Karnataka High Court
Devaraj vs State Of Karnataka By Gonibeedu P.S on 29 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.1160 OF 2018
BETWEEN:
1. DEVARAJ,
S/O VENKATEGOWDA D.M.,
AGED ABOUT 41 YEARS,
R/AT DONAGODU UDUSE VILLAGE,
GONIBEEDU HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 132.
2. D.M. VENKATEGOWDA,
S/O LATE MULLEGOWDA,
AGED ABOUT 69 YEARS,
R/AT DONAGODU UDUSE VILLAGE,
GONIBEEDU HOBLI,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 132.
3. GANGAMMA,
W/O D.M. VENKATEGOWDA,
AGED ABOUT 66 YEARS,
R/AT DONAGODU UDUSE VILLAGE,
GONIBEEDU HOBLI,
MUDIGERE TALUK,
2
CHIKKAMAGALURU DISTRICT - 577 132.
...APPELLANTS
(BY SRI N.R.KRISHNAPPA, ADVOCATE FOR A1 & R1-VIDE ORDER
DATED 27/03/2019 APPEAL DISMISSED AGAINST A2)
AND:
STATE OF KARNATAKA BY GONIBEEDU P.S.,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 132,
REPRESENT BY S.P.P.,
HIGH COURT OF KARNATAKA,
AMBEDKAR VEEDI,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO ENLARGE THE APPELLANTS ON BAIL IN
THE ABOVE APPEAL I.E., IN S.C.NO.66/2013 ON THE FILE OF I
ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC AND
SECTION 25(1)(B) AND 27(1) OF INDIAN ARMS ACT AND
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 326,324 AND 307 READ WITH 34 OF IPC AND
SECTION 30 OF INDIAN ARMS ACT AND THE
APPELLANT/ACCUSED NO.3 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 114 READ WITH 302 OF IPC AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
3
JUDGMENT
The appellant No.1 / accused No.1, who is the son of the deceased, and appellant No.3 / accused No.3, who is the mother of the deceased, filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 26.04.2018 passed in S.C.No.66/2013 on the file of the I Additional Sessions Judge, Chikkamagaluru, convicting the accused No.1 under the provisions of section 302 read with 34 of IPC and sentencing him to undergo life imprisonment and pay fine of `10,000/-, in default, to further undergo simple imprisonment for six months; further convicting the accused No.1 under the provisions of section 25(1)(B) of Arms Act and sentencing him to undergo simple imprisonment for six months and pay fine of `2,000/-, in default, to further undergo simple imprisonment for two months; further convicting accused No.1 under the provisions of section 27(1) of Arms Act and sentencing him to undergo simple imprisonment for one year and pay fine of `5,000/-, in default, to undergo simple imprisonment for three months. Appellant No.3 / accused No.3 was convicted under 4 the provisions of section 114 read with 302 of IPC and sentencing her to undergo life imprisonment and pay fine of `10,000/-, in default, to further undergo simple imprisonment for six months.
2. It is the case of the prosecution that accused No.2 Venkategowda, who is the father of accused No.1 and husband of accused No.3, had encroached the land left for constructing Samudaya Bhavana at Donagodu and put fence around the said land. On 11.2.2013 at about 8.20 a.m., the villagers came near the house of the accused persons situated at Donagodu, Uduse Village, Gonibeedu Hobli, Mudigere Taluk and questioned the act of the accused No.2. At that time, the accused No.1 brought the D.B.M.L. Gun, which was standing in the name of his father - accused No.2, without his permission. The accused persons with the common intention of committing murder by intentionally and knowingly causing the death of D.V.Jeevan, fired from the D.B.M.L. Gun and committed his murder. The accused No.2 assaulted D.K.Swamy with Kathi on his right hand and caused grievous injuries. The accused No.2 also assaulted Sudeep with 5 club on his hand and head and caused simple injuries and thereby accused are guilty of murder and causing injuries. It is further case of the prosecution that accused No.1 took possession of D.B.M.L. Gun in contravention of sections 3 and 5 of the Arms Act with intent to use the same for unlawful purpose i.e., for murdering the deceased D.V.Jeevan and accused No.2 has given his D.B.M.L. Gun to accused No.1 with intent to use the same for unlawful purpose. The accused No.3 abetted accused No.1 to commit the murder of D.V.Jeevan.
3. Based on the complaint - Ex.P1 lodged by PW.1, the jurisdictional Police conducted investigation and filed chargesheet against the accused persons for the offences punishable under sections 302, 307, 326, 324, 114 read with 34 of IPC and sections 25(1)(B)(A), 27(1) and 30 of the Arms Act and Section 201 of IPC. The matter has been committed to the learned Sessions Judge. After committal, learned Sessions Judge secured the presence of the accused persons and framed charges against the accused for the aforesaid offences and read over and explained to the accused persons in the language 6 known to them. Accused pleaded not guilty and claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined, in all, 23 witnesses as P.W.1 to P.W.23, and marked the documents as Ex.P.1 to Ex.P.30 and material objects M.Os.1 to 24. After completion of the evidence of prosecution witnesses, the statements of the accused persons, as contemplated under Section 313 of Cr.P.C., were recorded. The accused persons denied the incriminating evidence adduced by the prosecution witnesses, but not adduced any defence evidence, but marked 4 documents as Ex.D.1 to Ex.D.4.
5. Based on the aforesaid pleadings, learned Sessions Judge framed eight points for consideration, which read as under:-
1. Whether the prosecution beyond reasonable doubt proves that on 11.2.2013 at about 8.20 a.m., in front of the house of accused No.2 at Donagoodu, Uduse village, Gonibeedu Hobli, Mudigere Taluk, the accused No.1 committed murder 7 by intentionally and knowingly causing the death of D.V.Jeevan by firing with the D.B.M.L. Gun and thereby committed an offence of culpable homicide amounting to murder punishable under Section 302 read with 34 of I.P.C.?
2. Whether the prosecution further proves beyond all reasonable doubt that accused No.2 assaulted D.K.Swamy with Kathi on his right hand and caused grievous injuries and thereby committed an offence punishable under Section 326 read with 34 of I.P.C.?
3. Whether the prosecution further proves beyond all reasonable doubt that accused No.2 assaulted Sudeep with club on his hand and head and caused simple injuries and thereby committed an offence punishable under Section 324 read with 34 of I.P.C.?
4. Whether the prosecution further proves beyond all reasonable doubt that accused No.2 assaulted D.K.Swamy with Kathi on his right hand and also assaulted Sudeep with club on his hand and head with such mentioned or knowledge and under such circumstances that if by that act they had 8 caused the death of D.K.Swamy and Sudeep, they would have been guilty of murder and that the accused persons attempted to kill D.K.Swamy and Sudeep and committed an offence punishable under Section 307 read with Section 34 of I.P.C.?
5. Whether the prosecution further proves beyond all reasonable doubt that accused No.1 took possession of D.B.M.L. Gun, a fire arm, in contravention of Section 3 of the Arms Act with intent to use the same for unlawful purpose i.e., for murdering the deceased D.V.Jeevan and committed an offence punishable under Section 25(1)(B) of Arms Act?
6. Whether the prosecution further proves beyond all reasonable doubt that accused No.1 used D.B.M.L. Gun, a fire arm, in contravention of Section 5 of the Arms Act for unlawful purpose i.e., for murdering the deceased D.V.Jeevan and committed an offence punishable under Section 27(1) of Arms Act?
7. Whether the prosecution further proves beyond all reasonable doubt that accused No.2 in contravention of Section 3 of the Arms Act gave his 9 D.B.M.L. Gun, a fire arm, to his son accused No.1 with intent to use the same for unlawful purpose i.e., for murdering the deceased D.V.Jeevan and committed an offence punishable under Section 30 of Arms Act?
8. Whether the prosecution further proves beyond all reasonable doubt that accused No.3 abetted accused No.1 in consequence whereof accused No.1 committed murder of D.V.Jeevan by firing with D.B.M.L. Gun and the said offence was committed by accused No.1 in pursuance of his abetment and that accused No.3 thereby committed an offence punishable under Section 114 read with section 302 of I.P.C.?
6. Considering both the oral and documentary evidence on record, learned Sessions Judge answered all the points in the affirmative, holding that the prosecution has proved, beyond reasonable doubt, that on 11.02.2013, at about 08.20 a.m., in front of the house of accused No.2, accused No.1 committed murder of the deceased D.V.Jeevan, by firing with the D.B.M.L. Gun, thereby committed the offence punishable under the 10 provisions of section 302 read with section 34 of IPC. Further held that accused No.2 assaulted D.K.Swamy with Kathi on his right hand and caused grievous injuries and assaulted Sudeep with club on his hand and head, thereby caused simple injuries as contemplated under sections 326, 324 read with 34 of IPC. Further recorded a finding that accused No.2 assaulted both D.K.Swamy and Sudeep with Kathi and club, knowing fully well that it would cause death of the said persons, thereby committed the offence punishable under the provisions of section 307 read with section 34 of IPC. Further held that accused No.1 took possession of D.B.M.L. Gun in contravention of section 3 of the Arms Act with intent to use the same for unlawful purpose and murdering deceased D.V.Jeevan and committed the offence in contravention of section 5 of the Arms Act, thereby committed the offence punishable under section 25(1)(B) and section 27(1) of the Arms Act. Further recorded a finding that the prosecution has proved beyond reasonable doubt that accused No.2 in contravention of section 3 of the Arms Act, gave his D.B.M.L. Gun to his son - accused No.1, with intent to use the same for unlawful purpose thereby committed the offence punishable 11 under section 30 of the Arms Act and accused No.3 being the mother of accused No.1, has provoked his son thereby she is abettor of the offence punishable under section 114 read with 302 of IPC.
7. Accordingly, by the impugned judgment of conviction and order of sentence, accused No.1 was convicted under the provisions of section 302 of IPC and sentenced to undergo life imprisonment and pay fine of `10,000/-, in default, to further undergo simple imprisonment for six months; further accused No.1 was convicted under the provisions of section 25(1)(B) of Arms Act and sentenced to undergo simple imprisonment for six months and pay fine of `2,000/-, in default, to further undergo simple imprisonment for two months, and further accused No.1 was convicted under the provisions of section 27(1) of Arms Act and sentenced to undergo simple imprisonment for one year and pay fine of `5,000/-, in default, to undergo simple imprisonment for three months. Accused No.2 was convicted under the provisions of section 326 of IPC and sentenced to undergo simple imprisonment for eight months and pay fine of `5,000/-, 12 in default, to undergo simple imprisonment for three months; further Accused No.2 was convicted under the provisions of section 324 of IPC and sentenced to pay fine of `2,000/-, in default, to undergo simple imprisonment for two months; further Accused No.2 was convicted under the provisions of section 307 of IPC and sentenced to undergo simple imprisonment for two years and pay fine of `10,000/-, in default, to undergo simple imprisonment for six months; and Accused No.2 was convicted under the provisions of section 30 of the Arms Act and sentenced to undergo simple imprisonment for three months and pay fine of `1,000/-, in default, to undergo simple imprisonment for one month. Accused No.3 was convicted under the provisions of section 114 read with section 302 of IPC and sentenced to undergo life imprisonment and pay fine of `10,000/-, in default, to further undergo simple imprisonment for six months. Hence, the accused have filed the present criminal appeal.
8. During the pendency of the present appeal, this Court by order dated 27.03.2019, on the memo dated 13 08.02.2019, on the submission made by the learned counsel for the appellants that the appellant No.2 / accused No.2 has served the sentence passed by the Trial Court and already released. Therefore, the appeal does not survive for consideration so far as appellant No.2 / accused No.2 is concerned. Accordingly, appeal came to be dismissed as not pressed as against appellant No.2 /accused No.2.
9. We have heard learned counsel for the parties.
10. Sri.N.R.Krishnappa, learned counsel for the appellants contended with vehemence that the impugned judgment of conviction and order of sentence convicting the accused to undergo rigorous imprisonment for life with fine for the offences punishable under the provisions of Sections 302, 326, 324, 307 read with Section 34 of IPC and Section 25(1)(B)(A), Section 30 of the Arms Act, and Section 114 read with Section 302 of IPC, is erroneous, contrary to the material on record and cannot be sustained, liable to be set aside. 14
11. It is further contended that, obviously, there is no material against accused Nos.1 and 3. In the absence of any material, the trial Court ought not to have convicted accused Nos.1 and 3 being the son and aged old mother. He further contended that the material contradictions and discrepancies in the depositions made by PW.1 to PW.3 as they took inconsistent stand before the trial Court contradicting their own statements before the respondent-police. On this ground also the impugned order passed by the learned Session Judge is liable to be set aside.
12. It is further contended that the trial Court erred in convicting the accused on the collaborative evidence of PW.1 who is the elder brother of the deceased and who is an interested witness, whose depositions cannot be relied upon. When the accused assaulted PW.2 and PW.3, who sustained injuries, their evidence was corroborated, which is illegal, without application of mind. He further contended that the learned Session Judge erred in recording a finding that PW.2, PW.3 and PW.7, who took the deceased to the hospital, had seen 15 the injuries of the deceased, are without any basis. He further contended that the deceased and others came to the house of the accused persons and threw stones, thereby provoked the accused persons. Ex.P2-the Spot Mahazar discloses that the person who came to the house of the accused persons threw stones and destroyed the car window glasses of the accused. Therefore, the unfortunate incident occurred due to sudden provocation without any premeditation. It is further contended that the trial Court framed a defective charge against accused No.3 when the large number of people gathered at the house of the accused persons in order to protect themselves. They might have used self defence. Thereby, the impugned judgment of conviction passed by the trial Court convicting the accused Nos.1 and 3 under the provisions of Section 302 of IPC and other provisions read with the Arms Act, cannot be sustained. At its utmost, the case clearly falls under the provisions of Section 304 Part II of IPC.
13. It is further contended that, obviously, there is no material against accused No.3, who is the aged mother of 16 accused No.1. At the time of the incident, she was aged about 60 years and now, she is 70 years old. There is absolutely no whisper in the evidence of the prosecution witnesses against her. In the absence of any overt-acts against accused No.3, the punishment imposed on accused No.3 cannot be sustained. Therefore, he sought to allow the appeal.
14. In support of his contentions, Sri. N.R.Krishnappa, learned counsel for the appellants, relied upon the following dictums of the Hon'ble Supreme Court:
a) In the case of State of Karnataka vs. Shivashankar reported in (1978) 1 SCC Online Kar 9 at paragraph-8, to the effect that, no doubt, even if the accused did not plead for self defense, it is open to the Court to consider such plea if the prosecution evidence would support it. In this case, it is true that accused in his statement under Section 313 of Cr.P.C., did not take the plea of self-
defence; but necessary basis for that plea was led in the cross-examination of the prosecution witnesses. Accused No.3-the mother, who is aged mother, can be discharged 17 by showing preponderance of probabilities in favour of that plea on the basis of the materials on record.
b) In the case of Surendra & Anr. V. State of Maharashtra reported in AIR 2006 SC 3063 (paragraphs-36 and 38), wherein the Hon'ble Supreme Court held that exceeding right of private defence, the deceased being aggressor cannot be ruled out, thereby, the Hon'ble Supreme Court held, guilty of commission of offence under the provisions of Section 304, Part I and not under Section 302 read with Section 34 of IPC.
c) In the case of Surendra Singh @ Bittu v. State of Uttaranchal reported in AIR 2006 SC 1920, to the effect that, cattle belonging to the accused had damaged standing crops of deceased whereupon hot exchanges of words and scuffle ensured, accused thereafter upon being instigated by his brother alleged to have fired gun shot which hit deceased resulting into his death no damage of crop by cattle was shown in site plan, nor witnesses said to have proved actual genesis of occurrence only one shot was fired and accused was not apprehended at spot. It 18 cannot be said that accused had an intention to kill deceased. Where the Hon'ble Supreme Court held that the Fourth exception to Section 300, attracted, Conviction of accused under Section 302 altered to one under Section 304, Part-II.
15. Per contra, Sri.K.Nageshwarappa, learned High Court Government Pleader for the respondent, while justifying the impugned judgment of conviction and order of sentence passed by the trial Court, contended that PW.2-Swamy and PW.3- Sandeesha sustained injuries which are in the nature of simple injuries in view of the attack made by the accused No.2. Accused No.1, who used a gunshot on the deceased, was deliberately involved in the death of the deceased. The material on record clearly depicts that the gun belonged to accused No.2, which was used by accused No.1 without the permission of his father, accused No.2, accused No.3 brought Kathi, thereby, they were involved in the homicidal death of the deceased. The trial Court after considering both the oral and documentary evidence on record, has rightly come to the conclusion that the 19 prosecution proved, beyond all reasonable doubt, that accused Nos.1 to 3 were involved in the homicidal death of the deceased. Therefore, the trial Court was justified in convicting the accused Nos. 1 to 3 for the offences punishable under the provisions of Sections 302, 326, 324, 307 read with Section 34 of IPC and Section 25(1)(B)(A), Section 30 of the Arms Act, and Section 114 read with Section 302 of IPC. Therefore, he sought to dismiss the appeal.
16. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration are:
(i) Whether the accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offence punishable under Section 302 of the Indian Penal Code?
(ii) Whether the learned Sessions Judge is justified in convicting the accused No.3 for 20 the offence punishable under Section 114 read with Section 302 of the Indian Penal Code, in the facts and circumstances of the present case?
17. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material, including original records, carefully.
18. This Court being the First Appellate Court, in order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon:-
a) PW.1 - D.V.Biligowda, the complainant and relative of the deceased, has deposed that on 10.02.2013 at about 7.00 p.m., a panchayath was convened at Venkataramana Temple of Donagodu Village in respect of accused Nos.1 and 2 encroaching on the land reserved for Samudaya Bhavana and to evict the accused from the said land. The accused did not participate in the panchayathi. The Panchayathdar decided to ask the accused on the next day 21 morning and requested all the villagers to assemble at 7.00 a.m. near the site. On 11.02.2013 at about 7.30 a.m., they gathered at the site of Samudaya Bhavana.
C.W.2 to 15 came near the site of Samudaya Bhavana. The accused Nos.1 and 2 about the encroachment of the site of Samudaya Bhavana. The accused told them to come near the thrashing floor and went away. The villagers, after two minutes, gathered on the thrashing floor of the accused. The accused No.1 brought the gun, accused No.2 brought the club and accused No.3 brought kathi from their house. C.W.1 Sudeesha asked accused Nos.1 and 2 as to why they brought gun and club. The accused No.2 assaulted Sudeesha with club on his head and hands, due to which Sudeesha become unconscious and went by the side of gathering. Then D.K.Swamy came. The accused No.2 snatched chopper from accused No.3 and assaulted on the right fore arm of Swamy. Then the deceased Jeevan went towards the accused. The accused No.3 abated accused No.1. The accused No.3 abetted accused No.1. The accused No.1 on the 22 abatement of accused No.3 fired on the deceased Jeevan's left chest from the distance of 10-15 feet. He fell down. The accused No.1 tried to shoot on PW.1, but it was not fired. The accused No.1 become angry and hit the gun to the gate and it was broken. The accused No.2 put stone on the head of Jeevan. Thereafter, the deceased was brought to the hospital who died on the way to the Hospital, thereby, he has supported the case of the prosecution.
b) PW.2 - D.K.Swamy, the injured in the incident, has deposed that on 10.02.2013 a panchayath was convened about the encroachment of the site by the accused and the villagers gathered at the site of Samudaya Bhavana of Venkataramana Temple. Since the accused was not participated in the panchayathi, the villagers gathered at the spot. He deposed on far with the accused No.1 and supported the case of the prosecution.
c) PW.3-Sudeesha, another injured person in the incident, has deposed on par with PW.1 to PW.2 and supported the case of the prosecution.
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d) PW.4-D.B.Manjegowda, PW.5-Lokesha, PW.12-Madhu, were the eye-witnesses to the incident, who deposed before the Court that about 1½ years back at 6.00 p.m, villagers gathered near the site of Samudaya Bhavana of Venkataramana Temple Samudaya Bhavana. The accused asked them to come near their thrashing floor. The accused came with gun, club and chopper. Accused No.2 assaulted PW.3 with club head and try to assault with chopper on the neck of PW.2. Accused No.1 under the instigation of accused No.3 fired on the chest of Jeevan, he fell down. Accused No.2 smashed the head of Jeevan with stone, Jeevan died at the spot, thereby, he supported the case of the prosecution.
e) PW.6-G.Sharath, the circumstantial witness, he is the owner of the car who took the injured and Jeevan to hospital from Donugodu. According to him, on 10.02.2013, he went to Dharmasthala along with his family. He came back to Donugudu at about 10.30 or 11.00 p.m. in the night and stayed at coffee estate. On 11.02.2013 in between 8-15 and 8.20 a.m., he heard the 24 sound of gun shot, he came out of the house. People were crying and running. One Devaraju told him about the incident. He Biligowda and Udaya took Jeevan to hospital, Jeevan was lying in front of the house of accused No.2. He has sustained gun shot on the left chest. He brought the injured Sudeepa, Swamy and Jeevan to Mudigere Hospital. The doctors were on strike. One nurse tested Jeevan and declared as dead. They left Jeevan at Mudigere hospital and took Sudeepa and Swamy to Holly cross hospital, Chikkamagaluru and supported the case of the prosecution.
f) PW.7-Kusuma is the wife of the deceased Jeevan. She came to the spot after the incident. She along with Shobha, Biligowda and Udaya took her husband. Swamy and Sudeepa to Mudigere hospital in the car of Sharath. He further deposed that the Doctors were on strike. One nurse examined her husband and declared him dead. She fell unconscious and supported the case of the prosecution.
g) PW.8-Shivakumar, the author of the report/complaint, deposed that about 2 years ago, at 10.a.m., he was near 25 the police station in Gonibeedu. C.W.1 came near him and told him that his brother was murdered and he had to give a complaint and give one white paper to him. C.W.1 narrated the incident. He has written the complaint and handed it over to P.W.1, who lodged the complaint and supported the case of the prosecution.
h) PW.9- Venkatesha, the spot mahazar witness, where the Investigating Officer seized the gun, cloth, stone, one pair of slippers, and towel and supported the case of the prosecution.
i) PW.10 - Indira, the sister of the deceased-Jeevan, who came to the hospital after receiving the report of the incident and supported the case of the prosecution.
j) PW.11 - Yashwanth B.M., the witness of inquest mahazar-
Ex.P5 and supported the case of the prosecution.
k) PW.13 - Somashekar K.S., the P.D.O. of Kiragunda Village Panchayath, has issued the house assessment extract of the house of accused No.2 and supported the case of the prosecution.
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l) PW.14 - Nanjundaiah, the Assistant Engineer of P.W. Department, who visited the spot as per the request of Investigating Officer and prepared the sketch of the spot, sent to the Investigating Officer, thereby, he supported the case of the prosecution.
m) PW.15 - Dr. Vishwanath, the Doctor-cum-Assistant Professor of Forensic Science, HIMS, Hassan, who has conducted the post mortem on the dead body of Jeevan at Medical College Mortuary room from 5.00 p.m. to 7.30 p.m. and found the lacerated wound on fore head measuring 2 x 2 c.m., abrasion measuring 1 x 0.5 c.m., gun shot injury on left chest measuring 0.6 c.m, abrasion injury on the left chest measuring 4.5 c.m. x 1.5 c.m., circular injury on the ribs measuring 1.3 c.m., circular injury measuring 0.6 c.m., on left shoulder, circular injury measuring 1.5 c.m. on left shoulder and it was on the left elbow and metal pieces were found inside the chest. Blood was clotted in the brain. There was linier fracture on head. He collected viscera and sent them to FSL for examination. Further he deposed that the injuries found on the body had 27 to be sustained due to the gunshot of muscle loading the gun with stone. Thereby, he supported the case of the prosecution.
n) PW.16 - N.S.Yogendrachari, the Head Constable of Gonibeedu Police Station, who has transmitted the clothes, gun and other articles seized during investigation to F.S.L., Bengaluru and supported the case of the prosecution.
o) PW.17 - A.C.Niyath, the Doctor, who provided first aid to Sudeepa and deposed that Sudeepa sustained a lacerated wound on his left fore head and swelling near his right elbow. The said injuries are simple in nature. He examined one Swamy and he Swam sustained a lacerated wound on his right hand and the bone was fractured. He has given first aid to Swamy. The said injuries are grievous in nature. He further deposed that the injuries might have been caused due to the assault made with M.O.16 club and supported the case of the prosecution.
p) PW.18 - Revanna, the PSI of Gonibeedu police Station and deposed that he has received the report and registered the 28 case against the accused and supported the case of the prosecution.
q) PW.19 - Omkaranaika, who had escorted the dead body of the deceased-Jeevan
r) PW.20 - B.C.Ravindra, the Assistant Director, F.S.L., Madivala, Bengaluru, deposed that Article No.9 is one broken butt and firing mechanism of DBML Gun. It is a country made fire arm. It is not possible to test fire because it is broken. The holes present in article No.1- shirt have been caused due to the impact and passage of the bullet. The approximate range of firing of the gun shot was present on the front left region of the shirt and the front outer aspect of the left shoulder joint is beyond 12 feet and within 30 feet and supported the case of the prosecution.
s) PW.21 - R.Ramesh, the Investigating Officer in this case and deposed that he took up the further investigation from PSI of Gonibeedu Police Station and visited to M.G.M.Hospital, Mudigere, where he conducted an inquest mahazar in the presence of panchas. On the same day, he 29 had sent the body for Post Mortem Examination to Hassan Medical Collage. After the investigation, he has filed a charge sheet against the accused persons.
t) PW.22 - V.Yashwanth, the Deputy Commissioner, deposed that he has verified the entire records of this case sent by the S.P., Chikkamagaluru. Accused No.1-Devaraju has violated the provisions of Arms Act and fired from the muscle loading gun, which belongs to his father-accused No.2. According to the documents, the length of the muscle loading gun is 48 inches and barrel length is 31 inches. Mudigere Taluk, Magistrate has issued the licence to accused No.2 under licence No.GLA/40/80-81/RL-39 and he has issued permission to submit a charge sheet under the Arms Act and supported the case of the prosecution.
u) PW.23 - Sajayid Ahmad, the Second Division Clerk, D.C.Office, Chikkamagaluru and deposed that accused No.2 has obtained licence form the Taluk Magistrate during 1980-81 for muscle loading double barrel gun and supported the case of the prosecution.
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19. The gist of the complaint was that accused No.2- Venkategowda had encroached on the land left for the construction of Samudaya Bhavana at Donagodu and put a fence around the said land. On 11.02.2013 at about 8.20 a.m., the villagers came near the house of the accused person and questioned the act of accused No.2. At that time, accused No.1 brought the D.B.M.L. gun, which was registered in the name of his father without his permission. The accused persons, with the common intention of committing murder by intentionally and knowingly causing the death of D.V.Jeevan, fired from the gun and committed his murder. Accused No.2 assaulted PW.2- D.K.Swamy with a chopper on his right hand and caused grievous injuries as stated by PW.17-the Doctor. Accused No.2 also assaulted PW.3-Sandeep with a club on his hand and head, who sustained simple injuries.
Based on the aforesaid materials on record, the Police registered a case in Crime No.11/2013 for the offences punishable under Sections 302, 326, 324, 307 read with Section 34 of IPC and Section 25(1)(B)(A), Section 30 of the Arms Act, 31 and Section 114 read with Section 302 of IPC, After investigation, the investigating officer filed a charge sheet against the accused persons for the above said offences.
20. Despite the fact that the accused in section 313 Cr.P.C. statement have denied all incriminating evidence presented by prosecution witnesses, they have not raised any specific defence of self-defence. The accused persons have taken a specific defence in the cross-examination of P.W.1- Biligouda that about 40 to 45 villagers gathered in front of the house of the accused persons and tried to trespass into their house, pelted stones on the window glass, main door and car glass. The said suggestion was denied by P.W.1. He further denied the suggestion that the gun shot was fired when scuffle took place among the villagers who had gathered in front of the house of accused. Further, to the suggestion that the villagers damaged the car glass, window glass of the house and the door, P.W.1 deposed he has not seen. He further denied that, when the accused persons encroached the prime area in the village which was reserved for construction of Samudaya Bhavana, the 32 villagers formed unlawful assembly, went to the house of the accused persons and tried to attack them. He further denied the suggestion that the window glass and door of the house, and glasses of the car belonging to the accused, and the asbestos sheets and roof tiles of the house of the accused were destroyed by the villagers. P.W.1 further denied the suggestion that the accused No.1 did not possess gun, accused No.2 did not possess the club and accused No.3 did not possess katthi at the time of the incident and deposed that he has not verified whether after one gun shot whether there was one more round of ammunition in the gun.
21. P.W.2-D.K.Swamy, who is the injured person at the hands of accused No.2 in the incident, deposed that the villagers gathered and conducted a panchayath with regard to encroachment of the land made by accused No.2 which was reserved for construction Samudaya Bhavana and deposed that he is not aware whether P.W.3 sustained any serious injuries. He further deposed in the cross-examination that whatever he 33 has deposed in the examination-in-chief that on 10.02.2013 villagers gathered near Samudaya Bhavana and there was a panchayath is true, but he does not remember whether he has stated the same before the police or not. He denied the suggestion that all the villagers went to the house of the accused along with deceased Jeevan, P.W.2-Swamy, P.W.3-Sudheesha and called accused Nos.1 and 2 for discussion. When accused Nos.1 and 2 came out of the house with gun and club, when the villagers questioned as to why they are equipped with weapons, accused persons attacked the deceased and other villagers.
22. It is true that the accused persons in their statement recorded under Section 313 of the Code of Criminal procedure, have not taken the plea of private defence, but necessary basis for that plea has been laid in the cross-examination of prosecution witnesses. It is well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing the said plea is, no doubt, on the accused persons and that burden can be discharged by showing 34 preponderance of probabilities in favour of that plea on the basis of material on record.
23. In the cross-examination of prosecution witnesses, the accused persons have taken the self defence. Thereby the accused persons tried to prove that the alleged incident happened in the process of self defense to protect themselves, when large number of villagers gathered in front of their house and destroyed the car glass, window glasses of the house and the main door. Thereby, in a sudden provocation, without there being any determination, the unfortunate incident occurred.
24. Our view is fortified by the dictum of the co-ordinate Bench of this Court in the case of State of Karnataka vs. Shivashankar reported in (1978)1 SCC Online Kar 9, wherein, at paragraph-8, it is held as under:
8. No doubt even if the accused did not plead for self-defence, it is open to the Court to consider such plea if the prosecution evidence would support it. In this case, it is true that the accused in his statement 35 under S.313 Crl. PC did not take the plea of self-
defence; but necessary basis for that plea was led in the cross-examination of the prosecution witnesses. The burden of establishing that plea, no doubt, is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the materials on record. If we examine the background of this case leading to the incident, it is quite clear that Channegowda and others, who had accompanied him that morning up to the place of incident, had something up their sleeves. As soon as the accused came near the College, the fight started between Channegowda and the accused. Why the fight started, it is difficult to postulate in this case. It may be that the incident that happened on the morning of 4-3-76 had provoked Channegowda and his friends to deal with the accused in that fashion. At any rate, there is no evidence that the accused himself had any pre- planned idea of attacking Chermegowda. If that would be so, he would not have selected the College premises to attack Channegowda when he (Channegowda) was in the company of his friends of whom, one or two perhaps were armed with weapons. Even according to the prosecution, the accused did not, at the first instance, attack 36 Channegowda with any deadly weapon during the course of the fight between Channegowda and the accused. Even if the evidence of these witnesses is accepted that the accused later took the extreme course by giving a decisive blow on Channegowda, the situation perhaps was such. In all probability his life was in danger and at any rate there could not be any doubt that the accused would have been dealt with severely by Channegowda and his party. The accused was menaced with five persons and that had necessarily made the accused to defend himself and in doing so, if he had used the weapon like MO.3 and inflicted a decisive blow, it would constitute a case of necessary self-defence. In taking out the life of a person on the plea of self-defence four cardinal conditions must exist: firstly, the accused must be free from fault in bringing about the encounter; secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; thirdly, there must be no safe or reasonable mode of escape by retreat; and fourthly, there must have been a necessity for taking life. 37
25. It is also not in dispute that it is the specific case of the prosecution that accused No.2-D.M.Venkategowda, had encroached the land reserved for construction of Samudaya Bhavan and had put up fence around the land. Therefore, the villagers, decided to have panchayath and called accused Nos.1 and 2 for the said panchayath. Since the accused persons did not turn up for the panchayath, the villagers, around 40 to 50 persons, went to the house of accused persons and it is the case of the defense that the villagers pelted stones and damaged the window glass, main door and glasses of the car, due to which, there was scuffle between the villagers and accused persons. In the above circumstances, the fact that the villagers were aggressors cannot be ruled out. Thereby, the accused persons, in order to protect themselves, used gun-M.O.3, chopper-M.O.9, club-M.O.16. The situation was not such that the accused could reasonably apprehend the death. But they exceeded their right of private defence in using more force upon the deceased that was necessary. Thereby, accused persons involved in homicidal death of the deceased was due to sudden provocation and not intended.
38
26. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Surendra v. State of Maharashtra, reported in (2006) 11 SCC 434, at paragraphs 36 and 38, it is held as under:
36. The possibility of PW 3 and the deceased being aggressors must be judged from the admission made by PW 3 that they intended to kill Appellant 1. As has been noticed hereinbefore, the statements of the prosecution witnesses in regard to the genesis of occurrence and the presence of the prosecution witnesses at different stages are not uniform. It is, therefore, a case where it is likely that a sudden fight between the parties erupted which would attract Section 304 of the Penal Code and not Section 302 thereof. It is also a case where an inference can safely be drawn that the blows were initially not hurled on the deceased by the appellants. They did so at a later stage. But, Appellant 1 suffered minor injuries. He had not been able to show that the situation was such that he could reasonably apprehend his death. They have exceeded their right of private defence in using more force upon the deceased than was necessary.39
38. For the reasons aforementioned, we are of the opinion that the conviction of the appellants under Section 302 read with Section 34 of the Penal Code cannot be sustained. They are held guilty for commission of an offence under Part I, Section 304 of the Penal Code. They are directed to suffer rigorous imprisonment for a period of 10 years. The conviction and sentence imposed on them under Section 324 read with Section 34 is, however, upheld. The sentences, however, shall run concurrently. This appeal is, thus, allowed in part and to the extent mentioned hereinbefore.
27. It is also not in dispute that due to the fact that the father of accused No.1 and husband of accused No.3 encroached the land reserved for constructing a Samudaya Bhavana, the villagers gathered in large numbers and went to the house of accused persons where, exchange of words and scuffle took place. The accused No.1 upon being instigated by his mother accused No.3, alleged to have fired gun shot which hit D.V.Jeevan, resulting in his death. Only one bullet was fired and the accused was apprehended at the spot. It cannot be said that 40 the accused had any intention to kill the deceased. Thereby, Exception 4 to Section 300 of the Indian Penal Code attracts and the impugned conviction under Section 302 of the Indian Penal Code has to be modified to Section 304 Part I of the Indian Penal Code.
28. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Surendra Singh alias Bittu vs. State of Uttaranchal, reported in AIR 2006 SC 1920, wherein, at paragraphs 13 to 18, it is held as under:
13. In view of the acquittal of Trilok Singh and Rajendra Singh, the genesis of the occurrence cannot be said to have been proved. The appellant, according to the prosecution case itself, did not act on his own. He is said to have acted on impulse and that too upon being instigated by his brother. From the evidence of PW 1 and PW 2, it is evident that not only there had been hot exchange of words, but also a scuffle. The learned trial Judge did not fully rely upon the evidence of PW 2. Thus, there was no witness who can be said to have proved the actual genesis of the occurrence.41
14. The parties have their own agricultural lands adjoining each other. The prosecution case is that the cattle belonging to the appellant had damaged the standing crops of the deceased, but the investigating officer did not find any evidence in this behalf. Why then there had been hot exchange of words and a scuffle ensued is not known. Only one shot was fired. The appellant was not apprehended at the spot. In a situation of this nature, therefore, we are of the opinion that it cannot be said that the appellant had an intention to kill the deceased.
15. In Jalaram v. State of Rajasthan [(2005) 13 SCC 347 : (2006) 2 SCC (Cri) 202] this Court, in a case where there had been a dispute as regards the right of way, held: (SCC p. 351, paras 13-14) "13. The right of way on the agricultural land belonging to Sonaram has not been established. If there was no established right of way by way of easement or otherwise and if there had been an apprehension in the minds of the accused that there was a threat of trespass in their land, indisputably they could exercise their right of private defence. In any 42 event, such an apprehension on the part of the appellant and other accused persons cannot be ruled out.
14. We have noticed hereinbefore, that the only blow which was hurled by the appellant herein was on the forehead of the deceased.
The genesis of the occurrence appears also not to have been disclosed by the prosecution. It is not the case of the prosecution that the appellant herein and the other accused persons had been nurturing any grudge against the deceased or the informant from before or had any motive to commit the aforementioned offence. Any motive on the part of the appellant and the other accused persons for hiding themselves near the place of occurrence and committing the offence has not been established. It is, thus, difficult to accept that part of the prosecution case."
16. In that view of the matter, we are of the opinion that the offence, which is established as against the appellant herein, would fall under Section 304 Part II IPC and not under Section 302 IPC.
43
17. We, therefore, modify the conviction of the appellant as falling under the Fourth Exception to Section 300 IPC being of the opinion that the appellant has caused the death of the deceased without having any intention therefor. The appellant is, therefore, found guilty of commission of an offence under Section 304 Part II IPC.
18. We are, further, of the opinion that keeping in view the facts and circumstances of this case, interests of justice would be subserved if the appellant is sentenced to undergo sentence of seven years' rigorous imprisonment and also pay a fine of Rs 5000, in default of payment whereof, to undergo further six months' simple imprisonment. We direct that the fine of Rs 5000, if realised, may be paid to PW 1 Madan Singh.
29. The Hon'ble Supreme Court, while considering the provisions of Section 27 of the Arms Act, 1959, in the case of Surinder Singh vs. State (Union Territory of Chandigarh), reported in 2021 SCC Online SC 1135, at paragraphs 30 and 35, held as under:
44
30. The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27, without proving the misdemeanour under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial.
45
35. Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:
[ a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.
b. Even though the factum of injury may not have a direct bearing on a conviction under Section 307 IPC, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 IPC, 46 but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.
c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post-incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.
d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the 47 present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.
e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction.
30. The Hon'ble Supreme Court while considering Sections 96, 97 and Exception 2 to Section 300 of the Indian Penal Code, in the case of Suresh Singhal vs. State (Delhi Administration) reported in (2017)2 SCC 737, held that, a person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is 48 attempted or upon being directly threatened. In the present case, the accused have been put to such a situation that they undoubtedly exceeded the power given to them by law in order to defend themselves. But exercise of the right was in good faith, in their own defence and without premeditation and the unfortunate incident occurred. Thereby homicidal death in the present case does not amount to murder in the view of Exception 4 to Section 300 of the Indian Penal Code. The homicidal death was not the result of premeditation but rather, as the evidence suggests, the shooting took place in a sudden fight in the heat of passion. Thereby, in the peculiar facts and circumstances of the case and the findings recorded by the learned Sessions Judge, the incident homicidal death falls under Exception 4 to Section 300 of the Indian Penal Code and it does not amounts to murder. Thereby, accused Nos.1 and 3 have to be convicted under Section 304 Part I of the Indian Penal Code.
31. The Hon'ble Supreme Court in the case of Suresh Singhal vs. State (Delhi Administration) reported in 49 (2017)2 SCC 737 supra, at pargraphs 25, 27, 28 and 32, held as under:
25. We have no doubt that the appellant exceeded the power given to him by law in order to defend himself but we are of the view that the exercise of the right was in good faith, in his own defence and without premeditation. In this regard, it would be apposite to reproduce the observation of the Sessions Court which is as follows:
"Since I feel that the prosecution witnesses are hiding something at the introduction stage of the story, I will not impute a prior concert or intention to the accused. I have no doubt that tempers got fayed at the spot itself and whatever happened was not a result of prior meeting of minds amongst the accused persons."
27. The homicide in the present case thus does not amount to murder in the view of Exception 2 to Section 300 IPC [ "Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of 50 the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."] . We agree with the observations of the Sessions Court and the High Court that the homicide was not the result of premeditation but rather, as the evidence suggests, the shooting took place in a sudden fight in the heat of passion. It is not possible to accept the argument of the prosecution that the appellant took undue advantage of the situation and used the gun even though the deceased Shyam Sunder and his brothers were unarmed. Given the murderous assault on the appellant and the possibility of being attacked again, may be with arms or may be with the help of the other persons, it is not possible to attribute undue advantage to have been taken by the appellant. In such a situation it would be unrealistic to expect the appellant to calmly assess who would have the upper hand before exercising his right of private defence.
28. In the circumstances of the case and the findings of the Sessions Court and the High Court, we find that the homicide falls within Exception 4 to Section 300 IPC [ 51 "Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."] and does not amount to murder.
32. In these circumstances, we are of the view that Suresh Singhal is undoubtedly guilty of causing death to Shyam Sunder with the intention of causing death or of causing such bodily injury as is likely to cause death and therefore guilty of the offence under Section 304 IPC. We are informed that the appellant has already undergone a sentence of 13½ years as on date. We thus sentence him to the period already undergone.
32. On re-appreciation of the entire material on record, the complainant and other villagers including the deceased are aggressors who went in front of the house of accused persons to question regarding the encroachment of the land reserved for Samudaya Bhavana, by accused No.2, during which, scuffle took place. Therefore, it is clear case of scuffle between the parties. Thereby, the accused No.1 used the gun belonging to his father- 52 accused No.2 for self protection and to control large number of gatherings of the villagers who pelted stones on the car glass, window glass of the house and the door. Thereby, in order to protect themselves, in a sudden provocation without any premeditation, the alleged incident has happened. Therefore, the learned Sessions Judge was not justified in passing the impugned judgment of conviction and order of sentence.
33. The material on record though clearly depicts that though accused persons exceeded their power using gun, the fact remains that the villagers including the deceased and other large number of villagers gathered in front of the house of accused and thereby the unfortunate incident occurred due to sudden provocation. Thereby, the accused persons have taken self defence.
34. It is true that accused persons in their statements recorded under Section 313 of the Code of Criminal Procedure, have not taken the plea of private defence. But necessary basis 53 for that plea has been laid down in the cross-examination of prosecution witnesses. It is well settled that even if the accused does not plead self defence, it is open for the Court to consider such a plea if the same arises from the material on record. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Munshi Ram and others vs. Delhi Administration reported in AIR 1968 SC 702. In the present case, learned counsel for the accused raised the specific ground of self defence. It is permissible for the accused to raise the plea of self defence at the stage of appeal as is settled legal position that even if the accused does not plead self defence, it is open for the Court to consider such plea if the same is raised from the material on record. Thereby, case of the accused persons falls under Section 304 Part I of the Indian Penal Code.
35. On careful perusal of the entire material on record, it is clear that the prosecution witnesses have only deposed that accused No.3 was holding M.O.9-katthi in her hand, and no witness has deposed accused No.3 used M.O.9 during the 54 scuffle. It has come in the evidence that, accused No.2 snatched the katthi from the hands of accused No.3 and assaulted P.W.2 who sustained grievous injuries and also assaulted P.W.3 who sustained simple injuries. Thereby, accused No.2 was also convicted along with accused No.1 by the learned Sessions Judge for the offence punishable under Section 326 and 324 of the Indian Penal Code and during pendency of the appeal, a memo came to be filed by the learned counsel for accused No.2 that accused No.2 has already undergone the punishment imposed by the Trial Court and thereby, the Criminal Appeal against accused No.2 came to be dismissed as not pressed, by the Order dated 27.03.2019.
36. On meticulous consideration of the entire material on record, there is nothing against accused No.3 who was aged about 60 years at the time of the incident and now 70 years and there is no overt acts or evidence against her. The learned Sessions Judge is not justified in convicting accused No.3. The material on record depicts that accused No.3 has been falsely 55 implicated as she was holding a katthi in her hand and instigated accused No.1. There is no recovery by the I.O at the instance of accused No.3 and there is no evidence against accused No.3 that she was involved in the homicidal death of the deceased. In the absence of the same, considering the age and mitigating circumstances the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge against accused No.3 who is aged about 70 years is liable to be set-aside.
37. For the reasons stated above, the first point raised for consideration in the present appeal has to be answered partly in the affirmative holding that the accused No.1 has made out a case to interfere with the impugned judgment of conviction convicting him for the offence punishable under Section 302 of the Indian Penal Code and the same has to be modified into offence punishable under Section 304 Part I of the Indian Penal Code. The second point raised for consideration is answered in the negative holding that the learned Sessions Judge is not justified in convicting the accused No.3 for the offence 56 punishable under Section 114 r/w Section 302 of the Indian Penal Code.
38. For the reasons stated above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 26.04.2018 made in Sessions Case No.66/2013 on the file of the I Additional Sessions Judge, Chikkamagaluru, convicting the accused No.1 for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of `10,000/-(Rupees Ten thousand only), in default to undergo simple imprisonment for a period of six months, is hereby modified.
(iii) The Accused No.1 is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of ten years and to pay 57 fine of `1,00,000/-(Rupees one lakh only), in default, to undergo simple imprisonment for a period of 2½ years.
(iv) The impugned judgment of conviction convicting the accused No.1 for offence punishable under Section 25(1)(B) of the Indian Arms Act, 1959, and sentencing him to undergo simple imprisonment for six months and to pay fine of `2,000/- (Rupees two thousand only) in default to undergo simple imprisonment for a period of two months, is confirmed.
(v) The impugned judgment of conviction convicting the accused No.1 for the offence
punishable under Section 27(1) of the Indian Arms Act, 1959 and sentencing him to undergo simple imprisonment for one year and to pay fine of `5,000/- (Rupees five thousand only), in default to undergo simple imprisonment for a period of three months, is confirmed.
(vi) All the sentences shall run concurrently.58
(vii) Accused No.1 is entitled to set off under Section 428 of the Code of Criminal Procedure.
(viii) The impugned judgment of conviction convicting the accused No.3 for the offence punishable under Section 114 read with Section 302 of the Indian Penal Code and sentencing her to undergo imprisonment for life and to pay fine of `10,000/-(Rupees ten thousand only), in default, to undergo simple imprisonment for a period of six months, is set-aside.
(ix) The accused No.3 is acquitted for the offence punishable under Section 114 read with Section 302 of the Indian Penal Code.
(x) In view of Section 357(3) of the Code of Criminal Procedure, out of the fine amount `1,07,000/-(Rupees one lakh seven thousand only), `1,05,000/- (Rupees one lakh five thousand only) shall be paid to P.W.7-Kusuma, wife of deceased D.V.Jeevan, on proper identification. Remaining amount of `2,000/- (Rupees two thousand only) shall vest with the State towards defraying expenses.59
(xi) The bail bonds, if any, executed by accused No.3 shall stand cancelled.
(xii) The Registry is directed to return the Trial Court Records.
Sd/-
JUDGE Sd/-
JUDGE BSS/KTY/KCM