introduced in order to implicate the accused persons. He has relied upon the judgment of the Hon'ble Apex Court in Balaka Singh and Others -vs- The State of Punjab - (1975) 4 SCC 511 at paras-5 and 8 regarding implication of wrong persons to the case as accused persons.
14. It is also contended that, it is brought out from PW-1 that female members of the accused family joined hands to assault the deceased, but none of the other witnesses refers it. PW-1 is a chance witness, CRL.A.1736/2018 C/W CRL.A.1349/2018 13 but she claims to be an eye-witness. Two of the independent witnesses CW-2/Nagarathnamma and CW-8/Hanumantha D., were available but they have intentionally withheld for which no explanation is offered. When a witness is required to prove certain facts, if he was not examined how the evidence has to be appreciated has been dealt with, in the case of Ram Ashrit and Others -vs- State of Bihar reported in 1981 Crl.L.J. 484. When there are infirmities and contradictions in the evidence in the absence of corroboration it is hazardous to convict the accused and in this regard relied on (2017) 13 SCC 597 in the case of Kanakarajan -vs- State of Kerala, at para-18.
15. Learned counsel also contended that there is a delay of three days in recording the statement of PW- 2, the delay has not been explained, merely because accused Nos.6 and 7 are the relatives of other accused, they have been fixed for conspiracy. Learned counsel CRL.A.1736/2018 C/W CRL.A.1349/2018 14 referring to the mahazar submitted that some of the witnesses have not been examined. In this regard, he has relied on the judgment of Hon'ble Apex Court in State of U.P. -vs- Khacheroo and Others reported in 1997 SCC (Cri) 966 to show that how it will affect the appreciation of evidence. There is a material contradiction in the evidence of eye-witnesses and FIR shall be the stand-alone evidence to prove the guilt. With regard to the material contradictions relied upon the judgment of the Hon'ble Apex Court in the case of Harkirat Singh -vs- State of Punjab reported in (1997) 11 SCC 215. Referring to the contradictions elicited from the mouth of PWs-1 and 2, he has relied upon the judgment of the Hon'ble Apex Court in Joginder Singh -vs- State of Haryana reported in (2014) 11 SCC 335 and relied on paras-37 to 42.
16. It has been argued by learned counsel for accused Nos.1 to 5 that there is major improvement in the evidence of PW-1, for the first time, she deposed CRL.A.1736/2018 C/W CRL.A.1349/2018 15 about accused Nos.3 and 4 sustaining the injuries. The statement of PW-1 as per Ex.D1 and D2 is proved through PW-31/Investigating Officer. The said statements show PW-1 was a hearsay witness, she has given 3 versions about the incident which are contrary and she cannot be treated as an eye witness.
17. Referring to the evidence of PW-2, it is submitted that he did not speak about the injury sustained by accused Nos.3 and 4. The evidence of PW-4 contradicts the version of PW-3 by saying that he had seen the dead bodies on the pathway. Ex.D3 and D4 are statement of PW-2 contradicts the version of PW-1 and PW-3 as to lying of dead bodies in the land of Manjappa.
18. Learned counsel referring the evidence of PW-9 regarding seizure of clothes of accused No.1 on the next day of the arrest, submitted that no recovery was done immediately and so also the evidence of PW-
10. Hence, seizure of mobiles and clothes of the CRL.A.1736/2018 C/W CRL.A.1349/2018 16 accused is doubtful. To substantiate it, he has placed reliance on the judgment of the Hon'ble Apex Court in Yamanappa Goolappa Shirgumpi and Others -vs- State of Karnataka reported in (1981) SCC (Cri)
271.
19. PW-11 is a panch witness to seizure of weapon of offence through accused Nos.1 to 5, but he has deposed that he never visited the Bhadrapura village but other witnesses speak so, also the I.O. Hence there is a contradiction leading to doubt in their veracity. Learned counsel submitted that in view of the contrary statements of PW-1, 2, 3 and 4, and contradictions demonstrated in seizure through PW-9, 10 and 11, evidence lacks confidence. Therefore, the accused are entitled for acquittal on the ground of benefit of doubt.
20. Per contra, learned HCGP submitted that minor omissions and contradictions will not go to the root of the case as the court is required to consider the CRL.A.1736/2018 C/W CRL.A.1349/2018 17 evidence in its totality. It is contended that PW- 27/C.N.Manjunatha, the Executive Magistrate has given clear evidence about the existence of pathway in Sy.No.98/1, he has inspected he spot on 3.5.2012 and passed the prohibitory order against the accused from interfering with its use by others. In his cross- examination, though it is elicited nonexistence of said pathway in the survey sketch, he has confirmed its existence and use in the spot inspection.
21. It is submitted that there is a specific averment in Ex.P4/complaint about the working of people in the adjoining fields, who have seen the accused blocking the road and assaulting Prakasha prompting the incident, and overt act and names of all the accused is mentioned in it.
22. As regarding motive, he submitted that if the accused allowed the pathway to be used, this incident could not have been happened but only after accused blocked the pathway civil and criminal cases came into CRL.A.1736/2018 C/W CRL.A.1349/2018 18 picture. Regarding omission to mention presence of women folk, it is submitted that the Investigating Officer might not have found sufficient material against them to implead their names in the charge sheet and is not a ground to disbelieve the version of prosecution.
23. PW-4 was present and seen the accused passing in front of his house. PW-5 offered water to accused Nos.2to5, PW-6 seen 5-6 persons running on the road from Bhadrapura side to Shimoga side. This is sufficiently explained the fact of the accused fleeing away from the spot soon after commission of the offence.
24. The complainant was fighting against the accused legally by filing complaints to the concerned authorities, prompted the accused to gang up against the deceased, eye witnesses have explained the incident, seizure of bloodstains at the spot, bloodstained cloths of the deceased, seizure of weapon of offence at the instance of the accused, medical CRL.A.1736/2018 C/W CRL.A.1349/2018 19 evidence suggests homicidal death of all the three deceased. Referring to the evidence of PW-34 Dr.G.Mahadevappa, the Medical Officer of Mc.Gann Hospital, it is submitted that on 15.7.2013, Accused Nos.3 and 4 have taken treatment for the injuries sustained by them, they have suppressed the history of the injury, and offered no explanation for the same in his cross examination. Role and overt act of each of the accused is explained through evidence, the common object is demonstrated and thereby Section 149 of I.P.C. is established.
25. It is contended that, in the background of adverse order against them, the accused have made pre plan, preparation waiting for the arrival of the complainant and his family members on the pathway so as to teach them a lesson. On the date of incident, since complainant, deceased Ramesha and Chandrappa were already working in their land, the accused were waiting for the arrival of the deceased Prakasha. Since CRL.A.1736/2018 C/W CRL.A.1349/2018 20 he arrived in the motor cycle, he was attacked inflicted fatal injuries, when Ramesha and Chandrappa came to his rescue, inflicted such a blow, they too succumbed to death at the spot. The trial court has considered the evidence of the prosecution, admission elicited in the cross-examination, and evaluated the omissions, contradictions and also the improvements and recorded the finding that only single hypothesis is possible and convicted the accused and requested its confirmation and supported the impugned judgment.
26. Having heard the arguments of both sides, let us examine the weight of the evidence placed before the court by the prosecution.
27. PW-1 Smt.Vinoda is the wife of deceased Chandrappa. Apart from narrating the relationship, existence of their land adjoining to the land of the accused, the disputed pathway and its use by her family members, obstruction of its use leading to filing of the complaints to Holehonnur Police, filing of civil CRL.A.1736/2018 C/W CRL.A.1349/2018 21 suits, petition to the Tahasildar, Shivmoga, his order directing the accused not to disturb the use of pathway by her family members to reach their land, her testimony shows that on 15.7.2013 since 9.10 a.m., she, her in-laws, her husband and her brother-in-law Ramesh were working in their land at that that time, they saw the presence of all the accused in their land who were came to harvest the tender coconuts.
28. At about 1.00 p.m., her father-in-law was grazing the cow near the canal, her husband and brother in law were working in their field. She and her mother-in-law heard the sound and turned towards the accused. They saw accused Nos.1 to 7 holding sickle and spade attacking Prakasha. She saw they were inflicting injuries on his head, chest, ear, ribs, and stomach. Her husband and Ramesha rushed to the spot, the accused no.3, 5, and 7 inflicted injuries on their head, ear by means of sickle and spade. She and her mother in law too rushed to the spot but they were CRL.A.1736/2018 C/W CRL.A.1349/2018 22 threatened with same treatment. PW-2 Anjaneya, CW- 7 Gansha, CW-8 Hanumantha have witnessed the incident who too rushed to the spot for rescue but they were also threatened.
29. According to her, accused Nos.3 and 4 too sustained injuries while her husband and Ramesha tried to escape from the assault. After assault by seeing the arrival of others, the accused did escape from the spot. Blood was spilled at the spot, bike; coconuts and bamboo coconut plucker were spread around. She identified the weapons of offence M.Os.1, 2, 16, 17/sickle, M.Os.13 to 15 spades used by the accused. Later on arrival of police and shifting of bodies to Mc.Gann Hospital, Shimoga, she giving statement before the learned Magistrate narrating the above facts. She has identified the cloths at M.O.7 and M.O.8 as the pant and shirt on the dead body of her husband Chandrappa, M.O.9 and M.O.10 as the shirt and pant on the body of Ramesha, M.O.11 and M.O.12 CRL.A.1736/2018 C/W CRL.A.1349/2018 23 are the clothes on the dead body of Prakasha. She also identifies M.O.18 coconuts which were plucked by the accused in their land spread aroung the dead bodies.
30. The testimony of PW-2 shows that he is the relative of both the accused as well as the complainant, since four years (examined on 21.6.2016) he was aware of the pathway dispute between the families of accused and complainant situated in the garden of Manjappa, they were litigating before the Tahsildar, Shimoga, whose order prompted ill-will between them. On 15.7.2007, he was spraying pesticide to ginger crop in his land, situated near the land of Manjappa, accused Nos.1 to 7 were working in their land, CW-2 and PW-1 were removing weeds in their land, CW-7 Ganesha was working in his land, the deceased Chandrappa and Ramesha, were also working in their land.
31. At about 12.30 p.m., he has heard the hue and cry of Prakasha in the garden land of Manjappa, CRL.A.1736/2018 C/W CRL.A.1349/2018 24 turned towards that side and saw the accused No.4 holding sickle and assaulting on the head of Prakasha, accused Nos.1 to 3 and 5 with spade too assaulting on his head, due to the impact he was collapsed at the spot. He, CW-7/Ganesha and Hanumatha raised hue and cry, by listening to it, Chandru and Ramesha rushed to the spot for his rescue. Accused No.5 with a spade assaulted on the head of Chandru, accused Nos.2 to 4 inflicted injuries on the head and body of Chandru with a spade, accused No.1 with spade, assaulted on the head of Ramesha, accused Nos.2 to 4 with sickle and spade assaulted on the head of Ramesha, both of them too succumbed to death at the spot. Accused Nos.6 and 7 holding sickle in their hands were also standing at the spot in a ferocious manner with an intention to assault the deceased. After realizing the death of the deceased they all escaped from the spot, he has seen spade and sickles at M.Os.1, 2, 13 to 17 in the hands of the accused at CRL.A.1736/2018 C/W CRL.A.1349/2018 25 the spot. He has given his statement before the JMFC., at Bhadravathi in this regard.
32. The testimony of PW-3/Ganesha shows the pathway dispute between the families of complainant and the accused. On 15.07.2014, while he was sitting on the piale of his house, between 1.00-1.30 p.m., saw villagers rushing towards the land of Manjappa stating some murder took place. At that time, he saw accused Nos.2 to 5 was in hurry and fleeing away in their bike in front of his house. He too visited the land of Manjappa, saw the dead bodies of Chandrapa, Prakasha and Ramesha lying with bleeding head injuries and motor cycle at the spot.
33. The testimony of PW-4/Lakshmanappa shows that three years ago (examined on 14.07.2016) at about 1.00 p.m., he was standing in front of his house at Bhadrapura, saw the accused Nos.2 to 5 holding pickaxe in their hands, stained with mud, going in a CRL.A.1736/2018 C/W CRL.A.1349/2018 26 motor cycle in a hurry. Half an hour later he came to know the talks in the village about the incident and visited the spot, saw the dead bodies of three sons of CW-1/Nagappa on the pathway in the garden land of Manjappa and he has stated the same to the Police.
34. The testimony of PW-6/Kariyappa shows that on 15.07.2013 at 1.15 p.m. while he was sitting in front of his house, saw 5-6 persons running from Bhadrapura side towards Shimoga. He came to know about galata, in which, Prakasha, Ramesha and Chandrappa were done to death in the garden land of Manjappa.
35. PW-7/Bharmeshappa is a fellow villager of Bhadrapura and knew both the families of Manjappa and Nagappa. His testimony shows the pathway dispute between the said families, leading to frequent quarrels between them. He owns land in Sy.No.195 situated by the side of road leading from Bhadrapura to B.Beeranahalli village. 3 years ago, around between CRL.A.1736/2018 C/W CRL.A.1349/2018 27 1.00-1.30 p.m., he was in his land, saw the accused Nos.2 to 5 in a single bike going hurriedly, blood was oozing from one among them. On his return, to village, saw accused No.1 too going on the back side of the school in hurried manner. When he reached home, he was informed about the quarrel in which sons of Nagappa were done to death.
36. PW-5/K.H.Basappa is the fellow villager of Katikere village of Bhadravathi. His house is situated abutting to Shimoga-Bhadravathi road. 3 years ago (examined on 14.07.2016) at about 1.00 p.m. 4 riders in a bike came to him asking for drinking water, he fed them the water and noticed blood injuries on the body of two among them. When asked, they told him that a small incident took place at Bhadrapura. One hour later, he has heard the talks in his village that at Bhadrapura village 3 persons were done to death. He told the same to police on enquiry.
CRL.A.1736/2018 C/W CRL.A.1349/2018 28
37. PW-29/H.M.Rangaswamy is the PSI of Holehonnur Police Station. His testimony shows that on 15.7.2013 at 2.00 p.m. he has received Ex.P4/complaint from CW-1/Nagappa, registered Ex.P68/FIR in Crime No.211/2013 and handed over the investigation to PW-31/Parashuramappa/CPI.
38. PW-8/Hanumantha D. is a relative of the accused. His testimony shows that three years ago (examined on 5.8.2016), came to know about Prakasha, Chandra, Ramesha were done to death in the garden of Manjappa. On the very day at 3.00 p.m. he was called to the spot, CW-1 shown the place to the Police, PW-31/H.Parashuramappa and CW- 15/Chandrashekara have inspected the spot, enquired them, during so near the dead body of Ramesha, he saw a sickle and bloodstains. Police have collected the bloodstained soil and soil samples, sickle and one blue cap found on the dead body.
CRL.A.1736/2018 C/W CRL.A.1349/2018 29
39. They have inspected the dead body of Chandru, besides one sickle was found, they have collected bloodstain soil and soil samples, sickle and jerkin found on the dead body.
40. They have also inspected the dead body of Prakasha lying besides motor cycle, they have collected bloodstained soil and soil samples and also hairs, coconuts spread around and drawn the mahazar as per Ex.P15 and he subscribed it. He has identified M.O.1 and 2 are the sickles, M.O.3 cap, M.O.4 jerkin, M.O.5 hair, M.O.6 coconuts, M.O.19 to 24 are the sample of bloodstained soil and sample soil near the dead bodies, which were seized by the Police.
41. PW-19/Thippesh is a panch witness to the inquest on the dead body of Chandrappa. His testimony shows that in his presence police conducting inquest on the dead body of Chandrappa at Mc.Gann Hospital, Shimoga during so, CW-18/Basavarajappa and Sathyanarayana were present. He has seen cut CRL.A.1736/2018 C/W CRL.A.1349/2018 30 injuries on middle of the left ear with bleeding and also bleeding from nose. M.Os.7, 8, 45 and 46 are the pant, shirt, banian and underwear cloths found on the dead body, seized by the Police and he has attested Ex.P59 inquest mahazer.
42. PW-26/Shivananda is the police constable was on guard of dead bodies at Mc.Gann Hospital, Shimoga. His evidence points out the inquest conducted and delivery of the dead bodies to relatives of the deceased and reporting it to the Investigating Officer.
43. PW-14/Prabhakara is a chance witness and also a panch witness to the inquest on the dead body of Ramesha. His testimony shows that on 15.07.2013, he was in his land at Bhadrapura, between 12.30 p.m.
- 1.00 p.m., saw fellow villagers moving hurriedly, he too followed them to the land of Anche Manjappa, saw the dead body of Ramesha lying with bleeding injuries CRL.A.1736/2018 C/W CRL.A.1349/2018 31 on the head, back and legs. Beside saw the dead body of Chandru with bleeding head injury, cut in the left ear. To the left, dead body of Prakasha was lying with bleeding head injury. The bodies were shifted to Mc.Gann Hospital, Shimoga. At about 5.00 p.m., he too visited the hospital and gave his inquest statement befoe the Police.
44. His evidence also shows that when he visited the police station on 21.7.2013 saw the accused No.4 in police custody, who took him, PW-
16/Krishnamurthy, PW-7/Bharamesh and Police to Bhadrapura kaccha road, produced a sickle, and a spade and its seizuer under Ex.P49/mahazar by the police.
45. PW-21/Lokesh is also a chance witness. His testimony shows that on 15.07.2013, when he was in his house, saw the villagers going to the land of Manjappa at Bhadrapura, came to know about the incident, he too visited the spot, saw the dead body of CRL.A.1736/2018 C/W CRL.A.1349/2018 32 Ramesha lying on the ground with injuries on the back. In the trunk of Areca tree, dead body of Chandru was lying with bleeding tear on the ear, and also saw the dead body of Prakasha in the trench beside the pathway with head injury. With the help of others, he has shifted the dead bodies to Mc.Gann Hospital, Shimoga where the Police have conducted the enquiry. According to him, these 3 brothers were done to death in the background of pathway dispute between the family of Manjappa and Nagappa, which was precipitated since four years.
46. PW-32/N.Venkatesh, the PSI, rural police station Bhadravathi. His testimony shows as per the instructions of CPI on 15.07.2013 between 5.30- 8.30 p.m., he has conducted the inqeust on the dead body of Ramesha at Mc.Gann Hospital, Shimoga in the presence of PW-18/Gopinatha, CW-22/Umesha, CW- 24/Kumara, seized M.O.9, 10, 41 to 44 clothes on the dead body under Ex.P15/inquest mahazar. He has also CRL.A.1736/2018 C/W CRL.A.1349/2018 33 recorded the statements of PW-1/Vinoda, PW- 14/Prabhakara, CW-2/Nagarathna, CW-26/Ramesha and CW-27/Suresha.
47. PW-18/Gopinath is inquest pancha for the dead body of Ramesha. His evidence shows that at District Hospital, Shimoga, police drawn the inquest on the dead body of Ramesha in his presence, he had noticed cut injury on right ear, 5-6 injuries on the back, cut injury on the right leg, abrasion on left hand. M.O.9/shirt, M.O.10/pant, M.O.41/Banyan, M.O.42/underwear and M.O.43/black rubber bangle with black thread were on the dead body and its seizure by the Police under Ex.P58/ inquest mahazar.
48. PW-20/C.D.Mahendrakumar, is inquest pancha of dead body of Prakasha. His testimony shows that on 15.07.2013 between 5.30-8.30 p.m., at District Hospital, Shimoga, police drawing inquest mahazar on the dead body of Prakasha in his presence, he had seen injuries over front portion of head, deep CRL.A.1736/2018 C/W CRL.A.1349/2018 34 injury on the back of head, deep injury on the chest with blood clots and cut injury on the left thumb and index fingers. He had seen M.O.11/shirt, M.O.12/pant, M.O.47/Banyan, 48/underwear, M.O.49-50/black threads on the body and its seizure under Ex.P60/inquest mahazar by the Police.
49. PW-30/B.Manjunatha, the PSI of Paper Town Police Station, Bhadravathi. His testimony shows as per the instructions of CPI on 15.07.2013 between 5.30 a.m. and 8.30 p.m., he has conducted the inquest mahazar on the dead body of deceased Prakasha at Mc.Gann Hospital, Shimoga in the presence of PW- 20/Mahednra Kumar, PW-15/Gopala, CW-30/Halesha, recorded the injuries noticed on the dead body, seized M.O.11, 12, 47 to 50 clothes on the dead body under Ex.P60/inquest mahazar.
50. PW-15/Gopala, is a panch witness to seizure of M.O.34 and 35 under Ex.P50. His testimony shows that 3-4 days after the incident, at about 6.00 p.m., CRL.A.1736/2018 C/W CRL.A.1349/2018 35 he, CW-41/Visweswara was called to the police station, during his visit, saw the presence of accused No.4/Harisha in the police custody, who produced bloodstained clothes at M.Os.34, 35 and mobile at M.O.36 to police and its seizure under Ex.P50/mahazar.
51. PW-10/Nagesha, is a panch witness to seizure of M.O.28 to 33 under Ex.P31. His testimony shows in the year 2013 between 12 noon to 12-30 p.m., he was called to Holehonnur Police Station. On his visit to Police Station, saw the presence of two accused persons wearing lungi and full shirt. Two mobiles were kept on the table of the Inspector. The clothes worn by the said two accused was stained and it was collected by the Police. M.Os.28 to 31 are the said clothes and M.O.32 and 33 are the said mobiles seized under Ex.P31/mahazar.
52. PW-13/Kenchappa, is also panch witness to seizure of M.O.28 to 33 under Ex.P31. His testimony CRL.A.1736/2018 C/W CRL.A.1349/2018 36 shows that 3 years ago (examined on 27.10.2016) along with PW-10 he was called to Holehonnur Police Station, when he visited the Police Station, saw the presence of PW-10, saw the presence of accused No.2 wearing blood and mud stained full shirt/M.O.28 and M.O.29/lungi. The police have seized the said clothes and also M.O.32 mobile from the custody of accused No.2 under Ex.P31/mahazar between 1.00 - 2.00 p.m.
53. PW-13's testimony further shows five minutes later he and P.W-10 were called again to the Police Station, accused No.5 was shown to them, he saw the accused No.5 was wearing blood and mud stained full shirt/M.O.30 and M.O.31/lungi and possessing M.O.33/mobile. The police have seized the said articles under Ex.P31/mahazar between 2.00 - 3.00 p.m.
54. PW-9/Siddesh, is panch witness to seizure of M.O.25 to 27 under Ex.P25. His testimony shows that 3 years ago (examined on 24.08.2016) along with CRL.A.1736/2018 C/W CRL.A.1349/2018 37 CW-37/Nagaraj, he was called to Holehonnur Police Station, when he visited the Police Station, saw the presence of accused No.1 wearing M.O.25/white shirt and M.O.26/blue lungi. He saw bloodstains on pocket portion of the shirt, the lungi worn by him was torn and it was stained with blood. Accused No.1 was also holding M.O.27 mobile in his hands. Police have seized the said clothes and mobile under Ex.P25/mahazar.
55. Prosecution proposes PW-
11/M.V.Ravindranath and P.W.12/Thippesh as the panch witnesses regarding seizure of weapon at the instance of the accused No.1, 2, 5. The testimony of P.W-11 shows on 17.07.2013, he was called to the Holehonnur Police Station. At 9.00 a.m. when he visited the Police Station saw the presence of accused No.1 and P.W.12. The accused No.1 took him, PW-12 and the Police to Kodligere Kaccha road located on Shimoga road, after 5 - 10 minutes' drive asked to stop, get down from the jeep, they followed him, CRL.A.1736/2018 C/W CRL.A.1349/2018 38 accused No.1 searched inside the weeds, removed M.O.13/spade and M.Os.16 and 17 sickles and produced them, it was seized under Ex.P33/Mahazar around 11.30 a.m.
56. The testimony of PW-12 shows on 17.07.2013, he was called to the Holehonnur Police Station. At 9.15 a.m. along with CW-39/Ganesha when he visited the Police Station saw the presence of accused No.1 and P.W.11. Accused No.1 took him, PW-11 and the Police to Kodligere Kaccha road located on Shimoga road, after 5 kilometres drive asked them to stop, get down from the jeep, they followed him, after search inside the lunton weeds, removed M.O.13 spade and M.O.16 and 17 sickles and produced them, it was seized under Ex.P33/Mahazar around 11.30 a.m.
57. The testimony of P.W-11 further shows, he was called to the Holehonnur Police Station again on the very day at 12.30 p.m., when he visited the Police CRL.A.1736/2018 C/W CRL.A.1349/2018 39 Station saw the presence of accused No.2 and 5 in the police custody. They took him and Police to B.Beeranahalli Cross, on Holehonnur-Shimoga road, after 1 kilometer drive asked them to stop, get down from the jeep, they followed them, they went near weeds beside electric pole near sugarcane land, removed M.O.14, 15 spades produced them, it was seized under Ex.P39/Mahazar around 2.30 p.m.
58. The testimony of P.W-12 further shows, he was called to the Holehonnur Police Station again on the very day at 12.30 p.m., when he visited the Police Station along with P.W-11 and C.W-39 saw the presence of accused No.2 and 5 in the police custody. They took him and Police to B.Beeranahalli Cross, on Holehonnur-Shimoga road, after 1 kilometer drive asked them to stop, get down from the jeep, they followed them, they went near hulikanti, removed M.O.14, 15 spades produced them, it was seized under Ex.P39/Mahazar around 2.30 p.m. CRL.A.1736/2018 C/W CRL.A.1349/2018 40
59. Prosecution proposes P.W-16/ Krishnamurthy as the panch witnesses regarding seizure of weapon at the instance of the accused No.4. His testimony shows in the year 2013 he was called to the Holehonnur Police Station at 11.00 a.m., on his visit along with P.W-14 & P.W-17 to Police Station saw presence of accused No.4 in the police custody. The accused No.4 took them, towards Shimoga, after 5 kilometer drive took them to the right side for a distance of 1 kilometer, asked them to stop, get down from the jeep, they followed him for about 30 feet, who shown a pit inside the weeds and it was inspected under Ex.P49/Mahazar.
60. PW-17/Narasimhappa, is a panch witness to seizure of M.O.37 to 40 under Ex.P53. His testimony shows that 3 years ago (examined on 9.12.2016), he was called to Holehonnur Police Station, when he visited the police station at 12noon saw the presence of accused No.3, who has produced M.O.37 faded full CRL.A.1736/2018 C/W CRL.A.1349/2018 41 length white shirt, M.O.38 banian, M.O.39 pant and M.O.40 YXTEL mobile, they were stained with blood. The police have seized the said clothes and mobile under Ex.P53/mahazar and it was also attested by CW.52/Basavaraj at 1-00 p.m.
61. His testimony also shows that the accused No.3 took them, towards Shimoga, after 5 kilometer drive taken them to the right side for a distance of 1 kilometer, asked them to stop, get down from the jeep, they followed him for about 30 feet, who shown Lunton weeds in the land of Giriyappa as place where weapons were concealed by him, accused No.1 and 4, it was inspected under Ex.P57/Mahazar at 3-00 p.m.
62. The testimony of P.W.29/PSI H.M.Rangaswamy further shows that apprehending of accused No.2 and 5 at 5-30 a.m., on 17-7-2013 at Hole Bus stop of Shimoga, on the very day apprehended accused No.1 at Barandur bus stop and CRL.A.1736/2018 C/W CRL.A.1349/2018 42 their production before the Investigating Officer under Ex.P69 report. On 20.7.2013 at Holalur Bus stop apprehended accused No.6 and 7 and their production before the Investigating Officer under Ex.P70 report.
63. The testimony of P.W.24 Prakash the police constable shows apprehending of accused No.4 along with a bag containing his cloths at 2-30 p.m. on 20-7- 2013 at Mc.Gann Hospital, Shimoga, and his production before PW31 under Ex.P65 report.
64. The testimony of P.W.26 Shivanandha police constable shows he along with P.W.24 have apprehended accused No.4 Harisha at 2-00 p.m. on 20-7-2013 at Mc.Gann Hospital, Shimoga, at that he was holding cloths in a plastic bag, took him and produced before CPI under Ex.P65 report.
65. The testimony of P.W.25 Santhosh Kumar the police constable shows, he and C.W.51 Megharaj/constable apprehending of accused No.3 CRL.A.1736/2018 C/W CRL.A.1349/2018 43 along with a bag containing his cloths at 10-30 a.m. on 29-7-2013 at Mc.Gann Hospital, Shimoga, and his production before CPI under Ex.P66 report.
66. The testimony of P.W.33/Shivanaika, police constable shows that, on 15-7-2013 at 7-00 P.M. collected FIR at Police Station and carried it and submitted to Magistrate at home office at 9-45 P.M.
67. The testimony of P.W.23/ B.R.Dhayanandha, the Assistant Engineer, PWD shows on 20-07-2013 he was taken to place of incidence at Bhadrapura by police, on showing the topography by P.W.24, he has prepared sketch as per Ex.P64 report.
68. The testimony of P.W.34 Dr.G.V.Mahadevappa, Medical Officer of Mc.Gann Hospital, Shivmoga shows examination of accused No.3 and 4 on 15.07.2013, who were admitted at 7- 15 p.m. on that day with a history of assault. They taken first aid at Bhadrvathi Government Hospital CRL.A.1736/2018 C/W CRL.A.1349/2018 44 before coming to their Hospital. On examination of accused No.3, he has noticed 2x3x1/2 inch cut lacerated injury on the back side of the head, 5x1/4inch cut injury on the left side of the head, staff injury on the lower left side of the chest, cut injury on the middle of the head measuring 3x1/2x1/2 inch. On 17.7.2013 he was subjected to CTC scan, further noticed Small subdural bleeding measuring 4mm along left temporal convexity, linear fracture of left temporal bone and fracture of 8th rib on the left side of chest with pneumothorax. He was under hospitalization for 15 days and discharged on 29.7.2013. To explain this, he has produced Ex.P.81 hospital case sheet.
69. His testimony further shows examination of accused No.4. He has noticed pain and restricted movement of the right shoulder joint, incised wound over left forearm 3x1/2x1/4 inch, cut lacerated wound over the left wrist joint lateral aspect 2 x 2inch. He was treated under hospitalization and discharged on 20-7- CRL.A.1736/2018 C/W CRL.A.1349/2018 45 2013. To explain this he has produced Ex.P.82 hospital case sheet.
70. P.W.35 Dr.Suneela is the Assistant Professor of Surgery at Mc.Gann Hospital, Shivmoga. His testimony shows treatment given to accused No.3/Paramesh for 15 days and accused No.4/Harish for 5 days, who were admitted on 15-07-2013 with a history of assault. On 15-7-2013 he has conducted intercostal drainage on accused No.3/Paramesh for removal of blood and air and to this effect he has endorsed at Ex.D13 and 14 in Ex.P81. PW-35 is of the opinion that the injuries on the body of accused No.3/Paramesh are grievous and was inflicted with sharp edged weapon. The injuries on the body of accused No.4/Harish were caused with sharp edged weapon.
71. The testimony of P.W.27 C.N.Manjunath, the than Tahasildar, Shimoga, shows pathway dispute between the families of Nagappa and Manjappa. He CRL.A.1736/2018 C/W CRL.A.1349/2018 46 has recorded the existence of pathway in sy.No.98/1 of Bhadrapura on receipt of request from C.W.1 Nagappa. It was objected by Manjappa by his representation. Hence, on 03.05.2012, he has inspected the spot personally in presence of family members of both, surveyor, and village accountant and also revenue inspector, identified and shown the location of pathway at the spot to them. He noticed that the said pathway was encroached by accused No.1 and he has proposed a different portion in Sy.No.98/1 as pathway. Because of this dispute, he has passed order at Ex.P2 on 14-5- 2012 for conducting Land Reforms Podi and directed the parties to maintain status-quo till then.
72. P.W.22 Dr.P.S.Chidananda, the Associate Professor of Forensic Medicine, Mc.Gann Hospital, Shimoga has conducted the autopsy on all the three bodies at Mc.Gann Hospital. His testimony shows that, conducting autopsy on the body of Chandrappa between 8-9 a.m., noticing cloths and threads on the CRL.A.1736/2018 C/W CRL.A.1349/2018 47 body stained with blood, they were removed, packed and handed over to police. Further he has noticed rigor mortise set in, dried blood stains over the head, face and body, post mortem stains on the back of the body, mud stains on the hands and feet, bleeding from the nostrils. Following external injuries were found on the body:
1. Laceration measuring 1.2 cm x 0.3 cm x bone deep is present over left side of forehead, placed 0.5 cm above outer end of left brow.
2. Contusion measuring 5 cm x 4 cm is present over left side of forehead and head with underlying deformation of the head.
3. Laceration measuring 4 cm x 0.7 cm x bone deep is present over right side of head, placed 8 cm above top of right ear.
4. Laceration measuring 3.5 cm x 1.5 cm x cartilage deep is present across middle of left ear and margins are abraded and irregularly torn.
5. Contused abrasion measuring 2 cm x 1 cm is present over back of left ear.
6. Abrasion measuring 3 cm x 1 cm is present over back of left shoulder blade.
7. Abrasion measuring 4 cm x 1 cm is present over back of right shoulder blade.
CRL.A.1736/2018 C/W CRL.A.1349/2018 48
8. Abrasion measuring 1.5 cm x 0.3 cm is present over outer aspect of right buttock.
9. Abrasion measuring 2 cm x 0.2 cm is present over outer aspect of left ankle.
On dissection has noticed blood extravasation on both fronto-temporal regions and into temporalis muscles. 14x10cm depressed comminuted fracture involving fronto-temporal and left anterior and middle cranial fossa. From the left orbital comminution, fracture lines radiate to right greater wind of sphenoid bone along the cribriform and right orbital plate of ethamoids for 10cm and from the left petrous temporal to left posterior cranial fossa for a length of 4cm. Blood effused around. Brain membranes lacerated at the fractured sites. Subarachnoid hemorrhage is present all over the brain. Left cerebral hemisphere at its outer surface and base of brain show multiple contusions with superficial lacerations and fracture of nasal bone, 7 x 3cm and 6 x 5cm contusion on right lower chest wall with fracture of left 6th to 8th ribs and also laceration on the right kidney and right lower lobe of CRL.A.1736/2018 C/W CRL.A.1349/2018 49 liver. All these injuries are ante-mortem and fresh. Stomach contains 50ml partially digested food. From the above has given opinion about cause of death was due to Shock and Hemorrhage as a result of said injuries.
73. His testimony further shows that, conducting autopsy on the body of Ramesha between 9-10 a.m., noticing cloths and threads on the body stained with blood, they were removed, packed and handed over to police. He has also noticed rigor mortise, dried blood stains over the face and left hand, post mortem stains on the back of the body, mud stains on the hands and soles. Following external injuries were found on the body:
1. Stellate laceration measuring 5 cm x 3 cm x bone deep is present over right side back of head, placed 9cm above posterior hairline and 8 cm behind right ear, through the injury fractured & fragmented skull bone is seen.
2. Penetrating injury measuring 2 cm x 0.8 cm x 1.5 cm deep is present over back of left shoulder blade, obliquely placed, margins are clean cut, injury is directed upwards, outwards and forwards for a depth of 1.5 cm along the muscle plain.
CRL.A.1736/2018 C/W CRL.A.1349/2018 50 Abrasions measuring 1 cm x 0.2 cm are seen extending from either ends of the wound.
3. Abrasions, two in number measuring 2 cm x 0.3 cm each placed 0.5 cm apart, are present over back of left side of upper part of chest.
4. Abraded contusion measuring 6 cm x 0.7 cm is present over back of left side of lower part of chest and upper part of abdomen.
5. Contusion measuring 8 cm x 2.5 cm is present over back of left side of outer aspect of abdomen.
6. Abrasion measuring 2.5 cm x 0.5 cm is present over right side upper part of back of abdomen, placed 9 cm to the right of midline.
7. Contusion measuring 7 cm x 1 cm is present over back of middle 1/3rd of left arm.
8. Laceration measuring 4.5 cm x 1 cm x bone deep is present over right side of forehead, placed 2 cm above inner 1/3rd of right eyebrow.
9. Contused abrasion measuring 5 cm x 4 cm is present over front of upper 1/3rd of left forearm.
10. Incised looking laceration measuring 3.5 cm x 1cm x bone deep is present over back of proximal phalanx of left ring finger.
11. Laceration measuring 3 cm x 1.5 cm x tendon deep is present over dorsum of middle of right foot.
On dissection has noticed blood extravasation over right temporal regions and into temporalis muscles.
CRL.A.1736/2018 C/W CRL.A.1349/2018 51 3x1.5cm depressed comminuted fracture over right occipital region placed 6cm behind mastoid process and from it 3 fissured fractures radiate for 6cm, 15cm an 8cm towards base of right mastoid, right squamous temporal bone and right parietal eminence respectively. Blood effused around. Brain membranes lacerated over right occipital region beneath the depressed fracture. Subarachnoid hemorrhage is present all over the brain. Right occipital and left parietal lobes are contused. Fracture of left 8th and 10th ribs and also laceration at the hilum. All these injuries are ante-mortem and fresh. Stomach contains 50ml partially digested food. From the above has given opinion about cause of death was due to Shock and Hemorrhage as a result of said injuries.
74. His testimony also shows that, conducting autopsy on the body of Prakasha between 10-15 and 11-15 a.m., noticing cloths and threads on the body stained with blood, they were removed, packed and CRL.A.1736/2018 C/W CRL.A.1349/2018 52 handed over to police. He has noticed rigor mortise all over the body, post mortem stains on the back of the body, dried blood stains over the head, face and upper part of the chest, dried mud stains present over head, face, hands and soles. Following external injuries were found on the body:
1. Laceration measuring 1.5 cm x 0.5 cm x bone deep is present over left side of lower part of back of head, placed 6 cm above posterior hairline and 8 cm behind left ear.
2. Chop wound measuring 4 cm x 1 cm x cranial cavity deep is present over right side of lower part of head, placed 7 cm above posterior hairline and 8 cm behind right ear and through the injury cut scalp tissues, skull bone and membranes are seen.
3. Laceration measuring 2 cm x 0.3 cm x cranial cavity deep is present over left side back of head, placed 10 cm behind top of left ear and 11 cm above posterior hair line and through the injury lacerated scalp tissues, skull bone and membranes are seen.
4. Laceration measuring 2 cm x 0.5 cm x bone deep is present over middle of back of head, placed 12 cm above posterior hair line.
5. Laceration measuring 3 cm x 0.5 cm x bone deep is present over back of right side top of head (Parietal eminence), placed 7 cm above right ear.
6. Laceration measuring 3.5 cm x 0.5 cm x bone deep is present over back of left side top of head, placed 7 cm above left ear.
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7. Abrasion measuring 4.5 cm x 0.5 cm is present over back of right shoulder.
8. Abrasion measuring 3 cm x 0.5 cm is present over back of top of right shoulder.
9. Laceration measuring 5 cm x 1.5 cm x cranial cavity deep is present over right side of head and forehead (frontal eminence), placed 9 cm above middle of right eyebrow and through the injury perforated skull bone and lacerated membranes and right cerebrum are seen.
10. Incised injury measuring 2 cm x 0.5 cm x muscle deep is present over right side of chin, placed 2 cm to the right of midline.
11. Contusion measuring 4 cm x 3 cm is present over right collar bone region.
12. Stab injury measuring 2 cm x 1 cm x muscle deep is present over middle and left side upper part of chest, obliquely placed situated 1 cm below the inner end of left collar bone, Lower outer end is sharp, upper inner end is blunt, margins are clean cut and the injury is filled with blood. On further dissection, it is observed that the weapon after cutting the skin has travelled backwards, outwards and downwards for a depth of 3.5 cm along the muscle plain.
13. Stab injury measuring 3 cm x 1.5 cm x muscle deep is present over back of lower 1/3rd of left arm, obliquely placed, lower outer end is blunt, upper inner end is sharp and continues upwards as an abrasion measuring 0.5 cm x 0.1 cm. On further dissection, it is observed that the weapon after cutting the skin has travelled forwards, inwards and downwards for a depth of 4 cm along the muscle plain.
CRL.A.1736/2018 C/W CRL.A.1349/2018 54
14. Stab injury measuring 2 cm x 0.5 cm x muscle deep is present across front of left elbow, outer end is blunt, inner end is sharp and continues as an abrasion measuring 0.5 cm x 0.1 cm. On further dissection of the injury it is observed that the weapon after cutting skin has cut the tendons, muscles and vessels in the middle of cubital fossa and has travelled backwards, inwards and downwards for a depth of 3.5 cm.
15. Abrasion measuring 3 cm x 1 cm is present over outer aspect of left elbow.
16. Chop wound (Partial amputation) measuring 3 cm x 0.5 cm x bone deep is present over inner aspect of distal phalanx of left thumb and through the injury clean cut phalanx bone is seen and the distal portion of thumb is attached to the hand by a tag of skin.
17. Chop wound (Partial amputation) measuring 1.5 cm x 0.5 cm x bone deep is present over back and outer aspect of distal phalanx of left index finger and through the injury clean cut bone is seen and the distal portion of finger is attached to hand by a tag of skin.
18. Incised injury measuring 1.5 cm x 0.2 cm x bone deep is present over back of middle phalanx of left middle finger.
19. Incised injury measuring 1 cm x 0.2 cm x bone deep is present over proximal phalanx of left ring finger.
On dissection has noticed blood extravasation at places all over the scalp. Perforated fracture 3x2cm present over the right frontal eminence and from the anterior end of it, a fracture line radiates to right squamous CRL.A.1736/2018 C/W CRL.A.1349/2018 55 temporal bone via right frontal bone, metopit suture, right frontal sinus, right margin of cribriform place, greater wing of sphenoid for a length of 15cm and from the posterior margin of perforated fracture another fracture line radiates backwards to occipital bone, where it intersects with comminuted fracture. Both the occipital bones, both posterior cranial fossa and left temporao parietal bones shows comminuted fracture with displacement of fragments. Blood effused around. Brain membranes lacerated irregularly at fractured sites. Subarachnoid hemorrhage is present all over the brain. Right frontal lobe and right parietal lobe are lacerated. Both the occipital lobes and cerebellar hemispheres are contused. All these injuries are ante- mortem, fresh at the time of death. Stomach contains 350ml partially digested food. From the above has given opinion that cause of death was due to Shock and Hemorrhage as a result of said injuries.
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75. PW-31/Parashuramappa, CPI, who has investigated the case substantially. PW-36/ R.Ramesh, is the incumbent CPI, who has recorded the statement of witnesses, collected reports and other relevant materials in filing the charge sheet.
76. The testimony of PW-31 shows that after receiving copy of the FIR, visited the place of incident on 15.07.2013, conducted spot inspection and drawn mahazar in Sy.No.98/1 in the coconut garden where the pathway is located. He has noticed 3 dead bodies of the deceased, he did sampling of bloodstained soil and sample soil near the dead bodies and also seized the weapons lying besides them including motor cycle under Ex.P15/mahazar. The dead bodies were shifted to Mc.Gann Hospital, Shimoga and he has requested the PSIs to conduct the inquest. In compliance of his orders, they did their part of investigation and reported to him along with inquest mahazars at Exs.P58 to 60. His evidence also points out apprehending of the CRL.A.1736/2018 C/W CRL.A.1349/2018 57 accused Nos.1 to 5, recording their voluntary statements at Ex.P76 to 80, summoning of the witnesses, accused taking them to places and production of weapon of offence and its seizure as per Ex.P 33, 39, 49 and 57. He also deposed about accused Nos.3 and 4 taking him and panch witnesses to the place where the seizure was affected through accused Nos.1, 2 and 5. He has also seized the clothes produced by accused Nos.3 and 4 when they were brought from the hospital, they were stained with blood. On his transfer handed over the investigation to PW-36.
77. The testimony of PW-36 shows that getting preparation of the spot sketch/Ex.P64 through PWD Engineer, collecting the FSL report as per Ex.P83, recording of the statement of witnesses and, filing of charge sheet.
78. We have referred the prosecution evidence. Having regard to the facts pleaded, arguments CRL.A.1736/2018 C/W CRL.A.1349/2018 58 addressed by both sides, the following propositions are made by the prosecution:
1) Motive;
2) Homicidal death of the deceased;
3) Direct evidence of eye-witnesses;
4) Accused fleeing away from the spot;
5) Non-explanation of injuries on the person of Accused Nos.3 and 4 and treatment taken by them at Mc.Gann Hospital, Shimoga;
6) Statement of accused No.1, 2, 5 leading to recovery of weapon of offence.
79. Before proceeding for appreciation of evidence, it is relevant to refer the judgment of the Hon'ble Apex Court in S.Govindaraju -vs- State of Karnataka - (2013) 15 SCC 315, wherein at para- 23, it has been held as under:
"23. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for CRL.A.1736/2018 C/W CRL.A.1349/2018 59 rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt."
Keeping the above principles as guidance, let us evaluate the circumstances proposed by the prosecution.
As regarding MOTIVE:
80. 'Motive' is a double-edged weapon, which will cut either side of the case, if it is proved or not. 'Motive' plays an important role in a case rests on circumstantial evidence, but it loses its importance if the case is rest on direct evidence. In the instant case, CRL.A.1736/2018 C/W CRL.A.1349/2018 60 the circumstances relied upon by the prosecution is direct evidence, but the motive in this case plays crucial role also. Admittedly, there is a pathway dispute between the families of Nagappa and Manjappa wherein the complainant's family claims particular location of pathway in Sy.No.98/1, which is disputed by the accused and in particular, accused No.1 relying on the survey sketch, he has shifted the pathway and made the complainant and family members to move in it. In this regard, they quarreled with each other resulting in criminal cases as well as the civil suits. Ultimately the matter was precipitated before PW- 27/Tahsildar and his evidence is referred supra.
In the cross-examination of PW-27, though it is brought out that there is no sketch indicating the pathway, but he has asserted that when he inspected the spot in presence of both parties and the revenue officers on 3.5.2012, saw the existence and use of disputed pathway, its encroachment by accused No.1 CRL.A.1736/2018 C/W CRL.A.1349/2018 61 and asking the complainant and his family to move in a different pathway shown by him. This aspect takes corroboration from the other witnesses referred supra. The cross-examination of these witnesses makes it very clear that the families of both Nagappa and Manjappa taken the pathway dispute as prestige and they were nurturing grudge with each other to the extent of manhandling, facing criminal trail and civil cases.
During the inquest, the panch witnesses have made a clear reference to the pathway dispute prompted the deceased to done to death, which in fact, has not been denied by the defence. We carefully evaluated the cross-examination of prosecution witnesses by the defence, we do not find any material which explains that the alleged incident has no motive. Hence, in totality, the evidence relied upon by the prosecution explains in its terms that the pathway CRL.A.1736/2018 C/W CRL.A.1349/2018 62 dispute prompted ill-will against the family members of Nagappa and Manjappa.
As regarding Homicidal death:
81. The prosecution proposes that the death of all the three deceased is homicidal. Evidence relied in this regard is referred to supra. As regards the inquest, the prosecution has relied upon the evidence of PWs-7, 19 and 26, in respect of Chandrappa, PWs- 14, 18, 21 and 32 in respect of Ramesha and PWs-20 and 30 in respect of Prakasha, being supported by the Investigating Officers who have conducted the inquest mahazar. During the inquest, the injuries found on the dead bodies have been noted and thereupon autopsy was conducted.
PW-22/Dr.Chidananda P.S., Associate Professor of FSL Branch of Mc.Gann Hospital, Shimoga has narrated the position of the body at the time of autopsy, he has pointed out the specific external and internal injuries on each of the dead body. The injuries CRL.A.1736/2018 C/W CRL.A.1349/2018 63 were ante-mortem in nature and these injuries could be possible if an assault by means of weapons viz.,M.Os.1, 2, 13 to 17. He has also clarified the time since death referring stomach contents viz., 50ml partially digested food in the stomach of Chandrappa and Ramesha and 350ml partially digested food in the stomach of Prakasha, which supports that Chandrappa and Ramesha were working in the field and Prakasha came to the spot in motor cycle to the probable time of alleged incident on 15.07.2013. Except suggesting that PW-22 had seen the material objects first time before the court nothing is disputed in the cross- examination.
As seen from the records, these material objects were not subjected to PW-22's examination prior to it. The fact that PW-22 is a Forensic Expert is not in dispute. The weapons of offence are sickle and spade and they are the sharp edged weapons and as opined by PW-22, an injury as noticed on the dead bodies of CRL.A.1736/2018 C/W CRL.A.1349/2018 64 the deceased was possible by means of such weapons cannot be ruled out. There is no cross-examination of inquest panchas, Medical Officer and the Investigating officer suggesting any secondary hypothesis that the deceased were succumbed to death other than what has been suggested by the prosecution.
Thus, the prosecution has placed clear, cogent and positive evidence, which explains that the deceased were succumbed to the injuries that what were found on the body, which were ante-mortem, they were inflicted during alleged incident and therefore, we are of the opinion that finding recorded by the trial court that the deceased met with homicidal death is on proper appreciation of the evidence. As regarding direct evidence:
82. The prosecution proposes CW-1/Nagappa, CW-2/Nagarathnamma, the parents of the deceased, PW-1/Vinoda, PW-2/Anjaneya as the eye-witnesses to CRL.A.1736/2018 C/W CRL.A.1349/2018 65 the incident. By the time of trial, CW-1 was reported to be dead, CW-2 was not tendered in the witness box and their testimony is not available. Therefore, prosecution has to bank upon the evidence of PWs-1 and 2.
PW-1 is the wife of deceased Chandrappa. In the course of cross-examination, the defence demonstrated that she has made a statement under Ex.D1 before the Investigating Officer to the effect that at about 1.30 p.m., on 15.07.2013, she was working in the land along with her in-laws CWs-1 and 2. At about 1.30 p.m., she had seen hurried movement of her fellow villagers, on enquiry they told her about the incident in which her husband, her brother-in-laws have been done to death. Immediately she and CWs-1 and 2 rushed to the garden land of Manjappa, near the trunk of arecanut tree, she saw the dead body of her brother-in-law Ramesh, beside, the dead body of Prakasha and beside, the dead body of her husband.
CRL.A.1736/2018 C/W CRL.A.1349/2018 66 All the dead bodies were inflicted with bleeding head injuries. This statement of PW-1 is totally contrary to her testimony in the examination-in-chief. In the re- examination, the prosecution is unable to explain this variation. If PW-1 was present at the spot and had seen the incident, how could she come to know from the fellow villagers about the incident? This shows that though PW-1 was working in the filed with CWs-1 and 2, it was not the land abutting to the disputed spot, for this reason, they went later to see the dead bodies. Hence, we are persuaded to accept PW-1 was not an eye-witness. It is natural being the wife of the deceased, she had made improvement in the witness box and that improvement cannot go against the accused.
The star witness to the case is PW-2/Anjaneya. In his cross-examination, defence has brought out nothing to doubt him as an eye-witness. As explained by him, he was spraying pesticides to ginger crop in his CRL.A.1736/2018 C/W CRL.A.1349/2018 67 land, which is located abutting the garden land of Manjappa. He makes a clear statement with regard to specific overt act against each of the accused. According to him, accused Nos.1, 2, 3 and 5 were holding spade and accused No.4 was holding sickle, it was accused Nos.1 to 5 inflicted blows on Prakasha first, when Chandrappa and Ramesha rushed to his rescue, they inflicted them with the same treatment. He did say accused Nos.6 and 7 was present holding sickle in their hands, but they were in ferocious mood and they were supporting accused Nos.1 to 5 and against the deceased. He has given a statement before the Magistrate under Section 164 of Cr.P.C. ratifying his statement on oath in the witness box. There is no contradiction, omissions or any improvement shown from his conduct or testimony. Hence, the presence of PW-2 at the time of incident has been completely demonstrated, his presence is natural at the spot.
CRL.A.1736/2018 C/W CRL.A.1349/2018 68 Adverting to the argument of learned defence counsel referring to arrival of PW-2 to the spot one hour later make him not an eye-witness, as seen from his evidence, he has seen the entire episode from his land, by seeing the ferociousness of the accused, he did not venture to go near spot immediately, it is not a unnatural conduct when an incident of this magnitude had taken place in front of his eyes. He has offered explanation that because of fear, he did not go near the accused and he had gone to the spot only after the fellow villagers have arrived at the spot.
It is contended by the learned defence counsel that in view of the material contradictions in the evidence of PW2, he cannot be relied as an eyewitness. In this regard, he has relied upon the judgment in Harkirat Singh (supra). The Hon'ble Apex Court in this judgment while dealing with a case of murder, examining the evidence of two eye witnesses carrying material contradictions with reference to their CRL.A.1736/2018 C/W CRL.A.1349/2018 69 statement in inquest report and statement recorded under Section 161 of Cr.P.C. held that conviction cannot be based on the statement of such witnesses carrying material contradiction. Herein this case, the material contradiction proposed by the defence is that PW-2 came to the spot 1½ hours after the incident and is not an eye witness. PW-2 has given explanation why he visited the spot belatedly even though he was present in the field. Hence, his statement cannot be treated as contradiction. Therefore, the law laid down by the Hon'ble Apex Court is not helpful to the defence.
In Ram Ashrit (supra), the Hon'ble Apex Court at para-12 of the judgment held as under:
"12. Furthermore, all the material witnesses are prosecution, namely, P.Ws.6, 7, 8, 9, 12 and 16 are either inter-related or otherwise interested in the prosecution. Therefore, before their testimony, could be safely acted upon it had to pass the test of close and severe scrutiny. We have examined the evidence of these witnesses carefully and find that their evidence was intrinsically improbable and unreliable.
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18. There are many other infirmities and contradictions in the evidence of prosecution witnesses. It is not necessary to burden this judgment by dealing with all of them. Suffice it to say that in the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the appellants on the basis of testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable version and material infirmities."
It is pertinent to note that PW-2 is a relative of accused persons. No explanation by the defence why he wants to implicate the accused persons being their relative when there was any enmity or ill-will among them.
As regarding law laid down in Joginder Singh (supra), the prosecution has proposed several eye witnesses but not examined them all. Herein this case, who are all witnesses to the incident has been brought out in the charge sheet, the mother of the deceased i.e., CW-2 Nagarathnamma was not tendered for examination. In what way it is going to affect the root CRL.A.1736/2018 C/W CRL.A.1349/2018 71 of the prosecution case is not explained. The defence itself says that she was not present when the incident took place, she came to the spot after knowing from others. Hence, non-examination of CW-2 is not fatal to the case.
In Yamanappa Goolappa Shirgumpi's case (supra), the Hon'ble Apex Court held that if all the eyewitnesses are interested, their testimony cannot be believed. Herein this case, there is no such circumstance as the entire case of the prosecution is standing on independent witness i.e., PW-2/Anjaneya.
In Balaka Singh (supra), the Hon'ble Apex Court laid down that court must make an attempt to separate grain from the chaff, truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood. This context is pressed into service by the learned defence counsel referring to testimony of PW-2 relying his statement CRL.A.1736/2018 C/W CRL.A.1349/2018 72 that he came to the spot 1½ later. We have already discussed supra the explanation of PW-2 that he is an eye witness, due to fear factor he came to the spot only after the arrival of fellow villagers at the spot. The grain has been separated from the chaff that PW-2 is an eye witness and not a chance witness.
In the case of Khacheroo (surpa), the Hon'ble Apex Court referring to shifting of place of occurrence appreciated the finding of the High Court entertaining doubt about the credibility of the prosecution case. Herein this case, the eye witness, panch witnesses and also the Investigating Officer are very definite that they have seen the dead bodies on the disputed pathway only, and there was no shifting to extend the benefit of doubt.
Though it has been argued that there is an ante- timing of the FIR, delay in FIR, delay in recording of the statements of the witnesses, there is no support CRL.A.1736/2018 C/W CRL.A.1349/2018 73 from the prosecution witnesses. Soon after the incident, the entire village rushed to the spot, the Police were informed, FIR was lodged, and no question of delay in FIR or ante-timing of FIR is noticed. Hence, the judgments in Meharaj Singh -vs- State of U.P. (1994) 5 SCC 188, Rajeevan and Another -vs- State of Kerala - (2003) 3 SCC 355 and Shahid Khan -vs- State of Rajasthan (2016) 4 SCC 96 relied upon by the defence counsel will not strengthen the defence.
Exs.D3 and D4 are the statements of PW-2 before the Investigating Officer, they are not so material, which will not damage the veracity of his evidence. Hence, the evidence of PW-2 unequivocally explains and stands in support of the prosecution. Conviction can be based on a count of sole eye-witness if his testimony inspires the confidence of the court. As we discussed above, PW-2 did not carry any enmity, he had no intention to support the complainant and his CRL.A.1736/2018 C/W CRL.A.1349/2018 74 family members nor does he want to implicate the accused. Then he is the best witness one can place reliance in a common man's parlance.
As regarding accused fleeing away from the spot:
83. Now, in order to explain the accused fleeing away from the spot soon after the incident, the prosecution proposed the evidence of PWs-2, 3, 4, 5, 6 and 7. We have already referred to the evidence of all these witnesses. As seen from PW-3, he was in front of his house between 1.00-1.30 p.m, at that time, he saw the accused Nos.2 to 5 going in the motor cycle in a hurried manner and at the same time, fellow villagers were running towards the place of incident. It is elicited in his cross-examination that the accused were in hurry, they were so tensed and were running away in the motor cycle. This version of PW-3 takes support from PW-4/Laxmanappa as he had seen accused Nos.2 to 5 going in the bike at about 1.00 p.m. three years ago, during which he had seen the CRL.A.1736/2018 C/W CRL.A.1349/2018 75 mud stains on the clothes of these accused and they were also holding spades in their hands. Thereafter he has visited the spot to see the dead bodies of the deceased.
84. PW-6/Kariyappa says that 5-6 persons running away from Bhadrapura towards Shimoga at 1.15 p.m. on 15.07.2013. It is with reference to these accused persons only. PW-7/ Bharmeshwarappa has seen the movement of accused Nos.2 to 5 in the bike and they were in hurry and he had also seen accused No.1 moving behind the bike in a hurry and he was in full tensed mood. He had seen one of the motorists sustained bleeding head injury. He came to know about the incident in the garden land of Manjappa. PW-
5/Basappa K.H. is not the fellow villager of Bhadrapura, he is a villager of Katikere. When he was in his house situated on Shimoga-Bhadravathi road, accused Nos.2 to 5 approached him, asked him for drinking water, on enquiry, they made a statement to CRL.A.1736/2018 C/W CRL.A.1349/2018 76 him about the injuries found on two of them that some incident took place at Bhadrapura in which they sustained injury.
85. As we could see that PWs-3, 4, 5, 6 and 7 though not supported the prosecution fully, their evidence sufficiently explains the prosecution version that soon after the incident, the accused were moving away from Bhadrapura village and they were going towards Bhadravathi in which two of the accused persons have sustained injuries. As seen from the medical evidence, accused Nos.3 and 4 did visit the Hospital at Bhadravathi before going to Mc.Gann Hospital at Shimoga, seeking treatment. When the entire village is moving towards the spot, only the persons, who were not available at the spot, were the accused persons. Therefore, evidence on record explains that accused Nos.1 to 5 moving away from the place of incident at relevant point of time and we CRL.A.1736/2018 C/W CRL.A.1349/2018 77 are not persuaded by the argument canvassed on behalf of the accused.
As regarding non explanation of injuries and treatment taken by the Accused Nos.3 and 4 at Mc.Gann Hospital, Shimoga;
86. PWs-34 and 35, are the Medical Officers of Mc.Gann Hospital, Shimoga, who treated the accused No.3 & 4 and their evidence is referred supra. Their testimony coupled with case sheets at Ex.P81 and P82 did point out that accused Nos.3 and 4 were admitted to Mc.Gann Hospital with a history of assault on 15-7- 2013 at Bhadrapura, referred from General Hospital, Bhadravathi. It shows both the accused were visited the General Hospital, Bhadravathi first, after first aid, they were referred to higher hospital.
87. Movements of accused No.3 & 4 towards Bhadravathi soon after the incidence is supported by PW5, to whom they approached asking for drinking CRL.A.1736/2018 C/W CRL.A.1349/2018 78 water. Whose house situated on Bhadravathi road at Katikere village, to whom they told having sustained injures in a small incidence at Bhadrapura.
88. The evidence of PW-34 speaks specifically that the accused Nos.3 and 4 having history of sustaining injury on 15.07.2013 in an assault.
89. The accused were examined under Section 313 of Cr.P.C., explaining incriminating circumstances available in the evidence against them and in particular, the Exhibits P-81 and P-82, the accused persons did not offer any explanation. It is they, who sustained injuries and they have to explain the circumstances under which they have sustained injuries. In the cross-examination of PWs-5, 34 and 35, there is no denial of the history of injury sustained by accused Nos.3 and 4. In this background, we are persuaded by the evidence to draw inference that the injuries are sustained by them in the alleged incident CRL.A.1736/2018 C/W CRL.A.1349/2018 79 only. As seen from the evidence of panch witnesses and also from the recitals of spot mahazar, there are sickles found near the dead bodies and they were also seized by the Investigating Officer. The nature of injuries found on the person of accused Nos.3 and 4 carry the nature of weapons which are seized in this case as opined by the treating doctors. Hence the nexus between the weapon of offence and injuries tallies with each other.
90. Adverting to the argument of the learned counsel for the accused that the prosecution has failed to explain the injuries on the body of the accused by relying upon the judgment in Kanakarajan @ Kanakan -vs- State of Kerala - (2017) 13 SCC
597. The Hon'ble Apex Court in dealing with case of murder discussing the point of death of deceased as per ocular and medical evidence appears to be under suspicious circumstances held that if non-explanation of serious injuries on body of accused by prosecution is CRL.A.1736/2018 C/W CRL.A.1349/2018 80 fatal in nature. Here in this case, as discussed above, the accused themselves offered the explanation how the accused Nos.3 and 4 sustained injuries and they visited the General Hospital, Bhadravathi and also Mc.Gann Hospital, Shimoga. The prosecution has unequivocally explained the injuries found on the body of accused Nos.3 and 4 that they have suffered the injuries at Bhadrapura in the scuffle. Hence, we do not find any infirmity in the prosecution explanation. Hence, the law laid down in the above judgment will not be helpful to the accused. Having regard to the totality of evidence, we do not find any reason to draw a secondary hypothesis that the accused Nos.3 and 4 have sustained injury in the manner other than what is proposed by the prosecution.
As regarding statement of accused Nos.1, 2, 5 leading to recovery of weapon of offence.
CRL.A.1736/2018 C/W CRL.A.1349/2018 81
91. We have referred the evidence of Investigating Officer regarding recording of statement of accused Nos.1 to 5 as per Exs.P76 to 80. Seizure of weapon of offence at the instance of accused No.1 under Ex.P33 and at the instance of Accused No.2 and 5 under Ex.P39. Accused No.3 and 4 both took the Investigating Officer and panchas to the same place where recovery was effected and its inspection as per Ex.P.57 and 49. Seizure of blood and mud stained clothes of accused No.1to5 under Exs.P.25, 31, 53, 50 and 32 respectively is explained by P.W.9, 10, 11, 12, 13, 16, 17, who are the panch witnesses and supports the testimony of the Investigating Officer. Hence, we do not find any omission or material contradiction to discard their testimony.
92. The opinion evidence of PW-22 that the injuries on the dead body was due to assault with sharp edged weapons and the opinion of PW-34 that CRL.A.1736/2018 C/W CRL.A.1349/2018 82 the injuries found on the person of accused Nos.3 and 4 was of sharp edged weapons correlated to the weapons placed before the Court in the form of Spades and Sickles. The Investigating Officer got examined weapons of offence, clothes on the dead bodies and also the cloths seized from the accused by FSL expert, its report as per Ex.P83. As per the opinion recorded therein except in the sample soil, clothes and weapons were stained with human blood. Opinion of FSL expert loses its importance as the entire case is rest on direct evidence.
93. As we discussed above, while analyzing the weight of the evidence relied upon by the prosecution with reference each of the points, we do not find any reason to disbelieve the version of the prosecution. FIR was registered without any delay, it has taken some time for the Constable to carry it to the jurisdictional Magistrate, the said delay has no impact on the investigation.
CRL.A.1736/2018 C/W CRL.A.1349/2018 83
94. As regards the omission to array female members of the accused family as accused, in a case of this nature, when both the parties prosecuting ill- will for a considerable time, efforts to rope in all the family members cannot be ruled out. It is for the Investigating Officer to consider on the basis of the evidence collected during investigation to whom to be roped in or not, as rightly did in the instant case the other family members of the accused were not made as accused, this itself is not a ground to doubt the entire case of the prosecution.
95. As regarding the accused Nos.6 and 7 are concerned, the evidence of PW-2 clearly explains the presence of these persons at the spot armed with spade is established. There are no circumstances created in the prosecution evidence to doubt their presence. The manner of presence explains that the common object in their mind to assault the deceased is CRL.A.1736/2018 C/W CRL.A.1349/2018 84 explained. Though the evidence did not demonstrate any overt act against them, their presence is suffice to hold that they are answerable under Section 149 of IPC.
96. The learned defence counsel ultimately tried to convince us that the alleged incident was an outcome of sudden quarrel. In the background of dispute and litigation, the offence under Section 302 of IPC will not be attracted and utmost offence may fall within the purview of Section 304 Part I of IPC. In this regard, they have relied upon the judgment in Anand Ramachandra Chougule -vs- Sidarai Laxman Chougala and Ors. - AIR 2019 SC 3871. In this case, the Hon'ble Apex Court dealing with a case where the parties have entered into sudden quarrel in the background of civil dispute and strained relationship, complaint filed by the accused was not investigated regarding the same incident and therefore, the conviction under Section 302 of IPC was altered to CRL.A.1736/2018 C/W CRL.A.1349/2018 85 Section 304 Part-I of IPC. Herein this case, inspite of accused Nos.3 and 4 sustaining the injuries they never files any complaint to the Police. Nowhere in the cross-examination of any of the witnesses including the Investigating Officer, such suggestions were made that the incident was a scuffle, it was on account of self- defence, the complaint of the accused was not investigated and the accused were not the real aggressors. Unless such a foundation is laid, it is very difficult to accept such an argument.
97. In the circumstances of this case and in the background of evidence analyzed above, we have perused the impugned judgment. The learned Trial Judge has discussed all the grounds urged by the defence, considered each of the circumstances, rightly came to the conclusion that the prosecution evidence is worth to believe and has exercised the judicial discretion in accepting the version of the CRL.A.1736/2018 C/W CRL.A.1349/2018 86 prosecution. The defence though made all efforts to damage the version of the prosecution, but failed to demonstrate that the impugned judgment is perverse or erroneous contra the weight of the prosecution evidence. The award of sentence is proportionate to the gravity of offence; there is no disparity in it.
98. Thus, under the facts and circumstances of the case, the impugned judgment does not call for interference by this Court. Both the appeals deserve to be dismissed.
Accordingly, both the appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM/-