Karnataka High Court
Somalinga @ Suresh S/O Umashankar vs The State Of Karnataka on 3 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1345, 2020 (3) AKR 635
Author: R.Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE R.DEVDAS
AND
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
CRIMINAL APPEAL NO.3519/2013
BETWEEN:
Somalinga @ Suresh
S/o Umashankar,
Age: 45 years, Occ: Agriculture,
R/o: Hyderabad (A.P.)
Native of Mehkar,
Tq. Bhalki, Dist: Bidar.
(Now Central Jail, Gulbarga)
... Appellant
(By Sri Ishwar Raj S.Chowdapur, Advocate)
AND:
The State of Karnataka
(Through Halsoor P.S.)
represented by Addl. State
Public Prosecutor,
Kalaburagi Bench, Kalaburagi.
... Respondent
(Sri Prakash Yeli, Addl.SPP)
This Criminal Appeal is filed under Section 374 (2) of
Code of Criminal Procedure praying to set aside the order of
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conviction and sentence passed on 31.12.2011 in
S.C.No.67/2009 on the file of Fast Track Court-II, Bidar,
camp at Bhalki and acquit the appellant for the offences
punishable under Sections 147, 148, 447, 307 and 302 read
with Section 149 of IPC.
This appeal having been heard, reserved for judgment
on 15.06.2020 and coming on for pronouncement of
judgment this day, P.Krishna Bhat J., delivered the
following:-
JUDGMEMT
Accused No.5 against whom the case was split up
before the Court below, having suffered an order of
conviction for offences punishable under Sections 147,
148, 447, 307 and 302 read with Section 149 of the
India Penal Code, 1860 (for short 'IPC'), in
S.C.No.67/2009 before the Fast Track Court-II, Bhalki,
has come up with this appeal before this Court.
2. Accused No.5, who will herein after be
referred to as the appellant, is the son of accused No.1 -
Umakanth and accused No.2 - Parvathibai @
Padminibai. The two other accused in the case were
accused No.3 - Gurunath and accused No4 - Ramling
are his brothers. Since the appellant had remained
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absconding, accused Nos.1 to 4 were tried separately
before the learned Principal Sessions Judge, Bidar in
S.C.No.56/2000 and by a judgment dated 16.09.2004
they were all convicted for the offences punishable
under Sections 147, 148, 447, 307 and 302 read with
Section 149 of IPC and they were sentenced for the said
offences accordingly. They preferred an appeal before
this Court in Criminal Appeal No.1468/2004 and by
judgment dated 22.10.2007, the appeal came to be
dismissed and the judgment of conviction and sentence
passed by the learned Principal Sessions Judge, Bidar
as against them was confirmed. Later, on 29.03.2009,
the appellant was arrested and he was remanded and
thereafter a charge sheet was filed against him and he
faced trial before the learned Fast Track Court-II, Bhalki
in S.C.No.67/2009 which ended in his conviction as
noted above.
3. The gist of the prosecution case is that
deceased Beerappa was the owner of about 16 acres of
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land in Survey No.388 of Mehkar village of Bhalki
taluka and he was cultivating the same along with his
children. Accused Nos.1 to 4 and the present appellant
were objecting to the cultivation of the said land by the
deceased Beerappa and they were also quarreling with
him. There was a civil litigation also between both the
parties in regard to the said land. On 18.12.1999, at
about 2.00 p.m., when deceased Beerappa, his son
Prabhakar (deceased), his other children PW.2 -
Tatyrao, PW.7 - Rangarao and other members of the
family were working in the field in Survey No.388
removing weed etc., accused No.1 to 4 and the appellant
went there forming themselves into an unlawful
assembly being armed with Jambia, sickle, axe and
kamakatti, and started assaulting Beerappa with the
same and when deceased Prabhakar went to his rescue
they assaulted him as well with deadly weapons and
further when PW.7 - Rangarao went to their rescue,
accused assaulted him as well causing him serious
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injuries, with the result, both Beerappa and Prabhakar
died instantaneously in the spot itself and PW.7 was
shifted to the hospital with the injuries and he survived.
4. The present appellant was represented by a
learned counsel before the Trial Court which after
hearing both sides, framed charges against him for the
offences punishable under Sections 147, 148, 447, 307
and 302 read with Section 149 of IPC. The appellant
having denied the charges, prosecution examined PWs.1
to 23 and Exs.P1 to P32 were marked. MOs.1 to 16
were also marked. Prosecution closed its side and
thereafter the statement of the appellant was recorded
under Section 313 of Cr.P.C. drawing his attention to
the incriminating circumstances appearing against him
in the deposition of the prosecution witnesses. The
appellant did not examine any witnesses on his behalf.
The Trial Court after hearing has passed the judgment
impugned herein convicting the appellant and
sentencing him for the offences punishable under
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Sections 147, 148, 447, 307 and 302 read with Section
149 of IPC.
5. Before the Trial Court initially defence has
pleaded alibi and further contended that he was
innocent and he was falsely implicated in the case. The
Trial Court after appreciating the entire evidence placed
before it has believed the eyewitnesses PWs.2 and 7
(who is an injured witness) and also other
circumstances placed before the Court and has
disbelieved alibi pleaded as not supported by evidence
and entered the judgment of conviction against the
appellant herein.
6. In this appeal identity of the dead bodies of
Beerappa and Prabhakar have not been disputed on
behalf of the appellant before us. The evidence of PWs.2
and 7 who are two children of deceased Beerappa and
brothers of Prabhakar leaves us in no doubt the
deceased were none other than Beerappa and
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Prabhakar. Similarly, homicidal nature of death of
Beerappa and Prabhakar cannot be disputed in the face
of overwhelming material available in the records of this
case. Not only PWs.2 and 7 have spoken about the
same but there is also the evidence of Medical Officer
PW.13 - Dr.Devindra S/o Kashappa Mainhalle who has
conducted postmortem examination over their dead
bodies.
7. PW.13 has conducted postmortem on the
dead body of Beerappa on 19.12.1999 between 10.15
a.m. and 12.15 p.m. He has noted the following
external injuries on the dead body of Beerappa:
1. "Clean cut edged oblique injury over the
lefty temparo-parietal region of head
measuring about 4 cm x 1 ½ cm, it was a bony
deep injury and the underlying temporal bone
was fractured and its length was 3 cm. The
brain was exposed.
2. Clean cut edged oblique over the base of
left side neck measuring 3 ½ cm x ½ cm depth
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was ½ cm, cutting underlying muscles vessels
and nerves.
3. Clean cut edged vertical injury over the
center of fore head measuring 2 cm x 1 cm,
bony deep.
4. Oblique clean cut edged injury over
outer aspect of right shoulder measuring 6 cm
x 5 cm bony deep causing fracture of
underlying humorous bone measuring 4 cm x
1 cm.
5. Transverse clean cut edged injury over
left side of abdomen it was situated 4 cm
above the iliac crest measuring 5 cm x 2 cm x
1 cm. Peritoneum deep.
On dissection he found the following internal
injuries:
" The surrounding and underlying tissues
around all the above injuries were congested
and contains extravasated blood and blood
clot. On dissection of the body he noticed all
the internal organs were pale and shrunken.
The stomach contained 500 M.L. of semi-
digested rice, bread particles and water. While
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mentioning the external injuries he described
the corresponding internal injuries in the
manner noted supra. All the above injuries
were antemortem in nature. According to him
the cause of death was coma due to shock as a
result of multiple injuries over the body. The
time since death was between 18 to 24 hours.
He has issued the P.M. report which is marked
now as Ex.P.9 and his signature is marked as
Ex.P.9 (a). He has rendered an opinion that,
the above injuries could be caused by M.O.1 to
M.O.4 shown to him and the above injuries are
sufficient in the ordinary course to cause the
death of the injured."
8. Similarly, PW.13 has conducted postmortem
examination over the dead body of deceased Prabhakar
on the same day between 12.30 p.m. and 3.30 p.m. and
he found the following external injuries:
1. "Transverse clean-cut injury over right
side lower aspect of the back measuring
3 cm x 2 cm x 5 cm blood and blood clot
were present.
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2. Transverse clean cut injury over right
scapula measuring 6 cm x 2 cm x 2 cm
causing fracture of the underlying
scapula Bobbie measuring 4 cm x ½ cm.
3. Oblique clean cut injury over 5 cm above
injury No.3 measuring 4 x 1 cm x ½ cm.
Reddish brown blood clot present.
4. Transverse clean-cut injury over 2 cm
above injury no.3 measuring 5 cm x 1 cm
x ½ cm. Reddish brown blood clot
present.
5. A vertical clean cut injury over posterior
aspect of head measuring 6 x 2 cm
fracturing underlying occipital bone
measuring 4 cm x ½ cm inturn lacerating
the underlying brain measuring 2 cm x 1
cm, reddish brown blood clot present.
6. A vertical clean cut injury over the left
scapula measuring 5 cm x 3 cm bony
deep, fracturing the underlying scapula
measuring 3 cm x ½ cm reddish brown
blood clot present.
7. A transverse clean cut injury over right
side upper aspect of the chest measuring
4 cm x 1 cm, fracturing the underlying
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two ribs measuring 1 cm in length.
Reddish brown blood clot present.
8. Transverse clean-cut injury over left ear
measuring 2 x ½ cm reddish brown blood
clot present.
9. Transverse clean cut injury over right
side middle of the neck, measuring 3 cm
x 1 cm x 4 cm cutting the underlying
nerves, vessels, and muscles reddish
brown blood clot present.
10. An oblique clean-cut injury over right side
head measuring 6 x ½ cm bony deep
reddish brown blood clot present.
11. A vertical clean-cut injury over center of
head measuring 6 x 1 cm bony deep
reddish brown blood clot present.
12. An irregular bruise over left temple
measuring 8 x 6 cm reddish brown in
colour.
13. An oblique clean cut injury over right
dorsum of hand measuring 4 x ½ cm
bony deep reddish brown blood clot
present.
14. An oblique clean cut injury over right
shoulder measuring 10 x 4 cm causing
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fracture of head of humorous bone
measuring 3 x 1 cm reddish brown blood
clot present.
15. An oblique clean cut injury over dorsal
aspect of right middle fore arm
measuring 5 x 1 x ½ cm reddish brown
blood clot present.
16. An oblique clean cut injury over lateral
aspect of middle of left leg measuring 4 x
1 x 1 cm reddish brown blood clot
present.
"In all the above injuries the underlying
and surrounding tissue were congested. All
the above injuries were antemortem in nature.
On dissection of the body all the internal
organs were pale and shrunken. Stomach
contains 500 m.l. of semi-digested rice bread
particles and water. The above injuries could
be caused from M.O.1 to M.O.4. He is of the
opinion that the cause of death was coma due
to shock as a result of multiple injuries over
the body. The time since death is between 18
to 24 hours prior to P.M. Examination, he has
issued P.M. report and it is marked as
Ex.P.10 and the signature is at Ex.P.10 (a).
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Since external injuries in both the P.M. cases
were more, he has mentioned them in detail
in a separate page annexed to Ex.P.10. As
far as Ex.P.9 is concerned it is written
separately that the external injuries are
sufficient in the ordinary course to cause the
death of Prabhakar."
9. There is no serious cross-examination to
PW.13 on this aspect. In any event, the nature and
large number of injuries seen on the dead bodies of
Beerappa and Prabhakar completely rule out they
having suffered any injury accidentally or they having
inflicted such injuries on themselves. The evidence
clearly shows that they had died a homicidal death.
10. In the earliest version of the incident namely
the complaint lodged by PW.2, there is a reference to the
land dispute between the parties. Various witnesses
examined before the Trial Court have also spoken about
the land dispute between the parties. The bone of
contention between the parties is regarding ownership
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and enjoyment of the land in Survey Nos.388 and 389.
The records annexed to this case pertaining to trial
against accused Nos.1 to 4 who are the parents and
brothers of present appellant in S.C.No.56/2000 show
that the judgment and decree in O.S.No.182/1998
dated 11.03.1999 passed by the learned Senior Civil
Judge, Bhalki was exhibited in the said case as Exs.P27
and P28. However, the said judgment and decree have
not been specifically exhibited during the trial in this
case. The certified copy of the said judgment and
decree shows that the suit was filed by deceased
Beerappa through PW.2 as his general power of attorney
holder against the present appellant who was defendant
No.3 and accused Nos.1, 3 and 4 who are his father and
brothers. The suit was for declaration of ownership and
permanent injunction against the defendants with
respect to land Survey Nos388/1 and 389/3, measuring
about 16 acres, situated in Mehkar village of Bhalki
taluka. The said suit was decreed against the
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defendants including the present appellant. There is a
detailed reference in the said judgment to the accused
in this case challenging the grant of occupancy in
respect of the said lands in favour of deceased Beerappa
before the Land Reforms Appellate Authority at Bidar
and thereafter before this Court without any success.
The Trial Court has also noticed the land dispute being
the bone of contention between the parties creating bad
blood between them.
11. The machinery of law was set in motion in
this case by PW.2 - Tatyrao who is the son of deceased
Beerappa, lodging a complaint before the police. The
complaint was lodged at about 5.00 p.m. on
18.12.1999. As per the endorsement made by the
learned jurisdictional JMFC, the FIR had reached him
on the same evening at 8.00 p.m. There is no
unreasonable delay in lodging the complaint. The
complainant had lost his father as well as his one
brother and another brother had suffered injuries
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requiring hospitalization. Under the said
circumstances, he has acted with reasonable dispatch
in lodging the complaint.
12. In the said complaint, he has stated about
the accused including the present appellant trespassing
into land Survey No.388 forming themselves into an
unlawful assembly holding deadly weapons like,
Jambia, sickle, axe and Kamakatti and thereafter
stabbing Beerappa with the same and when Prabhakar
went to his rescue, assaulting him also with deadly
weapons and on seeing both of them being brutally
assaulted when PW.7 intervened, the accused
assaulting him also. In the complaint, PW.2 has given
in precise manner the description of the spot and also
time of the incident. PWs.2 and 7 during their
deposition have clearly stated about it and learned Trial
Court has also noted the same and chosen to accept
their version. We have no reason to disbelieve the
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evidence of PWs.2 and 7 on this aspect and disagree
with the Trial Court on the said aspect.
13. PW.2 is an eyewitness to the incident and
PW.7 is not only a witness to the incident but also he
has suffered injury while trying to rescue his father and
his brother - Prabhakar. In view of the Civil Court
judgment referred to earlier, there is no doubt about the
fact that the deceased being the owner of the land,
accused including the present appellant having entered
upon the land armed with deadly weapons, have
committed the offence of criminal trespass. It is no
doubt true that, in this case Kamakatti used by the
present appellant was not traced and produced before
the Court. However, PW.18 - Investigating Officer has
stated in his evidence that even though the incident
took place on 18.12.1999, the present appellant
remained absconding and he was traced and arrested
only on 29.03.2009 and therefore due to lapse of nearly
a decade it was impossible for the Investigating Officer
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to trace the said weapon. PW.7 is an injured
eyewitness. He has clearly stated about the
participation of the appellant in the commission of the
offences along with accused Nos.1 to 4. PWs.2 and 7
have stated that appellant being armed with Kamakatti
had constituted himself a member of an unlawful
assembly in prosecution of their common object to
commit the murder of Beerappa and others, as a matter
of vengeance for having failed to take possession of the
said land, having lost the civil suit only about nine
months prior to the incident. The learned Trial Court
has noticed the evidence of PWs.2 and 7 which clearly
show that the present appellant has actively
participated in committing the murder of deceased
Beerappa and Prabhakar along with accused Nos.1 to 4
and we have no reason to disagree with the finding of
the learned Sessions Judge which is supported by
evidence placed on record.
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14. It was feebly contended before us that PWs.2
and 7 are interested witnesses and in view of the land
dispute they have falsely implicated the present
appellant and accused Nos.1 to 4. The said argument
did not find favour with this Court in the appeal
preferred by accused Nos.1 to 4 against their conviction
in Criminal Appeal No.1468/2004 and we are also not
impressed with the same. The two cut injuries found on
PW.7 by PW.13 supports the version of PW.7 that he
was present at the time of the incident and he has
suffered injuries while trying to rescue his father and
brother. The incident had taken place at about 2.00
p.m. and therefore there was no possibility for PW.7
making any mistake in identifying the real culprits.
Even otherwise, PWs.2 and 7 have lost their father and
brother in the incident and therefore there is no
plausible reason for them to let off the real culprits and
to falsely implicate the present appellant and other
accused that too after having succeeded in the civil suit.
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On re-appreciating the entire evidence, we are satisfied
that the trial Court has correctly assessed the evidence
and come to a proper conclusion and that being so
there is no reason to disagree with the same. Therefore,
we hold that the present appellant is guilty of the
offences charged against him and there is no reason to
interfere with the order of conviction and sentence
passed by the Trial Court. Hence, we pass the
following:
ORDER
The appeal is dismissed. The order of conviction and sentence passed by the Trial Court in S.C.No.67/2009 dated 31.12.2011 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE Srt