Karnataka High Court
Govindappa S/O Obalappa @ Kare ... vs State By Deputy Superintendent Of ... on 17 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
CRL. A. NO. 1575/2015 C/W
CRL. A. NO. 100055/2016
IN CRL. A . NO. 1575/2015
BETWEEN:
1. GOUDRA THIPPESHA S/O KRISHNAPPA,
AGED ABOUT 30 Y EARS, AGRICULTU RIS T
2. GOUDRA PRAKASHA S/O KRISHNAPPA,
AGED ABOUT 25 Y EARS, AGRICULTU RIS T
3. GOUDRA BHEEMANA GOUDA,
S/O KRISHNAPPA,
AGED ABOUT 28 Y EARS,
AGRICULTURIS T
4. S. KOTAGERA EKA NTHAPPA,
S/O MALLAPPA,
AGED ABOUT 32 Y EARS,
AGRICULTURIS T
5. SANNA LAKSHMANA S/O THIMMANNA,
AGED ABOUT 24 Y EARS,
AGRICULTURIS T,
6. SHESHAPPA S/O THIMMAPPA,
AGED ABOUT 26 Y EARS,
AGRICULTURIS T,
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7. REDDEPPA S/O SANNAKARIYAPPA,
AGED ABOUT 30 Y EARS, AGRICULTU RIS T.
8. RUDRAMUNI,
S/O KARIYAJJARA THIPPESHA,
AGED ABOUT 22 Y EARS,
AGRICULTURIS T.
9. MANJU S/O GOVINDAPPA,
AGED ABOUT 23 Y EARS,
AGRICULTURIS T.
10. AGASARA AJJAPPA,
S/O SANNA BASAPPA,
AGED ABOUT 60 Y EARS,
AGRICULTURIS T.
11. NAGESHA S/O TH ALAVARA THIPPA IAH,
AGED ABOUT 28 Y EARS,
AGRICULTURIS T.
12. HARIJANA PENNAPPA S/O MAREPPA ,
AGED ABOUT 60 Y EARS,
AGRICULTURIS T.
13. HARIJANA GUNDEPPA,
S/O HARIJANA PENNAPPA,
AGED ABOUT 35 Y EARS,
AGRICULTURIS T.
14. DODDALAKSHMANA @ LAKSHMAPPA,
S/O LA TE THIMMAPPA,
AGED ABOUT 26 Y EARS,
AGRICULTURIS T.
15. OBALESHA S/O THIRUKAPPA,
AGED ABOUT 35 Y EARS,
AGRICULTURIS T,
16. HONNAKKA W/O KRISHNAPPA,
AGED ABOUT 55 Y EARS,
HOUSEWIFE,
17. PUTTAMMA W/O OMKARAPPA,
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AGED ABOUT 40 Y EARS, HOUSEWIF E,
18. PUSHPAMMA W/O PRAKASHA,
AGED ABOUT 22 Y EARS, HOUSEWIF E,
19. VIJAYAKKA W/O BHEEMANA GOUDA,
AGED ABOUT 24 Y EARS,
ANGANAWADI WORKER.
20. LAKSHMI W/O THIPPESHA,
AGED ABOUT 26 Y EARS,
HOUSEWIFE,
21. HONNAPPA,
S/O SANNA GOUDRA BHEEMAPPA,
AGED ABOUT 40 Y EARS, TEACHER,
ALL ARE R/O HULIKUNTE VILLAGE,
KUDLIGI TA LUK, BELLARY DIS T.
PIN 583 130.
- APPELLANTS
(BY SRI H.P. LEELADHAR,
ADVOCATE THROUGH VIRTUAL HEARING
SRI T. BASAVANA GOUD, ADVOCATE
(PHYSICAL HEARING) FOR APPELLANTS 1 TO 15,
SRI K.L. PA TIL, AD VOCATE
FOR APPELLANTS 16 TO 20,
SRI MAEHSH WOD EYAR,
ADVOCATE FOR A PPELLANT NO .21)
AND:
STA TE BY DEPU TY
SUPERINTENDENT OF POLICE,
KUDLIGI CIRCLE, KUDLIGI TA LUK,
BELLARY DIS T. PIN 583 130.
- RESPONDENT
(BY SRI V.M. BANA KAR, ADDL. S .P.P.)
THIS CRIMINAL A PPEAL IS F ILED U NDER SECTION
374 (2) OF CR.P.C. AGAINST THE JUDGMENT OF
CONVICTION DATED 26.11.2015 AND ORDER OF
SENTENCE DATED 30.11.2015 PASS ED BY THE LEARNED
I ADDL. DIS T. & S ESSIONS JUDGE, BELLARY IN SPL. C.
NO. 28/2007 & ETC.
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IN CRL. A . NO. 100055/2016
BETWEEN:
GOVINDAPPA S/O OBALAPPA @
KARE OBALAPPA ,
AGED ABOUT 59 Y EARS,
AGRICULTURIS T,
R/A T HULIKUNTE VILLAGE,
KUDLIGI TA LUK,
BELLARY DIS T. PIN 583 130.
- APPELLANT
(BY SRI T. BASAVANA GOUDADVOCATE)
AND:
STA TE BY DEPU TY SUPERINTENDENT
OF POLICE, KUDLIGI CIRCLE,
KUDLIGI TA LUK, BELLARY ,
DIST. PIN 583 130 R/BY S.P.P.
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- RESPONDENT
(BY SRI V.M. BANA KAR, ADDL. S .P.P.)
THIS CRIMINAL A PPEAL IS F ILED U NDER SECTION
374 (2) OF CR.P.C. AGAINST THE JUDGMENT OF
CONVICTION DATED 26.11.2015 AND ORDER OF
SENTENCE DATED 30.11.2015 PASS ED BY THE LEARNED
I ADDL. DIS T. & S ESSIONS JUDGE, BELLARY IN SPL. C.
NO. 28/2007 & ETC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED F OR PRONOUNCEMENT OF JUDGMENT
ON 17.07.2020 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.A.PATIL ,J., DELIVERED THE
FOLLOWING:
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JUDGMENT
Criminal Appeal No. 1575/2015 is filed by the appellants-accused Nos.2, 3, 4, 5, 6, 7, 10, 11, 12,, 22, 23, 26, 27, 30, 34, 35, 42, 45, 46, 47 and 50 so also, Criminal Appeal No. 100055/2016 is filed by appellant-accused No.31. Appellants- accused are before this Court seeking intervention in the judgment of conviction and order of sentence passed by the learned Addl. Dist. & Sessions Judge, Ballari in Special Case No. 28/2007 dated 26.11.2015 convicting the accused Nos.2 to 7, 10 to 12, 22, 23, 26, 27, 30, 31, 34, 35, 42, 45, 46, 47 and 50 for the offences punishable u/Ss 143, 147, 504, 302, 326, 324, 506 (2) r/w Sec. 149 of the Indian Penal Code (for short 'IPC') and u/S 3(1)(X) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'SC & St Act').
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2. We have heard learned counsel for the appellants-accused Sri H.P.Leeladhar for appellants 1 to 15 through virtual hearing so also Sri K.L. Patil, for appellants 16 to 20, Sri Mahesh Wodeyar, for appellant No.21 in Crl. A. No. 1575/2015 so also Sri T. Basavana Gouda, for appellant in Crl. A. No. 100055/2016 and Sri V.M. Banakar, learned Addl. SPP for the respondent- State.
3. The genesis of the prosecution case is that, one year prior to the alleged incident, accused No.1-Sri Seetharama Gowda diverted the drinking water to his cultivation. The same has been objected by the husband of the complainant- deceased Obaleshappa, the father-in-law- Pandurangappa and her brother-in-law Anjinappa, stating that the people are not having any drinking water, but he is taking the water for :7: cultivation. The same was objected by the persons of the accused side and that there was scuffle and they have also assaulted. In that light, there was a ill-will between two groups and were grinding axe with that animosity. In that light, on 11.10.2006 at about 10.00 AM when the deceased was coming from his field along with DW-1 and when they came near the house of Talavar Naik Thippaiah, the accused No.1- Seetharama Gowda and others by constituting an unlawful assembly by holding stones, knife, kuda (an iron bar which is used for sowing seeds in the land), axe and Kanas (iron piece attached to the sowing instrument), were abusing in filthy language. Because of the earlier animosity as they are obstructing for his work and with an intention to kill, accused No.1-Seetharama Gowda assaulted the deceased with axe on his head and caused bleeding injuries. Accused Nos. 2, 4, 5, 6, 7 and :8: 35 also assaulted on his legs and other parts of the body and they have also stabbed and caused bleeding injuries. When deceased Pandurangappa and her brother-in-law went to rescue, at that time, accused No.8-Raja, accused Nos.34, 35, 44, 45, 46, 33, 47 have also assaulted with Kana on her husband and father-in-law and caused bleeding injuries. Accused Nos.10, 11, 12 and 34 have also assaulted by fisting. At that time they have also assaulted with iron kuda and caused bleeding injuries and her husband died at the spot. In the meanwhile, the villagers came there and pacified the quarrel.
On the basis of the complaint, a case has been registered in Crime No. 56/2006. After conclusion of the investigation, charge sheet came to be filed. The learned Magistrate took cognizance of the case and committed the case to the Court of Sessions which took cognizance and :9: secured presence of the accused. After hearing both the sides charge was framed, read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. As such the trial was commenced.
4. The prosecution in order to establish its case got examined 30 witnesses and got marked 30 documents, so also 61 material objects. Thereafter, statements of the accused were recorded by putting incriminating materials as against them. The accused denied the same. They have led evidence of DWs 1 to 4 and got marked 3 documents. After hearing arguments of the learned Public Prosecutor and the learned counsel for the accused, the trial Court came to the conclusion that there is material as against the above said accused and in that light, the above said accused persons were convicted for the : 10 : offences vide impugned judgment of conviction and order of sentence.
5. We have carefully and cautiously gone through the submissions made by Sri H.P.Leeladhar, K.L. Patil and Sri Mahesh Wodeyar, learned counsels for the appellants so also Sri V.M.Banakar, learned Addl. SPP for the respondent-State and perused the records including the trial Court records.
6. It is the contention of the learned counsel for the appellants that the judgment of the trial Court is contrary to the facts and material placed on record. The trial Court without formulating proper points for consideration has passed the impugned judgment. The motive for the alleged incident itself is contradictory to each other. Some of the witnesses have deposed that the bore well water used to be given to the villagers and : 11 : accused No.1 had not diverted water to his own land. Under such circumstances, the allegation that the accused persons assaulted the deceased and other injured witnesses, is not correct. The evidence of injured witnesses i.e., PWs 8 to 14 and 22 is contradictory in nature about constituting unlawful assembly, coming over to the place of incident and thereafter assaulting them. The complainant is none other than the wife of the deceased and she is very much interested to see that the accused persons are convicted for the alleged offences. The inquest mahazars have been drawn after six days, for which the Investigating Officer has not given any explanation. No case has been made out u/S 149 of IPC. When the family of accused No.1 itself is providing water to the village and there is no dispute, the trial Court ought not have believed the version of these witnesses. Only on the interested testimony of the : 12 : said witnesses the trial Court has come to a wrong conclusion and has wrongly convicted the accused. The Police have already visited the place and independent witnesses have not been examined though their presence was noted in the case diary. The truthfulness of the witnesses and their presence at the place of incident itself is doubtful. The house of PW14 is not situated near the place of incident and how PW14 was present at the place of incident and what was the necessity to coming over there, has also not been stated in this behalf. He further submitted that, on perusal of the evidence of the Doctor-PW17, it indicates that the Police have accompanied along with the injured but who gave information about the assault has not been properly brought on record.
7. It is his further submission that the wound found over the body of the deceased would rule : 13 : out the use of knife and it falsifies the evidence which has been produced by the prosecution. The MLC register has not been produced and the death is not because of the injuries but because of the old age. In order to attract the provisions of Sec. 149 of IPC there must be gathering of the accused persons and there must be formation and meeting of the mind of the said members of the assembly. On proof of the same, only the accused persons can be held liable for the said offence. But, in the absence of any such material, it is not able to bring the accused for the offence punishable u/s 149 of IPC.
8. In order to substantiate the contentions, he has relied upon the decision of the Hon'ble Supreme Court in the case of Bhudeo Mandal and Others V. State of Bihar reported in AIR 1981 SC 1219. He has also relied upon the decision of : 14 : the Hon'ble Supreme Court in the case of State of Punjab Vs. Sanjiv Kumar Alias Sanju and Others reported in (2007) 9 SCC 791. He has relied upon yet another decision of the Hon'ble Supreme Court in the case of Muthu Naicker and Ors. Vs. State of Tamil Nadu reported in AIR 1978 (SC) 1647.
9. He further submitted that, if there is no prior meeting of the minds among the accused and if it is not the case of the prosecution that all the accused have conspired together and came to the spot with a view to take away life of the deceased, under such circumstances, the accused cannot be held for the offences punishable u/s 149, 148 and 147 of the IPC. In that light, he has relied upon the following decisions:
1. (2008) 11 SCC 631 [Criminal Appeal No. 1494/2004 (Supreme Court)] (Shivjee Singh and Others Vs. State of Bihar) : 15 :
2. Criminal Appeal Nos. 1874-1875 of 2010 (Kooli Saseendran & Ors. V. State of Kerala Etc.)
3. 2018 (4) KCCR 3346 (SC) (Bannareddy and Others Vs. State of Karnataka & Others)
4. 2009 (14) SCC 501 (State of Uttar Pradesh V. Nandu Vishwakarma and Others)
5. 2018 (2) SCC 496 (Atul Thakur V. State of Himachal Pradesh and Others)
6. 2008 (11) SCC 186 (Sambhaji Hindurao Deshmukh and Others V. State of Maharashtra);
7. 2019 (4) Crimes 193 (Kar.) (K.S. Paramesha @ Parameshwagowda and Ors. V. State of Karnataka by Yesalur Police)
8. ILR 2001 KAR 5483 (Chikkappa and Others V. State of Karnataka, Hangal Police Station)
9. (2009) 3 SCC 749 (Luna Ram V. Bhupat Singh and Others)
10. Criminal Appeal No. 2202 of 2011 (Bijendra Bhagat V. State of Uttarakhand)
11. AIR 1981 SC 1219 (Bhudeo Mandal and others V. State of Bihar) : 16 :
12. Criminal Appeal No. 1283 of 2019 (arising out of SLP (Crl.) NO. 6647 of 2018 Khuman Singh V. State of Madhya Pradesh) On the above said grounds the learned counsel for the appellants prayed to allow the appeal.
10. It is the submission of Sri K.L. Patil, learned counsel that the appellants 16 to 20 are women folk. On perusal of the charges framed as against these accused, it reveals that no charge has been framed as against accused No.42 for the offence punishable u/S 302 of IPC. Though such a charge has not been framed, the accused has been convicted for the alleged offence. As per the case of the prosecution, the accused persons have assaulted with stone on the stomach of the deceased but there are no injuries found over the stomach of the deceased and that itself falsifies the case of the prosecution. Further, accused No.8 and others were also stated to have assaulted : 17 : with stone. Even the evidence of the Doctor does not support this evidence, as to which injury was caused by the assault with stone. Further, the Doctor who issued the wound certificate has not been examined to substantiate the fact that he has also examined the stone and thereafter he has given his opinion.
11. He has further submitted that, Ex.P.2-
complaint does not contain names of appellants 16 to 20 and no specific overt acts are attributed against them. The only allegation made is that they were also holding Kana but the eyewitness- PW2 has not given any such evidence before the Court. If a big stone has been put on the stomach of the deceased, definitely there will be serious injuries but the injuries inflicted are simple in nature. In that light, the prosecution evidence is not corroborated. The persons involved in the : 18 : crime were not having any animosity and as such the provisions of Sec. 141 to 149 of IPC are not attracted. The accused have been roped in falsely. But, the trial Court has accepted the said version but has come to a wrong conclusion and has wrongly convicted the accused. Hence, he prayed to allow the appeal and to set aside the impugned judgment insofar as appellants 16 to 20 are concerned.
12. Learned counsel Sri Mahesh Wodeyar appearing on behalf of accused Nos.21 and 50 submitted that, insofar as these two accused are concerned, not even a single witness has deposed as to what is the role played by these two accused persons including their presence at the scene of offence. Even though no material is placed by the prosecution, the trial Court, without application of mind has come to a wrong conclusion and has : 19 : wrongly convicted the accused. In order to substantiate his contention, he has relied upon the following decisions of the Hon'ble Supreme Court.
1. 2014 (6) SCC 672 (Nagesar v. State of Chhattisgarh);
2. 2019 (4) SCC 620 With the aforesaid contentions, learned counsel Sri Mahesh Wodeyar, prayed to allow the appeal.
13. On the contrary, Sri V.M. Banakar, learned Addl. SPP appearing for the respondent-State vehemently argued and submitted that all the witnesses have consistently stated that the assault committed by accused Nos.1 to 7, 30 and 31, which is also corroborated with the evidence of the Doctor who treated the injured as well as the Doctor who conducted autopsy over the body of the deceased. Accused Nos.1, 2 and 5 have : 20 : assaulted PWs. 2 and 8 and the accused Nos.3, 4, 6, 7 and 13 have assaulted with knife on the deceased Obaleshappa. Accused Nos.2 and 5 have assaulted with axe on deceased Pandurang and accused No.4 stabbed with knife. He further deposed that accused Nos. 3, 6, 7 and 13 have stabbed Anjinappa with knife. Accused No.10 assaulted with stone to PW9, 8 and 10. There are injured eyewitnesses and their testimony cannot be discarded and their presence at the place of alleged incident is also substantiated and their evidence is also corroborated with the evidence of independent eyewitnesses. The trial Court after taking into consideration the version of the eyewitnesses has come to a right conclusion and has rightly convicted the accused. The evidence of the prosecution goes to show that the accused persons by constituting an unlawful assembly by making hue and cry, came near the house of the : 21 : accused and assaulted and thereby caused two deaths. The incident is not an instantaneous one but it is well planned act of the accused, which attracts the provision of Sec. 149 of IPC. When once the accused persons are considered to be the members of the unlawful assembly and were involved in heinous offence of murder, the accused persons are vicariously liable to be convicted for the offences alleged against each of them. The accused persons have acted in a cruel manner and caused death of two persons. When the evidence of the eyewitnesses is found to be credible and trustworthy and if it is corroborated with the medical opinion and if there is no alternative possibilities or if alternative possibilities have been over-ruled, under such circumstances the accused persons are liable to be convicted for the alleged offences. When the evidence has been recorded after long gap of the incident there is : 22 : every possibility forgetting some of the aspects while deposing before the Court and whatever contradiction which have been tried to be brought on record are nothing but minor contradiction and they will not go to the root of the case of the prosecution.
14. It is his further submission that unless there are some indications about fabrication in the case of the prosecution, the same cannot be doubted. The trial Court looking into the evidence available and material placed on record has come to the right conclusion and has rightly convicted the accused. On these grounds he prayed to dismiss the appeals.
15. We have carefully and cautiously gone through the submissions made by the learned counsels for the parties and perused the records including the trial Court records.
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16. On perusal of the case of the prosecution it is alleged that the incident has taken place on 11.10.2006 at about 10 AM when the deceased Obaleshappa with his wife was coming from the field, the accused persons assaulted the deceased for the reason that accused No.1 Seetharama Gowda is using water of the pump set for his field and he is not giving water to the public at large. In order to prove the motive, prosecution got examined PW2-complainant and wife of the deceased Obaleshppa. In her evidence she has deposed with regard to the earlier dispute regarding water and that the accused and the deceased have fought in this behalf. So also, the prosecution has relied upon the evidence of PWs 8 and 10. They have also reiterated the same evidence. Even Ex.P.2, the complaint, also depicts the same thing. Taking into consideration the : 24 : said evidence which has been produced it appears that because of accused No.1 taking water from the pump set, the alleged incident had taken place.
17. It is well settled proposition of law that, in a case where there are eyewitnesses to the alleged incident, motive will not be a vital aspect to decide the case, but it is only as a corroboration to the evidence of the eyewitnesses. In the instant case on hand there are injured eyewitnesses. Criminal jurisprudence attaches weight to the evidence of the person injured in the same occurrence as it presumes that he speaks the truth unless shown otherwise. The said proposition has been laid down by the Hon'ble Supreme Court in the case of MANJU DEVI VS. ONKARJIT SINGH AHLUWALIA reported in 2017 (13) SCC 439 wherein at paragraph 22 it has been held as under: : 25 :
" 22 . A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. In the instant case, after careful consideration of the materials on record, the trial court and the High Court have found that a prima facie case for taking cognizance against the respondents is made out. Section 3(1)(xi) of the SC/ST Act which deals with assaults or use of force to any woman belonging to a Scheduled Caste or Scheduled Tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence. The only difference between Section 3(1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a Scheduled Caste or Scheduled Tribe, Section 3(1)(xi) applies. The other difference is that in Section 3(1)(xi) dishonour of such victim is also made an offence".
Keeping in view the said proposition of law, let us consider the evidence of the eyewitnesses as to how far they will substantiate the case of the : 26 : prosecution to bring home the guilt of the accused beyond all reasonable doubt.
18. PW2 is eye witness, the wife of the deceased Obaleshappa and she is also the complainant. In her evidence she has deposed that about four years back, her husband has been murdered by accused No.1-Seetharama Gowda and other accused persons together. So also her father in law Pandurangappa was also murdered. She has further deposed that the accused Seetharama Gowda was letting drinking water to his land and was growing crop and about one year prior to the incident, her husband and father-in-law Panduranga and brother-in-law Anjinappa along with the villagers went to Seetharama Gowda and told that people are not having any drinking water but he is letting drinking water to his garden and growing crops. At that time, the accused asked : 27 : them as to who are they to ask and scolded her husband, father-in-law and brother-in-law and he has also assaulted and threatened and send them back. A case has been registered in this behalf against the accused.
19. PW2 has further deposed that, about 12 persons including Seetharama Gowda have assaulted. She has further deposed that thereafter the accused persons have been released on bail and about 4 years back at about 10 AM when herself and her husband were returning from the field and when they came near the house of one Talavar Naik, accused No.1 Seetharama Gowda and other accused persons by holding Kana, axe and knife came in front of them by making loud noise. At that time, accused No.1 assaulted her husband with axe and accused No.2 Gowdra Thippesh also assaulted her husband on : 28 : his ankle with axe. Accused No.5 Kotageri Ekantappa assaulted on the shoulder of her husband with axe. Thereafter accused No.4 Bheemana Gowda, accused No.3 Prakash, accused No.6 Sanna Laxmana, Dodda Laxmana, Sheshappa also stabbed her husband with knife on his hand, back, left hand and shoulder. By seeing the same, her father-in-law came to pacify the quarrel. At that time, accused No.5 Kotageri Ekantappa assaulted on the head of her father-in-law Panduranga with axe and accused No.2 Gowdra Thippesha also assaulted on both the knees with axe and accused No.4 Bheemana Gowda stabbed on his shoulder. In the meantime, brother-in-law Anjinappa also came and the accused Sheshappa, Prakash, Sanna Laxmana and Dodda Laxmana also assaulted him with knife on his hand, right shoulder, left hand, thigh and other parts of the body. In the meanwhile, the other persons also : 29 : gathered and all the accused persons by abusing started pelting stones and one Raddappa-accused assaulted with stones to the leg of one Chennakeshava.
20. PW2 has further deposed that, when the accused persons were assaulting, she requested the accused persons with folded hands to save her husband and in the meanwhile the Police also came and she gave complaint as per Ex.P.2. She has identified the articles used in commission of the offence. She has further deposed that a mahazar has also been drawn as per Ex.P.3.
During the course of cross examination of this witness she has deposed that at a distance of 50 ft. from her residence there is a public well and they bring the water so also the other people surrounding the said well. She has further deposed that, for having used the water of the well : 30 : by accused No.1 they have also given a complaint to the panchayat and Taluk Office. She has expressed her ignorance with regard to her husband or the father-in-law filing of the case against accused No.1. She has further deposed that, one Sumithramma is the President of the Panchayat.
21. PW2 has further admitted that accused No.1 is doing vakalath (Advocacy) at Kudligi. She has denied the suggestion that accused No.1 is residing at Kudligi but he used to visit the village. She has admitted that house of the other accused are situated at different places and she was not afraid when the accused persons were coming by holding the lethal weapons by making hue and cry and she has observed them at a distance of 10-15 ft. but she did not try to hide after seeing them. : 31 : The other suggestions which have been made to her are denied.
22. PW8 is an injured eyewitness who is none other than brother-in-law of PW2. He has reiterated the evidence of PW2. During the course of cross-examination he has deposed that, at that time when he went to the place of incident, Panduranga and Obaleshappa have not fallen down; Talawar Thippaiah and the neighbours were watching the incident; the accused persons were surrounded; by the time he went there Obaleshappa and his wife, himself, i.e., PW8, and deceased Panduranga and his wife Thimmappa went together. He further deposed that, he has tried to pacify and rescue the deceased and others. He further deposed that, a case has been registered against him by Thippesh for trying to kill him.
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23. PWs 10, 11, 12, 13 and 14 are also the eyewitnesses to the alleged incident. During the course of cross-examination of these witnesses nothing has been elucidated so as to discard their evidence.
24. It is the case of the prosecution that the accused persons by constituting an unlawful assembly holding deadly weapons came and assaulted the deceased as well as the injured persons.
25. It is the contention of the learned counsels for the appellants-accused that the prosecution in order to bring home guilt of the accused has to prove that all the persons with a common object, came and attacked the deceased as well as the injured persons. It is their contention that the other persons have been roped though they were : 33 : not present and were not having any interest with reference to use of water by the appellant-accused No.1. In that light, on perusal of the evidence of PW2 it is clear that she has simply stated that the accused persons have murdered Obaleshappa and Panduranga. Even she has deposed that, while returning from the field the accused persons by holding Kanaga, axe and knife came making hue and cry and the accused No.1 assaulted her husband with axe and other accused persons also assaulted and stabbed. The other witnesses who have been examined by the prosecution have also reiterated the same. It is the well settled proposition of law that, if an offence has been committed by an unlawful assembly consisting of 5 or more persons and such incident has been committed in prosecution of the common object as contemplated u/S 141 of IPC of the assembly or members of that assembly knew to be likely to be : 34 : committed in prosecution of the common object, under such circumstances, all the persons can be held liable.
26. We are conscious of the fact that it is not necessary that there should be a prior consultation, in the sense, meeting of the members of the unlawful assembly, the common object was formed on the spur of moment. It is enough it is adopted by all the members and it is shared by all of them.
27. It is the trite of law that the offence committed in prosecution of the common object must be one committed with a view to accomplish the common object. It is not necessary that there should be a pre-concern in the sense of meeting of the members of the unlawful assembly. It is also trite of the law that there must be an access between the common object and the offence : 35 : committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. This proposition of law has been laid down by the Hon'ble apex Court in the case of Radha Mohan Singh alias Lal Saheb and Others v. State of Uttar Pradesh reported in 2006 (2) SCC 450 wherein at paragraph Nos.21 and 22 it has been held as under:
"21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 I.P.C. was explained in Mizaji v. State of U.P. AIR 1959 SC 572, which decision has been followed in many later cases, in the following manner :
"The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted : 36 : by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part.": 37 :
22. In Alauddin Mian v. State of Bihar AIR 1989 SC 1456 the import of Section 149 IPC was explained as under :
"....... This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his : 38 : companions constituting the unlawful assembly liable for that offence with the aid of Section 149, it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149.
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Keeping in view the ratio laid down in the above said decision, what constitutes an unlawful assembly is the number of persons involved common object could be formed and to fulfill the : 39 : said common object, the alleged act has been committed.
28. To consider the said aspect whether the said assembly was unlawful assembly with a common object, the Court has to appreciate the entire evidence placed before the Court and if there is such basic relevant factors are present and are to be seen i.e., the course of conduct adopted by the members of such assembly, their behaviour before, during and after the incident and the arms carried are few basic and relevant factors to determine the common object. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Manjit Singh Vs. State of Punjab reported in 2019 (8) SCC 529 wherein at paragraphs 14.1 to 14.5, it has been held as under:
"14.1. The relevant part of Section 141 IPC could be usefully extracted as under:: 40 :
141. Unlawful assembly.- An assembly of five or more persons to designated an "unlawful assembly", if the common object of the persons composing that assembly is-
xxx xxx xxx Third.- To commit any mischief or criminal trespass, or other offence; or xxx xxx xxx Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under:-
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.": 41 :
14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikander Singh,this Court observed as under:-
"15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
*** *** *** : 42 :
17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
: 43 :
18. In Masalti v. State of U.P.: AIR 1965 SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) "17. ... Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
14.4. In the case of Subal Ghoral (supra), this Court, after a survey of leading cases, summed up the principles as follows:-
"52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an : 44 : unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt : 45 : act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the : 46 : accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e., five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object.
: 47 :
29. Whether an accused person is a member of an unlawful assembly, it needs to be seen, whether such act was committed in prosecution of the common object of the assembly and alternatively whether the member of the assembly knew that the offence was likely to be committed in prosecution of such common object, is further has to be determined from facts and circumstances of each case. This proposition of law has been laid down in the case of case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar reported in 2019 (5) SCC 469. At para 24 it has been observed as under:
"It is well settled th at to deter mine whether an accused, being a me mber of an unl awf ul asse mbly, is liable f or a given off ence, it needs to be seen whe ther such ac t was co mmitted in prosecu tion of the co mmon ob jec t of the asse mbly, and al ternatively whe ther the me mbers of the asse mbly kne w that the off ence was likely to be co mmitted in prosecu tion of such co mmon object.: 48 :
T his, in turn, has to be deter mined f rom the f acts and circu ms tances of each case."
Keeping in view the aforesaid principles of law, let us consider the evidence which has been produced by the prosecution to know whether it constitute an unlawful assembly with common object.
30. On perusal of the evidence of PWs 2, 8, 10, 11, 12, 13 and 14 it is evident that they have consistently stated that the accused persons by holding the weapons came and assaulted the deceased and the injured persons. The motive for the alleged offence is that accused No.1 was taking water from the pump set to his land and using the same but as could be seen from the cross-examination of PW2 she has deposed that at a distance of 50 ft. from the house of the complainant there is a common well and from the said well herself and the surrounding persons : 49 : were taking the water. Except filing the complaint before the Taluk Panchayat for having diverted the drinking water of the pump set to the well of accused No.1 has not been brought on record. Even during the course of cross-examination PW2 has admitted that house of the accused persons are at a different direction. Even she has deposed that when they were coming by making hue and cry by holding axe she did not scare and she has also observed they are coming at a distance of 10- 15 feet and she has also not tried to hide in the nearby house. Even during the course of the assault also nobody has uttered with regard to the common object which is said to have been alleged by the prosecution. Taking into consideration the principle laid down in the above decisions and the course of conduct adopted by the members of the assembly their behaviour and the arms carried we are of the considered opinion that it is not an : 50 : unlawful assembly as alleged by the prosecution. In that light, the prosecution has failed to satisfy the ingredients to bring home the case u/s 149 of IPC.
31. It is the case of the prosecution that accused No.1-Seetharama Gouda has diverted pump-set water to his land which is potable water to be used by the villagers. In that light, an application was also given to the Taluka Panchayat. It is the further case of the prosecution that there was some enmity existing between the accused and the deceased as the deceased went to accused No.1 and questioned the use of pump-set water. To substantiate the said fact, the prosecution has got examined complainant/PW-2, PWs-9 to PWs-13 and P.W.18. But, PW-18 has not supported the case of the prosecution and he has been treated as hostile.
: 51 :
32. On perusal of the evidence of PW-2, she has deposed that, about one year prior to the alleged incident, her husband, her father-in-law and brother-in-law together along with villagers went to accused No.1 and have requested him stating that when the villagers are not having sufficient drinking water, then why is he letting water to the field and at that time, accused No.1 questioned and abused and assaulted them. In that regard, a case has also been registered against accused No.1 and others.
33. Even on perusal of the evidence of PW-9, he has also deposed before the Court that prior to the alleged incident, there was some galata between deceased Obaleshappa, Panduranga and accused No.1 in respect of drinking water and a case has been registered and was pending in Kudligi Court and near the Court also, a galata had taken place. : 52 :
34. PW-10 has also reiterated the said fact and all the eyewitnesses have deposed with regard to the said earlier incident which has taken place between the deceased and accused No.1 and in that light, during the course of cross-examination nothing has been elicited so as to discard the said evidence, though during the course of cross- examination, it has been admitted that one Sumithramma, wife of the brother of accused No.1 is the President of the Panchayath.
35. PW-2 in her cross-examination has also admitted the fact that they themselves and other people surrounding will take water from the well and that for having used water by accused No.1, an application has also been given to the Panchayath and Taluk Office. Though these admissions have been taken but the fact remains that when the deceased and the brother-in-law : 53 : have questioned accused No.1 and that at that time some galata had taken place and in that light a case has been registered which is also pending in Kudligi Court. This clearly goes to show that between accused No.1 and others and the deceased there was some animosity with reference to the usage of water by accused No.1.
36. We are conscious of the fact that if there are eyewitnesses to the alleged incident, then under such circumstances, motive for the offence is not having much importance. But, however, it corroborates the contention of the eyewitnesses and in that light the motive plays an important role. In that light, let us consider the case of the prosecution. It is the case of the prosecution that on 11.10.2016 at about 10 a.m., when the complainant and her husband were coming from the field and were proceeding in front of the house : 54 : of Talwar Tippaiah, at that time, the accused persons by constituting an unlawful assembly armed with deadly weapons came there and accused abused the deceased with filthy language and assaulted the deceased with axe on his head and other parts of the body.
37. PW-2 who was present at the time of alleged incident has clearly deposed with regard to the incident and accused No.1 Seetharama Gouda had assaulted her husband with axe on his head and accused No.2 had assaulted on the knees with axe and accused No.5 had also assaulted with axe and other accused persons had also assaulted the deceased.
38. PW-8 who is an injured eye witness, in his evidence deposed that on 11.10.2016 himself, Panduaranga and his wife Timmakka were talking in front of the house of Panduranga and at that : 55 : time, they heard hue and cry near the house of Talawar Tippaiah and immediately they rushed to the said place and saw that all the accused persons were present and they were surrounded by PW-2 Manjamma and accused No.1 assaulted the deceased Obaleshappa with axe on his head and accused No.2 also assaulted with axe on his knee and accused No.5 also assaulted with axe on the shoulder of the deceased. Accused Nos.3, 4, 6 and accused No.30 have also assaulted and stabbed the deceased. He further deposed that the accused Rajappa assaulted on the head of Obaleshappa with a big stone; one Puttamma- accused No.42 assaulted with a big stone. He further deposed that accused Obalesha, Annamma, Pushpamma, Laxmamma, Vijayamma, Raddiappa, Rudramuni also assaulted with stone and Kana on Obaleshappa and Panduranga. During the course of cross-examination of this : 56 : witness it has been elucidated that one year prior to the alleged incident there was some galata. Except that, nothing has been elucidated from the mouth of this witness.
39. PW9 is also an injured eyewitness. He has also deposed with regard to the same aspect. In the same line PWs 11, 12, 13, 14 and 22 have specifically deposed with regard to the overt acts of the accused persons. The deceased, eyewitnesses and the accused are known to each other. On perusal of the evidence on record that fact has not been seriously disputed by the learned counsels appearing for the appellants- accused. They have also deposed with regard to the fact that there was some conflict with regard to the drinking water taken by accused No.1 wherein accused No.1 was assaulted and in that light, a case has also been registered. The : 57 : prosecution has also produced the wound certificates of the injured witnesses at Exs.P.10, 14, 15, 16 and 17.
40. It is well settled proposition of law that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is considered to be well reliable as he is a witness. In that case, an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone. This proposition of law has been laid down by the Hon'ble apex Court in the case of Chandrashekar & Others Vs. State reported in (2017) 13 SCC 585. At paragraph No. 10 of the judgment it has been observed as under:
"10. Crimin al jurisprudence attaches great we igh tage to the evidence of a person injured in the same occurrence as it presu mes that he was speak ing the truth unless shown o ther wise. T hough the law is well settled and precedents : 58 : abound, ref erence may usef ully be made to Brah m S waroop v. S tate of U.P. observ ing as f ollo ws: (SCC P. 302 PARA 28).
28. Where a witness to the occurrence has himself been in jured in the inciden t, the testimony of such a witness is gener ally considered to be very reliable, as he is a witness that co mes with an in buil t gu ar antee of his presence of the scene of the cr ime and is unlikely to spare his actu al assail an t(s) in order to f alsely implic ate so meone."
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41. On perusal of the material and the ratio laid down in the above decision, it is clear that nothing has been brought on record to doubt the entire prosecution case or shake the credibility of the said witnesses. Even during the course of cross- examination this aspect has not been cross- examined by denying that they have suffered injuries somewhere and they are falsely deposing in this behalf. The injury certificates and other material substantiate their presence at the place : 59 : of the incident. This evidence is also corroborated with the evidence of the Doctors-PW17 and PW20 who have conducted autopsy over the body of the deceased and these Doctors who have treated the injured witnesses. In that light, there is sufficient material produced by the prosecution to come to the conclusion that, in the said incident PWs 8 to 14 and 22 have suffered injuries and they are trustworthy and reliable witnesses.
42. On perusal of the evidence of these witnesses it would show the overt acts of the accused Nos.1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 22, 23, 27, 30, 31, 33, 34, 35, 42, 45, 46 and 47.
43. As per the complaint, name of accused Nos.1 to 8, 11, 12, 30, 31, 33, 34, 35, 43, 44, 45, 46 and 47 have also been included. Though names of the other accused persons have been mentioned in the complaint but there are no overt acts alleged as : 60 : against them. On perusal of the evidence of PWs2, 8, 9 and other witnesses, they have categorically deposed that, it is accused No.1 Seetharama Gowda assaulted with axe on the head of her husband Obaleshappa and accused No.5 assaulted on the head of Pandurangappa with axe and left shoulder of Obaleshappa. It is accused No.2 who has assaulted with axe on the knees of Obaleshappa, accused No.3 assaulted with knife and at that time accused Nos.4, 6 and 7 have also assaulted and stabbed on different parts of the body of Obaleshappa. When Pandurangappa came to pacify the quarrel, accused No.5 assaulted with axe on his head, accused No.2 assaulted with axe on knees, accused No.4 stabbed with knife and accused No.42-Puttamma had put a big stone on Pandurangappa. In that light, we are of the considered opinion that, by taking into consideration the postmortem report Ex.P9 would : 61 : indicate that Pandurangappa has sustained fracture of 4 t h and 5 t h rib just lateral to left side and sternum. He has also opined that, the death is due to cardio respiratory arrest as a result of haemorrhage shock due to severe blood loss as a result of the injuries sustained.
44. Even as could be seen from the postmortem report Ex.P.12, Obaleshappa had skull exposed vertebra; bleeding from the brain and spinal cord. The Doctor has opined that the death is caused due to vasovagal shock due to internal haemorrhage. The Doctor has also opined that the injuries can be caused if the weapon like axe which has been given description in Ex.P.12, is used. This itself corroborates with the evidence of eyewitnesses. In that light, we are of the considered opinion that accused No.1-Seetharama Gowda, accused No.2- Gowdra Tippesha, accused : 62 : No. 5 Kotageri Ekantappa, accused No. 4 Anand Bheemana Gowda, accused No. 6 Sanna Laxmana, Sheshappa-accused No.7 and accused No.42- Puttamma have caused death of Obaleshappa and Pandurangappa with an intention to take away their life by assaulting with lethal weapons. In that light, there is sufficient evidence to come to the conclusion that they are guilty of the offence punishable u/s 302 of IPC.
45. Though during the course of arguments, the learned counsel for the appellants-accused submitted that which blow caused death of the deceased cannot be specifically stated from the evidence of the prosecution witnesses. But, on perusal of the opinion of the Doctors it is evident that they have opined that the deceased has received fracture of the skull and the brain has also been damaged and the death is due to severe : 63 : blood loss as a result of the injuries sustained. All these accused have mercilessly assaulted the deceased in an inhuman manner. In that light, the accused are liable to be convicted for the alleged offence punishable u/s 302 of IPC.
46. On perusal of the evidence of the injured eyewitnesses PWs8, 11, 12, 13 and other witnesses that there is sufficient evidence to bring home guilt of the accused Nos.2, 3, 4, 5, 6, 7, 27 and 30 for having assaulted PW8 Anjinappa and caused grievous injury with an intention to take away life of said Anjinappa. In that light, the accused are liable to be convicted for the offence punishable u/s 326 of IPC.
47. Insofar as the accused Nos. 10, 11, 12, 22, 23, 26, 31, 34, 35, 45, 46 and 47 are concerned, there is evidence to show that they have assaulted and caused grievous hurt to the injured witnesses. : 64 : In that light, the above said accused persons are liable to be convicted for the offence punishable u/s 324 of IPC.
48. Insofar as the accused Nos. 10, 11, 12, 22, 23, 26, 27, 30, 31, 34, 35, 42, 45, 46 and 47 are concerned, there is evidence to show that they have insulted the complainant party. In that light, the above said accused persons are liable to be convicted for the offence punishable u/s 504 of IPC.
49. Insofar as the accused Nos. 10, 11, 12, 22, 23, 26, 27, 30, 31, 34, 35, 42, 45, 46 and 47 are concerned, there is evidence to show that they have abused in filthy language and threatened with life. In that light, the above said accused persons are liable to be convicted for the offence punishable u/s 506 of IPC.
: 65 :
50. Even the evidence which has been produced would also indicate that knowing fully well that the deceased and injured persons are belonging to SC & ST community, they have been abused and assaulted intentionally thereby committed the offences punishable u/S 3(1)(X) of the SC & ST Act, i.e., accused Nos. 2, 3, 4, 5, 6, 7, 10, 11, 12, 22, 23, 30, 31, 34, 35, 45, 46 and 47 are liable to be convicted for the said offence except accused Nos.26 and 27 as they belong to SC/ST Community.
51. During the course of arguments it has been brought to the notice of this court that the accused Nos.1, 8 and 43 have already expired during pendency of the case before the trial Court. In that light, though there is material as against them, in view of their abatement question of considering them for conviction and sentence does : 66 : not arise. In that light we proceed to pass the following order.
ORDER Criminal Appeal No. 1575/2015 and Criminal Appeal No. 100055/2016 are allowed in part.
The accused Nos.10, 11, 12, 22, 23, 31, 34, 35, 45, 46, 47 and 50 are acquitted of the charges for the offences punishable u/s 302 and 326 of IPC. Consequently, the judgment of conviction and order of sentence passed as against them is hereby set aside.
The accused Nos. 2, 3, 4, 5, 6, 7, and 42 are convicted for the offence punishable u/s 302 of IPC and they are sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- each, in default they shall undergo simple imprisonment for one year.
The accused Nos.2, 3, 4, 5, 6, 7, 27 and 30 are convicted for the offences punishable u/s 326 : 67 : of IPC. They are sentenced to undergo simple imprisonment for 7 years and to pay a fine of Rs.25,000/- each with default sentence of six months simple imprisonment.
The accused Nos. 10, 11, 12, 22, 23, 26, 31, 34, 35, 45, 46 and 47 are convicted for the offences punishable u/s 324 of IPC. They are sentenced to undergo simple imprisonment for 2 years and to pay a fine of Rs.15,000/- each with default sentence of three months simple imprisonment.
The accused Nos.2, 3, 4, 5, 6, 7, 10, 11, 12, 22, 23, 26, 27, 30, 31, 34, 35, 42, 45, 46 and 47 are convicted for the offence punishable u/s 504 of IPC and are sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/- each with default sentence of two months.
: 68 :
The accused Nos. 2, 3, 4, 5, 6, 7, 10, 11, 12, 22, 23, 26, 27, 30, 31, 34, 35, 42, 45, 46 and 47 are convicted for the offence punishable u/s 506 of IPC and are sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/- each with default sentence of two months.
The accused Nos. 2, 3, 4, 5, 6, 7, 10, 11, 12, 22, 23, 30, 31, 34, 35, 45, 46 and 47 are convicted for the offence punishable u/s 3(1)(X) of SC & ST Act. They are sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- each with default sentence of two months simple imprisonment.
All the sentences shall run concurrently. The accused persons are entitled for the benefit of set off as provided u/s 428 of Cr.P.C.
Upon deposit of fine amount by the accused, 25% shall be paid to the wife of Obaleshappa, : 69 : another 25% shall be paid to the wife of Pandurangappa and remaining 50% shall be forfeited to the respondent-State.
If the accused persons, i.e., accused No.10- Reddeppa, accused No.11-Rudramuni, accused No.12-Manju, accused No. 22-Agasara Ajjappa, accused No. 23-Nagesha, accused No.26-Harijana Pennappa, accused No. 31-Govindappa, accused No.34- Obalesha, accused No.35-Honnakka, accused No. 45-Pushpamma, accused No. 46- vijayakka and accused No.47-Lakshmi, have completed their imprisonment, they shall be released forthwith, if they are not required in any other case. Registry is directed to intimate the concerned jail authorities so also the learned Principal District & Sessions Judge, Ballari, through e-mail to release the aforesaid accused persons forthwith, if they are not required in any other case.
: 70 :
In view of disposal of the appeals on merits, I.A.No.3/2017 pending in Crl.A.No.1575/2015 does not survive for consideration and stands disposed off.
SD JUDGE SD JUDGE Bvv Jm