Karnataka High Court
Bhairappa S/O Irappa Dabagal vs The State Of Karnataka on 15 February, 2011
Bench: K.Sreedhar Rao, C.R.Kumaraswamy
CrL \.No.26O t/200U
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DUARWAD
1)ated this the I 5i Day of Febniarv 2011
Pre,eni
THE HON'BLE MR.JUSTICE KSREEDHAR RAO
and
THE HON'BLE MR.JUSTICE C.R.KUMARASWA
MY
jQ)
BETWEEN:
1. l3liairappa. Sb Irappa Dabagal
Age : 5( years. 0cc : Agriculture.
R/o Nandikeshwar. Tq. Badarn i.
Dist: Bagalkol
2. Kurnar S/o Bhairappa Dabagal,
Age : 22 years, 0cc : Atriculturc.
Rio Nandikeshwar Tq. Badami
Dist: I3agalk&t.
3. Maiindappa. S/o Bhairappa Dabagal,
19 years. Ccc : Agricultun.
R/o Nandikeshw ir Tq Badarni
Disi: Ba 2alkot. \ppc11ant '
(By Sr B' .Soinapw Advocatci
I)
T11 ,tatc' nI KanlaLaka.
F3 Cir le I Ia e Insp m
Badarni J)isi' 13agik
llrniicli tat Puhik Prest c ii nr Rt 'fli rit
i
tii'" dd ,PPi
Crlt\ Nn2Gfl4/2()(9
:2;
This criminal appeal is filed under Section 374 of
the (ode of Criminal Procedure praying to confer the
records of the Court below and set aside the judgment
and order of convict ion and sent erice Passed by the
District and Sessions Judge and Presiding Officer, FTC
No.11 I3agalkot in S.C.No,5/08 dated 03.12 2008 arid
acquit the appellants.
This criminal appeal coming on for hearing this
day. Sri, C.R.Kumaraswamy, J, delivered the Following:
JUDGMENT
This criminal appeal is filed under Section 374 of i he Code of Criminal Procedure by the advocate for time appellant praying this Court to set aside the judgment and order ol (orniction passed by the learned Distrh t and Sessions .Judge and PresidinQ Officer Fast Track Court No.11, F3agaikot, iii S C ,No 5/2005 dated 03 12 2008 n a tut the appellant
2. 'lh cc it rits 1 tii nmp1a1n i a
ii) 1 apj)a Shivaiappa I ill aged 2a iii i 1 i i I r d it I ir iilc sh rc c \j q I( it )1 1 1 2 ' I i Cr1 ANO.2604/2009 :3: Sub Inspector. Badami Police Station. It is stated in the complaint that lie uric! his wife Kasuirewwa, their children. his mother Gangm6v a.
his brother Magundappa and brother's wife Manjawvi a were residing in the said village.
They owned agricultural lands and a house and their occupation was agriculture. His father had died five years back.
(II) During the lifetime of his father. there was dispute In connection with the boundary of the land and the pump-set between accu sed and members of deceased fanillv. After the de ath of complainant father accused No', 1 to 3 used 10 trouble him In connection with the said di%putc In spik of advic't of the elders thn continue to harass them About seven mouth, bit K aecu 'd 'h€unim that the pump sct bclongt d t tilt m rdlsed a disputc 2nd if thes 't nit in u he pump Mt they iiill 1111 hi c'niplainant .in I lui fan ul3 s.rl.A.Nn.2604f2(IO9 1. members. Therefoie. she complainant and his brother did nor go near that place.
(ill) It Is further stated in the complaint that at 5.00 a.m., complainant had gone to his agricultural land. It was 7.00 a.m. when lie had completed his work at the land. At that time. his brother Magundappa had come there on a bicycle, he asked his brother to bring fodder for the cattle and he went to the house. At about 8.30 a.m.. when he along with Tippanna Magunclappa Haradoffi. was proceeding on a motor cycle, accused No.1 Bynppa Irappa I)abagal. accused No I Kumara B3rappa flahagal 'ihio uere hnldlng pink 'ce and decused No.3 Magimdappa Byrappa Dabagal. who was hoklini a ari-peg. acro%tcd thc r omplarnant and uithici v abused him ii lthy 1w cc and flld that e i dec Ii in r the ha h nnli Aill him ]lsr. Th compla nans 'a-b fnahttrecl €nid %k ii flvuniiin t') t'el 'Ion p ii"I tried t.i (.'( a C I Ian I I I ixp )IJ flfl mi --nj )T1, 1J)tIfl'- )IjI Untl P )J P' IU( ) T tLIflJ4 id Iepj T% i Idi fltfl lb 1 g l u .p qj eddvun eckle"iuze,j M1O ' tuipoa xiW 'S HI Sip aji 411 ftLTP( t'g f CII 1nhldS)d lilt! U )0fl 'qi ti p )l.. aap aqi 5JOOT atj pun pmirpi' vddeio wants ljbalUPqi?w ( $ujWtiopq esnqssjjs o:rn Ut pa.rnaas saqi iaaiaqj Wad ea 4 tpj n wig pa4jrwsct' uddupunau pue axe jo irnaw Aq wig paigiesse aIewnj pun eddnss.cj rio aseds 'iOU LIJA1 Lalfl asuatpo Lane o$ 04 wjq pmrn ag pun .iaqjosq sq 'pa.qnbUa Lam uaui siaj PUB ping qoq peaq spj oj sapnfuj paupjsns $upeq puno.i q ito WtgLj .iatposq .ia$unoL c..rneuTeTdwoa alp punoj Late asaqw atp ITIOU PURL aip 04 4UM iw Lag; uaqj pasnaae atp paua;qWpj Laip PUB satpa$oi paujof pafluJ eddaq aIewn)j j)UB T.rnsng uddanuni e aafuncj 1 4 °N &aiPi'o naamd 'jeApj, eddeunweA euuedd;j 'Ji' 1euunqqau{) Uddl3IUl3H uddeunuw ç inopainit eddl3pun$uw ecldaipp'j sap) pacnu iueujujdwoa aip uaq.n pitu wjq paseip pasnan aip 600Z/bO9WON Vi3 CiI.A.Nu2604/2009 examined his brother and declared that lit' is dead, At that time it wa I O4% a.m. His vounLer brother wa ssatilied approximately at $3O a,ni. It is also stah d in the complaint that he learned that Al l3vrappa Irappa DabagaL A2 Kumara Bvrappa Dabagal and A3 Magundappa Bvrappa l)abagal assaulted the deceased with pick axe and cart peg. And this incident was 'vii nessed by Hanumappa Devappa Gachhannavar and Yarnanappa Ramanna Konmir
(iv) It is further stated in the complaint that accused Nos. I to 3 in ('onilection with pump set dispute. kilkd his \ounrer brothet Magundappa by assauli mi' hint With cart pug and ph k axe tiid that the ae tisoti also att mptcd to kill tht 'ninplainaiit near (h I i at I of lie ill Magiinnappi Ii d 3t 3 n ' 4 afli at 'Ia o' rumnt Hopiiai. Fiadami dti to I ii t31 ' I Cvi A.Nn.2604/2009 :7:
3. On the basis of the above complaint lodged 1w the complainant Badanu Police have registered a case In Crimt No.163/2007 agauist accused Nos 1 tn 3 for the offence punishable under Sections 302. 307 and 504 read with SectIon 34 of Indian Penal Code. The contents of the FIR reveals that 11w IncIdent has occurred on 17 10.2007 at about 8.00 a.m. The learned Magistrate has received the FIR on the same day at 1520 hours through P.C.No.805 of Badaml Police Station along with the complaint.
4 After Investigation the Investigating agency has laid harge sheet against accused Nos I to 3 for the oftences punishable tinder St-dions .302. 301 and 501 read ith Sc' tion 34 of Tndllan Pcnal C ock It 'lkgel I haie• I In i ?) ri t I ildrn.apika'ce jul it on. 3 . i_It 1 "nmpI'inant brnthei r.cat u al 1 flI iTiti 'tC %IL't 1'si .' 1ijtIiit lu lvi Ii iri ba"d' 1 ilk Cr1 A No 2604/2009 :8: legs. and that accused persons, who were holding pick axe and cart peg, went to the village bus stan d at about 8.30 a.m. and on seeing the complainant coming on 'i motor cycle, they went near to him. abu sed him and they uttered that they had killed his younge r brother and they would kill him also.
6. p w. 1 is the complainant. He has deposed that there was dispute between the accused and Iths family In connection with the pump set He has further deposed that he told his brother Mahag undappa to bring fodder, then he vent to his housc and It was about 8.00 a.m. when he canie to the hou sc '½iter having bath ind taking It od hc. along wit h (' 13 fluppanna. proc eedt d tow ii d' Nan apur n a in no' cycle ihippimia as illiot ridi I 'ff1 it m )tnhr%. It. J i1% about S 30 ;'.m hen he° r'a 'hcd .
die bi', tand I flu illage iid vhci they 'iii pr WE d'at f r.lr tt.'i.rde Thd, Ui 1 in ttl Cr1 A No.2604/2009 :9: No.1 holding an axe. accused No.2 a pick axe mid accused No.3 a cart pe 1 hey came to the com plainant and said that thn have killed hi' brother and they will kill him also. Then he asked Thippanna to get down from the motor cycle. then he shouted at that time.
C'.W.l7-Kanakappa. C.W.18-Shankieppa, C' W.4 Tippanna Talyal. C.W.5 Yamanappa Gaclthannavar. C.W. 12 Paravya. ('.W. I 0-Kumar and C.W. II Basari Sanjeeva came to resnie the complainant when accused were about to assault him and if the said per sons were not then I hi accused persons would ha e killed him lie hirther deposed that they proceeded towards the land nd found that Mahagundappa Lyin g on tht twound. and rn enqulnng him he told conipLunant that 41 'aitI rc 42 'cinh pick uce md Ad 'ith call peg i"øaialiecl him and 4150 told tli c 'rnpldinafli to a'a romtlicr I ic flit cisc mii kill lain ilso.
lit riNt) 4tpn% 'I hi€i Ii s hiothc' ust.un' I iji it
j j ii it,.? 11 ' tic i 'akin f.
r
('rI.A.No.2604/2009
:10:
Government I lospftal. l3adarni. in a torn torn vehicle of Muhamesh 1-ladapad and It was 10.15 a.m. when they reached thi hospital. The donor e.aniIned his brother and declared him that lie is dead then, he vent to the pollee station at 11.30 a.rn. along with Shrishaila. lie dictated the contents of his complaint to Shrishaila, who wrote accordingly. and on the basis of the said complaint, a ease was registered 1w the police He identified the complaint at Ex.P. 1. His signature on the complaint marked as Ex.P. 1(a) and signature of Shrishalla as Ex.P. 1(b).
I i During his cross examination. P.W. 1 states that when he went to lodge a complaint, police showt d th axc pick iice and cart pg at .00 a m. buch type I wnc iltur 1 u ip1emenr will be .ound gneraJy iii the agnc uitui bb family He omitted P mc ntu n in I hc complaint that Kumar assauhcd lrh n - vlm Ii i'" n ' n r ci hal)? I tb ,fl' t 'I I Cr!. 4.Nn.260 1/2009 Li:
mention In the complaint that Kuinar was holding axe In his hand. which portion Is marked as Ex.D.3.
8. P.W.2 is the inquest punch. Hr hac deposed that he was an witness to the inquest panchnama. spot panchnama. seizure of apparels of the accused and also the deceased, seizure of weapons. During his cross examination, lie states that he did not see the cycle which was lying by the side of the canal. P.W.3 has stated In his evidence that at about 830 a.in In orde r to go for coolie work, he. C.Ws.12. 4, 10 and 6 were standing at the Nandikeshi at Bus-stand and at that time. the three accused pet soiis came trom the agriculturil lands P.W I wa's riding the motor cyclt md flppann as pillion rider 'V c usc i %os t.
e e rmed with weapnn o t ien ai.std No 1 cairn . 1 t1 tt'rnplaliiarn anti said t1'41 thee wx id kifi him
-intl atten 4 iptt-' to as%ault it Im 'ther they rt scued him it rat ii ll&r i It 'is'nc k.
CrlANo.260 1/2009
:12:
that accused have assaulted Mahagundapp
a His
statement a i rcorded During his cross examli mU
on.
'
lie states that nobody except the acc used persons themselves had Informed him about the assault on Mahagundappa. He also states that the deceased Mahagundappa except stating that he Is going to die he dlii not say anything to the complainant.
He did not attempt to speak with the deceased.
9. P.W. 1 has deposed that they came to the bus stand at about 8.30 a.m. they were procee dings towards Badami, at that time, accused Nos 1 to 3 were present Ac cuscd No I was holding cart-peg and the complainant thinking that accuqed No I would assaul t him. stopped the vehk h, got down front it and starttd to run and that €ccusc ci No 1 chased him. I ft dso tatc s Ii ii .i ed '1 1 i i.. lb it they had 'ulle I Iahagundapj a ind he would kill complainant d's 1'hippanna. liii) lijili mwvn a ( W 1 ' San,. t 1 . ' and ?irav..
a a I' Crl.A.No.2604/2009 13:
who were at the bus stand witnessed the Incident. This witntss has turned hostile to the side of the prosecution
10 P.W a Is the auto driver. He has deposed that 1w shifted the deceased to the Government Hospital, Badami. in his autorlckshaw. During his cross examination, he states that Mahagundappa was not in a fit condition to speak. P.W.6 is the photographer who has taken the photos ol the dead body and the scene of the offence and recovery of the weapons and clothes of the deeesed I ii p wi is the wife of the deeeased. she has depoed thit pump t is m her father in lav\ i arm aft r the cle ith of her fathci hi th weusi d lwrsoIn jrre ch'hnhiit ijidi purnp-t t helnnc to the m and in this rc...arl den as a quanel. C .Ws. t an.. lb had adn.ed ii cc v r- ic Ii i )t"9'( i U.S rd '(tU td C' LI Si 11i' t"ct Cr1 A.Nn.260 1/2009 14:
P.W. I should relinquish his right over the pump-set and that they threatened P.W. 1 in this regard. During her cross examination, she states that they were rakin c uiter as they desired and accused were taking wate r and there wa' no quarrel.
12. P.W.8 has deposed in his evidence that he had advised the complainant and the accused in respect of the dispute pertaining to the pump-set. During his cross examination. P W.8 states that his statement was recorded at 10.00 a.m on the date of the incident
13. PW.9 Thippanna Yamanappa Tilival. 1W 10-
Yamanappa Rongappa (iochannai or and 1W 11 Magondapp Hanainappa Bomsagar an the eye witnesses to the incident. P% q ha dcpnstd hat abou t ii month. hark at ibout 7(/) aim lumselt ('IV , Yaminappn •t'ic ('%'tj Mag'ind i pa Iionnnasagar 'c nt to dr ii'u't ol dci.s. i'cd M gut dii c llnn iii v 111 1 1 e I t 'ci lit I ('rl.A.No.2604/2009 :15: Magundappa gone to the agricultural land. They proceeded towards agricultural land and saw that near the canal quarrel rook place. The bald quarrel took place In the morning at 8-00 am. When he wen t there.
lie saw that the accused No.1 Byrappa. accuse d No.2 Kumara were assaulting the deceased with axe and pick-axe and accused No.3 assaultIng Magundap pa with club and Magundappa fell down They have seen th accused assaulting the deceased at a distanc e of 150 feet, then he told the accused not to assault the vict im.
Then accused told him that Magundappa has been finished now they want to finish his brother Say ing so the atcuscd by holding axe, pick axe. and club vent towards Village. Then lie saw Magundappa and he was acsaulted by the a cused on his leg and hea d and there vas nish Injury U lth kg I-Ic limber deposed that 'Ahn. the vent nc ir thc Bu Stand ci Nan ihkeshwu.
hei c 'A Is I dlpute between tI ie I £ use mci PW 1- Er il)f.d 1h ,riiq'4 ' nt iith an i its liii' r t . d4' 1 1 1 C CrLA.No.2604/2009 :16: PW. 1-Erappa. When they went there ('W .9 Fakklrappa.
CW 10 Kumara. PW.3 Sarijeeva, CW. 12 Parayya and PW.4 Thippanna were present. They pacified the quarrel, in case they have not pacified the quarrel, die accused would have assaulted the complai nant. After paci1vlng tile quarrel. the accused wait towards their house. Then himself. CW.5. and PW. 1 -Er appa went to the land, there they saw Magundappa and he explained to PW. I about the incident. CW.9-, ClAY.
10, PW 3 and CW 12 came there and they shifted the deceased Magundappa in an Autorlckshaw to the Government Hospital. It was about 8-00 ot 8 30 am.
Thc Rickshaw va' driven by one Mabanthesha
14. He furthet deposed that hr has gin ii Matcmt i I beioi e the I ariid 1agisrn te. Thi li arm d 1agiti ate jec1 him lwlorc. alvinu 'a e nt i b. has dkcn '3 ' m nt s I' r ti a 1w tare n' gall'. c 'eply. 1henaltn 1it k in ccl 1a' isitt it r.• orded N I! ('ri No.260 1/2009 :17: statement as per Ex.P. 18 and It was kept In a sealed eovei. M.O.6 to M.O.8 namely axe. plekaxe and club were In the hands of accused and he Identified the same. lie also identified the apparel of the deceased i.e. banivan, lungi and underwear. which are marked as M.O.l to 4 The accused Nos 1 to 3 were wearing shirt and lungi.
15. DurIng his cross examination he has stated that he was not able to say how many times the accused assaulted the deceased He has further stated during his cross-examination that when aenised vent to issault the complainant PW I he told them not to a%sault the complainant and he did not question about ahi the accused aeje asa1i1t1ng the complainant IC PW O1imatalp iii tht ewltnt St tic Ir(idi iptd llht hot rontis h ik it 7 cm tic C hit the : nqd Nr 1 4% hnlduig axe ) (1 .r Q ( .2 i\.I hL)Iililit )It k iae anl -in a't d 'o..3 I P I I flI.A.Nct2bcJ4/2009 18:
was holding club and they were assaulting Magundappa. The accused Nos. I and 2 assaulted Magunclappa with axe and plckaxc md act used No 3 aqsaulted Magundappa with club. Himself, PW.9 and ('W.6 rescued him and also told the accused that not to assault him for that the accused told him they finished Magundappa and they also uttered that they will also finish the brother of the deceascd and by saying so they went towards Vifiage. When they spoke with Magtrndappa. be stated him to prevent his brother coming to the spot otherwise. lie may not escape from the assault of the accused.
7 He further depo.ed tha hereifter ih n they ern to Nandikeshara Bus Stand the accused Nos 1 • ii i red t LW i that thn. tilled hK brothci md th nll dlo kill him i e 1 1 and al%o the chased him in noldrng av pic Is a c and club. I un 41 jun ted ',W flu-i ai.l p--t ifit I tin qu.u ret ('rt.A.Nn.2604/2009 :19:
18. He further deposed that his statement was recorded as per Ex P 19 before the learned Magistrate The learned Magistrate also questioned him whether he was giving staterni nt oluntarl1y or there is any pressure on him to give the statement. When PW. 1 went to Police Station for lodging complaint. he was In the Hospital. He has stated that he was at the spot about 15 to 20 minutes where the deceased Magundappa was assaulted, but he did not speak sith Magundappa.
19. IS. 11 -Magundappa llanamappa I3ommasagara is another eve witness to the rnddent. lit' has deposed on the saint line as that of other cvi witnesses 1 he tvidene if thi'. witness reveals th it ac CU%( ii No' 1 tc 3 e Ut i M .,u dapa His s at'men crded ytl errni Igntatc I Ci LA.No2604/2OO9 20
20. PWl2 is the Medical Officer, ho conducted the PM. examination on the dead body of deceased Magundappa 1k has dposed that th ausc of death is due to severe haemorrhage as a result of neurogenic shock to the brain and multiple fractures The time of death is about 8 hours prior to the PM. examination.
21. PW. 13 is the Assistant Executive Engineer of PWD, who drew the sketch of scene of offence.
22 PW 1 1 is the Ilamali He has deposed that S months back at 8 30 am when he as in the Bus Stand P\' 3 C XV 12 were also standing there 1 he accused Nos 1 to 3 came there md omplainant Frippa and Thippanni w n pro ceding m Motor Cycle and at thmt tinic th a isd N s It 3 topped Li ippa nd ith ed ha h nl1e i o th a lb ml, old I im h will ku ii also Ie M I r h a In r h II I' I Cr1 A No 2604/2009 21 started running. At that time, PWS, PW. 10 came and pacified the quarrel. 'flw accused Nos. 1 to 3 were ho1din& axe. pickase and club. After pacifying the quarrel, the accused went towards their house. Himcclf.
Thippanna. Sanjiva. Ymanappa and Tliippanna Erappa went towards the land and they saw Magundappa near canal. Magundappa sustained injuries on his hand and leg. Magundappa told the complainant that the accused assaulted him and they will also assault him and told him to go away in order to escape physical assault of the accused. He has given statement before the Police. rhe apparel of the deecased-Maccundappa wa' sowed, it was marked asMO9tn 14.
23 P'iV lo is dit Pohc'e Constable, who Ctpprelicnd"i1 thi d( nise' \gs I u 3 ni ! 7 0 )O(' a I 90 pit' and pndnct-d them belnit. thc- PSI flV.22 ('riA.No.260 1/2009 22:
24. PW.16 Is the Police Constable, who produced the apparel ol the deceased befon the mi estigating Officer and the same was set'ed under Fx.P 26.
25. 1W. 17 has deposed that he hah registered the case In CrIme No.163/2007 on the complaint of complainant and prepared FIR and sent the same to the learned Magistrate between 3 15 and 3 20 pm
26. PW. 18 Is the Police Constable. who carded the articles to FSL. Belgaum. PW. 19 Is the Police Constable.
who carried the blood stained sample mud to the FSL on 20 12 2007 bdonglng to Crime No.160/2007.
27. PW.20 is the Police Inspector. who conducted in cstlganoii and after 'ompletion of investigation laid the bans sh. et icaLnst tin' acnistd.
)$ is ilw leirncd M
21
tgi%Liitc. iho x' corded
the tasemnh1 4. PO anti IV II TIt lia ,'ailed
ii, 111% C. J(jf*tjK
! ir t fupiji rd Jjr. it1IP%%' nit' '!i
V
C'rLA.Nu.260 1/2009
23:
there was any threat to them or whether they are giving %talement voluntarily. The statement of the witnesses were marked as EtP 17 to 20
29. PW.22 Is the PSI. who received the complaint of the complainant and registered the same In Crime No.163/2007 and sent the same to his superior, He has conducted Inquest panchanama. spot panchanama and seized blood stained mud, sample mud and Inspected the bus stand and drew panchanama to that effect and recorded statement of the witnesses, seized the axe.
pickaxe and club and also blood stained cloths, lie also made arrangement to record ihe tatenwut of ihe wfl nesses hefoi e the learned Magistrate.
'30 The statement ci icc used No', I t) 3 rec or led the cacustd Ii'nit d tht incrimInating v li u p a hip 'igti"1 them 3 ii c tt r'l ci i tncr CrIANn.2604/2009 :24 11w Trial Court has observed that 1W. 12 opined that cause of death is due to severe liaernorrhage an(l iieurogenie shock of brain and multiple fractures The complainant. PWs.9 to Ii. 14. 3 and 4 deposed that the deceased had sustained injuries on the head. legs and hands. The death of the deceased Maguiidappa is homicidal. The complainant in detail stated the enmity between him and his famliv members on one hand and accused on the other hand in respect of land hund dispute and sharing water of the I.P. set installed oh Malaprabha river bed situated at Nandikeshwar Ti1lage.
The Trial Court further observed that PWs 9 10and 11 deposed that on Ihe said day benAet n 7 30 to 8 00 am. thn went to the house of deceased to tall him icr Hamak wrk ft Liv to I-"idami and uk, 41h p\r lii%r'lI)sed that Iwi lrisbaiid hid bien to i-li land lii Tritil court fut this ob',er ed thn tiit 'r iiInt sscs etated I ftp t 1w i4( i] ilw ii' 'I',L 1 hOt t' ssu't the .
cv.nr' Crl.A.Nn.2t404/2009 25:
even then flier did not stop assaulting and the accused Vent tovards the Village armed itii ieapons saying that Magundappa Is no more and nrnv they vant to finish his brother.
The Thai Court has mentioned in Its Judgment that PW.21. the learned JMFC, liadami had recorded the statements of 4 witnesses on 06 12-2007 marked at Ex.P. 17 to Ex.P.20. PWs.9 to 11 befort the learned JMFC' stated that each of them separately went to the house of deceased to call him The Ti ml Court further observed that in Ex. P 1 FIR, the names ol PWs 9 and 10 appeared. but It is not mentioned that they have witnessed thc first lnrideni that took plare on 'anal road. PWs.9 and 10 during the uursc ,I tros', t- irnination admitted that afrei tht in' 1 lent wa' or. i a! Nandikesi nvar \ illag This Stand 1 r•. ! ti;. v h i1 irilntn.a w 'nnpliin:uit tliay th 1 a. ir--rcl ',i'' J' L1tt' 14 1t% ••'flt' r ' i 1 hr..r • •ilal rrid.CrIANn.2604/2009
26:
is true that the Information given by PWs.9 and 10 Is not Incorporated in Ex.P. 1 written complaint though Ills filed 2'; an hours after the incident. The Trail ('ourt has also observed that the complainant might have forgotien to meid Ion the Infonnation given by PW.9 and PW. 10 since the accused have chased him in bus stand to conunit his murder and further he lost his brother due to barbarous murder committed by accused The Thai Court has mentioned In its Judgment that the evidence ot PW.9 to PW. 11 are cogent and consisten t to believe that they had witnessed the overt act of the aec used assaulting the dec eased with M.O.Noc.6 to 8 at a distance of 60 to 150 meters PW.9 to PW.1 I deposed that thi v arc not relatives to the deceased or cnmplunant but ibet "-crc doinu Hamali ork iioi with (k' edsej The e iclene' of PW.$' t' I'W 11 annt hi 'louiat'd nw'rel bcc ause tht ir namc ' do not ippear in Cr1 k.No.2604/2009 27:
FIR as they witnessed the accused assaulting to the deceased.
The Trial Court has observed that it Ic stated In Ex.P. 1 that the accused Nos. 1 to 3 who armed with M.Os.6 to 8 came to the Bus Stand and addressed the complainant as they have fInished his brother Magundappa In the land and they would not spare him and they will finish him This indicates that the accused have made extra Judicial confession before the complainant and other prosecution witnesses. who pacified the Incident PW 9. PW 10 PW 14 and PW '3 deposed that the accused before going to assault the complainant told that thq hay' finished hl% biotlier Mahagunthppzi ir the land id t1n Nih ilnish the umplain.mt. Tht t on 'if iii.-- -nrn nrc um%taw e t*lit' e thai the vu used ifte' :isa'iltIiig thc dvreast-d an t s ul th iTfLni1 'Hi ic s c I liv i jn'hjii' 'øilI'ldI" --i'irc- ilt conila'i a t fliTiat dritnv Crl.A.No.2604/200$) .28:
after the medical officer declared the death of deceased Mahagundappa it about 10 45 am. has filed Ex.P 1 writ ten complaint at 11 30 am.. and FIR Is received 1w the learned Magistrate at 3 20 pm. The clinching evidence of PW.2 proves that M.O.Nos.6 to 14 were recovered by the Police at the Instance of accused on the day of Incident. There is no delay even In recovery of M.Os.6 to 14. All the prosecution witnesses have Identified that M.Os.6 to 8 were In the hands of accused Nos. I to 3 and M.Os.9 to 14 were worn by the accused on the day of Incident. E'.P.29 FSL report indicates that M.Os 6 to 14 were blood staIned and it belongs "W group blood. An used have not given any explanation why their lothes en blood stained, hich eie seWed at their Instan( e oh the day of hiciclent.
'The lini (nfl limiter ohsen(cl that f3is9 In 1! Itnc '-- to lic mednt Icc ',c I Ui I 11€ a used Nt2 trrri.l Tilt 1a\t 1C) I flurlic' 'in tin 'Ia' ii I CrI.A No 2604/2009 29:
incident within 10 hours the Investigating Officer have seized MO.? pickaxe from the accused. The discrepancy appeared in Ex.P. 1 in respect ni weapon carried by accused No.2 is not going to the root of the ease of prosecution. The discrepancies and omissions appeared in the case of prosecution and witnesses are of minor and they are not going to create doubt about the case of prosecution. The evidence of prosecution witnesses beyond reasonable doubt proves that the accused Nos. 1 to 3 In order to take revenge against the complainant and his brother hi respect of long standing dispute of boundary of the land and drawing water from l.P set with .i preplan committed the murck-r of deceased by assaulting with M.Os 610 8 deadly weapons and further on the came day made attempt% on the liie of mplak nt 1h in 1 it rchinu on the e idei e f I lit ;'hc ye viinesccs ' oine to 1 he rnfl('%y in I hut I lit ro%cut nha(ta ist Itlat I mi ii 0% k3 II Crl.A.No.2604/2009 30 are guilty of the offences punishable under sections 302 and 307 r/w 34 of IPC.
32. FeeimQ aLrievecl by the same, the appellants/accused Nos, 1 to 3 preferred this appeal.
33. We heard the learned counsel for the appellants as well as learned Additional State Public Prosecutor for the State and perused the records
34. The learned counsel for the appellants submits as under :-
PW.9 to PW. 11 are projected as they' are eve witnesses to the incident, but their names riot mentioned in the complaint to show that they have seen accu.sed committing murder of deceased-Magundappa. Non- examination of eve wilnesses is fatal to the case of prosecution, The crime has not taken place as narrated in the complaint or efiarge sheet. The prosecution has created the •story t.akin.g ir. to cons.ideration of earlier Czl.A.Nct2604/2009 31 dispute between the accused and the deceased. Therefore. the Judgment of conviction passed by the Trial fliun i bad in law and Jiabk to be er aside.
35. The learned Additional State Public Prosecutor for thc State submits as under:
The motive for the commission of crime has been established. The dispute between the deceased family and the accused is in connection with Pumpset and boundary of the agricultural land. There is extra judicial confession made bit the accused to 1W 3, 1W 1 and PW. 14. There an eye witnesses to the incident the blood stains found in the appari nf the arnuseal matrhe with thc blood uroup f hc. de 1 ed lEa Inal C 31111 nefully anaiyied h iidcnc'e of evt. wmx sss md m tc ftc )nclu%ioi th 1 Lw a' c t",ecl Nns n t ilL f tix ninjshablc i,ndu-i t"tion 1 'V inj IA A 34 nf lP( ('rI.A No 26O4/OO9 :32
36. The question that arises for our consideration is as under:
1. Whether the Judgment of conviction passed by tile Trial Court calls for interference or not?
37. Our answer to the above point is as under for the following reasons:
1W 5 states during his cross examination that when he went to shift iijured to hospital he was in a condition to speak. In chief examination PW 3 states that accused No.1 told to PW1 that they wanted to kill him at that time they rescued him. In his cross examination 1W 3 states that accused Nos. 1 to 3 saw PW1 and told him that they ha finished his hi other and in a similar way the want to fliush him ltve witness P 9 has depostd that 1w me ns I ax M u ed No.2 by mc ins pix axe irid net use4 N hi mean' oi cait peg assuilt 'ii dccea ed. he ha ,ten fix ii ident from a .1 ,t rn c of 1 %' f et c silil.. 4.tstrgfiptj.,iiiieej tub' r CrI.A.No.2604/2009 life is over and now we have to finish his brother. Tn his cross examination lie admits that accused No.] assaulted dec eased on his right shoulder by means 01 axe and accused No.2 assaulted deceased on his head 1)37 means pix axe. Accused No.3 assaulted deceased on his leg. Evidence of PW 10 and 11 arc in the same line as that of PW9. Evidence of 1W 11 reveals that PW1 spoke with injured Magundappa and he told that lie going to die and you escape the assault of the deceased. Evidence of PW 14 reveals that accused Nos. 1 to 3 way laid Erappa and told him that they have killed his younger brother and they will also finish him.
ft is I In e( au ention of t ht learned e'ounsel for the ippellants tha ngormortis was not et n. therefore time '4 the incident edintot be beliecd. ihougli it 1% the S ue i tnr
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t •h H' 11w
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Ui'- time ol death is not pm tsr bitt •he t Idencc ot
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I
CrLA,No .2604/2009
evidence. Though it is the contention of the learned
couiise1 for the appellants that there is iniprovemel ii in the evidence of prosceitliori witnesses, hut nothing is elicited during the course of cross examinatioli ol these witnesses and also by putting necessary suggestions to the Investigating Officer to mention that there was (liserepancv in the evidence of eve witnesses. Therelore.
this will not come to the aid (if the appellants.
Though it is the contention of the learned counsel br the appellants that the non e'camination of material witnesses will fatal to hit' case of prosecution. normally that it br the prosecutirn to cxamin 'and put forth Ihneii cac before the Enal Cant t and establish itt, ase, S non examination of some of the ee witnesse and orlr es,e', t ho hav ,1 atcci about th hn t nia not II, I P 0 1 it I ill 1 c r P Flu bnefit of doubt lii 1\ 0111 01 I n' appeilal its,' aceiied 31 1 i it C ) I 4 1 CrJ.A.No.2604/2009 35:
group blood, arid this matches with the blood stai n fbund on the apparels 01 the deceased. This also connects the aceu%ed with the crime.
in this case, FIR has been promptly lodged and the names of eye witnesses found place In the complai nt. The motive is also been established. The death of deceased Magundappa is homicidal. The evidence of Doc tor clearly discloses that death Is due to severe haemo rrhage and neurogenic shock of brain and multiple frac tures. There is positive evidence to the effect that PW9 saw accused assaulting deceased by means of deadly wea pons and accused No 1 "onfesslng their guilt befon PW1 and PW3 that th( v killed hi brother and ihet want to kill him.
The evident e of an xdmicslon of guilt to PW1 and PW3 is
-trong e ident e against act used. Injured telling Ins hrntlin U' ' s w iii" &'atiIt 1 ; "1 the l'eserl F fl)fl this it i. cleat thcre is sulficient nidencc tc point )ut th riult 1 tin a' 'il-K d fit it ilic ha' t )1flPtittt(l tIn t i nit I Cr1A,No26O4/2O09 36 The finding recorded by the Trial Court is souiid and proper. Therefore, we are of the opinion that there is no ground made out hi the appellani' to iiterfun' with tIH iudgment of conviction passed by the Trial Court.
37 lii view of tlw above discussion, we pass the foil owing:
ORDER Criminal Appeal No.2604/2009 is dismissed. Misc,CrLNo 15615/2009 filed for suspension of sentence and hail is hereby dismissed iii view of the main matter has been disposed of.
JUL' L