Karnataka High Court
State Of Karnataka vs Mr. Ganesha on 31 May, 2023
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CRL.A No. 924/2019
C/w CRL.A No. 1218/2019
CRL.A No. 1517/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 924/2019 (C)
C/w
CRIMINAL APPEAL NO. 1218/2019 (C)
CRIMINAL APPEAL NO. 1517/2019 (A)
CRL.A.No.924/2019:
BETWEEN:
GANESHA
S/O HANUMANTHAPPA
AGED ABOUT 23 YEARS
STUDENT/ STUDYING LL.B
R/AT DOGGALLI VILLAGE
HARIHARA TALUK
Digitally DAVANAGERE DISTRICT-577 601 ...APPELLANT
signed by A K
CHANDRIKA
Location: High
(BY SRI P.B.UMESH FOR SRI R.B.DESHPANDE, ADVOCATES)
Court of
Karnataka
CRL.A.No.1218/2019:
BETWEEN:
1. BASAVARAJAPPA
S/O LATE SIDDALINGAPPA
AGED ABOUT 43 YEARS
OCC: AGRICULTURIST
R/AT DOGGALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT-577 601
2. MARUTHI
S/O LATE CHANNAPPA
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CRL.A No. 924/2019
C/w CRL.A No. 1218/2019
CRL.A No. 1517/2019
AGED ABOUT 28 YEARS
OCC: AGRICULTURIST
R/AT DOGGALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT-577 601 ...APPELLANTS
(BY SRI C.H.JADHAV, SENIOR COUNSEL FOR
SRI CHETAN JADHAV, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HARIHARA RURAL POLICE STATION
HARIHARA CIRCLE
DAVANAGERE DISTRICT - 577 601
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560 001 ... RESPONDENT
(COMMON)
(BY SRI SHANKAR H S, HCGP)
CRIMINAL APPEAL NO.924/2019 AND CRIMINAL APPEAL
NO.1218/2019 ARE FILED UNDER SECTION 374(2) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 09/10.05.2019 PASSED BY
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAVANAGERE IN S.C.NO.85/2017 - CONVICTING ACCUSED NO.3
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 324, 323,
504, 506 R/W 149 OF IPC AND IN S.C.NO.43/2017 CONVICTING
ACCUSED NOS.1 AND 2 FOR THE OFFENCE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 324, 323, 504, 506 R/W 149
OF IPC RESPECTIVELY.
CRL.A.No.1517/2019:
BETWEEN:
STATE OF KARNATAKA
BY RURAL POLICE, HARIHARA
DAVANAGERE DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560 001 ...APPELLANT
(BY SRI SHANKAR H S, HCGP)
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CRL.A No. 924/2019
C/w CRL.A No. 1218/2019
CRL.A No. 1517/2019
AND:
MR.GANESHA
S/O HANUMANTHAPPA
AGED ABOUT 24 YEARS
AGRICULTURIST
R/at DOGGALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT-577 601 ...RESPONDENT
(BY SRI P B UMESH FOR SRI R B DESHPANDE, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 09/10.05.2019 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN
S.C.NO.85/2017 - ACQUITTING ACCUSED NO.3 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals arise out of the common judgment and order of conviction of sentence in S.C.No.85/2017 and S.C.No.43/2017 passed by the I Additional District & Sessions Judge, Davanagere.
2. The appellants in Crl.A.No.1218/2019 are accused Nos.1 and 2 in S.C.No.43/2017 and the appellant in Crl.A.No.924/2019 was accused No.3 in S.C.No.85/2017 (a split up case) before the trial Court. In addition to that, there were four more accused ranked as accused Nos.4 to 7 in S.C.No.43/2017. For the purpose convenience, the parties -4- CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 will be referred to henceforth according to their ranks before the trial Court.
3. Accused Nos.1 and 4 are full brothers. Accused Nos.3 and 5 are son and wife of accused No.4. Accused No.7 is the wife of accused No.1. Accused No.6 is the mother of accused No.2. PW.1 the complainant and PW.4 are the brothers of the victim Siddappa. PW.3 is the son of PW.4. PW.12 is the wife of the deceased Siddappa. PW.11 is the brother of PW.12. Bheemappa the father of PWs.1 and 4 and Siddalingappa the father of accused Nos.1 and 4 were full brothers. There were property disputes between the accused party and the complainant party.
4. The case of the prosecution is as follows:
On 29.08.2016 at 8.00 a.m. when the deceased Siddappa, PWs.2 to 4 and their servant PWs.5 and 8 were engaged in agricultural operations, accused Nos.1 to 3 attempted to breach the bund of canal to divert the water to their lands. When Siddappa resisted that, the accused being the members of unlawful assembly with common object of committing his murder, accused No.1 fisted on his chest, accused No.3 assaulted on his legs with spade MO.1 and -5- CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 accused No.2 throttled Siddappa and committed his murder. The other accused abetted accused Nos.1 to 3 to commit his murder. PWs.1 to 4 shifted the victim to Bapuji Hospital, Davanagere where he was declared brought dead. In the same hospital PW.10 treated the injured PWs.3 and 4 and issued wound certificate Exs.P17 and P18.
5. Regarding the incident, PW.1 filed the complaint as per Ex.P1 before PW.16. Based on such complaint, PW.16 registered first information report as per Ex.P25 against the accused and handed over further investigation to PW.17. PW.17 conducted the investigation and filed the charge sheet.
6. Initially, accused No.3 could not be secured. Therefore learned Magistrate showing him as absconding accused split up case against him and committed the case only against accused Nos.1, 2, 4 to 7 to the Sessions Court. The Sessions Court registered the said case in S.C.No.43/2017. After securing the presence of accused No.3, learned Magistrate committed the case against him to the Sessions Court and the Sessions Court registered the case in S.C.No.85/2017.
-6-CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
7. The trial Court consolidated both the cases and on hearing the parties framed the charges against accused Nos.1 to 7 for the offences punishable under Sections 504, 323, 324, 506, 302, 447, 109 read with Section 149 of IPC. Since the accused denied the charges and claimed trial, the trial was conducted. In support of the case of the prosecution, PWs.1 to 18 were examined and Exs.P1 to P39 and MOs.1 to 12 were marked. After their examination under Section 313 of Cr.P.C., the accused neither filed any defence statement nor led any defence evidence. However, during cross-examination of the prosecution witnesses, they got marked Exs.D1 to D6 the portion of the statements of PWs.3, 4, 5, 8 and 11.
8. The trial Court on hearing the parties by the impugned judgment and order acquitted accused Nos.4 to 7 of all the charges. Further the trial Court convicted accused Nos.1 and 2 for the offences punishable under Sections 323, 324, 302, 504, 506 read with Section 149 of IPC. The trial Court convicted accused No.3 for the offences punishable under Sections 323, 324, 504, 506 read with Section 149 of IPC and acquitted him of the charge for the offence -7- CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 punishable under Section 302 of IPC. The trial Court sentenced the convicted accused to various terms of imprisonment and fine as per the table below:
Sl. Offences Fine Default
No. Punishable Imprisonment amount sentence
under Section in Rs.
1 302 R/W Life 25,000/- Simple
Sec.149 of IPC imprisonment imprisonment
(A1 and A2) of six months
2 324 read with Simple 5,000/- Simple
149 of IPC imprisonment of imprisonment
(A1 to A3) one year of three
months
3 323 read with Simple 1,000/- Simple
149 of IPC imprisonment of imprisonment
(A1 to A3) six months of two
months
4 506 read with Simple 5,000/- Simple
149 of IPC imprisonment of imprisonment
(A1 to A3) one year of three
months
5 504 read with Simple 1,000/- Simple
149 of IPC imprisonment of imprisonment
(A.1 to A3) six months of two
months
9. Aggrieved by acquittal of accused No.3 of the charge for the offence punishable under Section 302 of IPC, the State has preferred Crl.A.No.1517/2019. Challenging the order of conviction and sentence, accused Nos.1 and 2 have preferred Crl.A.No.1218/2019 and accused No.3 has preferred Crl.A.No.924/2019.
10. The trial Court held that PWs.3 and 4 are injured eyewitnesses and their evidence was further corroborated by -8- CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 the evidence of PWs.2, 5 and 8 the other eyewitnesses. It was held that the evidence of those witnesses were further corroborated by the medical evidence and the evidence of other witnesses.
11. So far as accused No.3, the trial Court held that he assaulted the victim on left foot which is not vital part of the body, therefore it can be said that accused No.3 had no intention to commit murder. Thus acquitted him of the charge for the offence punishable under Section 302 of IPC and convicted him of the offences punishable under Sections 323, 324 of IPC along with other offences.
Submissions of Sri C.H.Jadhav, learned Senior Counsel appearing for Sri Chethan Jadhav, learned Counsel on record for the appellants in Crl.A.No.1218/2019 and Sri Ravindra Deshpande, learned Counsel on record for the appellant in Crl.A.No.924/2019
12. There is inordinate delay in filing the complaint and delivering the FIR to the jurisdictional Court which is not satisfactorily explained. PW.1 was not eyewitness to the incident. Though property dispute was claimed to be the motive for murder, the prosecution witnesses themselves admitted that there was a family partition under a registered partition deed in the year 2002. Therefore the motive -9- CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 circumstance fails. PWs.1 to 4 are all close blood relatives of the deceased and they had enmity towards accused. Therefore, they are all interested witnesses. The alleged eyewitnesses namely PWs.5 and 8 during evidence did not claim that they were eyewitnesses. Having regard to the relationship of PWs.1 to 4 inter se and the enmity between them and the accused party, their evidence needed corroboration. But PWs.5 and 8 did not corroborate the evidence. Even according to the prosecution, they were in all six persons including the deceased at the side of the complainant party, whereas the accused were only three persons. Therefore it could not have been difficult for them to overpower accused Nos.1 to 3 and rescue the deceased. But their conduct of not rescuing the deceased makes their presence at the scene of offence doubtful. Even PWs.3 and 4 suffering injuries also becomes doubtful. The conduct of the complainant party falsely implicating accused Nos.1 to 7 goes to show that they had bent upon the mind to implicate accused Nos.1 to 3 falsely. According to the prosecution quarrel took place when accused Nos.1 to 3 trespassed into the land of the complainant party and tried to divert water from the channel situated in the land of the complainant
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 party. But the evidence on record shows that the accused party had independent irrigation source for their land. Therefore that motive circumstance also fails. The trial Court despite acquitting accused Nos. 4 to 7, convicted accused Nos.1 to 3 for the offence punishable under Section 149 of IPC which is apparently illegal. The evidence on record does not show that there was unlawful assembly much less the assembly armed with deadly weapons to commit the offence against the deceased Siddappa, PWs.3 and 4. The trial Court has failed to appreciate the evidence on record in proper perspective. The impugned judgment and order of conviction and sentence of accused Nos.1 to 3 is erroneous and liable to be set aside.
13. In support of his submissions, Sri C.H.Jadhav, learned Senior Counsel relies on the following judgments:
(i) Thulia Kali Vs The State of Tamil Nadu1
(ii) Ganesh Bhavan Patel and Another Vs State of Maharashtra2
(iii) Md. Jabbar Ali and Others Vs State of Assam3 Submissions of Sri H.S.Shankar, learned HCGP:
14. The evidence of PWs.1 to 4 coupled with Exs.P34 and 35 clearly show that there were land disputes between 1 (1972) 3 SCC 393 2 (1978) 4 SCC 371 3 2022 SCC Online SC 1440
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 the accused party and the complainant party. Exs.P34 and 35 show that challenging the alleged partition deed of the year 2002, the complainant party had filed O.S.No.419/2015 and O.S.No.280/2015. Therefore the circumstance of motive stood established. Though PW.1 was not eyewitness, the evidence of PWs.2 to 4 show that they were all engaged in agricultural operations at the scene of offence. Out of them PWs.3 and 4 were injured in the said fight. The said evidence was further corroborated by the evidence of PWs.2, 5 and 8 and the medical evidence of the doctor PW.10 who had no reasons to create any documents regarding the injuries suffered by PWs.3 and 5. Therefore their evidence has to be accepted. The evidence of PWs.2 to 5 and 8 was consistent and cogent with regard to the presence of accused Nos.1 to 3 and the victim at the scene of offence and accused Nos.1 to 3 assaulting the deceased, PWs.3 and 4 and committing the murder of the victim Siddappa. Having regard to such evidence and the facts and circumstance of the case delay in filing the complaint cannot be blown out of proportion. The first concern of the victim would be to get medical aid for the victims. As per the evidence of the prosecution witnesses, first they took the victim to Bapuji Hospital, Davanagere,
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 then they filed the complaint. Such conduct and consequent delay are natural. The evidence of other injured eyewitnesses, medical evidence and other eyewitnesses clearly show that accused Nos.1 to 3 shared common intention to commit murder of Siddappa. In executing such intention accused No.1 fisted on the chest of the victim, accused No.2 throttled him by hands and accused No.3 assaulted him with spade on his legs. The trial Court though accepted sharing of common intention with reference to the case under Sections 323, 324, 506 of IPC exonerated him of such intention only with regard to the offence punishable under Section 302 of IPC which is apparently illegal. The order of conviction and sentence so far it relates to the accused Nos.1 and 2 is based on sound appreciation of the evidence on record and the applicable law. Therefore the same does not warrant interference of this Court. The judgment and the order of conviction and sentence has to be modified only to the extent of acquittal of accused No.3 of the offence punishable under Section 302 of IPC. Thus he seeks allowing the said appeal and dismissal of the appeals of the appellants.
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
15. In support of his submissions, he relies on the judgment of the Hon'ble Supreme Court in M.Nageswara Reddy Vs The State of Andhra Pradesh and others4.
16. We have thoroughly considered the submissions of both side and examined the evidence on record. On such consideration of the submissions and evaluation of the evidence, the points that arise for consideration are:
(i) Whether the impugned judgment and order of conviction and sentence passed against accused Nos.1 and 2 is sustainable?
(ii) Whether the trial Court was justified in convicting accused No.3 only for the offences punishable under Sections 323, 324, 504 and 506 read with Section 149 of IPC and acquitting him of the charge under Section 302 of IPC?
Analysis:
17. Without much repetition, it can be stated that the accused party and the complainant party were closely related to each other. According to the prosecution, accused Nos.1 to 3 picked up quarrel with the deceased Siddappa on 29.08.2016 at 10.00 a.m. regarding drawing of the water from channel and in the background of property dispute. It is 4 (2022) 5 SCC 791
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 the further case of the prosecution that accused No.1 fisted on the chest of Siddappa, accused No.3 assaulted Siddappa with MO.1 spade on his left toes, accused No.2 throttled him and committed his murder. It is the further case of the prosecution that when the victim raised alarm, PWs.2 to 4 tried to intervene. At that time, accused No.2 assaulted PW.3 with spade and caused him injury. Accused No.3 assaulted PW.4 by his hand and caused him hurt. The case of the prosecution is based on the following:
(i) Circumstance of motive;
(ii) The evidence of PWs.3 and 4 the injured
eyewitnesses;
(iii) The evidence of eyewitnesses PWs.2, 5 and 8;
(iv) The medical evidence; &
(v) The evidence of official witnesses
Reg. Motive:
18. The complaint as well as evidence of PWs.1 to 4 and even the tenor of cross-examination of the witnesses by defence Counsel clearly show that Siddalingappa father of accused Nos.1 and 4 and Bheemappa father of PWs.1 and 4 were full brothers. Their evidence goes to show that Bheemappa was given in adoption to his uncle. According to
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 PWs.1 to 4 Siddalingappa and the accused behind the back of the complainant party and their father got their names mutated to the properties of the complainant party and questioning that they had filed the suit in O.S.No.419/2015 and O.S.No.280/2015. The contention of learned Counsel for the appellants/accused is that the witnesses admitted that there was partition in the year 2002, therefore the contention that there was property dispute cannot be accepted.
19. Ex.P34 is the copy of the plaint in O.S.No.419/2015 on the file of the Principal Civil Judge, Davanagere and the order sheet. Ex.P35 is the copy of plaint and order sheet in O.S.No.280/2015 on the file of the Principal Civil Judge and JMFC, Harihar. The suit before Davanagere Court related to the property bearing Sy.No.270 of Doddabathi Village measuring 12 acres 8 guntas. The suit in O.S No.280/2015 pertained to the residential house and vacant site situated within the limits of Hanagavani Grampanchayath. The perusal of the both cases show that in those cases the complainant party has sought declaration that the partition deed of the year 2002 referred by the appellants' Counsel does not bind them and they have questioned the validity of the same. The accused have not
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 disputed Exs.P34 and 35. Therefore there is no merit in the contention that the moment there was a partition in 2002, the motive circumstances fails. PWs.1 to 4 consistently deposed that the accused were irked by the demand of complainant party for properties and litigations raised by them and were proclaiming that if one person of the complainant party is eliminated, they get subdued. The aforesaid evidence were not impeached. Thus motive circumstances was proved.
Reg. Assault on Siddappa and PW.3:
20. According to the prosecution, the incident took place in the land bearing Sy.No.44 situated within Doggalli village limits/Harihara Rural police station limits. The victim Siddappa suffering the injuries and immediate death thereafter is not disputed in the cross-examination of the prosecution witnesses. So far as the place of offence, the accused themselves suggested to the prosecution witnesses that it was black soiled land and was not accessible to the vehicle.
21. So far as cause of injury, in the defence the accused put forth two theories. One is that Siddappa was
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 wayward and he was squandering the family properties being fed up with that, PWs.1, 3 and 4 themselves assaulted him causing him injuries in the land. It was further suggested in the evidence of PW.1 that consequent to the assault, he had fallen in the land, on seeing that PW.4 started crying. Therefore PW.3 tried to rush in his bike to fetch an auto- rickshaw to shift the injured Siddappa, in that process he had a skid and suffered injuries.
22. It was further suggested that PWs.2 and 4 tried to shift the injured Siddappa on another motorcycle, accused Nos.1 and 2 also assisted them in placing injured Siddappa on the motorcycle. Thereafter when PWs.2 and 4 were trying to take him to hospital on motorcycle, all of them fell down and the legs of the victim Siddappa were dragged on the ground which consisted of some hard substances like pebbles and glasses that's how he suffered the injures on his left leg. This version in the cross-examination itself shows that the accused admitted the injuries suffered by PWs.3 and 4 and the victim. Therefore by such cross-examination itself the presence of PWs.2 to 4 at the scene of offence was probabilised. That was further corroborated by the evidence
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 of PW.10 the doctor who treated PWs.3 and 4 in Bapuji hospital and issued the wound certificate Exs.P17 and P18.
23. PW.10 deposed that while he was serving as Casualty Medical Officer in Bapuji hospital on 29.09.2016 at 3 p.m. he examined PWs.3 and 4 who were brought to him with a history of assault by accused Nos.1 to 3. He further deposed that he examined those injured and on the requisition of Investigating Officer issued the wound certificate Exs.P17 and P18. According to him PW.3 Kiran Kumar had suffered the following injuries:
i) Abrasion over the post. aspect of right elbow 4 x 2 cm.
ii) Contusion over the lateral aspect of right upper arm 4x3 cm.
iii) Abrasion over the medial side of left foot 2 x 1 cm.
24. So far as PW.4 he deposed that there were no external injuries on him, but he was complaining pain on the nape of the neck, chest and back ache and the said injuries were simple in nature. In the cross-examination of this witness except the suggestion that due to political pressure he had issued Exs.P17 and 18 the false records which he denied nothing was elicited to disbelieve his evidence. An omnibus submission was made to the effect that Bapuji
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 hospital to which the deceased and the injured PWs.3 and 4 were taken was run by a political person, therefore it has to be assumed that the documents are concocted due to some political pressure.
25. Referring to para No.28 to the evidence of PW.1 it was contended that PW.11 the scribe of the complaint was close relative of the deceased and his relatives in turn were the Mayor and the Corporator of Davanagere Municipal Corporation and thus political pressure was exerted. But PW.1 pleaded his ignorance about such relations of PW.11 or their political positions. Curiously such suggestions were not put forth to PW.11 himself. The evidence of PW.10 shows that prior to Bapuji hospital he served as a Senior Medical Officer in Government Hospital, Honnalli. The said evidence was not disputed. He was an independent medical expert. There was nothing to show that he had come under anybody's influence to issue certificate Exs.P17 and 18 regarding PWs.3 and 4. Therefore the contention that PWs.3 and 4 were not the eyewitnesses and false certificates were issued regarding their injuries fail. In such event their presence at the scene of offence stood probabilised.
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
26. The evidence of PWs.3 and 4 further shows that PW.2 was also eyewitness to the incident. According to the prosecution, the evidence of PWs.2 to 4, 5 and 8 show that they were engaged in planting paddy seedlings. The incident took place in August that is a rainy season. The spot mahazar Ex.P3 shows that the land where the incident took place had no grown up crop, there was only wild grass in the land. Even Ex.P2 the RTC relating to Sy.No.44 where the incident took place for the year 2016-17 shows that land measured 24 acres 32 guntas and there was no crop in the land. According to PWs.2 to 4, 5 and 8 they were working in different parts of the said land. According to the evidence of PWs.2 to 4, 5 and 8 the accused first assaulted Siddappa and on listening to the commotion they rushed towards him. By the time they reached him, he was throttled by accused No.2. Since they were working in different parts of the land, it certainly requires some time for them to reach the victim. As per their evidence, accused Nos.1 to 3 surrounded and assaulted Siddappa. According to PWs.2 and 4 on they intervening, accused Nos.1 to 3 assaulted PWs.2 and 3. Under such circumstances the contention that, if PWs.2 to 4 really were eyewitnesses they could have overpowered accused Nos.1 to
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 3 who were few in number and rescued Siddappa, cannot be countenanced.
27. Considering all the facts and circumstances, the trial Court rightly held that there was no reason to disbelieve the evidence of PWs.3 and 4 the injured eyewitnesses and their evidence was further corroborated by the evidence of PWs.2, 5 and 8 which in turn corroborated by the evidence by the medical Officer PW.10.
28. Then the question is whether the act of accused Nos.1 to 3 constitutes an offence under Section 302 IPC?. PWs.2 to 4 deposed that Siddappa was not breathing, but under the hope that he may survive they shifted him to the hospital. PW.5 states that after the incident Siddappa had fallen in the channel, PW.4 poured the water in his mouth but Siddappa was unconscious. Later she came to know that the Siddappa died. Similarly PW.8 also deposes that after the accused assaulting Siddappa they went there and Siddappa was breathless. Therefore they went back to their village.
29. PW.14 the doctor who conducted the postmortem examination in J.J.M Medical College, Davanagere deposes that he conducted postmortem examination on the dead
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 body of Siddappa on 29.08.2016 at 3.30 p.m to 4.30 p.m. He deposed that he found the following ante mortem injuries on the dead body:
a. Cut laceration wound on the plantar aspect of left grate toe measuring 3 x 1 x 0.5 cm deep and fresh. b. Abrasion of dorsal aspect of 2nd toe measuring 4 x 1 cm on distal part.
c. Abrasion on dorsal aspect of left 3rd toe on distal part measuring 3 x 1 cm.
d. Contusion on the left chest of 5 x 4 x 0.5 cm measuring 3 cm from sternal notch and 3 cm from left nipple.
e. Nail scratch mark on chest of 0.5 x 0.5 cm measuring 2 cm from sternal notch.
f. Contusion on right side of the neck of 1 x 1 cm, 2 cm from tip of the thyroid cartilage. It is description was on dissection of the neck, contusion was seen in the right sternocidomastrid muscle of 2 x 1 cm corresponding to level of cartoid body. On dissection of cartoid blood vessels, haemorrage of cartoid body could be made out. The thyroid and hyoid bone sent to Pathology for fracture confirmation.
30. PW.14 deposed that on conducting postmortem examination he issued postmortem report Ex.P20 and on receiving the histopathology report Ex.P22 he issued final opinion as per Ex.P21.
31. His evidence and the aforesaid records show that the injuries on the neck could be caused by assault viz., pressing the neck by hand. He opined that the death was due to Vaso-vagal shock due to the injury to right carotid structure as a result of fatal pressure on the right side of the
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 neck. Nothing was elicited in the cross-examination of PW.14 that the death was due to injury caused to carotid structure, as a result of fatal ante mortem pressure on the neck. The theory that the victim suffered injury while he was being shifted from the scene of offence is already overruled.
32. The aforesaid facts and circumstances and discussion show that the death was due to the injury inflicted by accused No.2 on the neck by throttling him. After acquitting accused Nos.4 to 7, the charges under Section 149 IPC which is an act of five or more members forming an unlawful assembly does not survive at all. It is true that the trial Court applied Section 149 IPC without due application of mind to the provision of Sections 143 and 149 of IPC. Therefore the next question is whether accused Nos.1 to 3 shared the common intention in assaulting Siddappa?.
33. The trial Court relying on the same evidence convicted accused No.3 for the offences punishable under Sections 323, 324, 504, 506 IPC imputing him common intention with accused Nos.1 and 2. But only for the offence under Section 302 of IPC the trial Court exonerates him of sharing common intention which is inherently erroneous. The
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 evidence of the injured eyewitness and other witnesses coupled with the other evidence on record lead to the only irreversible conclusion that accused No.3 shared the common intention with accused Nos.1 and 2 in committing his murder by throttling him.
34. We are conscious of the fact that in an appeal against acquittal the scope of interference is limited. But the above discussion and the evidence on record go to show that the trial Court has acted contrary to the evidence on record in acquitting accused No.3 of the charge for the offence punishable under Section 302 IPC.
35. Ex.P25 the FIR shows that PW.1 filed the complaint in Harihara Rural Police Station on 29.08.2016 at 13.15 hours/1.15 pm. The incident took place between 10.00 and 10.20 a.m. As per the prosecution the incident took place at 10.00 a.m. The distance between the police station and scene of offence as shown in column No.4 Ex.P25 was 9 k.m. The FIR was delivered to the Court on 29.08.2016 at 9 p.m. The evidence of PWs.1 to 4 show that PW.2 telephonically informed PW.1 about the incident, he fetched an auto rickshaw to the scene of the offence and in that the victims were shifted to the hospital.
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
36. So far as delay in filing the complaint, the evidence of PWs.1 to 4 shows that they were hoping that the victim could be saved. Therefore their first concern was to take him to hospital and get him the medical aid. The evidence of PWs.1 to 4 shows that they were hoping that they could save the victim by taking him to the hospital. Thus they took him to the Bapuji hospital at Davanagere. It was argued that such conduct of PWs.1 to 4 is unnatural as they had to cross the hospital at Harihar and the police station Bathi and Harihar before reaching Davanagere, therefore at least PWs.2 to 4, or anyone of them could have filed the complaint either in Bathi police station or Harihara police station and the victim could have been taken to the hospital at Harihara. The evidence on record shows that Siddappa was unconscious and they were apprehending a serious risk to his life. Therefore they shifting him to major hospital at Davanagare instead of taking him to some small hospital enroute does not create any doubt about their conduct in taking him to Davanagere hospital. Similarly the concern of PWs.1 to 4 was first to get the victim treated and to see that he would be saved. Therefore anyone amongst them not going to file complaint in the police station which was nearer
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 to them also cannot be accepted more particularly when PWs.3 and 4 were also injured. More over there was no such inordinate delay in filing the complaint.
37. PW.1 deposes that he did not find the deceased breathing, hoping that he may survive shifted him in the same auto rickshaw to Davanagere hospital. After taking the victim to the Davanagere hospital, where he was declared dead, PW.1 goes back to Harihara Rural police station and files the complaint. Therefore his return journey to Harihara certainly takes time. As per Ex.P25 the complaint was filed at 1.15 p.m. that includes the time occupied by PW.1 in his journey to Harihara. Of course there was some delay in delivering FIR to the Court. The trial Court rightly took such delay into consideration and held that probably such delay has caused the implication of accused Nos.4 to 7 the other family members, therefore gave a margin to that in acquitting accused Nos.4 to 7.
38. So far as accused Nos.1 to 3 the evidence of the injured eyewitnesses and other eyewitnesses was consistent and did inspire the confidence of the trial Court and even of this Court. Considering the facts and circumstances of the present case and facts of the cases in Thulia Kali's case,
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 Ganesh Bhavana Patel's case and Md. Jabbar Ali's case suffice it to say that the said judgments cannot be justifiably applied to the present case.
39. In M.Nageswara Reddy's case the similar allegation of causing delay in registering the FIR and delivering the same to the Court for planting the eyewitness was rejected, holding that evidence of the injured eyewitnesses carries due weight. In the light of the facts and circumstances, evidence discussed above and the judgment in M. Nageswara Reddy's case is applicable to the facts of the present case.
40. At this stage Sri C.H Jadhav, learned Senior Counsel submits that it was accused No.2 who alone throttled. Even the trial Court says that the incident took place in the spur of moment. Therefore it cannot be said that accused No.2 had any intention to commit murder and accused Nos.1 to 3 shared such intention. The evidence on record shows that there were property disputes between the parties. Much prior to the incident, the complainant party had approached the civil Court in the year 2015 itself. It has come in the evidence of PWs.1 to 4 that the accused were proclaiming in the village that the complainant party are
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 troubling them, therefore if one of them is eliminated they get subdued. When the matter is pending before the civil Court, accused Nos.1 to 3 had no business to go the disputed land and indulge in physical violence. Even assuming that accused Nos.1 to 3 themselves were in possession of the land and complainant party themselves went there and picked up quarrel, the conduct of the law abiding person is to go to the police station and file a complaint against them or seek relief in civil Court.
41. Accused No.1 was aged 41 years at the time of offence. When accused No.2 indulged into scuffle with the deceased and was throttling him, accused Nos.1 and 3 could have intervened sensing the risk. The evidence on record show that accused No.2 throttled the victim till he was dead. Neither accused Nos.1 and 3 on seeing such incident fled away nor tried to avert the untoward incident. That goes to show that they have shared the intention of accused No.2 in committing murder of deceased. Therefore the submission of learned Senior Counsel deserves no merit. Since accused Nos.1 to 3 held to be sharing the common intention the conviction for the offence punishable under Section 109 IPC does not sustain.
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CRL.A No. 924/2019C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
42. For the aforesaid reason, accused Nos.1 to 3 are liable to be convicted for the offences punishable under Section 323, 324, 302, 504, 506 read with Section 34 IPC. The impugned judgment and order requires to be modified accordingly. Hence the following:
ORDER Crl.A.No.924/2019 and Crl.A.No.1218/2019 are hereby dismissed. Crl.A.No.1517/2019 is allowed.
The impugned judgment and order of conviction and sentence so far it relates to accused No.3 is modified as follows:
Accused No.3 is convicted for the offences punishable under Section 323, 324, 302, 504, 506 read with Section 34 IPC. The order of the trial Court with regard to disposal of the properties is maintained. Accused No.3 shall be present before the Court on 05.06.2023 for hearing on sentence.
List on 05.06.2023.
Sd/-
JUDGE Sd/-
JUDGE KSR,PKN List No.: 1 Sl No.: 3
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C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 KSMJ & RDHJ:
05.06.2023 ORDER ON SENTENCE Accused No. 3 is present before the Court. He is duly identified by his Counsel. Learned Counsel for accused No.3 submits that accused No.3 is young in age, he has dependant parents and has no other criminal antecedents. Considering the same, lenient view may be taken.
The minimum punishment prescribed for the offence punishable under Section 302 of IPC is imprisonment for life. There is no scope for exercising any discretion to impose punishment lesser than that. Considering the age of accused No.3, his social and economic background, if he is sentenced to imprisonment of life and fine, interest of justice would be met. Hence the following:
ORDER For the offence punishable under Section 302 read with Section 34 of IPC, accused No.3 is hereby sentenced to life imprisonment and fine of Rs.25,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of six months. The sentence of imprisonment passed by the trial
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C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 Court against him with reference to the other offences is maintained.
The trial Court shall issue modified conviction warrant accordingly. Accused No.3 shall surrender before the trial Court within two weeks.
At this stage, learned Counsel for accused No.3 submits application under Section 482 of Cr.P.C. seeking to stay the order of conviction and sentence passed by this Court. Learned HCGP seriously opposes the application.
Accused No.3 is sentenced to life imprisonment for the offence punishable under Section 302 read with Section 34 of IPC. Apart from that, the records show that he had not appeared before the trial Court, forcing the trial Court to register split up case against him. He has not undergone single day of detention. Having regard to the gravity of the offences and conduct of accused No.3 and other materials on record, it is not a fit case to grant stay/suspend the sentence. Hence the application is rejected.
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C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019 Registry shall furnish free copy of the judgment to accused No.3 and communicate this order to the trial Court.
Sd/-
JUDGE Sd/-
JUDGE KSR