Ganapathi Hanuma Naik vs The State Of Karnataka
2022 Latest Caselaw 4850 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 16TH DAY OF MARCH, 2022

                           PRESENT

   THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                             AND

           THE HON'BLE MR. JUSTICE S. RACHAIAH

             CRIMINAL APPEAL NO.100265/2020


BETWEEN:
1 . GANAPATHI HANUMA NAIK
AGE: 52 YEARS,
OCC: FOREST WATCHMEN,

2 . PRASAD GANAPATI NAIK
AGE: 26 YEARS,
OCC: GOUNDI WORK,

3 . PAVAN GANAPATI NAIK
AGE: 24 YEARS,
OCC: ELECTRICIAN,

ALL ARE R/O: KANGOD,
SIDDAPUR TALUK,
UTTARA KANNADA DISTRICT.
                                         .. APPELLANTS
(BY SRI. B. ANWAR BASHA, ADV.)

AND:

THE STATE OF KARNATAKA
(THROUGH SIDDAPUR P.S.),
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA AT DHARWAD.
                                        .. RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
                                      Crl.A. No.100265/2020

                            2


     THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION DATED 20/11/2019 AND SENTENCE DATED 21/11/2019
PASSED IN S.C. NO.5016/2018 PASSED BY THE IST ADDL. DISTRICT
AND SESSIONS JUDGE, KARWAR SITTING AT SIRSI AND TO ACQUIT
THE APPELLANTS/ACCUSED NO.1 TO 3 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302, 307, 504 R/W 34 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING AND RESERVED
ON   23.02.2022  AT  DHARWAD   BENCH,  COMING ON FOR
PRONOUNCEMENT OF JUDGMENT BEFORE THE PRINCIPAL BENCH AT
BENGALURU, THIS DAY,   DR.H.B.PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:

                         JUDGMENT

The present appellants have challenged their conviction

for the offences punishable under Sections 302, 307 and

504 read with Section 34 of the Indian Penal Code

(hereinafter for brevity referred to as 'IPC') and order on

sentence passed by the learned I Additional District and

Sessions Judge, U.K. Karwar, sitting at Sirsi (hereinafter for

brevity referred to as 'Session Judge's Court') by its

judgment of conviction dated 20.11.2019 and order on

sentence dated 21.11.2019 in S.C. No.5016/2018.

2. The summary of the case of the prosecution is

that accused No.1 is father of accused Nos.2, 3 and 4.

PW-2(CW-15) Kannappa Maryappa Naik is their relative.

There was a property dispute between the accused and PW-

Crl.A. No.100265/2020

2 regarding the vacant space situated between their

houses. There were frequent quarrels between PW-2 and

the accused over the said property. On the date

14.02.2018, at about 11:00pm, accused Nos.1 to 4 in

furtherance of their common intention came to the house of

PW-2, abused him and inmates in the house in filthy

language regarding the property dispute. Accused Nos.1 to

3 held PW-2 firmly and at that time, accused No.4 assaulted

Ravi-son of PW-2 with a sickle with an intention to murder

him. At that time, wife of PW-2 by name Smt. Renuka

attempted to rescue her son but the blow from the sickle

held by accused No.4 fell on her right hand and the said

hand was amputated. Accused No.4 assaulted said Renuka

with the same sickle on her neck, as a result of such blows,

said Renuka, the wife of PW-2 suffered fatal injuries and

died on the spot. Accused No.4 also assaulted PW-2 with

an intention to murder him with the sickle on his head and

caused grievous injuries to him. By that time, on hearing

the commotion, the neighbouring residents gathered at the

spot. On seeing them, the accused persons left the spot Crl.A. No.100265/2020

leaving behind the sickle and a club. Injured PW-2 and his

son-Ravi were shifted to the Government Hospital,

Siddapura in an ambulance. Said Ravi also expired without

responding to the treatment in the hospital at Srisi. The

Police Sub-Inspector of Siddapura Police Station and

Inspector of Siddapur Police Station, after coming to know

about the incident, rushed to the spot, made efforts to

obtain complaint from neighbouring residents but nobody

came forward to file a complaint. Then PSI of Siddapura

Police Station went to Aalalli village in Sagara taluka and

woke up the married daughter of PW-2 and informed them

regarding the tragic incident and brought them to Siddapura

Police Station wherein PW.1(CW.1)-Smt.Sudha, the

daughter of PW-2 lodged a complaint against the accused

which was registered in the respondent Police Station Crime

No.38/2018 against the accused for the offences punishable

under Sections 302, 307 and 504 read with Section 34 of

IPC. The Police after conducting investigation, filed charge

sheet against the accused for the alleged offences.

Crl.A. No.100265/2020

3. Since the accused pleaded not guilty, the trial

was held wherein in order to prove the alleged guilt against

the accused, the prosecution got examined seventeen

witnesses from PW.1 to PW.17 and got marked sixty seven

documents from Exs.P-1 to P.67 and material objects

M.Os.1 to 14. Statement of the accused under Section 313

of Criminal Procedure Code was recorded. On accused's

side, six witnesses were examined from DW.1 to DW.6 and

four documents were marked as exhibits from Exs.D-1 to D-

4.

4. After hearing both sides, the trial Court by its

impugned judgment dated 20.11.2019 convicted the

accused for the offences punishable under Sections 302,

307 and 504 of IPC and by its order on sentence dated

21.11.2019 sentenced accused Nos.1 to 4 to undergo life

imprisonment and to pay a fine of `25,000/- each for the

offence punishable under Section 302 read with Section 34

of IPC, in default of payment of fine, to undergo simple

imprisonment for a period of three months.

                                                  Crl.A. No.100265/2020




     5.      The         respondent/complainant                 is       being

represented        by    the    learned        Additional   State        Public

Prosecutor.

6. The trial court records were called for and the

same are placed before this Court.

7. Heard the arguments from both side. Perused

the material placed before this Court.

8. The points that arise for our consideration are:

i) Whether the prosecution has proved beyond reasonable doubt that, on the date 14.02.2018 at about 11:00pm, accused Nos.1 to 4 in furtherance of their common intention came to the house of PW-2- Kannappa Maryappa Naik at Kaanagodu village within the limits of the complainant Police Station, picked up quarrel with him and his deceased son Ravi, abused them in filthy language, insulted them and thereby gave provocation knowing it to be likely that such provocation will cause them to break the public peace and thereby have committed the offence punishable under Section 504 read with Section 34 of IPC?

ii) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, accused No.4 in furtherance of common intention of all the accused, assaulted PW-2 Crl.A. No.100265/2020

with the sickle on his neck with an intention to murder him which resulted in PW-2 sustaining grievous injuries and thereby has committed an offence punishable under Section 307 read with Section 34 of IPC?

iii) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, accused No.4, in furtherance of common intention of all the accused, assaulted deceased Ravi-son of PW-2- Kannappa Maryappa Naik with a sickle on his neck, face and right shoulder with an intention to murder him and also assaulted deceased Renuka-wife of PW-2-Kannappa Maryappa Naik with the same sickle, as a result of which, her right hand was amputated and also assaulted on her neck with the sickle voluntarily causing grievous injuries to both of them and killed deceased Renuka on the spot and injured Ravi died in the hospital at Sirsi while under treatment and thereby the accused have committed an offence punishable under Section 302 read with Section 34 of IPC?

iv) Whether the impugned judgment of conviction and order on sentence warrants any interference at the hands of this Court?

Crl.A. No.100265/2020

9. Among the seventeen witnesses examined by the

prosecution, PW-1(CW-1)-Smt.Sudha is the complainant.

She has spoken about, she receiving information from the

Police about the alleged incident, which according to her,

has taken place in her parents home at Kaangod where the

accused after quarrelling with her parents and elder

brother, caused the murder of her mother and assaulted her

brother and father. In that regard she has lodged a

complaint which she has identified at Ex.P.1. She also

stated that she came to know through the Police later that

her elder brother also succumbed to the injuries sustained

by him in the incident, while under treatment at the

Government Hospital, Sirsi. She alleged that it was the

accused and the accused alone who had assaulted her

father, mother and elder brother and committed the murder

of her mother and elder brother.

10. PW-2(CW-15)-Kannappa Maryappa Naik has

stated that the accused, who are his cousins, are his

neighbours and they have killed his wife and son. On the

date of the incident, in the night, when himself, his wife and Crl.A. No.100265/2020

his son were at home, accused Nos.1 to 3 entered the

veranda of the house from the front side at which time,

accused No.4 entered from behind holding a sickle in his

hand. Accused No.4 assaulted on the neck of his son with

the said sickle due to which his son sustained bleeding

injuries and fell down. At that time, his wife (mother of the

injured) rushed to the rescue of her son but she was also

assaulted by accused No.4 with the sickle due to which her

right hand got amputated and fell down. Accused No.4 also

assaulted on the neck of his wife with the sickle, at that

time, accused Nos.1 to 3 had held him (this witness) firmly.

Accused No.4 stating that, he would not leave him and that

he has already made two persons to fall, he would also

remove him, assaulted him (this witness) with the sickle on

his head and left hand. At his yelling (of this witness), the

neighbours PW-8(CW-16) and PW-3(CW-17) rushed to the

spot. The witness also stated that he has seen the accused

in the light of an electric lamp. After seeing CW-16 and

CW-17, the accused ran away from the place. Thereafter,

the injured son, who had fell unconscious, was shifted to Crl.A. No.100265/2020

the Government Hospital, Siddapura, and from there to Sirsi

hospital. Leaving his son at Sirsi, he(this witness) was

shifted to the Hospital at Hubli and from there, he was

shifted to the Government Hospital at Siddapura. The

witness also stated that the Police had taken him before the

Court at Siddapura where he had given a detailed statement

before the Magistrate which he has identified at Ex.P-3.

This witness has also identified the sickle at M.O.1 stating

that it was the same weapon accused No.4 had assaulted

them on the said date. This witness identified the T-shirt

and pant at M.O.2 and M.O.3 stating that they were the

dress which his son was wearing at the time of the incident.

Identifying the saree and blouse at M.O.4 and M.O.5, the

witness stated that they were the dress material worn by

his wife at the time of the incident. The lungi at M.O.6 was

identified by him stating it was worn by him at the time of

the incident.

11. PW-3(CW-17) Jayashil was examined by the

prosecution projecting him as an eyewitness to the incident.

This witness stated about he knowing PW-2 as a resident Crl.A. No.100265/2020

near to his house at a distance of 30 meters and residing

with his wife and son in the house. He also stated that

adjacent to the house of PW-2, the house of accused Nos.1

to 4 is situated. In between their house, there is a vacant

space. He does not know to whom the site belongs to.

About the incident, the witness stated that, on that night, a

quarrel was going on between PW-2 and the accused. In

February 2018, wife of PW-2 and her son were murdered

but he does not know who caused their murder. However,

he came to know from the localites that it was accused No.4

who caused their murder. Since he did not support the case

of the prosecution to the extent it had expected, after

treating the witness as hostile, the prosecution was

permitted to cross-examine him. However, the prosecution

could not get any further statement in its favour from the

witness. This witness was not cross-examined from the

accused's side.

12. PW-4(CW-2) Rajesh Ramchandra Naik has stated

that, the scene of offence panchanama as per Ex.P-6 was

drawn in his presence. From the spot, a wooden club, a Crl.A. No.100265/2020

sickle and broken pieces of bangle which had fallen there

were seized by the Police. The Police also collected the

sample mud and the blood soiled mud from the spot. The

witness has identified the broken bangle pieces, blood

stained mud and sample mud at M.O.7 to M.O.9. Stating

that a photograph was also taken in the spot, the witness

has identified the same at Ex.P-7. He identified CW-16 in

the photograph stating that he was showing the sickle. The

witness has also identified the sickle at M.O.1 and the club

at M.O.10.

13. PW-5(CW-3) Gopala Ganapati Madiwala also

stated that the scene of offence panchanama at Ex.P-6 was

drawn in his presence. During which time, the Police had

seized the club, sickle, broken bangle pieces, sample mud

and blood stained mud. The witness has identified those

articles at M.O.1 and M.O.7 to M.O.10. This witness further

stated that, four to five days thereafter, the police had

summoned him to the place of offence once again at which

time, accused Nos.1 and 2 were also present in the spot. In Crl.A. No.100265/2020

that regard, the Police have drawn panchanama as per

Ex.P-8 and has taken the photograph as per Ex.P-9.

14. PW.1, PW-2, PW-4 and PW-5 though were

subjected to a detailed cross-examination, however, they

adhered to their original version even in their cross-

examination.

15. PW-6 (CW-4) Hemavathi has stated that inquest

panchanama on the dead body of deceased Renuka was

drawn in her presence as per Ex.P-10 and photograph was

also taken at that time as per Ex.P-11. Her evidence that

inquest panchanama was drawn in her presence was not

denied in her cross-examination from the accused's side.

16. PW-7(CW-12) Ajjappa Channa Naik has stated

that he knows both the accused as well PW-2(CW-15). The

Police have drawn a panchanama in his presence when

accused No.4 was also there in the spot. The said

panchanama, the witness has identified at Ex.P-12 and

photographs said to have been taken at that time at Ex.P-2.

17. PW-8(CW-16) Dyavappa, the elder brother of

deceased Renuka has stated that, with respect to vacant Crl.A. No.100265/2020

space between the house of the accused and his sister's

house, a dispute was going on between the accused and the

family of his sister. Though he came to know that his sister

and her son Ravi were murdered, but he does not know at

whose act, they died and that he was not an eyewitness to

the incident. The witness has also stated that daughter of

Renuka (CW-1) has lodged the complaint and thereafter the

Police visited the spot of the offence and collected blood

stained mud, sickle and club to their possession while

drawing panchanama as per Ex.P-6 and has taken the

photographs as per Ex.P-7. The witness has identified

those articles at M.O.1 and M.O.7 to M.O.10.

18. PW-9(CW-7) Umesh Bilagi has stated that

inquest panchanama of deceased Ravi was drawn in his

presence as per Ex.P-14 and at that time, photograph as

per Ex.P-15 was also taken.

19. PW-10(CW-19) Srikanth who is the husband of

PW-1(CW-1) has stated that he knows the accused. On

14.02.2018, while he was at home, the Police went there in

the night and informed them that accused had assaulted Crl.A. No.100265/2020

his in-laws and brother-in-law and they were shifted to the

hospital, immediately, he joined by his wife and CW-18 and

her husband rushed to Siddapura Government Hospital and

saw the dead body of his mother-in-law and at Government

Hospital, Sirsi, saw the dead body of his brother-in-law.

Both the dead bodies shown that, they had sustained

injuries. On 15.02.2018, he shifted his father-in-law(PW-2)

from Hubli to the Hospital at Siddapura since he had also

sustained injuries. This witness stated that when he

enquired PW-2, he came to know that it was accused Nos.1

to 4 who assaulted him and also caused murder of his wife

(Renuka) and his son (Ravi). Stating that he had handed

over the blood stained lungi worn by his father-in-law at the

time of incident, this witness has identified at M.O.6,

panchanama at Ex.P-16 and photograph at Ex.P-17.

20. PW-11(CW-29) Dr. Raviraj has stated about he

conducting post mortem examination of deceased Renuka.

He has given the details of the injuries he noticed on the

dead body and has opined that, the death of Renuka was

caused due to massive loss of blood sustained to the major Crl.A. No.100265/2020

blood vessels. Accordingly, has issued postmortem report

at Ex.P-18. Stating that subsequently he was shown with

the sickle (Katti) for opinion and that he has given opinion

that the injuries mentioned in Ex.P-18 and the death of

Smt.Renuka might have been caused by assaulting with

the said weapon, the witness has identified the requisition

sent by the Investigating Officer at Ex.P-19 and his opinion

in writing at Ex.P-20. His act of conducting autopsy on the

body of Renuka noticing the injuries as described by him

were not denied in his cross-examination.

21. PW-12(CW-30) Dr. Raghavendra Udupa has

spoken about he conducting autopsy on the body of

deceased Ravi on 15.02.2018. After explaining the injuries

said to have been noticed by him on the dead body both

external and internal, the witness has stated that according

to him, the cause of death was due to hemorrhagic shock

with injuries to the spinal cord and major vessels around

the neck. He has identified postmortem report issued by

him at Ex.P-21. Seeing the sickle at M.O.1, the witness has

opined that the injuries mentioned in Ex.P-21 may be Crl.A. No.100265/2020

caused by assault with M.O.1 which is a deadly weapon. In

his cross-examination also, the evidence of this witness that

he conducted autopsy of the deceased and noticed the

injuries as stated by him including his opinion as to the

cause of death was not denied.

22. PW-13(CW-31) Dr. Padmini Bhimsen has stated

that while working as a Medical officer in Taluka Hospital

Siddapura, on the midnight at 12'O clock on 14.02.2018,

she has examined the injured patient by name Kannappa

Marya Naik (PW-2) who had come to the hospital with his

son with the history of assault at about 11:00pm on

14.02.2018. The witness has given the details of the

injuries said to have been noticed by her on the person of

the patient. She opined that, clinically the injures were

simple in nature caused by sharp object and fresh. The

wound certificate issued by her at Ex.P-22 was identified as

the one issued by her.

The witness further stated that on 01.05.2018, she has

verified the sickle (katti) sent by the Investigating officer for

her opinion. On examining the same, she opined that the Crl.A. No.100265/2020

injuries mentioned at Ex.P-22 and the injuries sustained by

Ravi Kannappa Naik might have been caused by the said

weapon. The witness identified the weapon at M.O.1 and

the requisition and her opinion regarding the said weapon at

Exs.P-23 and P-24 respectively.

In her cross-examination she has given some more

details as to how she conducted the examination of the

injured and about her opinion regarding the weapon.

23. PW-14(CW.27) Manjappa has sated that, as

then Secretary of Grama Panchayat, Kaangod, he has

furnished the details to the Investigating Officer stating that

the house where the incident had taken place was standing

in the name of PW.2. He has identified the requisition given

to him by the Police and his information in writing at Exs.P-

25 and P-26. He also stated that, at the request of the

Investigating Officer, he has also given the details of the

neighboring properties stating that house No.142/1 was

standing in the name of accused No.1. In that connection,

the requisition received by him and his report were marked

by this witness at Exs.P-27 and P-28 respectively.

Crl.A. No.100265/2020

24. PW.15(CW-28) Dattatraya Timmayya Hegde,

the Assistant Executive Engineer at HESCOM, Siddapura,

has stated that, at the request made by the Investigating

Officer about the existence and supply of electricity

connection to the house of PW-2-Kannappa Maryappa Naik

at Kaanagodu village on 14.02.2018, he has furnished his

opinion stating that there is no information about any

obstruction or interruption in the supply of electricity to the

said village Kaanagodu. He has marked the said report at

Ex.P-29.

25. PW-16 (CW-32)-Umesh Gutyapavaskar, then

Police Sub-Inspector of the complainant Police Station has

stated that, on 14.02.2018 at 11:00pm he received an

information from the Station House Officer i.e., H.C.No.817

through the phone. Thereafter, he went to the spot and

noticed the dead body of deceased Renuka in front of the

house of PW-2(CW-15). The blood had spread in the place,

the right hand having separated from the main body had

also fallen in the spot. PW-2 and his son were already sent

to the Hospital in an ambulance. The witness further stated Crl.A. No.100265/2020

that he attempted to get a complaint lodged by any of the

neighbours but none of the neighbours came forward to

lodge any complaint. There was no competent persons who

could give a compliant in the house of the injured. As such,

when he enquired with CW-16, who was the elder brother of

the deceased, he came to know about one of the daughter

of PW-2 was residing in Aalalli of Sagar Taluka.

Accordingly, he proceeded to the said place along with his

staff and informing to the complainant about the incident,

brought her to the Police Station and after getting the

complaint from her as per Ex.P-1, he registered the same in

their Station Crime No.30/2018. The witness has identified

the FIR filed by him in the Court at Ex.P-13. He further

stated that though he handed over further investigation to

CW-33, still according to his direction, on 15.02.2018, he

drew the inquest panchanama on the dead body of

deceased Ravi as per Ex.P-14 and also got a photograph

taken as per Ex.P-15.

26. PW-17(CW-33) Jayant M., the then Police

Inspector of complainant Police Station has stated that, on Crl.A. No.100265/2020

14.02.2018, in the night at 11:00pm, he received

information through Station House Officer of the

complainant Police Station about the quarrel which was said

to be going on in the house of PW-2 of Kaanagodu village.

Instructing the SHO to send few additional staff to the said

place, he secured a jeep and accompanied by the staff,

proceeded to the place of alleged incident. He noticed the

dead body in front of the house of PW-2(CW-15) and

amputated hand. He got identified the said dead body as of

deceased Renuka. By his enquiry, he also came to know

that the son of the deceased by name Ravi and husband of

the deceased (CW-15/PW-2) were also injured in the

incident and that they were shifted to the hospital in an

ambulance. He sent the dead body of Renuka along with

amputated hand to the Government Hospital, Siddapura.

He also got information that while under treatment, the

injured Ravi also succumbed to the injuries. He also

attempted to get a complaint lodged by any of the

neighbours but none of them came forward. However, by

that time, the Police Sub-Inspector (CW-32), who had came Crl.A. No.100265/2020

to the spot, had made arrangement to secure the daughter

of the deceased from Aalalli village where she was residing.

He deputed the Police staff to watch the place of incident

and collect information about the dispute between the

family of the deceased and the accused about the vacant

space located between their houses. He got inquest

panchanama of deceased Renuka done as per Ex.P-10 on

15.02.2018 and got a photograph as per Ex.P-11 also taken

in the spot. He got the postmortem examination of the said

dead body done by the Doctor. On the same day, at about

11:30am, accused Nos.3 and 4 were produced before him

by his staff who were deputed to trace and produce the

accused. He recorded the voluntary statement of those

accused as per Exs.P-32 and P-33. Since both the accused

volunteered to show the place of offence, he summoned

panchas and along with them proceeded to the place of

offence as shown by the accused and drew scene of offence

panchanama as shown by the accused as per Ex.P-34 and

P-35 and got photographs also taken as per Exs.P-36 and P-

Crl.A. No.100265/2020

37. He also seized the clothes of accused Nos.3 and 4

which he has identified at M.O.11 to M.O.14.

The witness has further sated that he also summoned

the dog squad and finger print experts to the spot and

proceeded to the spot and drew the scene of offence

panchanama at the spot shown by CW-16 as per Ex.P-6.

From the spot, he seized a sickle, club and broken bangle

pieces and also from the place of incident, he collected

blood stained mud and sample mud, which articles the

witness has identified at M.O.1 and M.O.7 to M.O.10. He

got the photographs taken as per Ex.P-7. The witness has

further stated that during the course of investigation, he

recorded the statement of several of the witnesses including

CW-16, CW-18, CW-20 and CW-21. Seized the clothes

found on the body of deceased Renuka under panchanama

as per Ex.P-38. Those clothes he has identified at M.O.4

and M.O.5. The photographs taken at that time were

identified at Ex.P-39. A report regarding the ornaments

found on the dead body of Renuka was also submitted to

him by his staff which were identified by him at Ex.P-40.

Crl.A. No.100265/2020

The witness has also stated that at the instance of accused

Nos.3 and 4, who volunteered to show that spot of the

offence, he proceeded to the spot with panchas and drew

panchanama as per Ex.P-12. The photographs as per Ex.P-

2 was also taken at the spot. The witness stated that, he

seized the clothes found on the dead body of Ravi under a

panchanama as per Ex.P-41 and got photographs taken as

per Ex.P-42. After coming to know that CW-15 had

returned to Siddapura Government Hospital from the

Hospital at Hubli, he proceeded there and recorded his

statement. He also seized the blood stained lungi worn by

CW-15 at the time of incident by drawing the panchanama

as per Ex.P-16 and photograph as per Ex.P-17 was also

taken at that time. The witness stated that on 17.02.2018,

his staff produced accused Nos.1 and 2 before him and after

following the arrest procedure, he recorded their voluntary

statement given by them as per Exs.P-44 and P-45. As

stated by accused Nos.1 and 2 in their voluntary statement,

he summoned the panchas and proceeded along with the

panchas to the place of offence as shown by those accused Crl.A. No.100265/2020

and drew the panchanama as per Ex.P-8. The photograph

as per Ex.P-9 was also taken by him. The witness stated

that with respect to the finger prints and foot prints,

photographs were taken as per Ex.P-46 and P-49. The

Investigating officer also stated that during the course of

investigation, he has got the statement of PW-2(CW-15)

recorded by the Magistrate under Section 164 of Cr.P.C.

which statement he has identified at Ex.P-15. He also got

the sketch of the scene of offence drawn as per Ex.P-13,

collected the wound certificate of PW-2(CW-15) and also

sent the seized articles for their chemical examination to

the RFSL through his staff. On 05.04.2018, he collected

house extract with respect to the place of offence from CW-

27 as per Ex.P-25 to P-28. He also requested the

concerned authorities at the HESCOM to ascertain the

uninterrupted supply of electricity to the house of the PW-2

at the time of the incident and received a report as per

Ex.P-29. He also sent the weapons seized in the case for

opinion by the Doctor and collected the opinion. He also

collected certificate under Section 65B of the Indian Crl.A. No.100265/2020

Evidence Act as per Ex.P-63 with respect to copying of the

photographs in the Compact Disk (CD). Completing the

investigation but keeping pending the receipt of report from

RFSL, he filed charge sheet against the accused.

All these witnesses were subject to a detailed cross-

examination from the accused's side, however, all these

witnesses adhered to their original version even in their

cross-examination also.

27. In the light of the above, it was the argument of

the learned counsel for the appellants that the accused

would not deny or dispute that the death of deceased

Renuka and deceased Ravi were homicidal in nature. He

further submitted that the accused also would not deny that

the said homicidal death was culpable homicide amounting

to murder. However, they dispute that in the said murder,

there was any role of the present appellants, who are

accused Nos.1 to 3. He further submitted that admittedly,

PW-1 is not an eyewitness to the incident as such her

evidence is not believable. Though PW-2 claims to be an Crl.A. No.100265/2020

injured in the incident, but there is some contradiction in his

evidence, as such, his evidence is also not believable.

However, learned counsel did not mention as to what those

contradictions are.

Learned counsel for the appellants further submitted

that PW-3 and PW-8 have not supported the case of the

prosecution. PW-4 being a official witness his statement is

not believable. However, he gave more emphasis on the

point of his argument that accused Nos.1 and 2 were not at

the place of alleged incident and at the alleged time of

incident, both of them were taking treatment in the

Government Hospital at Siddapura. He also submitted that

the evidence of DW.1, DW-2 and DW-6 are to be looked on

the said point. As such, the contention of the prosecution

that accused Nos.1 and 2 were present in the place of

incident is not believable.

Lastly, leaned counsel for the appellants also submitted

that the evidence of DW-3, DW-4 and DW-5 go to show that

deceased Ravi was a trouble maker in the village and that

he was a drunkard. As such, he was being warned by the Crl.A. No.100265/2020

local people by holding a panchayat. Therefore, there might

be several people who might have grudge against him and

has caused his death. With this he submitted that the trial

Court since has not appreciated the evidence placed before

it in a proper perspective, the appeal deserves to be

allowed.

28. The learned Additional State Public Prosecutor in

his argument submitted that the motive behind the crime

has been clearly explained by PW-2 and also by DW.4 and

DW-5 in their cross-examination. It is not in dispute that

there existed a property dispute between the accused and

family of PW-2. It is in that connection since the incident

has taken place, motive is established. He also submitted

that common intention of the accused is evident by the

evidence of none else than PW-2, as such, each of the

accused is liable for the alleged offence. In his support, he

relied upon the judgment of the Hon'ble Apex Court in

Dharnidhar v. State of Uttar Pradesh and Others reported

in (2010) 7 SCC 759. The learned Additional State Public Crl.A. No.100265/2020

Prosecutor submitted that the alleged defence of alibi has

not been established by the accused. There is time

difference between the alleged time of accused Nos.1 and 2

said to have taken treatment in the hospital and the

incident in question since the place of incident and the

hospital not being at a greater distance. Even, if, it is

believed that accused had been to the hospital, it was only

after committing murder of Renuka and injuring Ravi and

his father (PW-2). Learned Additional State Public

Prosecutor further submitted that medical evidence further

supports the case of the prosecution. The identification of

the accused also cannot be disputed since the parties are

known to each other, they were relatives and residing as

neighbours since a long time. Stating that the evidence of

sole eyewitness cum injured can be believed and acted

upon for convicting the accused, learned Additional State

Public Prosecutor relied upon a judgment of the Hon'ble

Apex Court in State of Madhya Pradesh v. Chhaakki Lal and

Another reported in (2019) 12 SCC 326.

Crl.A. No.100265/2020

29. It is not in dispute that the family of the accused

and the deceased, apart from being relatives, were also

residing as neighbours, except an intervening vacant space

in the form of a site between their houses in Kangod Village

of Siddapura Taluk. It is also not in dispute that the said

vacant site was said to be belonging to the younger brother

of PW-2 - Kannappa Marappa Naika, which, according to

PW-2, was entrusted to him by his said brother. Though in

the cross-examination of PW-2, it was denied that their

alleged brother had entrusted the said site to PW-2, but it

has not been denied that the families of the accused and

the deceased were relatives and that they were neighbours

in their residence, except an intervening vacant site

between their Houses in Kangod Village. It is also not in

dispute that with respect to the said vacant site, both the

families of the accused and the deceased/injured were

disputing quite often. The evidence to that extent has come

out in the evidence of PW-1 and more importantly, in the

evidence of PW-2, which has been further elaborated in the

cross-examination of PW-2. The said PW-2 has stated that Crl.A. No.100265/2020

with respect to the said vacant site, since about ten to

fifteen years, the dispute was going on, in which direction,

he had even attempted to lodge a Police complaint against

them, however, the Police did not receive his complaint.

Though it was suggested to the said witness that the Police

did not receive his earlier complaints because they were

false complaints, the accused did not deny that with respect

to the said vacant site, there was a dispute between the

families of the accused and the deceased. Therefore,

regarding the existence of a dispute between the families

of the accused and the deceased with respect to a vacant

site in between their houses, has stood established, which

dispute, according to prosecution, is the motive behind the

alleged crime.

30. The evidence of prosecution witnesses, more

importantly, that the incident of assault upon deceased

Renuka, deceased Ravi and PW-2 has taken place on the

night of the date 14-02-2018 at 11:00 p.m., in front of the

house of PW-2 at Kangod Village also has not been Crl.A. No.100265/2020

seriously or specifically denied from the accused's side. To

that extent, though PW-1 has stated about the incident, but

admittedly, she is only a hear-say witness and information

to her to that effect was given by none else than the

complainant Police. Even the Police Officers who are PW-16

and PW-17 have also stated that, it was them who, after

ascertaining from the close relatives of family members of

the deceased and injured, gathered the information about

PW-1 -Sudha and informed her about the incident. In her

cross-examination from the accused's side, the statement of

the witness that on date 14-02-2018, an incident of assault

has taken place, wherein her mother was killed and her

brother and father were injured has not been denied in her

cross-examination.

31. PW-3, who, admittedly is a resident in the same

locality having her house at a distance of about 30 meters

from the house of PW-2, has also spoken about the dispute

that was going on with respect to the vacant site between

the houses of the accused and the deceased and also a Crl.A. No.100265/2020

quarrel taking place on the night of the alleged date of

incident. Her evidence that it (the incident) was in the

month of February-2008 and in the said incident, the wife

and son of CW-15 (PW-2) were murdered, has not been

denied. Her statement that according to the information

received by the localities that, it was accused No.4, who

committed the murder of the wife and son of CW-15 (PW-2)

also has not been denied, as the said witness was not cross-

examined from the accused's side. However, the material

evidence with respect to the alleged incident and the death

of deceased Renuka, deceased Ravi and injuries caused to

PW-2 - Kannappa Mareppa Naika has come from none else

than the alleged injured witness, i.e. PW-2 - Kannappa

Mareppa Naika himself. The evidence of the said witness

given in his examination-in-chief, that on the night of the

date of incident, all the accused entered the verandah of his

house and among those accused, it was accused No.4, who,

with a sickle, assaulted his son on his neck and also

assaulted his wife, who had rushed to the rescue of her son,

in which process, the accused No.4 cut her right hand and Crl.A. No.100265/2020

assaulted on her neck, due to which, she succumbed to the

injuries on the spot and his son also died while under

treatment in the Hospital, was further elaborated in his

cross-examination.

Regarding the alleged incident, more details were

brought out from this witness in his cross-examination. He has

stated as to how the accused entered the premises of his

house and how accused No.4 assaulted his wife and son. He

has given further details that, on the said night, himself and

his son were sitting beneath the pendal put up in the premises

of their house and his wife was on the back side of the house,

where one more pendal was erected for the purpose of

preparation of food. He has also given description regarding

the lighting arrangement that was made in those pendals. He

has specifically stated that, when he saw, accused Nos.1 to 3

were standing near the gate and accused No.4, who had

entered the premises from the backyard was also present in

the premises of his house. He also stated that, accused Nos.1

to 3, after entering the verandah, had held him and his son from

behind. At that time, accused No.4, who had entered the Crl.A. No.100265/2020

premises from the backyard, came in front of his son and

assaulted on his neck. The sickle that was swung by

accused No. 4 while assaulting the deceased Ravi did not

touch accused Nos.1 to 3, who were holding deceased

Ravi's hands from behind. In this way, PW-2 has given a

detailed picture about the incident which is said to have

taken place on that night. The said cross-examination of

PW-2 rather than imbibe any doubt in the statements made

by the witness in his examination-in-chief has further

elaborated those statements and given more details about

the incident and has given fine touch of the picture of

incident drawn by PW-2 in his examination-in-chief. Even

though there are no other material witnesses who have

spoken in support of the prosecution about the incident and

more particularly, about the alleged assault upon deceased

Renuka, deceased Ravi and PW-2, but evidence of none else

than the injured eye witness, i.e. PW-2 cannot be dis-

believed.

32. Our Hon'ble Apex Court in the case of State of

Madhya Pradesh Vs. Chhaakkilal and another (supra), Crl.A. No.100265/2020

which was with respect to an offence involved under Section

302 read with Section 34 of the IPC, was pleased to observe

in paragraph 24 of its judgment that, it is fairly well settled

that it is not the number but the quality of the evidence that

matters. In terms of Section 134 of the Evidence Act, no

particular number of witnesses shall in any case be required

for the proof of any fact. In the same case and in the same

paragraph of the judgment, it has referred its previous

judgment in the case of Prithipal Singh Vs. State of Punjab

(2012) 1 SCC 10, wherein at para 49, the Hon'ble Apex

Court has observed as below:

"49. This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The Crl.A. No.100265/2020

legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."

The same principle was reiterated by the Hon'ble Apex

Court in the case of Sudip Kumar Sen Vs. State of West

Bengal reported in (2016) 3 SCC 26. Thus, the evidence

of PW-2, who is none else than the injured in the incident,

that it was accused and accused persons alone who have

caused the act of killing of his wife Renuka and inflicting

fatal injuries to his son Ravi and also inflicting injuries upon

him, cannot be dis-believed.

33. The above evidence of PW-2 that, his wife Renuka

and son Ravi were murdered is further corroborated by the

inquest panchanama and the medical evidence. In fact the

accused have even denied the nature of death of deceased

Renuka and his son Ravi. This is also clear by the fact that Crl.A. No.100265/2020

the evidence of PW-3 that deceased Renuka and deceased

Ravi were murdered has not been denied from the

accused's side, since they have not chosen to cross-

examine PW-3. Still, the evidence of PW-6 that the inquest

panchanama on the dead body of deceased Renuka was

drawn in his presence as per Exhibit P-10 and that he has

signed the said panchanama as a panch witness has not

been denied in her cross-examination. She has also

identified the photograph of the dead body at Exhibit P-11

which also shows the position of the dead body and the

alleged blood stains on the dead body including the injuries

sustained by the deceased.

Similarly, another witness - PW-9 also has stated that

the inquest panchanama on the dead body of deceased

person was drawn in his presence as per Exhibit P-14 and

that he has signed the said inquest Panchanama. The

witness also has identified the photograph of the dead body

of the deceased person at Exhibit P-15. The evidence of

these two panchas, i.e. PW-6 and PW-9 corroborates the

evidence of the Investigating Officers, i.e. PW-16 - Police Crl.A. No.100265/2020

Sub-Inspector and PW-17 - Police Inspector, who have

stated that the inquest panchanama as per Exhibit P-14 and

as per Ex.P-10 were drawn by them in the presence of

Panchas.

34. The medical evidence with respect to the nature

of death of deceased Renuka and deceased Ravi have come

from PW-11 -Dr. Raviraj Kariyappa Shet and PW-12 -

Dr Raghavendra Subray Udupa respectively. PW-11 -

Doctor has stated that on the body of deceased Renuka, he

noticed the following injuries:

"1) Chopped wound measuring 12 c.m. x 3 c.m. x4 c.m. in the front portion of the neck extending from mid line laterally up 5 c.m. below the mastoid process on palpation under lying muscles, internal jugular vein, internal cartoid artery and nerves were cut.

2) lacerated wound measuring 5 c.m. x 3 c.m. x 1 c.m. over right side of upper part of the neck extending from mid line up to the mid point of lower part of mondible.

3) Chopped wound measuring 6 c.m. x 4 c.m. x 2 c.m. on the back of the neck at level of cervical verterbra C.4 & C.5. The spinal card is cut Crl.A. No.100265/2020

into multiple slices adjoining soft tissue, nerves, vessels, subcutenious tissue has been cut off.

4) Right distal fore arm and hand amputated and separated at level of 10 c.m. below elbow and underlying muscles, vessels, both bones cut (chopped wound).

5) Incised wound measuring 3 c.m. x 1 c.m. x skin deep present on the dorsum of left hand."

On dissection of the dead body, he noticed the

following injuries:

"1) Trachia cut approximately between second and third tracial ring just below the thyroid cartilage 2/3rd circumference.

2) Oesophegous was through and through cut just below the level of thyroid cartilage.

All other internal organs were found intact."

With the said observation regarding the injuries, the

said Doctor has opined that the death of deceased was

caused due to massive loss of blood sustained to the major

blood vessels, in his post-mortem report and marked it

Ex.P-18. After seeing the weapon at MO-1, which was

sickle, the Doctor has opined that, the injuries mentioned it

Exhibit P-18 and the death of deceased Smt. Renuka might Crl.A. No.100265/2020

have been caused by assaulting with the said weapon.

PW-2, the injured eye witness has identified the said

weapon at MO-1 and stated that it was the very same

weapon with which accused No.4, with the help of the

remaining accused has inflicted injuries upon both his wife

Renuka and son Ravi. The injuries sustained by deceased

Renuka cannot be called as self-inflicted injuries of

amputating her own arm or cutting oesophegous below the

level of thyroid cartilage, cutting of trachia at the same

time by a single person of his or her own body and also

inflicting several chopped and lacerated wounds cannot be

self-inflicted. As such, those injuries which have led to the

death of deceased Renuka are inflicted by human agency,

which, as per the evidence of PW2, is by the accused,

making use of MO-1. As such, the death of deceased

Renuka has proved to be a culpable homicide.

35. PW-12 - Dr. Raghavendra Subray Udupa has

stated that in the post-mortem examination of the dead Crl.A. No.100265/2020

body of Ravi Kannappa Naik, he noticed the following

external injuries:

" 1) cut incised wound over left side of the face and neck extending from left maxillary bone up to posterior aspect of the neck measuring 17 x 6 c.m. red coloured bony depth exposing left lower ear lobe, under lying muscels and fracture of left mandible, cut major vessels, carotid artery and veins, cut cervical spine C2-C3 exposing base of skull.

2) Transverse cut lacerated wound over left supra scapular region red in color measuring 7 c.m. x 2 c.m. exposing muscles.

3) incise like cut wound over right side face measuring 9 c.m. x 2 c.m. red in colour.

4) Abrasion over nose measuring 5 c.m. x 2 c.m.

5) Abrasion over right cheek measuring 2 c.m. x 1 c.m.

6) Abrasion over anterior aspect of left knee joint measuring 2 c.m. x 1 c.m. dark red in colour.

The above said injuries are Ante-mortem in nature"

He has opined that the death of Ravi Kannappa Naik

was due to haemorrhagic shock with injuries to the spinal Crl.A. No.100265/2020

cord and major vessels around the neck. The said evidence

of the witness also, after seeing MO-1 in the Court, has

opined that the injuries found on deceased Ravi Kannappa

Naika are possible to be caused by the said weapon. Even

in this case also, PW-2 has specifically and categorically

stated that, it was with the very same MO-1, the accused

No.4, with the help of remaining accused, has inflicted

injuries upon the deceased Ravi Kannappa Naika. As such,

the death of deceased Ravi Kannappa Naika also proves to

be homicidal amounting to culpable homicide. This part of

the alleged incident is not in serious dispute. PW-2 himself

being the injured eye witness has stated that, it was within

the premises of his house, more particularly, on the front

side of his house, which is an open space(verandah), the

incident has taken place. PW-4, PW-5 and PW-8 also have

stated about the same space as the place of the offence and

have identified the panchanama drawn in their presence.

The said evidence of PW-2 and PW-4 corroborates the

evidence of the Investigating Officer that, he has drawn a

scene of offence panchanama as per Ex.P-6.

Crl.A. No.100265/2020

36. The identity of the accused though has been at

the earliest mentioned by the complainant in her complaint

at Ex.P-1 itself, but admittedly, she is not an eye witness to

the incident. It is only based upon the information given to

her, she has revealed the names of the accused as the

culprits in the alleged offences. However, PW-2, who is an

injured eye witness to the incident, has categorically,

specifically and clearly stated that, it was accused and

accused persons alone who have committed the alleged

offences. It is nobody's case that, since the incident had

taken place at 11:00 p.m. on that day, there was total

darkness in that area, as such, nobody could identify the

accused persons. On the other hand, PW-1, PW-2 and

PW-4 have spoken about the presence of electricity light in

that place. From the evidence of prosecution witnesses and

also in the evidence of PW-16, it has come out that there

was a jaatra (fair) of Marikamba Temple just three days

after the incident, as such, there was lighting arrangement

near the temple, where the pendal was being put. The said

temple as has been stated by PW-16 was at a distance of Crl.A. No.100265/2020

about 100 ft. from the spot of the offence. There were

people putting up the pendal near that temple at that time.

Further, PW-2 also has stated that, in the pendal put up in

his premises due to the festival, the lighting arrangement

was also made.

37. PW-15 the Engineer from HESCOM has stated

that there was no information with them about any

interruption or disconnection of electricity supply to the said

village Kangod on the said night. Most importantly, it has

remained an undisputed fact that the members of the

families of the accused and the deceased were very close

relatives and that they were residing in adjacent houses

with only a vacant site in between their respective houses.

38. PW-3, who is a resident of the same area having

her house at a distance of about 30 meters from the house

of PW-2, has stated that, the said PW-2 (CW-15) and

accused were in good terms and were talking to each other.

Her said evidence has remained un-denied since she was

not cross-examined from the accused's side. Thus, all the Crl.A. No.100265/2020

four accused persons, being close relatives, neighbours and

very well known to the family of PW-2, their identity at the

time of accident cannot be doubted or suspected.

39. The next point that remains to be considered is,

whether the homicidal death of deceased Smt. Renuka and

deceased Sri. Ravi was caused by none else than by the

accused and accused alone. According to injured witness,

i.e. PW-2, it is accused and accused persons alone who

have killed his wife Renuka and Son Ravi and thus have

caused their murder. He is an eye witness to the incident.

He has given a detailed account of how his wife and son

were killed and how he was assaulted by the accused.

There is nothing to disbelieve his evidence. He has

withstood the thorough and searching cross-examination

and answered all questions put by the accused's side, which

have thrown more light about the manner how the incident

has occurred. However, the defence of the accused was

that, the deceased Ravi was a drunkard and was causing

trouble to the residents in the village, as such, he had large Crl.A. No.100265/2020

number of enemies and some among them might have

committed his murder. The other defence taken up by the

accused's side is the defence of alibi. According to them, at

the time of incident, the accused were taking treatment at

the Government Hospital, Siddapura. Suggestions to that

effect were made in the cross-examination of PW-1, PW-2

and PW-16. However, none of those witnesses have

admitted those suggestions as true.

In order to establish that accused No.4 was a

drunkard, as such, his conduct was questionable, therefore

his enemies, if any, might have caused his murder, the

accused has examined three witnesses on their behalf as

DW-3 - Hanumanth Ira Naik, DW-4 - Mahabaleshwara

Chowda Doddamani and DW-5 - Rama Keriya Naik. Even

in their statements recorded under Section 313 of the

Cr.P.C. also, the accused have taken the same defence. All

these three witnesses, in their evidence, have stated that

they know deceased Renuka, deceased Ravi as well the

accused. With respect to the dispute between them, a Crl.A. No.100265/2020

panchayat was held. The said panchayat discussed the

complaints against deceased Ravi, who used to quarrel with

the accused and also had caused damages to the property

of the Temple in an inebriated condition. They have stated

that in panchayat, the act of deceased Ravi causing

damage to an article of the Temple called 'panchavaadya'

was discussed and he was censured and advised that he

should not repeat those acts. They have also stated that

one more date for the panchayat was fixed, on which date,

none of the family members of the deceased Ravi appeared,

as such, a reference was made to that effect in the minute

Book of the Temple, which Book was produced by DW-5 and

got it marked as Ex.D-4.

Even if the evidence of DW-3, DW-4 and DW-5 is

taken as true that the deceased Ravi was in the habit of

consuming liquor and that he had caused damage to the

Temple property, by that itself, it cannot be inferred that,

he had any enemies in the village and that any of his

alleged enemies might have caused his murder. None of Crl.A. No.100265/2020

DW-3, DW-4 and DW-5 have spoken about he having any

enemies and the possibility of any of his alleged enemies

causing his murder. Merely because the deceased Ravi is

said to have caused damage to the Temple property called

"panchavaadya", it cannot be inferred that it was such a

serious damage that there would be enemies against

deceased Ravi and that they would go to the extent of

killing him for such an alleged act. Therefore, the said

defence of the accused that the deceased Ravi was a

drunkard and had enemies, as such, he must have been

killed by some such enemies, is not acceptable.

40. The second defence taken up by the accused's

side is that of alibi. PW-2, in his evidence has clearly,

categorically and specifically stated that, as was seen by

him, it was accused and accused alone who have caused

murder of his wife and son. He has also categorically and

specifically stated that, he too was assaulted by the

accused, due to which, he sustained injuries and was shifted

to the Hospital. In such a circumstance, when the Crl.A. No.100265/2020

prosecution has discharged its onus regarding the presence

of the accused on the spot and it is established, the burden

of proving the plea of alibi will be upon the accused.

41. Our Hon'ble Apex Court in the case of Shaikh

Sattar Vs. State of Maharashtra reported in (2010) 8

Supreme Court Cases 430, while dealing with an appeal

involving the offences punishable under Sections 302 and

498-A of the IPC, was pleased to observe that, the plea of

alibi has to be established by the accused by leading

positive evidence. Failure of said plea would not necessarily

lead to success of the prosecution case which has to be

independently proved by the prosecution beyond reasonable

doubt.

42. The Hon'ble Apex Court in its another judgment in

the case of Vijay Pal Vs State (Government of NCT of

Delhi) reported in (2015) 4 Supreme Court Cases 749, in

an appeal involving an offence punishable under Section

302 of the IPC, had an occasion to discuss the concept of

alibi. The Hon'ble Apex Court was pleased to observe that, Crl.A. No.100265/2020

when a plea of alibi is taken by the accused, the burden is

upon him to establish the same by positive evidence after

onus as regards the presence on the spot is established by

the prosecution. The burden of accused is rather heavy and

he is required to establish the plea of alibi with certitude, so

as to raise a reasonable doubt regarding the prosecution

version. Plea can succeed, if it is shown that the accused

was so far away at the relevant point of time that he could

not be present at the place where the crime was committed.

It is in the light of the above principle enunciated by

the Hon'ble Apex Court, the plea of alibi taken up by the

accused in the instant case is to be analysed.

43. As already observed above, the prosecution has

discharged its onus about the presence of the accused in

the spot of the offence and at the time of the offence,

whereas it is the accused who have taken the defence of

alibi. The said defence of alibi, was, for the first time,

taken up by the accused in the cross-examination of PW-2,

by suggesting to the witness that, on the said date, due to Crl.A. No.100265/2020

the assault made by deceased Ravi, in order to lodge a

complaint and take medical treatment, all the four accused

had been to Siddapura (Taluka place) and that they were in

the Government Hospital, Siddapura till 11:00 p.m. The

witness has not admitted the said suggestion as true. By

making the said suggestion to PW-2, the accused

themselves have attracted a burden initially of proving

that, on that night, before 11:00 p.m. deceased Ravi had

assaulted them. Secondly, in order to lodge a complaint,

they had been to Siddapura, as such, they were away till

11 O' clock in the night, when the incident in question is

said to have taken place. It is to prove the same, the

accused have examined three witnesses from their side.

They are DW-1 - Smt Rekha, DW-2 -Narayana and DW-6 -

Harisha.

DW-1 - Smt. Rekha is a staff Nurse, working on

contract basis at the Taluka Hospital at Siddapura. She has

stated that, on the night of the date 14-02-2018 (alleged

date of incident), she was on duty in the Hospital and one Crl.A. No.100265/2020

Dr. Padmini was the duty Doctor. She stated that she could

not identify the accused in the Court and she is not familiar

with their faces. Stating that, looking at what is written in

the prescription or OPD slip by the Doctor, they would make

entries in the register, the witness stated that some portion

of the extract of the register shown to her and marked as

Ex.D-3, was in her handwriting. She stated that the said

portion pertains to a patient by name Sri. Ganapathi

Hanuma Naika (accused No.1). He was treated in the said

Hospital by the duty Doctor by applying stitches and

administering TT injection and pain killers. In her cross-

examination, she has stated that she was working as a staff

Nurse in the said Hospital, more particularly, she being on

duty on the night of the date 14-02-2018 itself was

questioned. However, she stated categorically in her cross-

examination that she could not identify the patient who had

come to the Hospital on the said day even if they are shown

in the Court.

DW-2 - Narayana has been the Assistant Sub-

Inspector of Police in the complainant Police station. He has Crl.A. No.100265/2020

stated in his evidence that, on the date 14-02-2018, he was

working as Head Constable in the complainant Police Station

and that he was on duty at 8:00 p.m. He stated that he

has not received any Medico-Legal Case (MLC) from the

Hospital since those MLCs would be received by the Station

House Officer and that he was not Station House Officer on

that night. He denied a suggestion that on that night, he

was the Station House Officer and that the accused No.1

had come to his Police Station sustaining some injuries and

that he sent him to the Hospital. The witness did not admit

few such suggestions as true. Thus, by the evidence of

DW-2, the contention of the accused that the deceased Ravi

had assaulted them, as such, to lodge a complaint, all the

four accused persons had been to complainant Police station

on that night at 11:00 p.m., remains un-established.

DW-6 - Harisha, who is a mason, has stated that he

knows the deceased Ravi as well the accused. On date

14-02-2018, in the night at about 10 O' clock, he was

working near Maarigudi for putting up a pendal. At that Crl.A. No.100265/2020

time, accused No.2 went there and stated that, his father

(Accused No.1) has sustained an injury due to assault on

his hand, as such, he must be shifted to the Hospital.

Accordingly, he took both Accused No.1 and Accused No.2

on his motor cycle to Siddapura Police Station. The Police

told them to go to Hospital and that they would also come

there. After that, the Police coming to Hospital, took the

signatures of accused No.1 and accused No.2. Thus from

10 O' clock in the night till 12:15 in the midnight, himself

along with accused No.1 and accused No.2 were in the

Siddapura Police Station and in Government Hospital only.

He stated that, leaving accused No.1 and accused No.2 in

the Hospital itself, in the midnight at 1:00 O' clock, he came

back to his house. The said witness in his cross-

examination could not able to say as to who had asked him

to erect the pendal at Maarigudi. He could not even say the

registration number of his alleged motor cycle though he

stated that it bears registration number as KA-31/9394.

But in the very next sentence, he has stated that he does

not remember it properly. Interestingly, in his cross-

Crl.A. No.100265/2020

examination, he stated that the time when they went to the

Government Hospital was 12 O' clock in the midnight. Prior

to that for about half an hour, they were in the Police

Station and then they had been to the Government Hospital

where they were there for about three hours. It is at that

time, the Police went there and took the signatures of

accused No.1 and accused No.2 on some papers. He also

stated that he does not know how accused No.1 sustained

injuries by whom and with what (article).

44. When the evidence of DW-1 and DW-6 is carefully

verified, it can be seen that, DW-1, the staff Nurse has

specifically stated that she cannot identify any of the

accused persons. It is only based upon OPD slip or

prescription, she makes entries in the register. The said

register extract which is marked in her evidence is at

Ex.D-3. It shows that one Sri. Ganapathi Hanuma Naika

(accused No.1) was treated in their Hospital by Dr. Padmini

at 11:15 p.m. But it does not say on which date. Ex.D-3 is Crl.A. No.100265/2020

a single sheet of paper and appears to be independent of

Ex.D-2.

Ex.D-2 was not shown or confronted to DW-1. It was

not elicited from DW-1 that Ex.D-2 is also a part of the

Hospital record. However, looking at the rubber stamp on

the said sheet of paper which shows that it is issued by the

Administrative Medical Officer, Taluka Hospital, Siddapura,

even if it is taken that it is a part of the Hospital document,

still, it says that one Ganapathi had approached the said

Hospital with the history of assault at Kangod at 10:45 p.m.

on date 14-02-2018, which means the history recorded is

an alleged assault said to have taken place at 10:45 p.m.

When the documents at Ex.D-2 and Ex.D-3 are read

together, the patient is appearing to have been treated not

earlier to 10:15 p.m., whereas the evidence of DW-6 would

go to show that by the time they went to the Hospital, it

was 12 O' clock in the midnight and prior to that for half an

hour, they were in the Police Station. Thus, the very

evidence from the accused's witness (DW-6) who is said to

have shifted the alleged injured accused No.1 along with Crl.A. No.100265/2020

accused No.2 to the Hospital falsifies what is mentioned in

Ex.D-3. Further, according to DW-6, half an hour prior to

that, they were in the Police Station, which means between

11:30 p.m. and 12:00 O' clock in the midnight, they are

said to be in the Police Station. But DW-2 - the Head

Constable of the Police Station has stated that none of them

had come to the Police Station and none of them had been

referred to the Hospital. Thus, the alleged defence of the

accused as suggested to PW-2 in his cross-examination

that, all the four accused persons, i.e. accused No.1,

accused No.2, accused No.3 and accused No.4 were at

Siddapur Hospital at that particular point of time, has been

abandoned by accused themselves by confining the said

plea of alibi only in respect of accused No.1 and accused

No.2 only. Even to believe that accused Nos.1 and 2 were

there in the Hospital at the time of the alleged offence, the

evidence of DW-1 is not supportive. The defence of the

accused and the document at Ex.D-3 is that accused No.1

was treated at 11:15 p.m., whereas DW-6 has stated that,

they went to the Hospital at 12 O' clock in the Crl.A. No.100265/2020

midnight. Therefore, there is no uniformity as to how many

accused persons had been to Siddapura Hospital and at

what time. Still, assuming for a moment that accused

Nos.1 and 2 had been to Siddapura Taluka Hospital, it was

only at 11:15 p.m. on that day. By that time, the alleged

incident of assault on PW-2 and deceased Ravi and killing

Smt. Renuka had already been over. As has come out in

the cross-examination of PW-2, the undisputed fact is that,

the distance between the place of offence to the

Government Hospital, Siddapura is only eight kilometers.

Therefore, even if it is assumed that, accused Nos.1 and 2

had been to the Hospital on that night, still, it is only after

the incident. The history of the patient recorded in Ex.D-2

also shows that the incident is shown to have taken place at

10:45 p.m. Therefore, there is no evidence to believe that

at the time of the alleged incident, which has taken place at

11:00 p.m. on the night of the date 14-02-2018, the

accused were not in the spot of the offence. As such, the

defence of alibi taken by the accused would not stand.

Crl.A. No.100265/2020

45. Resultantly, the evidence of PW-2 alone, who is

the sole surviving eye witness cum injured in the incident

coupled with other circumstantial evidence, as analysed

above, beyond any reasonable doubt, would go to prove

that, it was the accused and accused persons alone who

have assaulted PW-2 with a sickle at MO-1, attempting to

commit his murder and it was the accused, who, knowing

the consequences of their act, have killed Smt. Renuka and

inflicted fatal injures to deceased Ravi, the son of PW-2, to

which injuries, he succumbed while under treatment and

thus have committed the murder of Smt. Renuka and

Sri.Ravi and attempted to commit murder of PW2.

46. The act of inflicting injuries with sickle, both on

the person of Smt. Renuka and Sri. Ravi is attributed to

accused No.4 - Prathvi Ganapati Naik. According to the

learned counsel for the appellants as well the learned

Additional State Public Prosecutor for the respondent -State,

the said accused No.4 has not preferred any appeal

challenging the judgment of his conviction and order on Crl.A. No.100265/2020

sentence. By that itself, it cannot be inferred that it was

accused No.4 and accused No.4 alone, who has committed

the alleged act of murder and attempt to murder. If the act

shows that the remaining accused persons, i.e. accused

No.1, accused No.2 and accused No.3 had showed common

intention with accused No.4, then, all the accused would be

held liable under Section 34 of the IPC.

47. Learned Additional State Public Prosecutor for the

respondent-State contending that the evidence placed

before the Court would go to show that, accused Nos.1 to 3

had common intention with accused No.4 and in furtherance

of their common intention, they have committed the alleged

act, has relied upon a decision of the Hon'ble Apex Court in

the case of Dharnidhar v. State of Uttar Pradesh and

Others (supra) in his support.

In the said judgment, which also did involve an

offence punishable under Section 302 read with Section 34

of the IPC, the Hon'ble Apex Court had an occasion to

reiterate the principle to attract Section 34 of the IPC. In Crl.A. No.100265/2020

paragraphs 38 to 41 of the said judgment, the Hon'ble Apex

Court was pleased to observe as below:

"38. Let us examine the judgments of this Court in relation to common intention and commission of crime by the members of an unlawful assembly. It is a settled principle of law that to show common intention to commit a crime it is not necessary for the prosecution to establish, as a matter of fact, that there was a pre-meeting of the minds and planning before the crime was committed.

             39.     In    Surendra     Chauhan       v.    State    of

     M.P.(2000) 4 SCC 110 ,             this Court held that

common intention can be developed on the spur of the moment. Also, under Section 34, a person must be physically present at the place of actual commission of the crime. The essence is the simultaneous consensus of the minds of persons participating in the criminal act and such consensus can be developed on the spot.

40. It is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on the facts and Crl.A. No.100265/2020

circumstances of the case. The intention could develop even during the course of occurrence. In this regard reference can be made to Ramaswamy Ayyangar v. State of T.N (1976) 3 SCC 779 and Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428.

41. In other words, to apply Section 34, two or more accused should be present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is proved but no overt act is committed, the section can still be invoked. In the present case all the four accused had gone together armed with three guns and one sphere and after shouting, making their minds clear, had fired at Bahadur Singh causing gun injuries and sphere injury on his shoulder.

Thus, for applicability of Section 34 of the IPC, two or

more accused should be present and common intention and

participation of accused in the crime must be established.

The essence is simultaneous consensus of minds of persons

participating in the criminal act and such consensus can be Crl.A. No.100265/2020

developed on the spot. However, it is not mandatory for

the prosecution to bring direct evidence of common

intention on record and this depends upon the facts and

circumstance of the case. It is also not necessary for the

prosecution to establish as a matter of fact that, there was

pre-meeting of minds and planning before the crime was

committed.

48. In the instant case, as analysed above, it is all

the four accused who went together to the house of PW-2-

injured eye witness. As established by the prosecution, and

more particularly, as has come out in the evidence of PW-2-

the injured eye witness, though it was accused No.4 who

was in possession of a sickle with him and with it he

assaulted his son Ravi and also PW-2's wife Smt. Renuka,

but his (PW-2's) hands were held firmly by the remaining

three accused i.e. accused No.1, accused No.2, and accused

No.3, from behind, restraining his movement.

49. Thus, it is clear that accused No.1, accused No.2

and accused No.3, knowing fully well and also seeing that Crl.A. No.100265/2020

their own family member, i.e. accused No.4 is armed with a

deadly weapon like sickle and he is about to assault the

deceased Ravi, have enabled him to proceed with the said

act of assault and inflicting injuries on Ravi and also

Smt. Renuka, who rushed to the rescue of the said Ravi, by

restraining the movements of PW-2 by holding his hands

firmly from behind. Thus, their act of coming together to

the house of PW-2, when one of them (accused No.4) was

armed with a deadly weapon and enabling accused No.4 to

assault and cause the death of Smt. Renuka and to inflict

fatal injuries upon the deceased Ravi, clearly establishes

that, they had common intention and in furtherance of the

same, the alleged offence was committed. As such, Section

34 of the IPC also stands proved in the instant case.

50. Lastly, the evidence of PW-2 would further go to

show that, the accused persons, apart from inflicting

injuries to him, his wife Smt. Renuka and son Ravi, they

also abused them in filthy language and insulted them.

Thus, in an open area, in the premises of the house of Crl.A. No.100265/2020

PW-2, the accused have provoked the assaultees to commit

breach of public peace and also knowing the consequences

of their act, have thus insulted them. Thus, the offence

punishable under Section 504 of the IPC against the

accused has also been proved by the prosecution beyond all

reasonable doubts.

51. Since it is appreciating the evidence in this regard

in their proper perspective, the learned Sessions Judge's

Court has convicted the accused persons for the alleged

offences and has sentenced them proportionately

corresponding to the gravity of the proven guilt against

them, we do not find any reason to interfere in the

impugned judgment of conviction and order on sentence

under appeal.

Accordingly, we proceed to pass the following:

ORDER

[i] The Criminal Appeal is dismissed as

devoid of merits;

Crl.A. No.100265/2020

[ii] The impugned judgment passed by the

learned I Additional District and Sessions Judge,

U.K. Karwar, sitting at Sirsi, in Sessions Case

No.5016/2018, dated 20-11-2019, is confirmed.

Registry to transmit a copy of this judgment along

with the Sessions Judge's Court's records to the concerned

Court, without delay.

Sd/-

JUDGE

Sd/-

JUDGE

Kmv/BMV*