Karnataka High Court
Minnappa S/O Shivaray Rayakodi vs The State Of Karnataka on 6 January, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR.JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.3625/2011
C/W
CRIMINAL APPEAL No.3698/2011
IN CRL.A No.3625/2011
BETWEEN
1. MINNAPPA
S/O SHIVARAYA RAYAKODI
AGE:32 YEARS, OCC:AGRICULTURIST.
2. SHARANAPPA
S/O SHIVARAYA RAYAKODI
AGE:30 YEARS, OCC:AGRICULTURE.
3. JAGAPPA
S/O SHIVARAYA RAYAKODI
AGE:MAJOR, OCC:AGRICULTURE.
4. SHANKERAPPA
S/O SHIVARAYA RAYAKODI
AGE:MAJOR, OCC:AGRICULTURE.
ALL ARE R/O KALLEBENUR
2
TQ & DIST:GULBARGA.
...APPELLANTS
(BY SRI V M SHEELAVANT AND
SRI. SANJAY KULKARNI., ADVOCATE FOR A1 TO 3)
AND
THE STATE OF KARNATAKA
THROUGH UNIVERSITY POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA.
...RESPONDENT
(BY SRI PRAKASH YELI, ADDITIONAL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO CALL FOR THE RECORDS
IN SESSIONS CASE No.158/2006 ON THE FILE OF THE
IIND ADDITIONAL SESSIONS JUDGE, AT GULBARGA,
PERUSE THE SAME, ALLOW THIS APPEAL AND SET ASIDE
THE JUDGMENT, ORDER OF CONVICTION AND SENTENCE
DATED 13.06.2011 AND SET THE APELLANTS/ACCUSED AT
LIBERTY IN THE INTEREST OF JUSTICE.
IN CRL.A No.3698/2011
BETWEEN
THE STATE THROUGH UNIVERSITY
POLICE STATION, GULBARGA
REPRESENTED BY ADDITIONAL
STATE PUBLIC PROSECUTOR
GULBARGA.
...APPELLANT
(BY SRI PRAKASH YELI, ADDITIONAL SPP)
3
AND
1. MINNAPPA
S/O SHIVARAYA RAYAKODI
AGE:37 YEARS, OCC:AGRICULTURIST.
R/O KALLABENUR.
2. SHARANAPPA
S/O SHIVARAYA RAYAKODI
AGE:34 YEARS, OCC:AGRICULTURE.
R/O KALLABENUR.
3. JAGAPPA
S/O SHIVARAYA RAYAKODI
AGE:MAJOR, OCC:AGRICULTURE.
R/O KALLABENUR.
4. SHANKERAPPA
S/O SHIVARAYA RAYAKODI
AGE:MAJOR, OCC:AGRICULTURE.
R/O KALLABENUR.
...RESPONDENTS
(BY SRI V M SHEELAVANT AND
SRI SANJAY KULKARANI, ADVOCATES FOR R1 TO R3
NOTICE TO R4 IS SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(2) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 13.6.2011
PASSED BY THE II ADDITIONAL SESSIONS JUDGE, AT
GULBARGA IN SPL.C. No.158/2006 SO FAR AS IT RELATES
TO NON-IMPOSITION OF SENTENCE ON THE
RESPONDENTS- ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 143, 148, 341, 307, 324, R/W 149 OF
IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED ON 09.09.2019 AND COMING ON FOR
4
PRONOUNCEMENT OF JUDGMENT THIS DAY,
N.K.SUDHINDRARAO., DELIVERED THE FOLLOWING:
JUDGMENT
Criminal Appeal No.3625/2011 is preferred by accused Nos. 2,3,4 and 6 against the judgment of conviction dated 13/6/2011 and order of sentence dated 14/6/2011 passed by the II Additional Sessions Judge, Gulbarga, in Special Case No.158/2006, convicting accused Nos. 2,3,4 and 6 for the offences punishable under Sections 143, 148, 341, 307, 324 and 302 read with Section 149 of Indian Penal Code and sentencing them to undergo life imprisonment for the offence punishable under Section 302 read with Section 149 of IPC.
2. Criminal Appeal No. 3698/2011 is preferred by the Prosecution against the same judgment so far as it relates to non - imposition of sentence on the respondents/accused Nos. 2,3,4 and 6 for the 5 offence punishable under Sections 143, 148, 341, 307,324 read with Section 149 IPC and praying to convict and sentence the accused for the said offences.
3. A case in Spl.Case No.158/2006 was tried by the learned II Additional Sessions Judge, Gulbarga, against the accused persons for the offence punishable under Sections 143, 144, 148, 341, 307, 324, 504, 302, 114 and 506 read with Section 149 of IPC and under Sections 3(1)(X) and 3(2) (V) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)Act, 1989.
4. The details of the complaint on the basis of which a criminal case came to be registered against the accused persons are as under:
Complaint is lodged by one Sharadabai, wife of Hemu Naika Rathod, 35 years, resident of Kallebenur village, Gulbarga. It is stated that one Jamkabai is the 6 sister-in-law of the complainant. Husband of Jamkabai died four years back. There are six daughters and two sons to said Jamkabai. Out of them, four children are married and are settled in their homes. Daughter Mahananda is aged 7 years. Sons Bilirama and Naruna have gone to Bombay for livelihood.
5. It is further stated that Jamkabai had purchased land in Survey No.72 of Kallebenur village to the extent of 6 acres 17 guntas from one Somashekara Math. The said survey number is being under cultivation of accused persons for the last 10 to 11 years. There was a civil dispute regarding the land and it ended in favour of Jamkabai. This had enraged Bhimabai and her children over Jamkabai.
6. On 23.6.2006 at about 10.30 a.m. the complainant-Sharadabai, her husband Hemu, her sister-in-law Jamkabai, brother-in-law Namdeva and Ramu of Saradagi village wanted to cultivate the land 7 in survey No.72 as the court order had come in their favour and went in a jeep bearing Registration No. KA.32.M.2225 to cultivate the land along with tractor bearing Registration No.KA.32.T.6277 and when they went near the land, they saw the accused persons, namely, Bhimabai, wife of Shivaraya Rayakodi and her children, Minnappa, Sharanappa, Jagappa, Lakshman, Shankreppa, Ambanna, and her daughter Jagadevi, her husband Rajanna and three daughter- in- laws were already present in the land in survey No.72 and on seeing them, accused persons came near the jeep and started abusing Jamkabai as 'Lamani Randi,' 'bosudi' why she came to the land and to that, she said she came to cultivate the land. Accused No.2 -Minnappa, accused No.3- Sharanappa abused her in the name of lamani caste and used abusive and filthy language and they were holding axe 8 and sticks. Lamani Caste is a notified Scheduled caste.
7. It is stated that, Namadev, brother-in-law of the complainant was hit by accused No.3- Sharanappa, accused No.4- Jagappa with stone on right knee, left elbow, mouth, lips and caused bleeding injuries. Accused No.3- Sharanappa and accused No.6- Shankerappa, hit her brother-in-law with axe on right knee, backside of ear, nostrils, waist one after the another with the same axe.
Jamkabai was beaten with axe by accused No.2- Minnappa on index finger, palm, right palm, right forearm and inflicted bleeding injury. Accused No.6- Shankerappa took out axe from accused No.2 and hit her on her head, left and right knees and caused bleeding injuries. Bhimabai and Rachanna accused Nos.1 and 9 hit with sticks and bamboo club on her thigh and backbone caused invisible injuries. Hemu, 9 husband of the complainant was hit by Lakshman and Rajanna with bamboo stick on the head and caused bleeding injuries. Accused No.7- Ambanna and accused No.3- Sharanappa hit Ramu with sticks on his head and caused bleeding injuries. Further, it is stated that the complainant was hit by Shankerappa with axe on the right hand arm elbow and caused bleeding injuries. Accused No.4- Jagappa hit on left waist and caused injuries.
8. Three daughter-in-laws of Bhimabai prevented complainant and others from going out by pelting stones. However, they did not sustain stone injuries. Complainant states that her husband, Jamkabai, Hemu, brother-in-law Namdev and Ramu were inflicted serious injuries by the accused. Jamkabai who received serious injuries died of the same. The accused ran away and complainant could not know the name of the driver of the tractor, however, she could 10 identify him. After the death of Jamkabai accused have left the place. Jeep driver, tractor driver and people cultivating the land of Fakeerappa saw the incident. The complaint was lodged as per Ex.P1 in the University Police Station on 23.6.2006 at 4.00 p.m.
9. Basing on the complaint, the police registered a Criminal case against the accused persons in Crime No.142/2006 on 23.6.2006 for the offences punishable under Sections 143, 147, 148,341, 504,307,302, 354 read with 149 of IPC and under Sections 3(1)(x)(xi) and 3(2)(V) of SC & ST (POA) Act.
10. Rest is, completing immediate legal formalities, and after completion of the investigation, police filed chargesheet against the accused persons for the aforesaid offences.
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11. After hearing the accused on charge, the learned Sessions Judge found that there were materials to frame the charges. Accordingly, charges were framed and read over to the accused persons, they pleaded not guilty and came to be tried.
12. In order to bring home the guilt of the accused, prosecution has examined as many as 40 witnesses as per PWs 1 to 40 and produced documentary evidence of Exs.P1 to P64 and marked Material objects as per MOs. 1 to 21.
13. On considering the evidence stated above and on the submissions of learned Public Prosecutor and learned counsel for accused, accused Nos. 2,3,4, and 6 were found guilty by the learned Sessions Judge for the offences punishable under Sections 143, 148,341, 307,324 and 302 read with 149 of IPC and sentenced them as stated above. However, case against accused No.1 is abated and accused Nos. 5,8 12 to 12 are acquitted for the offences punishable under Sections 143, 148, 341, 307, 324 and 302, 114 and 506 read with 149 of IPC and Sections 3(2)(V) of SC & ST (POA) Act.
14. We have heard learned counsel for accused Nos. 2,3,4 and 6 and learned SPP for State.
15. Learned counsel for appellants Sri. Sanjay Kulkarni would submit that the incident happened wherein the complainant and others were the aggressors and there was every chance of losing the land and property and also the lives and the accused retaliated. The complainant and her people were recklessly behaved with aggression with weapons. Learned counsel for appellants would submit that there is no overtact from any of the accused persons. Learned counsel would further submit that the complainant and her men including Jamkabai tried to seriously over power the accused persons. He would 13 further submit that when the accused persons were engaged in agricultural operations, the complainant and her party came to the spot and started abusing and attacking accused Bhimabai and others, accused were to retaliate and they never intended to commit any criminal offence. The death of Jamkabai happened because of 'shock and haemorrhage due to cranio- cerebral injury and multiple bone and soft tissue injuries'. Accused persons 2,3 4 and 6 are convicted for the offences punishable under Sections 143,148,341, 307,324 and 302 read with Section 149 of Indian Penal Code and considering the nature of the offences they are sentenced for life imprisonment for the offence punishable under Section 302 read with Section 149 of IPC.
16. In support of his contentions, learned counsel for appellants relied on the following decisions of the Hon'ble Supreme Court of India: 14
(i) In the case of Eknath Ganpat Aher and others Vs. State of Maharashtra and others (Criminal Appeal Nos. 173 and 174 of 2007 decided on 7.8.2010 -
MANU/SC/0340/2010);
(ii) In the case of Kashi Rai Vs. State of Bihar ( 1993 STPL (LE) 17845 SC);
(iii) In the case of Kanwarlal and others Vs. State of M.P. (MANU/SC/0760/2002);
(iv) In the case of Ananta Rathod Pawar and others Vs. State of Maharashtra (Criminal Appeal No.238/1994 -
MANU/SC/1796/1997).
17. The learned SPP for the prosecution would submit that the accused persons were well prepared and waiting for the arrival of the complainant, Jamkabai and others. He would further submit that the possession of dangerous weapons like axe, club, sticks or stone would tell that they were prepared to take away the lives of prosecution witnesses and relatives of Jamkabai, besides the very Jamkabai. He would further stress that the private defence claimed 15 by the accused persons is not available for them considering the range and extent of injuries inflicted by them. He would further stress on the aspect of the seized weapons which are deadly and capable of causing death.
18. As the offences charged against the accused includes the one punishable under Section 302 IPC, it is incumbent on the part of the prosecution to establish that the death of Jamkabai on 23.6.2006 was a homicide and not a natural one.
19. In this connection, the complaint suggests that Jamkabai has suffered serious head injuries. Inquest Mahazar, Ex.P40- discloses the posture of dead body as found during inquest mahazar dated 23.6.2006. The ante- mortem injuries found on the dead body of Jamkabai which are reflected in Post Mortem Report and the cause of death and the 16 description of the injuries suggest that her death was not a natural one. The Post Mortem Report is Ex.P 23, wherein, the cause of death is stated as 'haemorrhage due to cranio - cerebral injury and multiple bone and soft tissue injuries' also points towards unnatural death. The Doctor, PW19-Dr.Kishore Manakar M.S., who conducted the post mortem on the dead body by Jamkabai also has affirmed the P.M. Report. Under the circumstances, considering the material stated above, the conclusion would be that her death was a homicidal and not natural one. Learned Sessions Judge has rightly come to the conclusion that death of Jamkabai on 23.6.2006 was a homicidal one.
20. Having established the death of Jamkabai as homicidal, it is incumbent on the part of the prosecution to establish that homicidal death of Jamkabai was caused by the accused persons. 17
21. Among the witnesses who were examined, complainant-Sharadabai is examined as PW1 on 3.10.2008. She is both the complainant and an eye witness. She states in her complaint that on the date of the incident, Jamkabai breathed last because of the attack and injuries inflicted by the accused persons.
This witness states that the accused No. 1 is known to her but on the date of evidence she was dead. Accused Nos. 2 to 7 are the children of accused No.1. However, accused No.7 was a juvenile offender. Accused No. 8 and accused No.10 are the daughter- in-laws of Accused No.1. Accused No.11 is the daughter of accused No.1 and her husband is accused No.9. PW1's husband is CW10. CW11 is her brother- in- law. They are all belong to Lambani community.
Her further version is, on the date of the incident about two years three months earlier to the 18 date of her evidence, she along with the prosecution witnesses stated above and Jamkabai and others namely, Ramu, Sakrubai went for sowing the seeds from Bolvada to Hebbala and were standing on the road near their land. The said land was purchased by Jamkabai. By the time the complainant and others went to their land, accused persons were engaged in agricultural activities. Accused No.2 came towards the complainant and others, abused Jamkabai personally and also in the name of the caste of Lambani and raised quarrel. There was altercation between the complainant's group and that of the accused. Accused No. 3-Sharanappa and accused No.4- Jagappa hit brother-in-law of the complainant on the head with stone and accused persons together hit her brother- in- law also. Because of the injury her brother-in-law fainted.
19
Accused No.3 Sharanappa hit Namdev with axe. He also hit with stone and club on the head of Jamakabai. Accused No.3- Sharanappa and accused No.4- Jagappa assaulted and hit Jamkabai indiscriminately with stones, sticks and axe. Accused Nos.2, 6 and 7 also hit Jamkabai with axe. Accused Nos. 3 and 4 hit the husband of the complainant. Further accused Nos. 3 and 4 assaulted the complainant on the right hand and back and she sustained bleeding injuries. CW13-Sakrubai was beaten by accused No.2 with club. CW12-Ramu was hit by accused 2 and 3 with axe and club. Jamkabai had lost consciousness because of the impact of the injuries. Accused No.4 pulled the saree of Jamkabai and caused piercing injury on her waist. Jamkabai was dead. Thus the accused persons caused injuries on the complainant and her men and the murder of Jamkabai. She also deposes regarding spot mahazar, 20 mahazar of seizure of cloth of Jamkabai, manure, seeds and rope etc..
She has been cross examined at length. No significant contradictions or omissions are elicited from her.
22. Insofar as oral evidence of Sharadabai is concerned, she has spoken regarding her visit along with deceased Jamkabai and others on the date of incident to land in survey No.72 of Kallebenur village. Categorically, she deposes regarding the presence of all the accused persons and the visit by her, her brother-in-law, Jamkabai. She reiterates the averments of complaint regarding the presence of the accused persons who had went to the spot even prior to the complainant. She gives an account of the attack by the accused and the weapons used. The incident is stated to be occurred at 10.30 a.m., which enable 21 proper vision. She tells about the bleeding injuries and the serious effect of death of Jamkabai and the accused persons running away after knowing that Jamkabai was dead.
She has further stated that Accused Nos. 3 and 4 assaulted the brother-in-law of this witness and A3 assaulted Namdev. She further deposes accused No. 3 attacking the deceased with stone and sticks and Accused No. 4 also joined Accused No. 3 in assaulting deceased from every where with axe and stone. Accused Nos. 3 and 4 again attacked and hit Hemunaik- PW10. Accused Nos. 3 and 4 assaulting this witness- PW1 with axe and sticks and Accused Nos. 2 and 3 attacked PW11. She also deposes that all the accused persons used the dangerous weapons like axe, stock and stone.
This witness further states that Accused Nos. 3, 4 and 5 assaulted her sister-in-law Jamkabai also and 22 accused No.2 and 4 assaulted PW1 on her back and hand, accused No. 4 hit and attacked. Accused No. 6 attacked this witness on right hand with axe and all the accused hit and attacked Jamkabai and accused persons used deadly weapons.
23. PW2-Ravi is the panch witness for Ex.P2- Spot panchanama and seizure of weapons, blood stained soil and ordinary soil. He identifies mahazar at Ex.P2 and his signature at Ex.P2(a). He turns partly hostile.
24. PW3-Nazeer Patela is the panch witness for Ex.P2-Spot panchanama. He turns hostile to the prosecution case.
25. PW4-Mallakajappa s/o. Rayappa is the panch witness for Ex.P4-seizure panchanama. He states regarding the conducting mahazar as per Ex.P4 23 and seizing clothes of the injured which were blood stained.
26. PW5-Raju s/o. Ningaiah is the witness to recovery/seizure mahazar Ex.P5 from accused and turns hostile. So also, PW6-Namadeva S/o. Shamarao is the panch witness to Ex.P5- seizure panchanama and like preceding witness he also turns hostile to the prosecution case.
27. PW7-Ananthareddy is the panch witness to Ex.P6-seizure/recovery panchanama from accused Nos.2,3,4 and 5.
28. PW8-Namadev is the son of Eru. He has been examined on 4.11.2008. He was also present along with the complainant Sharadabai and Jamkabai and others and he reiterates the version spoken by complainant regarding accused persons waiting near 24 the land in survey No.72 and attacking complainant, Jamkabai and this witness.
According to this witness, accused No.3- Sharanappa and accused No.4-Jagappa hit this witness on the mouth with a stone and caused injuries. Accused No.6-Shankerappa hit this witness on the right hand again accused No.4-Jagappa hit him on right knee and accused No.2 Minnappa with frame of the axe hit on the left hand and caused fracture. Accused No.6-Shankerappa also hit Jamkabai on the head. Because of which, her head broke and resulted in bleeding injuries. According to this witness, all the accused persons grouped together and hit this witness and his sister Jamkabai with weapons like axe, its handle and clubs. Sharadabai was beaten by accused No.2 and 4. This witness also suffered injuries on the lip. His sister Jamkabai had suffered bleeding injury over the head. Her hands and 25 legs were broken and she died at the spot. This witness and Jamkabai collapsed at the spot and the others runaway. Sabamma, Umesh, Raju came near this witness and gave water. Accused Rachanna also hit Sakrubai who had come along with the complainant. Accused No.9 Rachanna hit with club. Accused No.5 Lakshman also hit when sister-in-law of this witness was running, accused No.2 Minnappa abused her as widow and hit her with club on the back. When accused was hitting Jamkabai, he was also abusing Jamkabai with filthy language. This witness identifies MO No.4- axe and MO Nos. 1 to 3 clubs, MO Nos. 19 to 21-Bamboo sticks.
He has been cross examined. No serious contradiction or omission are extracted during cross examination.
29. PW9-Sakrubai is the sister-in-law of Jamkabai. She has been examined on 4.11.2008. She 26 supports the prosecution case, in the sense, in substance, she reiterates what has happened at the time of the incident regarding the accused persons waiting near the land bearing survey No.72 and attacked and beaten by the accused persons with weapon and inflicting serious injuries to the complainant and others. Her evidence corroborates with that of PW1 and PW8. Further, she deposes attack on Sharadabai with hands and sticks and accused No.6 hitting Jamkabai on head.
30. PW10-Hemu S/o. Eru is the brother of Jamkabai. He has been examined on 3.12.2008. He is said to be an eye witness and injured. He deposes regarding the sequences of events and his evidence supports prosecution and it maintains uniformity. However, he says axe was in the hands of all the accused persons. He deposes all the accused hitting Namdev and Accused Nos. 2 and 6 assaulting 27 deceased Jamkabai and accused Nos. 2 and 3 assaulted the wife of this witness with axe A2 assaulted PW-9 on her waist with axe and accused Nos. 3 and 6 attacked Namedev with axe on head and accused No. 4 attacked with stone on Namdev.
31. PW11-Ramu son of Shankru has been examined on 3.12.2008. He belong to Saradagi village who went along with deceased in jeep. He is said to be an eye witness speaks about quarrel and deceased has been killed. No specific overact or narration of incident by him. PW11 states that accused No.3 and his brother assaulted Namdev with stone on his face with axe on his head. Accused No.3 assaulted this witness with axe on his head.
32. PW-12 Mallikarjun is the son of Shivaiah. He is a panch witness to Ex.P6 for recovery of axe and sticks from Accused Nos.2, 3 and 5. He turns hostile to the prosecution case.
28
33. PW13-Lal Mohammad is the son of Ibrahim. He has been examined on 16.3.2009. He is the driver of the Jeep who picked 4 to 5 persons from village and reached the land. He turns hostile to the prosecution case.
34. PW14-Bandgisab is the driver of the Tractor. He has been examined on 16.3.2009. He turns hostile to the prosecution case.
35. PW15-Latha is the wife of Namdev and she is aquatinted with other relatives of her. She has been examined on 16.3.2009. She tells that she gets information regarding quarrel from neighbhour Sakrubai and went and saw at the spot that Jamkabai was dead. When she was offering water to her husband, Police jeep came. Her evidence in principle is that she is not an eye witness, but narrates the circumstance that preceded immediately. 29
She has been cross examined. No serious contradiction or omission are extracted during cross examination.
36. PW16-Vittala is a witness for the circumstances. He has been examined on 16.3.2009. He also gets information from Sakrubai regarding the death of Jamkabai in the quarrel. When they reached the land, Jamkabai was dead and Namdeva sustained injuries. They give water to Namdev. They went in a Police Jeep. They took Jamkabai and Namdev to Gulbarga Government Hospital. Jamkabai sustained injuries on her head and back. Doctor declared her as dead and gave treatment to Namdev. She gives an account of the incident and the probability about the happening of the incident.
37. PW17- Sabamma has been examined on 16.3.2009. She saw Sakrubai running to the field and 30 offering water to her husband. She turns hostile in part.
She is acquainted with the family of Jamkabai and Sharadabai. She deposes that the incident occurred at Kallebennur village about 2 years 9 months back. This witness and others were carrying on agricultural activities in their land near by the place of the incident. Sakrubai came running, fainted in the land of this witness and this witness and others poured water to her and on enquiry, she stated that Jamkabai and Namdev were attacked by the accused. This witness deposes partly in favour of the prosecution to the effect that one of the circumstances of Sakrubai came running on the date of incident and fainted in their land. Though she deposes regarding what was done to Sakrubai turns hostile. In the circumstances, her evidence cannot be eschewed outright.
31
She has withstood the cross examination and her version establishes the fact that Sakrubai was present in the land of this witness and this witness was given to understand about the incident that has reported to have happened in the land of Jamkabai. She also deposes when she went to see Jamkabai, she was dead and Namdev has fallen down and she also observed that Jamkabai has sustained serious injuries. However, she did not observe the injuries.
38. PW18-Kashappa is examined on 15.3.2006. He is also an agriculturist. His evidence is that of Sabamma, regarding Sakrubai came running and she told about the attack on Jamkabai and Namdev. He was treated as hostile and to a certain extent, he fortifies and probablise the evidence of Sakrubai PW9.
39. Insofar as the evidence of PW19-Dr.Kishore Manakar is concerned, he has conducted post mortem on the dead body of Jamkabai on 24.6.2006 at 10 30 32 a.m. His evidence is morefully analyzed by answering the nature of death in the beginning.
40. PW20-Dr.Veeranna Valikar, Senior Specialist in Gulbarga Hospital. PW20 has examined the injured by name Ramu son of Heerunaika on 23.4.2006 at 2.40 p.m. and found the injuries below left eye, incise wound, torned injury on left ear measuring 1 ½ cm. Incise wound on the hindside of left ear injury on waist, left index finger space between index finger, clotting of blood on the left shoulder complaining pain on elbow and pain on right leg. He apprehend fracture and recommended for X ray and it was informed to that the said injured person suffered fracture.
This witness also examined PW1-Sharadabai at 7.30 p.m. on the same day with the history of injury on right forearm, uneven shape, incise wound 33 measuring 2 x 2 cm on the right palm, abrasion injury on waist and pain on left knee.
This witness also examined Hemu son of Herunaika with injuries on head complaining of pain n left shoulder.
This witness also deposes regarding the probability of the injuries being possible on the weapon MOs shown to him on PWs 1, 6 and 10 and issued wound certificates as per Exs.P25, 26 and 27.
41. PW21-Raju S/o. Sabayya, is an eye witness who is stated to have seen the incident wherein the accused persons were beating Jamkabai, complainant and others and Sakrubai frightened and ran away from the spot but she fells before him. His version is, he came to know that Jamkabai and accused had quarreled.
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42. PW22-Umesh S/o. Basavaraj and PW23- Chandrasha S/o. Sabanna, are the eye witness and turn hostile.
43. PW24-Kamalabai is the wife of Chandrasha. She deposes that, she saw the accused persons removed air in tyre of the vehicle of complainant and others. But she turns hostile.
44. PW25-Suryakantha S/o. Chandrasha is also an eye witness and turns hostile.
45. PW26-Santosh S/o. Tarasingh is the panch witness to inquest panchanama Ex.P40 and deposes to the said effect.
46. PW27-Srinivasa is the Police Constable who brought clothes of deceased after formal enquiry of post mortem and handed over the same MO 8 to 10.
47. PW28-Renuka is the Women Police Constable. She has attended the injured. She went to see Accused No.1-Bhimabai at the spot along with 35 another WPC and she took Bhimabai into her control as per the directions of the Sub Inspector.
48. PW29-Faizal Rehaman, is the Police Constable, driver of the jeep. He tells about going to the spot along with his officer who went to the place of incident and brought the deceased and PW8- Namdev to the hospital.
49. PW30-Ambanna is the Police Constable who carried FIR to the court in both the case in Crime No.142/2006 and 143/2006 on 23.6.2006. However, learned Magistrate was not available and he dispatched the same on the next day.
50. PW31- Siddaramayya Hiremath, is ASI. He was the person who has assisted the Investigation Officer in carrying the seized articles to the FSL sent MOs to the FSL and the FSL report is Ex.P41. 36
51. PW32-Dr.Devendra Manale, Senior Specialist, GGH Hulbarga, has treated Sakrubai when she was brought to the hospital and identifies the wound certificate at Ex.P42.
52. PW33-Dr. Sudhindra P.D. Basaveshwar Hospital, Gulbarga, has examined PW11-Ramu aged about 40 years with cut injury on his neck and T shape and also on the forehead and he identified the wound certificate at Ex.P53. The evidence of this witness reveals that he has treated the injured Ramu who sustained injury during the attack by the accused.
53. PW34-Sultan Mohammad, is the Tahasildar. He deposed to the effect of issuing Caste Certificate of the accused and the deceased as per Exs.P44 and
45.
54. PW35-Suresh N. Goankar, Director of FSL, Naganhalli has examined the chemical examination of 37 the seized articles as per MOs. 1 to 3, 19 to 21, 4,17 and 18 and issued report as per Ex.P46.
55. PW36-Somappa F. Kambar, DY.SP.
Lokayukta, is the investigating officer. He deposes regarding the formalities conducted by him. He has conducted spot panchanama as per Ex.P2, collected three bamboo sticks, three stones and 1 axe, blood stained mud MO 1 to 3, 4,5 to 7, 14 and 15, 11 to
13.
56. PW37-Panchakshari V. Salimath PSI, University Police Station who has visited the spot along with his staff and brought the deceased to the hospital and also registered FIR in Crime No.142/2006 at 11.00 a.m. on 23.6.2006 on hearing the information regarding the offence.
57. PW38-Sangappa K.Chillargi, AEE, PWD, Gulbagara and he has prepared spot sketch as per Ex.P57.
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58. PW39-Dr. Sriram, Radiologist DNB Aswinini Hospital, Solapur has treated Ramu Rathod conducted x ray on 27.6.2006 and issued Ex.P58.
59. PW40-Sadananda, Dy.SP, Sub-Dvn., Davanagere, the investigating officer, who has completed the formalities of investigation conducted further investigation of the case and filed the chargesheet.
60. Insofar as the offences are concerned, the offences charged against the accused are punishable under Sections 143,144,148,341,307,324,504, 302, 114 and 506 read with Section 149 of IPC and under Section3(1)(X) and 3(2)(V) of SC & ST (POA) Act.
61. PW5 Raju is the witness to recovery mahazar from the house of accused No.1 and 9 as per Ex.P5 and he turns hostile. Similarly PW6-Namdev is the witness to Ex.P5 regarding seizure of MO 19 and 20, PW7- Ananthareddy is the seizure mahazar witness 39 which is said to have been conducted in the house of accused No.3 and turns hostile. PW12- Mallikarjuna is the witness for the recovery of axe (two in number) and sticks under mahazaar Ex.P6 dated 19.7.2006, but turns hostile. The date of incident is 23.6.2006 stated to be in the broad day light in the land bearing survey No.72 at Kallebennur village within the distance of 25 KMs. FIR was registered by PW1 in Crime No.142/2006. Complainant is one Sharadabai. She deposes regarding the incident and the over tact as stated in her evidence stated above. Her evidence does not appear to be artificial, except minor exaggeration. She sticks to the substance and appears as formal.
62. The FIR was dispatched on 23.6.2006 at 5.00 p.m. Learned counsel for appellants/accused raised the objections for the delay. However, no substantial defect is noticed in this evidence. 40
63. Accused Nos.1,8 to 12 surrendered on 10.7.2006 and accused Nos. 2 to 6 surrendered on 6.7.2006. The dispute that was existing regarding the land in survey No.72 as stated by the material witness Sharadabai, complainant and others. In this connection, it was submitted that OS 198/1993 was decreed infavour of the accused and the Regular Appeal No. 122/2005 filed by deceased Jamkabai was allowed and the judgment and decree of the original suit was dismissed on 2.3.2006 by the appellate court and Regular Second Appeal No.977/2006 is stated to be pending and the stay was granted. The weapons used for the incident as spoken by the witnesses, produced during the evidence are: 2 axes, bamboo stick and stones. Accused persons are charged for the offences punishable under Sections 143, 144, 148,341, 307,324,504,302,114, 506 read with 149 of IPC and also under Sections 3(1)(X) (XI) 41 and 2(V) of SC & ST (POA) Act read with section 149k of IPC.
64. To put it in the nutshell at the cost of repetition, Sharadabai, the complainant is the sister- in- law of Jamkabai. Her evidence is supported by PWs 8, 9. 10 and 11. These are the witnesses who have supported the case of the prosecution. The accused persons have taken up the plea of right of private defence.
65. In this connection, complainant PW1 Sharadabai has spoken about the overtact of accused No.2, 3 and 4 with weapons like axe, bamboo sticks marked during trial. The complainant further deposes that accused No.2 abused the deceased in the name of cost and Accused Nos.2, 6 and 7 assaulted Jamkabai with axe. Accused No.2 assaulted PW9 Sakrubai and accused 2 and 3 have assaulted PW11 with sticks. Similarly, PW8 Namdev has stated 42 regarding the assault by Accused 2 with hands and axe and also hitting Jamkabai with the same weapon causing serious head injury. Rest is against all the accused regarding their overtact. PW9 Sakrubai speaks about the offence committed on her by Accused No. 2. PW10 Hemu Naik stated that all accused beaten Namdev. Accused Nos. 2 and 6 assaulted on his head, accused No.2 hit the wife of this witness with axe on her waist and hand and accused No.2 hit PW-9 Sakrubai with axe on the waist. PW11 spoken that Accused No. 2 and his brother attacked Jamkabai.
66. PW8 Namdev also speaks regarding all the accused assaulting with stone and axe, particularly, states Accused Nos. 2 and 4 assaulted PW1 on her back with hands, Accused No.2 assaulted PW1 with sticks. PW8 Namdev deposes that all the accused assaulted with stone and sticks and Accused Nos. 2 43 and 4 attacking Sharadabai, particularly, Accused No. 2 assaulting her with stick on her back. Accused Nos. 3 and 4 assaulted this witness on the face, head and knee and caused fracture.
67. The ground urged by the accused persons is that they are innocent and that they are compelled to take action in exercise of right of private defence.
68. Learned counsel for appellants- accused strenuously submitted that the prosecution has not presented the real state of affairs as none of the prosecution witnesses including the deceased were not justified in their offensive and aggressive act, whether abuse or assault by hand or weapons. It was submitted that the entire acts of the accused were in exercise of right of private defence. It is necessary to note that the right of private defence is not an absolute right without any riders. Section 97 of IPC postulates that the force employed as the right of 44 private defence must be proportionate beyond control with absolute and honest intention of protecting life or person or the property. It cannot be applied in cases wherein justification is claimed in respect of the act which is totally opposite and disproportionate to the attack alleged against the accused. In this connection, it is necessary cull out Section 97 of IPC which is as under:
"97. Right of private defence of the body and of property - Every person has a right, subject to the restrictions contained in section 99, to defend -
First - His own body, and the body of any other person, against any offence affecting the human body;
Secondly - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal tress pass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
69. It is also necessary to note that the accused persons were not alone or small in number. In this 45 connection, it is also a principle that a person has no right of private defence for the offensive act more particularly, when he has time to approach the recourse of law.
70. Behind every offence, there will be an offender or offenders. The job of the Court is to carefully analyze the material by appreciating the evidence to find whether the persons accused of the offences are the offenders of the act committed to constitute offence.
The weapons used produced before the trial court are stated to have been seized and also the incriminating articles such as blood stained clothes, soil are also seized. It is the case that in the place of offence accused persons were present earlier to the arrival of the complainant and her men. Further, the former waited for the complainant, Jamkabai and her party in the light of the dispute over the land in 46 survey No.72 of Kallebennur and the injuries inflicted by the accused definitely ranged from hurt, grievous hurt, attempt to murder and the murder itself.
71. Insofar as offence relating to attempt to murder is concerned, it is established that on 23.6.2006 at about 10.30 a.m., the accused persons were fully and absolutely conscious of their act and in respect of the offence committed under Section 307 IPC.
72. Insofar as assault on Jamkabai is concerned, the attack vary from hitting by hand, stones, sticks and axe, the accused persons were totally aware that the injuries inflected on Jamkabai were of such grave and serious that it was bound to cause her death on the spot and the accused persons wanted and desired for it.
73. It is evident that the accused persons were indiscriminately inflicted the injuries. The 47 circumstances present will support and fortify the case of the prosecution that the accused persons who are the appellants along with others have formed into unlawful assembly with weapons stated above as well and decided to act in unlawful group in execution of the common object of eliminating Jamkabai and the persons supporting her.
74. Now insofar as the finding of the learned Sessions Judge is concerned, he found accused Nos. 5, 8 to 12 as not guilty and acquitted them for the offences punishable under Sections 143, 148, 341, 307,324, 302, 114 and 506 read with 149 of IPC and Sections 3(2)(V) of SC & ST (POA) Act.
Insofar as accused Nos. 2,3,4 and 6 are concerned, learned Sessions Judge found that they are guilty for having committed the offences punishable under Sections 143,148,341, 307,324 and 302 read with 149 of IPC.
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75. The learned Sessions Judge having found the majority offence under Section 302 of IPC being committed by the said accused persons who are all convicted and sentenced them to under go imprisonment for life for the said offences. Regard being had to the fact that set off is provided against the period stayed by the accused in judicial custody. MOs 4,7 and 18 -Axes (kodlies) are ordered to be destroyed after the appeal period is over. However MOs 1 to 3,5 to 16 and 19,21 are ordered to be destroyed.
76. The complaint, oral and documentary evidence, material objects establish the presence of the accused persons on 23.6.2006 at about 10.30 a.m. and around about it in the place of offence and they had the common object of committing the offences. Further they are also in possession of deadly weapons like axes, bamboo sticks and stones 49 and the at the same time, the presence of Jamkabai and the other injured persons were also established by the prosecution. Further the witnesses who have been examined including those who are hostile were present.
77. There was a dispute regarding the land in survey No.72 of Kallebennur measuring six acres as admitted and alleged by both the parties. Jamkabai and her group were going to cultivate the said land. However, the group of accused persons are stated to be waiting armed with weapons well in advance to the arrival of Jamkabai and her group and picking up quarrel is also established. Further the altercation between the accused and the complainant, Jamkabai and others is also established.
78. In this connection, it is necessary to place on record that the very case of the accused persons is that they had to retaliate because their lives and 50 property were at stake in the hands of Jamkabai and her men.
79. Learned counsel for accused-appellants would submit that each and every accused were compelled to exercise their right of private defence because of atrocious acts of the Jamkabai, complainant and her group. Thus, insofar as presence of the accused persons and the complainant's group at the place of offence is not in dispute. In unequivocal terms, the accused persons have admitted and accepted it. In fact, private defence is their case.
80. Out of the total witnesses who are examined, the classification may be done as under:
PWs-1,8,9, 10 and 11- Eye witnesses and injured.
PWs-3,5,6,7 12, 13, 14, 17,18,21,22,23, 24, 25 Mahazar witnesses PW-16 is the circumstantial witness.51
PWs-34, 35,36,37, 38 and 40 are Official witnesses PWs- 19, 32, 33, and 39 are medical witnesses.
81. PWs-1,8,9, 10 and 11- Eye witnesses have supported the prosecution case in principle. It is necessary to make a mention that the witnesses may be fully reliable, partly reliable and fully non reliable. Reliability of a witness happens when the versions spoken are declared or admitted by such a witness is to the level of inspiring confidence of the court. That should be fully and contextually acceptable and not with reference to an isolated area.
82. The evidence of witnesses who have supported the prosecution case in full need not be in majority as compared to those who have not supported the prosecution. Oral evidence of witnesses when is natural and reliable it is not a voting procedure to consider the opinion of majority witnesses, there may be of asserted circumstances or 52 material or documents or a particular witness inspiring confidence in the mind of the court. On the other hand, it need not be majority cluster of witnesses.
83. Even the witnesses who have turned hostile are not totally against the prosecution case. On the other hand, the versions of those witnesses corroborate the evidence of the eye witnesses. Thus, there is no doubt that the prosecution has proved beyond all reasonable doubt that the accused persons committed the offences punishable under sections as stated above. However, for the reasons stated above, the sentence is imposed for the offences shall be under Sections 302 read with 149 of IPC.
84. Insofar as Criminal Appeal No.3698/2011 is concerned, it is preferred by the State and the reliefs sought is as under:
"...(b) set aside the aforesaid judgment and decree dated 13.6.2011 passed by the II 53 Additional Sessions Judge, at Gulbarga in SC No.158/2006 so far as it relates to non- imposition of sentence on the respondents- accused for the offences punishable under sections 143, 148, 341, 307,324 read with 149 of IPC and
(c) Convict and sentence the accused/ respondents for the offences under sections 143, 148, 341, 307, 324 read with Section 149 of IPC."
85. The prosecution claims that the accused persons are not sentenced for the following offences "under sections 143, 148, 341, 307, 324 read with Section 149 of IPC."
86. The prosecution has established beyond reasonable doubt regarding the previous civil dispute between Jamkabai's and accused family in respect of land to the extent of 6 acres in Survey No.72 of Kallebennur village. At the same time, presence of the 54 accused persons, interested witnesses and Jamkabai are established. In fact, the very accused persons while contending the right of private defence assert their presence. Seized articles are established connecting the offence. Recovered weapons used for commission is believable. In this connection, substance to the satisfaction of the Court is established beyond reasonable doubt by the prosecution. Time and place of offence and the possession of weapons by the accused is also established beyond reasonable doubt.
87. The learned Sessions Judge has come to the conclusion of holding accused Nos.2,3,4 and 6 guilty for the offences punishable under Sections 143, 148,341,307,324 and 302 read with 149 of IPC. But while imposing the sentence, it is confined to the offence punishable under Section 302 of IPC only which makes little difference. The sentence imposed 55 does not cover the said sections. However, basing on the quantum of sentence ordered, these offences appear to be minor offences. However, as the said offences are punishable with fine also, that should be inserted. The findings of the learned Session Judge are confirmed, but the area of mentioning the denominations of the terms of imprisonment and fine amount are as stated as under:
Offences Punishment provided Punishment punishable imposed U/S 143 of Shall be punished with Two months IPC: imprisonment of either description for a term which may extend to six months, or with fine, or with both.
U/S 148 of Shall be punished with Two months IPC: Imprisonment of either description for a term which may extend to three years, or with fine, or with both. U/S 341 of Shall be punished with 30 days IPC: simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. 56 U/S 307 of Shall be punished with Two years IPC: Imprisonment of either and fine of description for a term Rs.2,000/- which may extend to ten IDSI one years, and shall also be month liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned. U/S 324 of Shall be punished with One month IPC: imprisonment of either description for a term which may extend to three years, or with fine, or with both. U/S 302 of Shall be punished with In addition to IPC: death, or (imprisonment for imprisonment
life), and shall also be liable for life a fine to fine. of Rs.10,000/-
for each of the accused and IDSI 2 months
88. In the overall context and circumstances of the case, for the reasons morefully assigned above, we find no irregularity or infirmity or perversity in the judgment of the learned Sessions Judge in Special 57 Case No.158/2006. Hence, we proceed to pass the following:
ORDER
(i) Crl.A. No.3625/2011 filed by accused Nos.2,3,4 and 6 is dismissed;
(ii) Crl.A.No.3698/2011 filed by the prosecution is allowed in part, imposing sentence of imprisonment and fine for the following offences as under:
Offences Punishment imposed punishable U/S 143 of IPC: Two months U/S 148 of IPC: Two months U/S 341 of IPC: 30 days U/S 307 of IPC: Two years and fine of Rs.2,000/- IDSI one month U/S 324 of IPC: One month U/S 302 of IPC: In addition to imprisonment for life a fine of Rs.10,000/- for each of the accused and IDSI 2 months 58
All the substantive sentences shall run concurrently.
Sd/-
JUDGE Sd/-
JUDGE tsn*