Mahadevashetty(A-1) vs The State Of Karnataka
2023 Latest Caselaw 4044 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 6TH DAY OF JULY, 2023
                      PRESENT
          THE HON'BLE JUSTICE K.SOMASHEKAR
                           AND
          THE HON'BLE JUSTICE RAJESH RAI K
          CRIMINAL APPEAL NO.1706 OF 2017
BETWEEN

1 . MAHADEVASHETTY(A-1),
    S/O LATE MADASHETTY,
    AGED ABOUT 67 YEARS,

2 . NAGAMALLA @
    NAGAMALLASHETTY(A-2)
    S/O MAHADEVASHETTY,
    AGED ABOUT 25 YEARS,

3 . MAHADEVASHETTY
    @ ARUBELLA (A-3),
    S/O MAHADEVASHETTY,
    AGED ABOUT 35 YEARS,

4 . JAYAMMA,
    W/O GOVINDASHETTY (A-5),
    AGED ABOUT 29 YEARS,

   ALL ARE R/AT
   KOOTHANURU VILLAGE,
   GUNDLUPET TALUK,
   CHAMARAJNAGAR DISTRICT-571 111.
                                         ...APPELLANTS
(BY SMT.DAYAMANI, ADVOCATE FOR
    SRI. ALLAHBAKASH.M AND
    SRI. VEERABHADRASWAMY H.P, ADVOCATE FOR A1 TO A4)
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AND:

      THE STATE OF KARNATAKA
      THROUGH GUNDLUPET POLICE STATION,
      CHAMARAJNAGAR DISTRICT,
      REPRESENTED BY SPP, HIGH COURT OF
      KARNATAKA AT BENGALURU-560 001.
                                                ...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)

       THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 06.10.2017 AND ORDER OF
CONVICTION AND SENTENCE DATED 07.10.2017 PASSED BY
THE     PRINCIPAL     DISTRICT       AND   SESSIONS     JUDGE,
CHAMARAJANAGARA IN S.C.NO.17/2015 - CONVICTING THE
APPELLANT/ACCUSED NO.1 TO 3 FOR THE OFFENCE P/U/S 341
AND 302 R/W 34 OF IPC AND APPELLANT/ACCUSED NO.4 FOR
THE OFFENCE P/U/S 341 AND 324 R/W 34 OF IPC.


       THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.06.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, RAJESH RAI K. J., DELIVERED THE
FOLLOWING:
                          JUDGMENT

This appeal is filed by the convicted accused Nos.1 to 4

against the judgment of conviction and order of sentence dated

06.10.2017 passed by the Principal District and Sessions Judge

at Chamarajanagar wherein, accused Nos.1 to 3 were tried in

S.C.No.17/2015 and accused No.4 was tried in S.C.No.52/2015.

However, the learned Sessions Judge passed a common

judgment by convicting accused Nos.1 to 3 for the offence

punishable Under Sections 341 and 302 r/w Section 34 of IPC

and as far as accused No.4 is concerned, she is convicted for the

offence punishable under Sections 341 and 324 r/w Section 34

of IPC. The learned Sessions Judge directed accused Nos.1 to 3

to pay a fine of Rs.200/- each for the offence punishable under

Section 341 r/w Section 34 of IPC and in default of payment of

fine, they are directed to undergo simple imprisonment for eight

days and to undergo life imprisonment along with fine of

Rs.2,000/- each for the offence punishable under Section 302

r/w 34 of IPC and in default of payment of fine, they are directed

to undergo simple imprisonment for one month. However,

accused No.4 along with accused Nos.5 and 6 are directed to pay

a fine of Rs.200/- each for the offence punishable under Section

341 r/w Section 34 of IPC and in default of payment of fine, they

are directed to undergo simple imprisonment for eight days.

Further, accused Nos.4 to 6 are directed to pay a fine of

Rs.2,500/- each for the offence punishable under Section 324

r/w Section 34 IPC and in default of payment of fine, they are

directed to undergo simple imprisonment for six months. Further

directed that, all the sentence shall run concurrently. Hence,

being aggrieved by the same, accused Nos.1 to 4 filed this

appeal for setting aside the judgment of conviction and order of

sentence passed by the trial Court.

2. The factual matrix of prosecution case is that, PW.1-

Raju, who is the son of one Madashetty and resident of

Kothanuru village, Gundlupet Taluk, lodged a complaint as per

Ex.P1 before the respondent police alleging that on 02.12.2014

at about 4.00 p.m., accused No.1 to 5 Mahadevashetty,

Nagamallashetty, Sannamadhamma W/o. Arbella and Jayamma

D/o. Mahadevashetty picked up a quarrel with one Siddashetty

(deceased in this case) and Siddamma i.e., PW.4 with an

intention to commit the murder of Siddashetty and Siddamma.

Thereby, all the above mentioned accused came by holding

chopper, club etc and assaulted Siddashetty with chopper on his

head and thigh and they also assaulted PW.4-Siddamma with

club on her head. In the meantime, PW.1-complainant Raju, one

Thavaragatteshetty-PW.14 and his friends pacified the quarrel

and then they took the injured Siddashetty and his wife

Siddamma in some vehicle to Government Hospital, Gundlupet.

Then as per the recommendation of the Doctors of the

Government Hospital of Gundlupet, Siddashetty was taken to

Mysore by his brother-in-law namely Gopalashetty. Hence, a

complaint has been lodged by PW.1-Raju as per Ex-P1 before

the respondent-police and the said complaint registered in FIR as

per Ex.P38 for the offence punishable under Sections 143, 147,

148, 341, 307 r/w Section 149 of IPC. Later, the Investigation

Officer-PW.24 registered the case against five accused persons.

Thereafter, on 03.12.2014, the injured Siddashetty died due to

the assault made by the accused while shifting him from

K.R.Hospital to some other hospital for higher treatment and the

second complaint came to be lodged by PW.1 as per Ex.P2.

Hence, requisition was made by the police before the learned

Magistrate to invoke Section 302 of IPC in Crime No.210 of 2014

and the same was allowed and accordingly, the police invoked

Section 302 of IPC and conducted the further investigation in the

matter. During the course of investigation, the respondent

Police, after recording the statement of the witnesses and

collecting the material documents, laid the charge sheet against

six accused persons in total for the offence punishable under

Sections 143, 147, 148, 341, 307, 302, 201 r/w Section 149 of

IPC. On committal of the case to the Court of sessions, learned

Sessions Court framed the charges against the accused for the

aforesaid offences. However, the accused denied the charges

levelled against them and claimed to be tried.

3. In order to bring home the guilt of the accused for

the charges levelled against them, the prosecution examined in

total 24 witnesses i.e. PW.1 to PW.24 and 39 documents got

marked as per Exs.P1 to P39 and also got marked 12 material

objects as MO.1 to MO.12. However, the accused did not choose

to examine any witness on their favour, nevertheless, they

marked Exs.D1 and D2 on their behalf. The defence of the

accused was one of total denial and that of false implication.

They alternatively contended that since the civil disputes are

pending between the deceased family and the accused family,

they were falsely implicated in this case by PW.1 and the

relatives of the deceased. After completion of the evidence, the

incriminating statements were recorded under Section 313 of

Cr.P.C. by the learned Sessions Judge and the accused denied

the truth of the evidence of the prosecution adduced so far.

4. After hearing the learned counsel appearing on both

the side and on assessment of the oral as well as documentary

evidence available on record, the learned Sessions Judge

convicted accused Nos.1 to 4 and directed them to undergo

sentence as stated supra. Being aggrieved by the said judgment

of conviction and order of sentence, the accused are in appeal

before this Court.

5. However, learned Sessions Judge acquitted accused

Nos.1 to 6 for the offence punishable under Sections 143, 147,

148 and Section 307 r/w Section 149 of IPC.

6. We have heard Smt.Dayamani, learned counsel for

the appellants so also Sri H.S.Shankar, learned HCGP for the

respondent-State and perused the records i.e, the impugned

judgment and the records secured from the trial Court.

7. Smt.Dayamani, learned counsel for accused Nos.1 to

4 vehemently contended that the judgment under appeal suffers

from perversity and illegality in as much as the learned Sessions

Judge has failed to notice that the entire case of the prosecution

depends on the evidence of interested eyewitnesses and to

appreciate the said evidence with proper care and caution. She

would further contend that PW.1, PW.4 and PW.6, who are the

eyewitnesses to the alleged incident, deposed to that effect.

However, during their cross-examination, it has been elicited

preciously from PW.1, who is not only the blood relative but also

interested witness, that he has been waiting for a chance to

implicate the accused persons in any case for the long standing

enmity between the deceased and the accused in respect of a

civil dispute. As such, the evidence of PWs.1, 4 and 6 cannot be

relied since they are the most interested witness in the case.

Learned counsel would further contend that it could be seen

from the first complaint-Ex.P1 that PW.1 did not mention

individual overt act of the accused. As per Ex.P1, he admits that

he and PW.14 were pacified the quarrel and thereafter, took

them into the hospital. On contrary to Ex.P1, after the deceased

succumbed to the injuries on 03.12.2014 at about 8.30 a.m.,

Ex.P2 i.e., another complaint for the same cause of action has

been registered wherein, he fixes the individual overt act of each

accused and specifically deposed that despite of watching the

incident, he did not come forward to pacify the quarrel. Hence,

on careful comparison of these two complaints i.e., Exs.P1 and

P2 and the version of PW.1, it can be gathered that he is not an

eyewitness to the alleged incident. Hence, according to the

learned counsel, the unnatural conduct of PW.1 goes to the root

of the prosecution case. She would further contend that initially

the commotion took place between accused Nos.4 and 6 with

that of PW.4 and there must be an exchange of words, then only

accused Nos.1 and 3 harmed with MOs.9 to 12 and inflicted

injuries. If there are any motive to take away the life of the

deceased, there could not have been any such impediment to

commit the murder at the field itself i.e. at the time of initial

commotion took place between them. Thus, the incident was the

outcome of instigation made by PW.4. She would further contend

that the overt act of accused No.1 is said have been landed a

blow with the axe on thigh and the knee/left leg of the deceased

which are non-vital parts and the death was not occurred on

account of such injuries. According to the learned counsel,

PW.20-Dr.Lalitha did not depose that the said injuries are fatal

and grievous one. Similarly, accused No.2 inflicted with the chain

on right toe/leg which is also not fatal and grievous one. Except

accused No.3 said to have been inflicted single blow on the head

of the deceased though it is fatal, it cannot be considered that

the deceased died a homicidal death due to the assault made by

accused Nos.1 and 2. She would further contend that the

accused were in exclusive possession of landed property in

Sy.No.368 and Katha has been transferred in favour of accused

No.1. Merely the deceased had assailed R.A.No.101/11-12

before the Assistant Commissioner, Kollegal and there was no

stay orders, the accused were falsely implicated in the crime.

PW.5, who is the daughter of the deceased and the projected

eyewitness, admits in her cross-examination that the incident,

said to have been occurred, was not visible when she was at

home. That apart, in the complaint, it is not stated that she was

present at the scene of occurrence. Since her name does not find

either in Ex.P1 or Ex.P2, it cannot be presumed that PW.5-the

daughter was an eyewitness to the scene of occurrence.

Learned counsel would also contend that no independent witness

such as PWs.13 and 14 were supported the prosecution except

the witnesses like PWs.1, 4, 5 and 6 respectively. According to

her, the version of the most interested witnesses cannot be

relied. Learned counsel would also contend that all the accused

are hails from a single family, no male persons are there to look

after the welfare of the family or cumulative of the land and the

incident was happened only in respect of the civil dispute. As

such, the prosecution has failed to prove the guilt of the accused

beyond reasonable doubt. In spite of that the learned Sessions

Judge convicted accused Nos.1 to 3 for the offence punishable

under Sections 341 and 302 of IPC and accused No.4 for the

offence punishable under Sections 341 and 324 r/w Section 34

of IPC. Accordingly, she prays to allow the appeal and to set

aside the impugned judgment passed by the learned Sessions

Judge.

8. Per contra, Sri H.S.Shankar, learned HCGP sought to

justify the judgment under appeal and contended that the

judgment does not suffer from any perversity or illegality since

the learned Sessions Judge, on a proper appreciation of the oral

and documentary evidence available on record, has recorded the

findings which are sound and reasonable having regard to the

evidence on record. Therefore, he contended that the same does

not call for interference by this Court. He would further contend

that by careful perusal of the evidence of PW.1, PW.4-the injured

eyewitness and PW.5-the daughter of the deceased, who is also

an eyewitness and PW.6-the elder brother of the deceased, who

is also an eyewitness to the incident, those witness were

categorically deposed about the incident that accused Nos.1 to 3

only assaulted and committed the murder of the deceased.

According to the learned HCGP, there is no reason to disbelieve

their version. Further, the recovery of the weapons said to have

used for the commission of the crime also recovered at the

instance of accused and that aspect of the matter is also proved

beyond reasonable doubt by the prosecution. Accused Nos.1 to 3

assaulted the deceased with the choppers, iron rod and axe i.e.,

Mos.8 to 12 respective, which are seized as per Ex.P7 and the

witnesses to that effect i.e., PW.7 and PW.10 supported the case

of the prosecution. Learned HCGP also contended that the

motive for the alleged incident is also proved by the prosecution

that there was a civil dispute pending between the accused and

the deceased family. As such, according to the learned HCGP,

the prosecution proved the homicidal death of the deceased, the

evidence of the eyewitnesses coupled with the motive and

recovery of the weapons said to have used for the commission of

the crime. Hence, in such circumstances, the prosecution proved

the case against accused Nos.1 to 3 beyond reasonable doubt

and accordingly, the learned Sessions Judge convicted the

aforesaid accused for the charges levelled against them.

Accordingly, the learned HCGP prays to dismiss the appeal.

9. We have bestowed our anxious consideration on the

oral and documentary evidence placed before us and also

meticulously perused the material available on record including

the trial Court records.

10. Having heard the learned counsel for the appellants

and the learned HCGP for the State, the points that would arise

for our consideration are:

                    (i)    Whether the impugned judgment
            challenged      herein    appeal    suffers       from

perversity and illegality warranting interference by this Court? and

(ii) Whether the learned Sessions Judge is justified in convicting accused Nos.1 to 3 for the offence punishable under Sections 341 and 302 of IPC and accused No.4 for the offence punishable under Sections 341 and 324 r/w Section 34 of IPC?

11. This Court being the Appellate Court in order to

re-appreciate the entire material on record, it is relevant to

consider the entire prosecution witnesses and the documents

relied upon.

(i) PW.1-Raju deposed before the Court that on

02.12.2014 at 4.00 p.m., he had been to Chamundeshwari

temple for performing pooja, and when he was coming back in

front of the house of PW.14 i.e., Tavaragatte @ KMT, the

deceased Siddashetty and his wife were coming from the village

in order to go to their agricultural land and when the deceased

Siddashetty and his wife PW.4-Puttasiddamma were so coming,

accused Nos.4 to 6 came and abused the said Puttasiddamma

stating that they had no peace of mind until PW.4 is alive and

accused No.4 assaulted PW.4-Puttasiddamma with a chopper on

her right forearm and accused No.6 assaulted PW.4 with the

stone on her head and accused No.5 assaulted PW.4 with a club

on her neck back. He further stated that, when accused Nos.4

to 6 were coming, accused Nos.1 to 3 also came by holding

chopper, axe and iron rod in their hands and accused Nos.1 to 3

made deceased Siddashetty to fall on the ground and they told

that they would commit his murder and by so saying, accused

No.1 assaulted on the left leg and left thigh of Siddashetty with

axe and accused No.2 assaulted with iron rod on the right leg,

back and shoulder of Siddashetty and accused No.3 assaulted

with chopper on the head of Siddashetty. He further sates that,

CWs.14 to 16 came and pacified the quarrel and he was afraid of

the incident and therefore, he did not go to pacify the quarrel till

CWs.14 to 16 came to the spot. Thereafter, himself and others

took Siddashetty and PW.4 in Tata A.C vehicle to Gundlupete

Government hospital and in the said hospital, the Doctor told

that Siddashetty was serious and advised to take him to

K.R.Hospital, Mysore. Accordingly, Siddashetty was taken to

K.R.Hospital, Mysore. He further states that, CWs.13 and 18

have taken Siddashetty to K.R.Hospital, Mysore and when

Siddashetty was being taken from K.R.Hospital to Appollo

Hospital, he expired on the way to the hospital and CW.13 called

him over phone and intimated the said fact to him. Thereafter,

he went to the Gundlupete police station and lodged complaint

as per Ex.P1. The said witness identified the complaint and

signature on it. He also states that on the same day at about 12

mid night, he came to know that Siddashetty expired and CW.13

informed the said fact over phone and on 03.12.2014 at about

8.00 a.m., again he had been to Gundlupete police station and

lodged another complaint since Siddashetty expired and he

identified the said complaint as Ex.P2. Further, he also states

that on the same day at about 12.30 p.m., the police came to

the spot and seized blood stained mud, mud without blood and

one store under Ex.P3-Mahazar from the spot. He also states

that on the same day at about 4.00 p.m., he taken the saree of

CW.4-Puttasiddamma to the police station and produced the

same and police seized the same under to Ex.P4-Mahazar. He

identified the said mahazar and also the blood stained saree of

PW.4 at MO.4 and the dresses of the deceased Siddashetty at

MOs.5 to 7 and the said witness also identified the weapons said

to have been used for the commission of crime at MOs.8 to 12.

This witness also identified the sketch drawn by the Assistant

Engineering Public Works Department as per Ex.P5. Though this

witness cross-examined by the learned counsel for the accused,

nothing worthwhile has been elicited in his cross examination to

disbelieve his version. However, he stated that according to him

200 to 300 peoples were gathered at the place of incident.

According to him, on that day, he was returning from the

temple.

(ii) PW.2-Shivaiah and PW.3-Ningashetty are panch

witnesses to Ex.P3 i.e., the spot mahazar under which blood

stained mud, mud without blood and one stone used by the

accused to assault the deceased were seized. According to them,

they were present while conducting Ex.P3-spot Mahazar and at

the time of seizure of MOs.1 to 3.

(iii) PW.4-Puttasiddamma is the injured eye witness in

this case and also the wife of deceased Siddashetty. According to

her, her husband, accused No.1-Mahadevashetty, one

Bellashetty and Channabasava shetty are brothers and her

father-in-law Chikkashetty had 4 acres 20 guntas of agricultural

land and the said land stands in the name of accused No.1 and

her husband was demanding partition in the said land and

therefore, the incident said to have taken place. She further

states that on 02.12.2014 at about 8.00 a.m., when herself and

her husband Siddashetty had been to their land, accused Nos.1

to 6 were removing horse gram crop. At that time, her husband,

her brother and CW.13 objected for the same and therefore, the

quarrel said to have taken place in between them and they came

back to the village. She further states that, on the same day, in

the evening, when herself and her husband were proceeding

towards their agricultural land in front of the house of PW.14-

Tavaraghatta Shetty, accused Nos.4 to 6 came by holding

chopper, stone and club and accused No.1 came by holding axe

and accused No.2 came by holding iron rod in his hand and

accused No.3 who was holding a chopper assaulted on his hand

and accused Nos.1 to 3 were assaulted her husband and CW.13

to 15 pacified the said quarrel and subsequently PW.1-Raju and

CW.13-Gopal Shetty were shifted herself and her husband to

Gundlupete Government Hospital and from there to K.R.Hospital,

Mysore and her husband was expired on the same day.

Accordingly, PW.1 lodged the complaint as per Exs.P1 and P2.

She also identified MOs.8 to 12-the weapons used for the

commission of the crime. Though this witness cross examined in

detail, she stated that there is a civil dispute pending between

her husband and the accused. Since accused No.1 is none other

than the brother of her husband, for that reason, there was ill-

will between them. According to her, she stated before the

Hospital that who are all assaulted to her.

(iv) PW.5-Kumari Maheshwari is none other than the

daughter of Siddashetty and PW.4. She also reiterated the

version of PW.1 and PW.4 and stated that her father and mother

went to their agricultural land at about 4.00 p.m., on 02.12.2014

and when they were proceeding in front of the house of

Tavaraghatta Shetty, she heard the noise of quarrel and she had

been to the spot and at that time, accused Nos.4 to 6 came and

made PW.4 to fall on the ground and assaulted her and at that

time, accused Nos.1 to 3 also came there. Accused No.1

assaulted her father with axe on his left leg and accused No.2

assaulted her father with an iron rod on his right leg and

shoulder and accused No.3 assaulted her father Siddashetty with

the chopper on his head and thereafter, CW.14, CW.15 and PW.1

pacified the quarrel and subsequently, shifted her father to the

hospital, where he succumbed to the injuries. As such, PW.1

lodged the complaint. She also identified MOs.5 to 7 i.e., the

dress materials of the deceased and MOs.8 to 12 i.e., the

weapons said to have been used for the commission of the

crime.

(v) PW.6-Gopala Shetty is another eyewitness to the

incident. He also stated in his evidence that deceased

Siddashetty is his brother-in-law and his elder brother i.e.,

accused No.1 have got stone quarry and there was ill-will

between the deceased Siddashetty and accused No.1 in

connection with the pathway and quarry and therefore, the

quarrel said to have taken place. He clearly stated that the

incident had taken place in the morning hour i.e., 8:00 a.m., on

02.12.2014 in the filed. Thereafter, on the same day at about

4.00 p.m., when he was in his village and he was proceedings in

order to see his brother-in-law Siddashetty in front of house of

Seeramma, his brother-in-law Siddashetty and PW.4 were

coming in order to go their agricultural land in front of house of

Tavaraghatte Shetty and at that time, accused Nos.1 to 6 were

came and assaulted the deceased i.e., Siddashetty with MOs.8 to

12 and though they made an attempt to pacify the quarrel and

shifted the deceased injured to the K.R.Hospital, the injured

succumbed to the injuries and PW.4 also sustained grievous

injuries due to the assault made by the accused.

(vi) PW.7-Suresh Naik and PW.10-Srinivasa are the

witnesses for the recovery of MOs.8 to 12-the weapons used by

accused Nos.1 to 3 to commit the murder of deceased

Siddashetty, which were seized at the instance of accused Nos.1

to 3 and 5 based on their confession statements under the

Mahazar-Ex.P7. These witnesses clearly supported the

prosecution case and identified their signatures on Ex.P7 so also

the seizure of clothes of accused Nos.3 to 6 as per Ex.P6.

(vii) PW.8-Yajamana Madashetty, PW.11-Basavasheety

and PW.12-Gopalshetty are the panch witnesses to Ex.P13 i.e.,

the inquest mahazar. They identified the dead body and their

signatures on Ex.P13.

(viii) PW.9-Muddashetty is a circumstantial witness, who

turned hostile to the prosecution of the case.

(ix) PW.13 - Mahadevu @ Poojari is an eyewitness to the

alleged incident. However, he turned hostile to the prosecution

case.

(x) PW.14-Tavaraghatte @ KMT is the circumstantial

witness where the alleged incident was caused in front of his

house. Though this witness partly turned hostile, he stated that

there was a quarrel took place in front of his house and the

deceased Siddashetty was assaulted by somebody and he was

taken to the Government hospital and on the next day, he

succumbed to the injuries. However, this witness treated hostile

in respect of the other portion of the evidence.

(xi) PW.15-Madashetty is the witness for Ex.P17 i.e., the

seizure of the blood stained cloth of the deceased as per MOs.5

to 7.

(xii) PW.16-K.G.Hedge is the First Divisional Clerk in the

Assistant Commissioner Office, Kollegala. He produced some

documents as per Ex.P18 i.e., the appeal memo pertaining to the

civil suit pending before the Court of Assistant Commissioner

between the accused and the deceased.

(xiii) PW.17-Bellashetty @ Bella is a circumstantial witness

deposed about the motive for the alleged incidence wherein, he

deposed about the Civil dispute pending between the deceased

and the accused family and also deposed in respect of the

regular appeal pending before the Court of Assistant

Commissioner, Kollegala.

(xiv) PW.18-Muddashetty is a witness for Ex.P17 i.e., the

seizure of the dress material of the deceased and also Ex.P4 i.e.,

the seizure of the Saree of PW.4.

(xv) PW.19-Siddappa is the Assistant Engineer who

prepared the sketch of the spot as per Ex.P5.

(xvi) PW.20-Dr.Lalitha conducted the autopsy over the

dead body of deceased Siddashetty, issued the post-mortem

report as per Ex.P19 and gave a final opinion that the death is

due to 'Haemorrhage and shock as a result of intracranial

bleeding and Haemorthorax left'. She also gave an opinion in

respect of the weapons as per Ex.P20 that the injuries shown in

Ex.P19 could be caused by MOs.8 to 12.

(xvii) PW.21-Dr.ChayaKumari is the FSL Officer, who

conducted the Scientific examination of the dress materials of

the deceased and the accused and also MOs.8 to 12 which are

said to used at the commission of the crime and after

examination, she issued the report as per Exs.P21 and gave an

opinion that the blood found on the materials are human blood

and belongs to 'B' group.

(xviii) PW.22-the Circle Inspector of Gundlupet circle

conducted the investigation of the case by arresting the accused

and also by recording their voluntary statements and recovering

the weapons said to have been used for the commission of the

crime and also collected all the documents and thereafter, laid

the charge sheet against the accused.

(xix) PW.23-Dr.Shreedhar conducted the examination of

PW.4-injured witness and issued the wound certificate as per

Ex.P33.

(xx) PW.24-the then Police Sub Inspector of Gundlupet

registered the FIR in Crime No.210/2014 against the accused

persons and thereafter, conducted partial investigation in the

case.

11. By perusal of the above witnesses, as far as the

homicidal death of the deceased is concerned, the evidence of

PW.20-Dr.Lalitha who conducted the post-mortem examination

as per Ex.P19 clearly stated that the death is due to

'Haemorrhage and shock as a result of intracranial bleeding and

Haemorthorax left' and also the inquest mahazar-Ex.P13 and the

witnesses to the said mahazar i.e., PW.8, PW.11 and PW.12

clearly deposed about the injuries sustained by the deceased.

Hence, a conjoint reading of Ex.P13 and Ex.P20 coupled with the

evidence of PW.20 and PWs.8, 11 and 12, the prosecution has

proved the homicide death of the deceased Siddashetty in this

case. Even otherwise, the counsel for the appellants not

seriously disputed the homicidal death of the deceased.

12. Once the homicidal death of the deceased is proved

by the prosecution, the next aspect arises for consideration is

that whether the accused are responsible for the same.

13. By careful perusal of the evidence of PW.1-Raju,

PW.4-Puttasiddamma i.e., the injured eyewitness, who is none

other than the wife of the deceased, PW.5-Kumari Maheshwari,

the daughter of the deceased and also PW.6-Gopala Shetty, who

is the another eye witness of the incident, all these witnesses,

categorically deposed that on 02.12.2014 at 4.00 p.m., while

they were coming from the Chamundeshwari temple, accused

Nos.1 to 3 assaulted the deceased Siddashetty with axe, iron

rods and also with chopper and thereby, committed the incident.

These witnesses also stated that, the other accused Nos.4 to 6

assaulted PW.4 on the right forearm and other parts of her body.

By the perusal of the evidence of PW.4-the injured witness, it

clearly depicts that after the incident, she was taken to

Gundlupet Government Hospital where PW.23- Dr.Shreedhar

treated her and issued the wound certificate as per Ex.P33. By

careful perusal of the wound certificate of PW.4 Puttasiddamma,

it is stated in the history of assault that Mahadevashetty and his

sons assaulted her with the axe and other weapons. Further, the

version of PWs.1, 4, 5 and 6 are very much consistent and there

are no contradictions or omissions forthcoming in their evidence.

All these witnesses categorically stated that accused No.1

assaulted the deceased with the axe on his left leg, left thigh and

accused No.2 assaulted deceased with iron rod on his right leg,

back portion and also on the shoulder and accused No.3

assaulted with the chopper on the head of the deceased

Siddashetty. By perusal of Ex.P19 i.e., post-mortem examination

conducted by the doctor clearly depicts that the deceased

Shiddashetty sustained injuries on his right temporal region,

occipital area, left mid thigh, left leg, shoulder, chest etc.,

Hence, the evidence of PW.1, 4, 5 and 6 very much corroborates

in respect of the injuries sustained by the deceased. Admittedly,

the doctor gave an opinion that the death is due to

'Haemorrhage and shock as a result of intracranial bleeding and

Haemorthorax left'. Hence, on careful perusal of this aspect,

there is no reason to disbelieve the version of PW.1, 4, 5 and 6.

Further, by perusal of the compliant lodged by PW.1 as per

Ex.P1 at the earliest point of time, he stated about the act of

accused Nos.1 to 3 and the assault caused by them on the thigh,

shoulder and head of the deceased. Hence, the evidence of

PW.1, 4, 5 and 6 are consistent since from lodging of Ex.P1 till

their evidence before the Court. Though the learned counsel for

the appellants contended that there are minor contradictions,

the same does not go into the root of the prosecution case.

Since the evidence recorded after two years, naturally their

memory fades in respect of the minute aspects. The Hon'ble

Apex Court and this Court in catena of judgments held that the

examination of the witness before the Court is not to test their

memory power. Hence, we are of the considered opinion that

there is no reason to disbelieve the consistent version of PW.1,

PW.4, PW.5 and PW.6 in this case.

14. Learned counsel for the appellants, vehemently,

contended that the accused were falsely implicated in the crime

for the reason that there was a civil dispute pending between the

deceased family and the accused family. Nevertheless, the

prosecution also examined PW.16 and PW.17 to prove the

motive part. By perusal of the evidence of PW.16 and PW.17,

admittedly, there is a civil dispute pending between the

deceased family and the accused family before the Civil Court

and the Assistant Commissioner's Court. But mere pendency of

the civil suit between the accused family and the deceased

family itself is not a ground to disbelieve the version of injured

and the other eyewitness about the incident. Per contra, an

inference can be drawn that because of the pendency of the civil

suit only, the accused committed the murder of the deceased

and the prosecution proved the motive for the incident beyond

reasonable doubt.

15. Coming to the next aspect i.e., the recovery of

MOs.8 to 12-the weapons used by accused Nos.1 to 3 and 5 for

the commission of alleged incident, based on the voluntary

statement of accused Nos.1 to 3, the aforesaid weapons were

seized as per Exs.P6 and P7. PW.17 and PW.10 are the

witnesses to those mahazars. These PW.7 and PW.10 were

categorically stated that the accused have taken them inside the

house and they gave the weapons to the police and the mahazar

was drawn to that effect as per Ex.P7. Though these witnesses

have cross-examined by the defence counsel, nothing worthwhile

has been elicited from them to disbelieve their version. Hence,

by perusal of the evidence of these two witnesses, the

prosecution also proved the recovery of the weapons said to

have used for the commission of the crime. PW.21-Dr.Chaya

Kumari, who is the Scientific Officer, examined those weapons

and issued the certificate as per Ex.P21 wherein she opined that

the blood stained found in those weapons are human blood and

belongs to 'O' Group. On careful perusal of Ex.P21, the certificate

of examination by PW.21-Dr.Chaya Kumari, it clear depicts that

item Nos.1 to 12 are stained with the human blood. Out of the

same, item Nos.8 to 12 are the weapons used for the

commission of the crime and the other items are the clothes

pertaining to the deceased and also the blood stained mud and

the sample mud collected by the Investigating Officer from the

spot of incident. Such being the case, the prosecution also

proved that the weapons which were used to commit the murder

of the deceased by the accused and seized under Exs.P6 and P7.

16. Nevertheless, the doctor, who conducted the post

mortem, also opined that there is a possibility of sustaining

injuries found in the post mortem report as per Ex.P19 by MOs.8

to 12 and accordingly, he issued the opinion as per Ex.P20.

Hence, a conjoint reading of Ex.P21 and Ex.P20, the opinion of

the doctor, the prosecution has also successfully proved that the

accused were used MOs.8 to 12 for the commission of the crime.

17. It is, vehemently, contended by the learned counsel

for the appellant that some of the other eyewitnesses i.e., PW.9,

PW.13 and PW.14 are turned hostile to the prosecution case but,

the evidence of PW.1, PW.4, PW.5 and PW.6 are consistent and

absolutely there are no infirmities to discard their version. Even

in the cross-examination also, these witnesses withhold the

cross-examination conducted by the defence counsel. The

Hon'ble Apex Court in catena of judgments held, mere fact that

some of the witness to the events prior or leading to the incident

did not support the prosecution would not mean that the

testimonies of those witnesses would automatically stand

discarded. The evidentiary value of hostile witness discussed by

the Hon'ble Apes Court in the case of Neeraj Dutta v. State

(NCT of Delhi) reported in (2023) 4 SCC 731 held as under:

"87. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross- examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile"

does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."

18. The general principles appreciating the evidence of

witness is that when a case involves large number of offenders,

prudently it is necessary but not always, for the Court to seek

corroboration at least from two or more witnesses as a measure

of caution. However, the principle has to be applied is quality

over quantity of witness as held by the Hon'ble Apex Court

Mrinal Das v. State of Tripura reported in (2011) 9 SCC

479. In respect of the effect of omissions and deficiencies, the

Hon'ble Apex Court in the case of Ravasaheb alias

Ravashebgouda and others vs. State of Karnataka reported

in (2023) 5 SCC 391 held as under:

"23. The evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake th foundations of the prosecution's case."

The Hon'ble Apex Court in the said judgment also held, in

respect of testimony of a close relative, as under:

"25. A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of general application.

19. It is settled position of law that the examination of

the witness before the Court is not to test his/her memory

power. Minor discrepancy bound to occur due to long lapse of

time and substratum of the evidence will have to be looked into.

20. In the case on hand as stated supra, PW.1 is the

complainant and eyewitness to the incident, PW.4 is the injured

eyewitness to the incident, PW.5-the daughter of the deceased is

also an eyewitness to the incident and PW.6-the elder brother of

the deceased is also an eyewitness to the incident. By perusal of

the evidence, it clearly depicts that accused No.1 has filed one

complaint as per Ex.D1 against PW.1, CW.13 and CW.18 and

the said case is pending in Gudulpet Court in C.C.No.151/2014.

In the evidence of PW.1, he categorically admits that there was

a grudge between himself and the deceased due the pendency of

the case. He also admits in his evidence that he was waiting to

file some case against the accused. PW.4 is none other than the

wife of the deceased and she stated in her evidence that the

deceased has filed one case against accused No.1 in respect of

the agricultural land. Even PW.4 also admitted that there was

civil suit pending as per Ex.D1 in O.S.No.43/2010. Therefore, it

is clear that there was a grudge between accused No.1 and the

deceased. That aspect of the matter clearly proved the motive

for the commission of the crime by the accused.

21. The Holn'ble Apex Court in the case of Baleshwar

Mahto and another vs. State of Bihar reported in (2017) 2

SCC (Cri) 26 held that when group of persons come to the place

of occurrence armed with the deadly weapons, their intention

and purpose would more than apparent - Such persons cannot

argue that incident occurred at spur of the moment - Further, a

longstanding land dispute between the two parties only shows

previous animosity. In paragraph 12 of the said judgment, the

Hon'ble Apex Court held as under:

"12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

22. Thus, keeping the principles initiated in the aforesaid

decisions, though PW.1, PW.4, PW.5 and PW.6 are the relatives

of the deceased and these evidence is to be scrutinized very

strictly but, as discussed supra, all these witnesses categorically

deposed about the injuries caused by accused Nos.1 to 3 to the

deceased so also PW.4.

23. Though there are some minor contradictions in the

evidence of PW.1 and PW.4 to PW.6, the same does not go to

the root of the prosecution case and as discussed supra, the

defence side failed to prove their version in respect of the

alleged incident is concerned.

24. The ocular evidence of these witnesses clearly

corroborates with the medical evidence of the doctor, who

conducted the autopsy and also the opinion of the doctor in

respect of the weapons and the evidence of PW.21-Scientific

Officer. In such circumstances, in our considered opinion, by

perusal of witness PWs.1 and PW.4 to PW.6 clearly reveals that

there is cogent and consistent evidence with regard to the act of

accused Nos.1 to 3. Therefore, the learned Sessions Judge

rightly convicted accused Nos.1 to 3 for the offence punishable

under Sections 341 and 302 r/w Section 34 of IPC.

25. However, as far as accused No.4 is concerned,

though the learned Sessions Judge convicted her for the offence

punishable under Sections 341 and 324 r/w Section 34 of IPC,

by perusal of the evidence of above eyewitness in respect of

participate of accused No.4 in the crime, these witnesses were

not cogently deposed in their evidence. Moreover, by perusal of

the evidence of PW.1 and PW.4 to PW.6, though some of the

witnesses deposed that accused No.4 assaulted PW.4 with the

chopper, there is a contradictory version among PW.1, PW.4,

PW.5 and PW.6 and moreover, the prosecution has failed to

prove the recovery of the said chopper at the instance of

accused No.4 and she being the relative of accused Nos.1 to 3,

there is a doubt arise in respect to her participate in the crime.

Hence, in our considered opinion, the prosecution failed to prove

the guilt of accused No.4 and accordingly, the conviction of

accused No.4 is liable to set aside.

26. In the circumstances, as we have already observed,

we found no reason to disbelieve the version of PW.1 and PW.4

to PW.6 and we are in agreement with the learned Sessions

Judge in respect to conviction of accused Nos.1 and 3 for the

offence punishable under Sections 341 and 302 r/w Section 34

of IPC.

27. In view of the aforesaid background, the submission

advanced, law appreciated and analyzed, we find that the

appeal, in respect of accused Nos.1 to 3, being devoid of merit,

deserves to be dismissed.

28. Accordingly, we answer the above points which

raised for consideration and proceed to pass the following:

ORDER

i. The criminal appeal is hereby allowed-in-part.

      ii.    The judgment of conviction and order of
             sentence passed in S.C.No.52/2015 dated
             06.10.2017     by    the     Principal   District   and

Sessions Judge at Chamarajanagar, in respect of accused No.4, is hereby set aside.

iii. Accused No.4 is hereby acquitted of the charges levelled against her for the offences punishable under Sections 341 and 324 r/w Section 34 of the IPC.

iv. The Bail and Surety Bonds executed by accused No.4 is hereby cancelled and if the accused deposited the fine amount, if any,

before the trial Court, the same shall be refunded to her on proper identification.

v. The judgment of conviction and order of sentence passed in S.C.No.17/2015 dated 06.10.2017 by the Principal District and Sessions Judge at Chamarajanagar, in respect of accused Nos.1 to 3, is hereby confirmed.

vi. The Registry is hereby directed to send the LCR forthwith along with the certified copy of this order to learned Sessions Judge to take appropriate action to secure the presence of accused Nos.1 to 3 and to commit them to prison to serve the sentence, if they are on bail.

Sd/-

JUDGE

Sd/-

JUDGE VM