Karnataka High Court
Sri. Mallikarjuna Gouda vs The State on 21 July, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21 S T 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.100259/2017
C/W CRL.A.100256/2017
CRL.A.NO.100257/2017
CRL.A.NO.100258/2017
IN CRL.A. NO.100259 OF 2017
BETWEEN
1. SRI. NAGANAGOUDA @ NAGAPPA
S/O BASANGOUDA IDEGOUDRA,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
2. SRI.PRAKASHGOUDA @ PRAKASH
S/O BASANGOUDA IDEGOUDRA,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
... APPELLANTS
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(BY SRIYUTHS K. L. PATIL &
SRI. SRINAND A. PACHHAPURE, ADVS. )
AND
THE STATE OF KARNATAKA
THROUGH GUTTAL POLICE STATION,
HAVERI,
NOW REP. BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C., SEEKING TO CALL FOR
THE RECORDS IN SESSIONS CASE NO. 39 OF 2013
AND SET ASIDE THE JUDGMENT OF CONVICTION
DATED 10.07.2017 AND ORDER OF SENTENCE DATED
11.07.2017 PASSED BY THE PRL. DISTRICT AND
SESSIONS, HAVERI IN SESSIONS CASE NO. 39 OF
2013 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 451, 504, 506 AND 302 READ
WITH SECTION 149 OF IPC AND ACQUIT THE
APPELLANTS.
IN CRL.A. NO.100256 OF 2017
BETWEEN
1. PUTTANAGOUDA @ PUTTAPPA
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S/O BASANGOUDA IDEGOUDRA,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
2. SRI.HONNANAGOUDA @ HONNAPPA
S/O BASANGOUDA IDEGOUDRA,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
3. SRI.BASANAGOUDA @ BASAVANNEPPA
S/O CHANNABASAPPA IDEGOUDRA,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
4. SMT.NEELAVVA S/O BASANGOUDA IDEGOUDRA,
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
R/O: MEVUNDI VILLAGE,
TAL & DIST: HAVERI.
... APPELLANTS
(BY SRIYUTHS K. L. PATIL &
SRI. SRINAND A. PACHHAPURE, ADVS. )
AND
THE STATE OF KARNATAKA
THROUGH GUTTAL POLICE STATION,
HAVERI,
NOW REP. BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD.
... RESPONDENT
-4-
(BY SRI. V. M. BANAKAR, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C., SEEKING TO CALL FOR
THE RECORDS IN SESSIONS CASE NO. 39 OF 2013
AND TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 10.07.2017 AND ORDER OF SENTENCE DATED
11.07.2017 PASSED BY THE PRL. DISTRICT AND
SESSIONS, HAVERI IN SESSIONS CASE NO. 39 OF
2013 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 451, 504, 506, 323, 324
AND 307 READ WITH SECTION 149 OF IPC AND
ACQUIT THE APPELLANTS.
IN CRL.A. NO.100257 OF 2017
BETWEEN
SRI. CHANDRAPPA
S/O SRI. SHIVAPPA IREGOUDAR
AGED ABOUT 45 YEARS,
R/O: MEVUNDI,
HAVERI TALUK & DISTRICT,
HAVERI-581110.
... APPELLANT
(BY SRI. S. A. SONDUR FOR M. V. HIREMATH, ADVS.)
AND
THE STATE
REPRESENTED BY
GUTTAL POLICE STATION,
HAVERI CIRCLE, HAVERI,
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REPRESENTED BY THE
PUBLIC PROSECUTOR.
HIGH COURT, DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C., SEEKING TO SET ASIDE
THE ORDER DATED:10.07.2017 PASSED BY THE
PRINCIPAL DISTRICT SESSIONS JUDGE, HAVERI IN
SC. NO.39 OF 2013 IN SO FAR AS IT RELATES TO
APPELLANT (ACCUSED NO.7) AND ALLOW THE APPEAL
WITH COSTS.
IN CRL.A NO.100258 OF 2017
BETWEEN
SRI. MALLIKARJUNA GOUDA
S/O SRI.BHEEMANA GOUDA PATIL,
AGED ABOUT 47 YEARS,
R/O: MEVUNDI,
HAVERI TALUK & DISTRICT,
HAVERI-581110.
... APPELLANT
(BY SRI. S. A. SONDUR FOR
SRI. M. V. HIREMATH, ADVS.)
AND
THE STATE
REPRESENTED BY
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GUTTAL POLICE STATION,
HAVERI CIRCLE, HAVERI,
REPRESENTED BY THE
PUBLIC PROSECUTOR.
HIGH COURT, DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374 (2) OF CR.P.C., SEEKING TO SET ASIDE
THE ORDER DATED:10.07.2017 PASSED BY THE
PRINCIPAL DISTRICT SESSIONS JUDGE, HAVERI IN
SC. NO.3 OF 2014 IN SO FAR AS IT RELATES TO
APPELLANT (ACCUSED NO.9) AND ALLOW THE APPEAL
WITH COSTS.
RESERVED FOR JUDGMENT ON: 07/07/2020
JUDGMENT PRONOUNCED ON : 21/07/2020
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT ON THIS DAY,
M.G.UMA,J., DELIVERED THE FOLLOWING:
JUDGMENT
We have heard the learned counsel for the appellants Sri K.L.Patil and Sri. Srinand A. -7- Pachhapure in Crl.A.No.100259/2017 and Crl.A. No.100256/2017 so also Sri S.A. Sandur, learned counsel for the appellants in Crl.A.No. 100257/2017 and Crl.A.No.100258/2017. We have also heard Sri V.M. Banakar, learned Addl. SPP for the respondent-State.
2. Brief facts of the case as made out by the prosecution are that there was long standing ill-will between the accused and the complainant, since the land bearing survey No.58 belonging to accused No.1 and the land bearing Survey No.66 belonging to the first informant are adjacent to one another and the accused were proclaiming that their land extends up to the bank of the river. In that regard, there were frequent quarrels between the two parties and the accused were -8- proclaiming that they would cause death of any one of the complainant's party and will take possession of the land, till the bank of the river.
3. It is the further contention of the prosecution that on 04.12.2012 when the first informant along with CW9 was harvesting the sugar cane crop grown in his land bearing Survey No.66, at about 11.00 a.m., all the accused forming themselves into an unlawful assembly came and warned the informant and CW9 not to cut and remove the sugar cane crop.
4. It is further stated that on 05.12.2012 at about 7.30 a.m., when the informant and his family members were in their -9- house, accused Nos.1 to 9 forming themselves into an unlawful assembly with the common object of committing the offence, came in the new tractor bearing chassis No.8282269180 J- 08 and Engine No.S-325 B-78531, armed with the iron kuda, iron tala and iron rod, abusing the informant and his family members, criminally intimidated and trespassed into the house. The informant and his family members, on seeing the accused with deadly weapons, were afraid of the accused and they came out of the house, screaming. When they came on the road, accused No.1 abused the informant and his family members and assaulted Honnappa with the iron kuda on the backside of his head and caused bleeding injuries. Immediately, Honnappa fell on the ground. In
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the meantime, accused No.4 assaulted Honnappa on his head with iron rod and caused bleeding injury. At the same time, accused No.6 assaulted the injured Honnappa with an iron rod on the right side of his head and kicked him with his leg, with an intention to cause his death.
5. It is also stated that when the other family members tried to intervene and save Honnappa, accused No.4 assaulted CW8 with the iron rod on his head, accused No.3 assaulted with iron tala and in the meantime, accused No.5 also assaulted CW8 with iron rod on his head with an intention to cause his death. When the informant intervened in the matter, accused No.7 kicked him and assaulted with his hands. In the meantime, accused
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No.9 assaulted CW9 with iron rod on his head and also on the waist. When CW10 tried to intervene in the matter, accused No.9 assaulted CW10 with his hands. Accused No.8 had criminally intimidated CWs12 to 15 who were inside the house and she was throwing the chilli powder. She was also instigating the other accused to cause the death of the complainant's party. Thereby all the accused with criminal intention, formed themselves into an unlawful assembly and rioting, armed with deadly weapons, assaulted the complainant's party, voluntarily caused grievous hurt and attempting to take away their life. The accused who have assaulted Honnappa by inflicting fatal injuries, caused his death. They also caused injuries on the person of PWs5 and
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6. Thereby accused Nos.1 to 9 have committed the offences punishable under Sections 143, 147, 148, 323, 324, 302, 307, 451, 504, 506, r/w 149 of IPC. PW1-Sri. Maruti S/o Tirukappa Kari lodged the first information with Haveri rural police against all the accused as per Ex.P9 requesting to initiate legal action against all the accused.
6. After registering the case in Crime No.152/2012 of Guttal police station, the investigation was undertaken and charge sheet was filed. Since the offence alleged against the accused were exclusively triable before the Court of Sessions, the learned Magistrate took cognizance of the matter and after following the procedure as contemplated under Sections 207 and 208 of Cr.P.C., passed the committal
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order as required under Section 209 of Cr.P.C. The learned Principal District and Sessions Judge, Haveri, after securing the presence of all the accused framed charges against the accused for the above said offences. Accused have pleaded not guilty and they claimed to be tried. After hearing the prosecution and the learned Advocate for the accused, the trial Court fixed the trial.
7. The prosecution in order to prove the guilt of the accused, got examined 31 witnesses, got marked 31 documents and identified 16 material objects. The statements of the accused were recorded under Section 313 of Cr.P.C. The accused have denied the incriminating materials available on record and
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got examined DWs1 and 2 in support of their defence.
8. Initially S.C.No.39/2013 was registered against all the accused, but since accused No.9 was absconding, a split up charge sheet was came to be filed and a separate case in SC No.3/2014 was registered. After securing the presence of accused No.9, common evidence was led by the prosecution in S.C.No.39/2013 and S.C.No.3/2014 and common documents were marked. The defence evidence was led by accused No.9 in S.C. No.3/2014 by examining DWs.1 and 2. No defence evidence was led by accused Nos.1 to 8 in S.C.No.39/2013.
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9. After taking into consideration all the materials on record, the trial Court proceeded to pass the impugned common Judgment in both the cases, convicting accused Nos.1 to 9 for the offences punishable under Sections 143, 147, 148, 451, 504, 506 r/w Section 149 of IPC. Accused Nos.1 and 2 were convicted for the offence punishable under Section 302 r/w 149 of IPC. Accused No.3 was convicted for the offence punishable under Section 307 r/w 149 of IPC. Accused Nos.4 and 6 was convicted for the offences punishable under Sections 324 and 307 r/w 149 of IPC accused No.8 is convicted for the offence punishable under Section 323 r/w 149 of IPC, accused No.9 was convicted for the offences punishable
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under Sections 323, 324, and 307 r/w 149 of IPC and sentencing them separately.
10. Aggrieved by the impugned judgment of conviction and order of sentence accused Nos.1 and 2 have preferred Crl.A.No.100259/2017, accused Nos.3, 4, 5 and 8 have preferred appeal in Crl.A.No.100256/17, accused No.7 filed Crl.A.No.100257/17 and accused No.9 filed Crl.A.100258/2017.
11. Accused No.6 has not preferred any appeal against the common judgment of conviction and order of sentence. The state has not preferred any appeal against the common judgment wherein the accused were acquitted for the other offences, alleged against them.
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12. The learned Advocate Sri K.L.Patil substantiating the grounds of appeal in all the above appeals, submitted that serious allegations are made as against the accused for having committed the offence. But the prosecution relied on the version of only the related witnesses. Even though it is the contention of the prosecution that the incident had taken place on the road, which is a public place, no independent witnesses are examined. Even though PWs13 and 14 were examined as independent eye witnesses, the evidence deposed by them disclose that they are the interested witnesses. During the course of evidence, it is found that the scene of offence was not inside the house, as it was projected by the prosecution, but it was on the public
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road and admittedly there were several houses nearby the scene of offence. Under such circumstances, no supporting evidence by any of the independent neighbors create doubt in the case made out by the prosecution.
13. He further submitted that admittedly the house of the deceased and the accused are situated nearby. Under such circumstances, the contention of the prosecution that the accused have come in a tractor is suspicious. No reasonable explanation is given to believe the same.
14. His next contention is that as per the story put forth by the prosecution, the dispute was between the informant-PW1 and the accused. There is no allegation of the
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accused having any dispute or ill-will against the deceased. Under such circumstances, the accused causing the death of the deceased without hurting PW1 also creates a serious doubt in the mind of the Court. If at all the presence of PW1 at the scene of offence is to be believed, there is absolutely no explanation as to why the accused have not assaulted him, nor inflicted any injuries. Under such circumstances, presence of PW1 at the scene of offence itself is doubtful. He submitted that there are discrepancies in the case made out by the prosecution with regard to the scene of offence. The ocular evidence led by the prosecution is not corroborated with the spot sketch and the spot panchanama, relied on by the prosecution.
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15. The learned Advocate further submitted that the incriminating materials i.e. M.Os.1 to 12 were seized from the scene of offence and it is said that MOs.13 to 16 were seized from the tool box of the tractor trailer. These M.Os.13 to 16 were not sent for FSL examination. There is absolutely no evidence to connect these materials to the offence in question. It is pertinent to note that none of these incriminating materials were recovered at the instance of the accused. This strong circumstance also falsifies the case made out by the prosecution.
16. One more circumstance relied on by the learned advocate for the accused is that PW5 had not taken treatment in KIMS Hospital, Hubballi. Even though the investigating officer
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states that the statement of PW5 was recorded in KIMS Hospital, the materials on record disclose that he got treated himself in a private nursing home that too on 8/12/2012 i.e. about 4 days after the incident. Ex.P14 relied on by the prosecution discloses that PW5 was treated for severe anemia, diabetes etc. but not for the injuries said to have been sustained by him in the incident.
17. He further submitted that the first information Ex.P9 was not written by PW1. Even though the incident is alleged to have taken place at 7.00 am, it is stated that the first information was got written through PW18-a stranger and the same was filed before the jurisdictional police at 1.30 pm but the FIR had reached the leaned Magistrate at 7.15 pm
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The evidence of PW19 discloses that he had received the intimation regarding the incident at 8.15 am and he had infact proceeded to the scene of offence. Therefore it is clear that even before the registration of the FIR, the investigation was already begun, for the reasons best known to the investigating officer.
18. He further submitted that the version of eye witnesses is contradictory to each other and it do not get support from the medical evidence. All the witnesses who were projected as eye-witnesses are the relatives of the deceased and they are interested witnesses. PW13 is the lessee under PW1 and PW14 is admittedly another close relative of PW10. The version of PWs5 and 6 as injured eye-witnesses cannot be believed even for a
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moment. They have not sustained any grievous hurt and Doctors PW17 and 21 examined these witnesses clearly stated that the injuries sustained by them could be caused if they fall on rough surface. If the version of all these witnesses are taken into consideration, it is clear that the prosecution is not placing the true genesis of the case before the Court. He submitted that even though accused Nos.1 and 5 sustained injuries, the same has not been explained by investigating officer even at the time of filing the charge sheet or during the evidence, which is fatal to the case.
19. He further submitted that in the light of the above situation, the delay in filing the first information, registering the FIR and
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submitting the same to the Jurisdictional Magistrate assumes importance. PW1 who was having motive against the accused took time to have deliberations and to rope in all the family members of the accused without any basis.
20. He further submitted that there is serious dispute about the scene of offence. Exs.P23 and 26 when considered along with Ex.P5 and the evidence of PW3, serious doubt arises as to where actually the incident had taken place, even it creates a doubt as to whether the incident has taken place or not. The learned Advocate further submitted that the motive alleged by the prosecution is a double edged weapon and it can be made out from the material on record that with such motive, PW1 and his associates filed false
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complaint after due deliberations, cooked up witnesses and placed false materials before the Court. The material contradictions and omissions in the case made out by the prosecution clearly establishes that taking advantage of the death of the deceased- Honnappa, all the accused were roped in without any basis. The trial Court even though there are no materials to invoke Section 149 of IPC, invoked the same without any basis. It has ignored the material contradictions and omissions in the case of the prosecution. The judgment of conviction and order of sentence resulted in grave injustice to the accused.
21. The learned Advocate for the accused submitted alternatively that, even if the version of the eye witnesses examined
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before the Court has to be believed, it is not sufficient to invoke Section 302 of IPC. The trial Court should have considered the contention of the accused to see whether the exceptions under Section 300 of IPC could be applied. Therefore, it is his submission that even if this Court comes to the conclusion that the homicidal death of Honnappa was caused by the accused, same may be considered under Section 304 part II of IPC. He also added that since there is no specific overt act alleged against other accused except accused Nos.1 to 3, the other accused are entitled for acquittal. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence in the interest of justice.
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22. Per Contra, the learned Additional SPP vehemently submitted that the first incident had taken place on 04.12.2012 and on the next day morning, i.e. 05.12.2012 at 7.00, all the accused forming unlawful assembly, armed with deadly weapons and rioting, criminally trespassed into the house of PW1 proclaiming to cause his death. When the inmates of the house came out of the house running out of fear, the accused with common object assaulted the deceased-Honnappa and inflicted fatal injuries which has resulted in his death. They have also assaulted PWs1, 5 and 6 who tried to intervene in the matter to save the deceased- Honnappa. The first information was lodged promptly at 1.30 pm. There is no delay either in registering the FIR or in
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submitting the same to the jurisdictional Magistrate. The investigating officer-PW29 and carrier of the FIR-PW24 have categorically deposed before the Court about the sequence of events.
23. He further submitted that PWs1, 5 to 14 are the eye-witnesses to the incident and out of them, PWs5 and 6 are the injured eye-witnesses. All the witnesses have given the clear picture about the incident and have spoken about the individual overt act by each of the accused. Since the incident has taken place during December 2012 and witnesses were examined during 2015, and since there is long gap in between the date of offence and date of evidence, it is quite natural that minor discrepancy can be found in the evidence of
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these witnesses. Such minor discrepancy are to be ignored while considering their evidence. There is absolutely no material contradictions as contended by the learned Advocate for the appellants. He further submitted that the Doctor who treated PWs5 and 6 and conducted the post mortem examination on the body of the deceased have deposed before the Court and it supports the case made out by the prosecution. There is absolutely no denial of the fact that the deceased-Honnappa died homicidal death. Further, the specific overt act spoken to by the eye-witnesses are not denied. He further submitted that even though some of the eye- witnesses are the relatives of the deceased, their version cannot be doubted as interested version. Nothing has been
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brought on record to disbelieve their version. Moreover, PWs5 and 6 are the injured eye- witnesses and their version cannot be ignored so lightly. No case of embezzlement or due deliberations before filing of the first information, was made out by the accused. From the materials on record, it is clear that the first informant and his family members, were not armed with any weapon and there was no provocation by them on the aggressors. The accused themselves forming unlawful assembly, armed with deadly weapons, trespassed into the house of PW1 and committed the offence. No contention was taken by the accused that accused Nos.1 and 5 have sustained injury in the incident. No specific defence is taken by the accused nor
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they have denied the motive for them to commit the offence. Under such circumstances, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The trial Court rightly convicted the accused and there is no illegality in the same. Therefore, he prays for dismissing the appeal as devoid of merits.
24. We have cautiously considered the materials on record, in the light of the submissions made by both the parties.
25. The prosecution in order to prove its contention examined PW1-Maruthi Kari, who is the first informant and the brother of the deceased. The witness spoke about the motive for the accused to commit the offence
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and the specific overt act of each of the accused. He also stated regarding the first information drafted through PW28 and filing the same against the accused before the police as per Ex.P9. This witness admitted that he was cultivating the land, which was purchased by accused No.1 and he was willing to purchase the same but, inspite of that, the owner of the land had sold the property in favour of accused No.1. The suggestions made to this witness disclose that there was frequent dispute between the family members of PW1 and the accused. Witness admitted that there is infirmity in his right leg and artificial leg is being used for carrying of his day today activities. Witness stated that while taking the injured Honnappa to the hospital at Haveri, he
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had been to the hospital at Guttal, where he was not treated and thereafter he had been to Guttal police station to give information about the incident. Witness admitted that he was in a hurry to shift all the injured to the hospitals and pleaded his ignorance as to whether the police taken his signature on four to six papers. Even though this witness was cross examined at length, nothing has been elicited by him to disbelieve his submission. A specific suggestion is put to this witness that PWs.5 and 6 have sustained injuries in a tractor accident and that this witness himself had assaulted Honnappa and caused his death. These suggestions are specifically denied by the witness.
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26. PW2 is the pancha to the inquest mahazar Ex.P1. Witness also states that the blood stained clothes on the body of deceased- Honappa were seized under the mahazar and he identified the clothes as per M.Os.1 to 4. PW3 is the witness to the spot mahazar Ex.P5 and he spoke about seizure of the clothes, weapons, blood stained mud and sample mud from the scene of offence. He identified all those material objects as M.Os.5 to 9. He admitted that the informant is his relative, but denied the suggestion that he is deposing falsely in order to help him. PW4 is the pancha witness to the seizure mahazar Ex.P8. Under this panchanama the tractor in question along with iron kunti, iron tala and iron rod, which were in the tool box were seized. Witness
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identified the weapons as per M.Os.13 to 16 and stated that they were stained with blood. He denied the suggestion during cross examination that he is deposing falsely in order to help PW1 and that he had signed Ex.P8 in the police station.
27. PWs5 and 6 are the injured eye witnesses, who have stated regarding the overt act by the accused, assault by accused Nos.1 and 2 with iron kuda, tala and inflicting fatal injuries, which has resulted in the death of deceased Honnappa. They also spoke that accused Nos4 and 5 have assaulted PW5 with rod and tala and accused No.3 assaulted, PW6 with tala. PW6 also spoke about accused No.9 assaulting PW1. During cross examination PW5 admitted that there are several houses near
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the scene of offence, but denied the suggestion that PW1 was involved in illegal extraction and sale of the sand and the same was opposed by accused No.5. He also denied the suggestion that he is deposing falsely against the accused. Witness stated that after the incident, he was unconscious and therefore pleaded his ignorance as to whether several persons have gathered there or not. He denied the suggestion that he is having illicit relationship with Shantavva-the wife of accused No.5. During cross examination of PW6, witness denied the suggestion that he was never present at the scene of offence and that he is deposing falsely against the accused. PWs1 to 3 have admitted that iron kuda, tala and rods
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will be generally in the houses of the agriculturists.
28. PW7 is another eye witness to the incident, who has stated on oath that accused No.1 assaulted the deceased Honnappa with Kuda, accused No.2 with tala and accused No.4 with rod and he was also assaulted by accused Nos.5 and 6. He further stated that accused No.3 had assaulted PW5-Tirakappa Kari with tala. During cross examination, he admitted that there were several houses nearby the scene of offence and the houses of accused Nos.1, 6 and 8 are situated in a lane, which is on the backside of the house of PW7. He denied the suggestion that no incident, as stated by him, has taken place. It is specifically suggested to the witness that while
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working in the field, his father deceased Honnappa and his grandfather Tirakappa i.e. PW5 have sustained injuries and taking advantage of such injuries, a false complaint was came to be lodged against accused by PW1. He admitted that M.Os.8 to 10 are generally in the houses of agriculturists. Nothing has been elicited from this witness to discard his evidence.
29. PW8 is the other eye witness who also supported the case of the prosecution. Witness stated that accused No.1 assaulted the deceased Honnappa with a kuda and accused No.2 with tala and accused No.9 has assaulted PW6 with rod and accused No.7 has assaulted PW1 with his hands and also kicked with his legs. This witness also stated
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that there was dispute between accused and his family members in the matter of agricultural land and on the date of incident, all the accused came in a tractor, armed with deadly weapons, assaulted the deceased and the injured with an intention to cause their death. During cross examination, the witness denied the suggestion that deceased Honnappa was mentally ill and that the deceased along with his wife was living separately. He also denied the suggestion that even though no incident had taken place, he is deposing falsely against the accused.
30. PW9 is the other eye witness, who also stated regarding the dispute between the two parties and the incident had taken place on 04.12.2012, when the accused
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objected for cutting of sugarcane crops. Witness stated that on 05.12.2012 at 7.30 am, all the accused came in a tractor armed with deadly weapons, abused the complainant party and accused No.1 assaulted the deceased Honnappa with kuda, accused No.2 with tala, accused Nos.3 and 6 with rods. He also stated that accused No.9 had assaulted PW6 with a rod on his head and waist and accused No.7 had assaulted PW1 with his hands and kicked with legs. He also identified M.Os.8 to 10 and 13 to 16 as the weapons were used by these witnesses for commission of offence. During cross examination, it is suggested to this witness that deceased Honnappa was mentally ill and he along with his wife was residing separately in a tin shed. The suggestion to the
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witness that PW1 is illegally extracting the sand from the river is denied. Witness denied the suggestion that no such incident had taken place. He also denied the suggestion that at the time of incident, he was in the field. It is suggested to the witness that since he was not at the scene of offence, he had not sustained any injuries, which has been denied.
31. PW10 is also an eye witness, who spoke about the motive for the accused to commit the offence, the incident that had taken place on the previous day and also on the date of incident witness stated that, all the accused forming unlawful assembly, came armed with deadly weapons and accused No.1 assaulted the deceased Honnappa with kuda on his head, accused No.2 also on his head with
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tala. In the meantime, accused No.4 assaulted PW5 with kuda and accused Nos.2, 3 and 9 have also assaulted PW5. Witness identified M.Os.8 to 10 and 13 to 16 as the weapons used by these witnesses. Witness stated that PW1 and the deceased Honnappa is her brother-in- law. During cross examination, witness denied the suggestion that Honnappa was mentally ill and he was staying separately with his wife. She also denied the suggestion that she is deposing falsely at the instance of PW1 and her husband Somalingappa.
32. PWs11 and 12 are also the eye witnesses to the incident and both these witnesses have stated regarding the motive and the incident that had taken place on the previous day and also regarding the incident in
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question. They stated that on the date of incident, accused No.1 assaulted the deceased Honnappa with kuda, accused No.2 with tala, accused No.4 assaulted PW5 and at the same time, accused Nos.2, 3 and 9 assaulted PW6. During cross examination, this witness also denied the suggestion that PW1 is doing illegal extraction of sand from the river and therefore he developed ill-will with the villagers. It is pertinent to note that the learned advocate for the accused suggested to PW11 during cross examination that since the deceased Honnappa was mentally ill, PW1 used to assault him and on the date of the incident also, PW1 had assaulted the deceased, as a result of which, he had died. The witness categorically denied this suggestion. She also denied the suggestion
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that she is deposing falsely in order to help her husband, who is the complainant-PW1.
33. PW13 is the other eye witness, who also supported the case of the prosecution. Witness stated that he is residing nearby the house of PW1 and on the previous day of the incident, there was dispute with regard to cutting of sugarcane crops by the complainant and on the next day morning, at 7.30 am, he heard the 'galata' near the house of PW1. Immediately along with PW14-Basappa went near the scene of offence. There was scuffle between the two parties and accused No.1 had assaulted deceased Honnappa with kuda, accused No.2 assaulted him with tala and accused No.6 with rod. He further stated that accused No.2 assaulted PW5 with tala. In the
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meantime, accused Nos.3 and 9 have also assaulted the said PW5. All the accused have assaulted PW6 and accused Nos.7 and 9 have assaulted PW1. This witness also identified the weapons used by the accused in commission of the offence as M.Os.8 to 10 and 13 to 16. During cross examination, witness admitted that he is cultivating the land belonging to PW1 on lease. He denied the suggestion that he had not witnessed the incident and deposing falsely, in order to help PW1.
34. PW14 is the other eye witness. Witness stated that his house is situated nearby the house of PW1 and the accused. He spoke about the dispute between the complainant and the accused parties and also regarding the incident that had taken place in
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the matter of cutting of the sugarcane crops. Witness stated that on the next day morning, at 7.30 am, all the accused have came in a tractor, picked up quarrel and on hearing the hue and cry, he along with PW13 went to the scene of offence and witnessed accused No.1 assaulting the deceased Honnappa with kuda, accused No.2 with tala and accused No.6 kicking the deceased with his legs. Witness also stated that accused Nos.4 and 5 have assaulted PW5 with rods. Accused Nos.6 and 9 assaulted PW6 with rods and in the meantime, accused Nos.7 and 9 have pushed PW1 aside.
35. The prosecution is relying on the evidence of PWs1, 5 and 6 as the injured eye witnesses and PWs7 to 14 as eye witnesses to the incident. It is the contention of the
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prosecution that PWs13 to 14 are the independent eye witnesses, not related to the complainant or to the injured. However, PW13 during cross examination admitted that he is cultivating the land belonging to PW1 on lease and PW14 admitted during cross examination that he is related to PW9-Somalingappa and his wife.
36. When large number of witnesses are examined as eye witnesses by the prosecution and the witnesses depose before the Court after long length of time, it is quite natural there will be minor discrepancies in the evidence of such witnesses. Even if there is inconsistencies between medical and ocular evidence, the ocular evidence to be believe, unless it is shown that their evidence cannot
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be believed in view of the serious material contradictions and it is shown that such version is impossible to happen. This proposition of law is held by the Hon'ble Apex Court in DARBARA SINGH Vs. STATE OF 1 PUNJAB wherein it reads as under:
"10.So far as the question of inconsiste ncy between the medical e vide nce and the ocular evidence is conce rned, the law is we ll settled that, unless the oral evide nce available is to tally irreco ncilable with the medical evide nce, the oral evide nce would have primacy. In the event of contradictions between medical and ocular e vidence , the ocular testimo ny o f a witness will have greater e videntiary value vis-à- vis medical evidence and when medical e vidence makes the oral te stimony improbable, the same becomes a relevant factor in the process of evaluation of such evide nce. It is only when the contradiction between the two is so extreme that the 1 (2012) 10 SCC 476
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medical evidence complete ly rule s out all possibilities o f the ocular e vidence being true at all, that the ocular evidence is liable to be disbe lieved."
37. All the witnesses referred to above have stated regarding motive i.e. the dispute between the two parties. They spoke about the incident that had taken place on the previous day in the matter of cultivating the sugarcane crops and also about the incident that had taken place on the next day morning at 7.30 am. These witnesses consistently stated regarding the assault by accused No.1 with kuda, accused No.2 with tala on the deceased Honnappa. Regarding the assault on the deceased by other accused, there is little variation in the evidence of these witnesses while deposing before the Court. However, all
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these witnesses have consistently stated that all accused have came in a tractor, armed with kuda, tala and rods and have assaulted Honnappa-the deceased PWs5, 6 and also PW1.
38. It is the contention of the prosecution that the accused have formed unlawful assembly with the common object of committing the offence and therefore they came armed with deadly weapons. On close scrutiny of these evidences, even though they have stated that the accused have came in a tractor, they do not substantiate with consistent evidence that the accused were the members of unlawful assembly and they have committed the offence with common object of such assembly.
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39. To attract Section 149 of IPC, two essential ingredients are to be shown to be present viz., commission of the offence by any member of an unlawful assembly and such offence must be committed in prosecution of the common object of that assembly, or such members of that assembly knew that the act which is likely to be committed. Once the Court finds that these two ingredients are fulfilled, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. If ones the prosecution proves that there was unlawful assembly, all the accused formed with common object of committing the crime then, all the members of the such assembly are liable for conviction, irrespective of individual
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overt act committed by them. The burden is on the prosecution to prove not only the nature of common object, but also to prove that in pursuance of such common object, the offence was committed. This proposition of law was laid down by the Hon'ble Apex Court in DAYA 2 KISHAN Vs. STATE OF HARYANA wherein it is held as under:
"26. Section 149 IPC creates a constructive or vicarious liability on the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of the constructive guilt under Section 149 IPC is mere membership of the unlawful assembly with the requisite common object or knowledge. This Section makes a member of the unlawful assembly responsible as a member for the acts of each and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common 2 (2010) 5 SCC 81
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intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section
149.
27.There are two essential ingredients of Section 149, viz., (1) commission of an offence by any member of an unlawful assembly, and (2) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Once the court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor it would be open to the Court to require the prosecution to prove which of the members did which of the offensive acts. Whenever a court convicts any person of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but that in pursuance of such common object the offence was committed. There is no manner of doubt that before recording
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the conviction under Section 149 IPC, the essential ingredients of Section 149 IPC must be established."
40. In the present case even though accused Nos.1 to 9 have come together to the scene of offence and even though it was alleged that some of them were armed with weapons, it cannot be said that all the accused have formed unlawful assembly with a common object of causing the death of deceased Honnappa or assaulting PWs1, 5 or 6. On close scrutiny of the evidence of the eye witnesses, it do not disclose that all the accused have formed such assembly with the common object of committing the crime and the offence was committed in prosecution of such common object. Therefore, we are of the opinion that the prosecution failed to prove that accused
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Nos.1 to 9 have formed into an unlawful assembly with the common object of committing the offence. Hence Section 149 of IPC cannot be invoked and attracted against these accused. The trial Court has not properly looked into this aspect while appreciating the evidence.
41. Admittedly Honnappa had sustained fatal injuries as noted in the post mortem report, Ex.P15 and deposed by PW18 before the trial Court. According to PW18, the deceased had sustained lacerated wound over the right side occipital region measuring 4cmx6cm, abrasion at the centre of occipital region measuring 3cmx5cm and hematoma on the right occipital region measuring 6cmx6cm and as per post mortem report-Ex.P15, the
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death was due to shock and hemorrhage, as a result of the injury to the vital organ-brain. As per the opinion given by this witness which is as per Ex.P16, the injuries found on the head and occipital region of deceased could be caused by the weapons M.Os.8 and 9. From these materials coupled with the version of the eye witnesses, who have consistently stated that it was accused No.1 who assaulted the deceased with kuda and accused No.2 assaulted him with tala which corresponds with the injuries noted in the post mortem report and also the opinion of the doctor referred to above.
42. From the materials placed before the Court, since all the witnesses consistently stated regarding the ill-will between the two
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parties and since there is no denial of the fact, and on the other hand, there is admission that, there was frequent quarrel between the two, the prosecution is successful in proving the ill- will and vengeance to commit the offence. However, when there are eye witnesses to the incident, the motive will play a very limited role in proving the guilt. The presence of the eye witnesses at the scene of offence cannot e ruled out. Time and place of offence do not falsify their presence. Even though consistently it is suggested to all the witnesses that, PWs1,5 and 6 were not at the scene of offence. There is absolutely no explanation as to how PW6 sustained injuries when he was not present at the scene of offence. Therefore his
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presence could not be denied totally and cannot be rejected so lightly.
43. Ones the prosecution failed to prove that accused have formed unlawful assembly with common object of committing the crime, the prosecution is required to prove the individual overt act to seek conviction of the accused for the offences alleged to have been committed by them.
44. As already noted by us, even though it is contended by the learned advocate for the appellants/accused that no such incident had taken place and the accused were falsely implicated in the matter. The version of all these eye witnesses coupled with the injuries noted, weapons seized and medical
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evidence produced before the Court are taken into consideration. It cannot be said that all the accused are falsely implicated in the case.
45. It is trite of law that injured witnesses will not leave the real culprits and include innocent person in the case. This proposition of law has been laid down in the case of Chandrashekhar & another Vs. State reported in 2017 (13) SCC 585.
46. Keeping in view the ratio laid down, as we have discussed above, all the witnesses examined as eye witnesses, i.e. PWs1, 5, 6 to 14 have consistently and categorically stated that it was accused No.1 who assaulted the deceased Honnappa with kuda on his head and accused No.2 assaulted
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on his head with tala. The injuries sustained by the deceased Honnappa, also corresponds with the description of assault by all the witnesses. When the witnesses and accused persons are residing in a village, are known to each other, there will not be any difficulty in identifying and telling of the overt acts of each of the accused.
47. PW18 the doctor who conducted the autopsy over the body of the deceased Honnappa stated in his evidence that the investigating officer had sent M.Os.8 and 9 i.e. kuda and tala for his examination and he has given his opinion as per Ex.P16 that the injuries mentioned in Ex.P15-the post mortem report could be caused by those weapons. When the evidence led by the prosecution
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about the specific overt act by accused Nos.1 and 2 on assaulting the deceased on his head with M.Os.8 and 9, it can be concluded that it was accused Nos.1 and 2 who have inflicted fatal injuries as mentioned in Ex.P15 on the vital part of the deceased i.e. on his head and it shows that with an intention to cause death, they assaulted on the head and such injuries in the ordinary course of action, will cause the death. In that light, they are responsible for his death. Under such circumstances, it can be said that accused Nos.1 and 2 have committed the offence punishable under Section 302 of IPC, as it was they, who inflicted fatal injuries which has resulted in the death of the deceased.
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48. It is the contention of the prosecution that PWs5 and 6 have also sustained injuries in the incident. Both these witnesses have deposed before the Court and PW5 stated that it was accused No.4 assaulted him with rod on his head and PW6 with tala on his left ear. PW6 states that accused No.3 had assaulted on his head with tala.
49. The prosecution examined PW17, who examined PW5 immediately after the incident in the private hospital and issued wound certificate as per Ex.P14. As per the version of this witness, PW5 aged 70 years was admitted as inpatient in Mirajkar Hospital from 08.12.2012 to 15.12.2012 and he was suffering from blood pressure and diabetes. Ex.P14 issued by this witness also discloses this fact
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that PW5 had taken treatment at Mirajkar Hospital for severe anemia, diabetes etc., It is pertinent to note that there is absolutely no reference to any injuries sustained by him nor there is any history of assault caused by any of the accused.
50. The prosecution examined PW21 as the doctor who treated PW6 in KIMS, Hubballi but this witness pleaded his ignorance regarding treating of PW6 on 05.12.2012. She identified the handwriting found on Ex.P18 as that of his colleague Vaishali Choukimath. The said doctor Vaishali is not examined before the Court to speak about the contents of Ex.P18.
51. However as per Ex.P18 issued by KIMS, Hubballi, PW6 was referred by District
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Hospital, Haveri with the history of assault on 05.12.2012 at 8.00 am and there was a cut lacerated would measuring 8cmx2cm over left parietal occipital and an abrasion measuring 1cmx1cm over right knee. As per Ex.P19, the city scan report, hematoma was seen on right parietal occipital scalp with no other abnormality.
52. PW22 is the doctor working in KIMS, Hubballi speaks about Ex.P19 and stated that PW6 was referred to her, while she was working as Radiologist in KIMS, Hubballi on 06.12.2012 at city scan showed hematoma on the right parietal occipital scalp. Therefore it can be concluded by saying that PW6 had also sustained one injury to his scalp but PW5 had not sustained any injury as claimed by him.
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53. PW6 in his evidence stated that he was assaulted by accused No.3 with tala on his head. PW1 also stated that accused No.3 had assaulted PW6 with tala and this version was supported by PWs11 and 12. When the injured himself identified accused No.3 and states that it was accused No.3 who had assaulted him with tala and caused the injury, which was supported by other witnesses, we do not find any reason to disbelieve the same.
54. Even though it is stated that accused No.3 had assaulted PW6 with tala with an intention of causing his death, the nature of the injury sustained, do not suggest such intention on the part of accused No.3 and moreover it is the evidence of all the eye witnesses that the accused were assaulting one
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after the other, which was not supported by cogent material and no specific evidence against accused No.3 that he targeted PW6 by assaulting with tala on his head, with an intention to cause his death. We do not have any hesitation to hold that it was accused No.3 who has assaulted PW6 with tala and caused grievous hurt and thereby committed the offence punishable under Section 324 of IPC.
55. It is the contention of the prosecution that accused Nos.4, 5, 7 and 9 have also assaulted the deceased, PWs5 and 6 with deadly weapons, but the evidence of the eye witnesses coupled with evidence of doctors', do not suggest that they were armed with any weapons or assaulted any of these persons with any such intention. Therefore we
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are of the opinion that the prosecution has failed to prove the commission of any of the offences by these accused.
56. The learned advocate for the accused contended that there is inordinate delay in lodging the complaint. As per the case made out by the prosecution, the incident had taken place on 05.12.2012 at 7.30 am and as per Ex.P24-FIR, the same was registered at 1.30 pm. However, FIR had reached the Jurisdictional Magistrate at 7.15 pm on the same date. In this regard, evidence of PW1-the first informant, PW29-who registered the FIR, PW24-the police constable who carried the FIR and submitted to the Jurisdictional Magistrate, is to be taken into consideration. Admittedly Honnappa had sustained fatal injuries and he
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was shifted to District Hospital, Haveri and the doctor at the District Hospital referred the injured to KIMS, Hubballi and while shifting the injured in an ambulance, Honnappa was succumbed to the injuries on the way and therefore the dead body was brought back to the District Hospital, Haveri and injured PW6 was taken to KIMS, Hubballi. PW1 stated that he was not in a position to lodge the complaint, as he was in a state of shock, as his brother Honnappa had succumbed to the injuries. This version of PW1 cannot be rejected as it is quite natural for a family member to be in shock, when such an incident takes place and one of his close relative succumbs to the injuries sustained by him. PW1 further stated that he requested PW28 to
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write the information and accordingly he wrote the first information as per Ex.P9 and the FIR was registered at 1.30 pm as per Ex.P24-FIR. We do not find any unnaturality in the conduct of PW1 in that regard. Moreover the scene of offence is situated about 20kms away from Guttal police station, where the FIR was registered. The injured were shifted from the scene of offence to Haveri, which is said to be 20kms away from there, again they were shifted to KIMS, Hubballi. Again the dead body was brought back to the District Hospital, Haveri. In the meantime, few hours might have lapsed. Therefore it cannot be said that there is inordinate delay in lodging the complaint. Nothing has been placed before the Court to form an opinion that PW1 gained time and the
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first information Ex.P9 was filed after due deliberation or that there is embellishment. Therefore, the contention taken by the learned advocate for the accused regarding delay in lodging the complaint, cannot be accepted.
57. It is contended by the learned advocate for the accused that PW1 was not present at the scene of offence. He contended that as per the motive suggested by the prosecution, there was ill-will between PW1 and accused No.1. Under such circumstances, the first target for accused No.1 should have been PW1 and not deceased Honnappa. Even though the eye witnesses are cross examined by the learned advocate for the accused at length, no such specific suggestion was made to any of these witnesses including PW1, to
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contend that the ill-will or motive for accused No.1 or any other accused for that matter, was only to assault PW1. But on the other hand, all the witnesses categorically stated that the accused were having ill-will against PW1 and all the family members. Under such circumstances, it cannot be said that the presence of PW1 could be suspected simply because he had not sustained any injuries.
58. One more contention taken up by the learned advocate for the accused is that accused Nos.1 and 2 have also sustained injuries in the incident and the prosecution has not explained the said injury sustained by accused Nos.1 and 2 and therefore it is fatal to the case of the prosecution. We have given our thoughtful consideration to the materials
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placed before the Court. None of the documents produced before the Court suggest that accused Nos.1 and 2 have sustained any injuries. These accused have also not contended that they had sustained injuries while cross examining any witnesses. No materials are placed before the Court to substantiate such contention. Even in the statement recorded under Section 313 of Cr.P.C., these accused have not stated that they had sustained injuries in the incident and they have not made any allegation against any of the witnesses. Under such circumstances, it cannot be said that accused Nos.1 and 2 have sustained injuries in this incident. Even otherwise, such contention taken by the learned advocate for the accused strengthens
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the contention of the prosecution regarding their presence at the scene of offence. Moreover, even if it is to be believed that accused Nos.1 and 2 have sustained some injuries and even though the prosecution has not explained the said injuries, it is not the position of law that every such circumstance is fatal to the case of the prosecution.
59. The learned advocate for the accused contended that there is material infirmity in the case made out by the prosecution about the scene of offence. In the light of such submission, we have considered the spot panchanama and the sketch along with the oral evidence of the eye witnesses. On close scrutiny of these material on record, we do not find any such material infirmity as to
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the scene of offence. Minor discrepancies while deposing by the witnesses will not go to the root of the matter. Hence, the contention of the learned advocate for the accused in that regard cannot be accepted.
60. The defence tried to be projected on behalf of the accused that the accused were falsely implicated in the matter, even though there was no such incident, cannot be accepted in view of the clinching materials which are discussed above. It is pertinent to note that the suggestion is put to PW11 that it was PW1 who had assaulted the deceased Honnappa and PW1 is responsible for his death. But such suggestion do not get support with the evidence of other witnesses and the same is not probabalized.
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61. The other contention taken by the learned advocate for the accused that M.Os.8 to 10 were seized from the tool box of the tractor trailer, in which the accused have came. Ofcourse some of the witnesses have deposed that those weapons were stained with blood but admittedly they were not sent for examination by FSL. Under such circumstances, we find considerable force in the submissions of the learned advocate for the accused but however, the prosecution is also relying on the circumstance about the seizure of M.Os.8 to 10 and 13 to 16 which were stained with blood as confirmed by the report from the FSL. Therefore on this count, the version of the prosecution cannot be disbelieved.
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62. Alternatively, the learned advocate for the accused contended that even if this Court comes to the conclusion that any of the accused are responsible for the death of the deceased, it is his submission that there was no intention on the part of the accused to cause his death. Their acts can be fit in under any of the exceptions contained under Section 300 of IPC. At the most, offence under Section 304 II of IPC can be made out. We have considered this submission on the part of the learned advocate for the accused in the light of the facts and circumstances placed before us. The prosecution is successful in proving that the accused Nos.1 to 3 have come to the house of PW1 and when the inmates of the house came out, accused Nos.1 and 2
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assaulted the deceased Honnappa with kuda and tala and are responsible for his death. In the meantime, accused No.3 assaulted PW6 with rod and caused grievous hurt. On scrutiny of the evidence of the material witnesses, there is not even a ray of defence that the incident had occurred under any of the exceptions of Section 300 of IPC. Even on close scrutiny of the materials on record, the offence committed by accused Nos.1 and 2 cannot be brought under Section 304 either I or II of IPC. Hence, such submission on behalf of the accused is liable to be rejected.
63. In view of the discussions held above, we are of the firm opinion that the prosecution is successful in proving the guilt of accused Nos.1 and 2 for the offences
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punishable under Section 302 of IPC and guilt of accused No.3 for the offence punishable under Section 324 of IPC but not for any other offence. But it has failed to prove the guilt of accused Nos.4, 5, 7, 8 and 9 for any of the offences alleged against them.
64. We have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. Even though the trial Court formed an opinion that all the accused have formed unlawful assembly with the common object of committing the heinous crime, they were armed with deadly weapons and committed the offence punishable under Sections 143, 147, 148, 451, 504 and 506 of IPC and held that all the accused are punishable under Section 149 of IPC. But it
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proceeded to convict accused Nos.1 and 2 only for the offence punishable under Section 302 of IPC, accused No.3 for the offence punishable under Section 307 of IPC, accused Nos.4 and 6 for the offences punishable under Sections 324 and 307 of IPC, accused No.8 for the offence punishable under Section 323 and accused No.9 for the offence punishable under Sections 324 and 307 of IPC read with Section 149 of the Code. The trial Court has lost sight of the settled proposition of law held by the Hon'ble Apex Court in DAYA KISHAN Vs. STATE OF HARYANA (supra) while invoking Section 149 of IPC. The trial Court has also lost sight of the fact that even though it is the contention of the prosecution that PW5 had sustained injury in the incident, the said contention is not
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supported by the medical evidence. It has also not considered that the overt act alleged against other accused other than accused Nos.1 and 2 has not consistently supported by any material placed before it. Under such circumstance, we are of the opinion that the trial Court has committed an error in invoking Section 149 of IPC against all the accused and convicting accused Nos.4, 5, 7 to 9 for the various offences. In that light, the impugned judgment of conviction and order of sentence is liable to be modified convicting accused Nos.1 and 2 for the offences punishable under Section 302 of IPC, accused No.3 for the offence punishable under Section 324 of IPC only and acquitting of other accused for the
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charges leveled against them. Hence, we proceed to pass the following:
ORDER Appeal Nos.100259/2017, 100256/2017, 100257/2017 and 100258/2017 are allowed in part.
The impugned judgment of conviction and order of sentence passed by the learned Principal District and Sessions Judge, Haveri in S.C.No.39/2013 dated 10.07.2017 is modified.
The judgment of conviction and order of sentence passed against accused Nos.1 and 2 for the offence punishable under Section 302 of IPC is confirmed.
Accused No.3 is convicted for the offence punishable under Section 324 of IPC and he is sentenced to undergo imprisonment which he has already undergone and to pay fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for a period of three months.
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Accused Nos.1, 2 and 3 are acquitted for all other offences.
Accused Nos.4, 5, 7 to 9 are acquitted for all the offences charged against them.
The trial Court is directed to refund the fine amount, if any, deposited by the accused, who are acquitted for the offences for which they are charged, on due identification.
Registry is directed to send back the trial Court records.
SD/-
JUDGE SD/-
JUDGE Vmb-paras 1 to 17 Kgk-paras 18 till end