Karnataka High Court
Somalingappa Yalival S/O ... vs State Of Karnataka on 12 June, 2023
Bench: Dr. H.B.Prabhakara Sastry, C M Joshi
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100251/2019
C/W.
CRIMINAL APPEAL NO.100423/2019
IN CRL.A. NO.100251/2019
BETWEEN
SOMALINGAPPA YALIVAL,
S/O. NINGAPPA,
AGED ABOUT 56 YEARS,
OCC: AGRI.,
R/R HIREHONNALLI,
TQ. KALAGATAGI,
DHARWAD.
...APPELLANT
(BY SRI L.S. SULLAD, ADVOCATE)
AND
1. STATE OF KARNATAKA,
CIRCLE INSPECTOR,
KALAGATAGI POLICE,
REP. BY PUBLIC PROSECUTOR,
2
HIGH COURT OF KARNATAKA,
DHARWAD.
2. BASAVARAJ YALIVAL,
S/O. SHIVAPPA,
AGED ABOUT 36 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
3. SANGAPPA YALIWAL,
S/O. SHIVAPPA,
AGED ABOUT 33 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
4. PRABHU YALIVAL,
S/O SHIVAPPA,
AGED ABOUT 42 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
5. MANJUNATH,
S/O. GURUSIDDAPPA DODAMANI,
AGED ABOUT 38 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
6. KUMAR OLEKAR @ VAJRAKUMAR,
S/O. KALLAPPA,
AGED ABOUT 35 YEARS,
OCC: AGRI.,
3
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
7. MANJAPPA YALIVAL @ GANGADHAR,
S/O BASAPPA,
AGED ABOUT 28 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
8. MATTU CHKALABBI @ MRUTUNJAYA,
S/O. BASAPPA,
AGED ABOUT 21 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
...RESPONDENTS
(BY SRI V.S. KALSURMATH, HCGP FOR R1;
SRI K.L. PATIL, ADVOCATE FOR R2 TO R8)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.,
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN S.C.
NO.5/2016 DATED 18.04.2019, PASSED BY IV ADDL.
DISTRICT AND SESSIONS COURT, DHARWAD AND CONVICT
RESPONDENT NO. 2 TO 8 FOR THE OFFENCE PUNISHABLE U/S
143, 147, 148, 341, 302 R/W 149 IPC AND CALL FOR THE LCR
IN SESSIONS CASE NO.5/2016 IN THE FILE OF IV ADDL.
DISTRICT AND SESSIONS COURT, DHARWAD.
IN CRL.A. NO.100423/2019
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
4
DHARWAD RURAL CIRCLE,
(KALAGHATAGI PS),
DHARWAD DISTRICT,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI V.S. KALSURMATH, HCGP)
AND
1. BASAVARAJ,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE.
2. SANGAPPA,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE.
3. PRABHU,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE.
4. MANJUNATH,
S/O. GURUSHIDDAPPA DODAMANI,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE.
5. KUMAR @ VAJRAKUMAR,
S/O. KALLAPPA WALIKAR,
AGED ABOUT 35 YEARS,
5
OCC: AGRICULTURE
AND KIRANI SHOP.
6. MANJAPPA @ GANGADHAR,
S/O. BASAPPA YALIWAL,
AGED ABOUT 28 YEARS.
7. MUTTU @ MRUTUNJAYA,
S/O. BASAPPA CHAKALABBI,
AGED ABOUT 21 YEARS,
OCC: STUDENT.
ALL ARE R/O. HIREHONNALLI,
TQ. KALAGHATAGI,
DIST: DHARWAD,
PIN CODE: 580114.
...RESPONDENTS
(BY SRI K.L. PATIL, ADVOCATE FOR R-1 TO R-7)
THIS CRIMINAL APPEAL IS FILED U/SEC.378(1) & (3)
OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
18.04.2019 PASSED BY THE IV ADDL. DISTRICT AND
SESSIONS JUDGE DHARWAD IN S.C. NO. 5/2016 AND SET
ASIDE THE JUDGEMENT AND ORDER OF ACUITTAL DATED
18.04.2019 PASSED BY THE IV ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD IN S.C. NO. 5/2016 AND
CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148,
341, 302 R/W. SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 15.02.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO
CONFERENCING AT BENGALURU, THIS DAY, C. M. JOSHI, J.,
DELIVERED THE FOLLOWING:
6
JUDGMENT
These appeals arise out of the judgment of acquittal
in SC No.5/2016 passed by the learned IV Additional
District and Sessions Judge, Dharwad, dated 18-4-2019.
2. The complainant-Somalingappa S/o Ningappa
Yaliwal as well as the State have approached this Court in
these appeals.
3. The parties are referred to as per their ranks
before the Sessions Court for the sake of convenience.
4. The brief facts of the case are as below:
Based on the complaint filed by the
complainant Somalingappa Yaliwal (PW12)
Kalghatagi PS registered Crime No.280/2015 on
20-09-2015, wherein it was alleged that the
complainant was the resident of Hirehonnalli village
of Kalghatagi Taluka, and his son Ningappa was
serving in Military for the last six years prior to the
filing of the complaint and had come to the village
on 16-9-2015 on leave for 20 days. It was stated
that there was a dispute in respect of backyard of
property bearing No.95 between him and accused
persons for about two months. It was stated in the
complaint that one Bharamappa Yeliwal and
Parvatevva Hurakadli, had allegedly executed a
relinquishment deed in favour of accused No.1 and
the accused were contending that the said property
bearing No.98 was part and parcel of the property
No.95 belonging to PW12.
It was stated in the complaint that on
20-09-2015 at about 3.30 p.m. when the
complainant, his wife and children were in his
house, the friend of the deceased Ningappa i.e.
PW22 - Mallikarjun Mahadevappa Hatigar had came
to his house and asked the deceased Ningappa to
accompany him to his groundnut field. Accordingly,
they went on a motor cycle. Thereafter, at about
4.45 p.m. when the complainant was standing at
Hireagasi, Basalingappa Shivalingappa Yaliwal i.e.
PW19 came and informed that PW22- Mallikarjun
Hatagar had informed him over phone that the
accused had assaulted deceased Ningappa near the
crusher of Yaliwal on Dhulikoppa road, Hirehonnalli,
in respect of the dispute regarding the open site,
with Machhu. Thereafter, Prabhuling Yaliwal i.e.
PW13 and Manjunath Yaliwal PW17 brought
Ningappa on a motor cycle and the injured
Ningappa was taken in a car belonging to PW7-
Rudrappa Yaliwal to KIMS hospital, Hubballi. It was
stated that, complainant -PW12, his wife Yallavva
and PW13- Prabhuling M. Yaliwal and PW14-
Mehaboob sab accompanied the injured Ningappa in
the said car to the hospital. It was also stated in the
complaint that while on the way to the hospital, the
deceased Ningappa was enquired by the
complainant and he informed that the accused Nos.
1 to 7 had assaulted him while he was returning on
the motor cycle near the Yaliwal crusher with the
weapons and had injured him. It was stated that the
deceased Ningappa had sustained injuries on his
head, hands, neck etc., and while they were
entering the compound of the KIMS hospital at
about 5.30 p.m., Ningappa died. Therefore, he
sought for action against the accused.
5. The said complaint was registered by the
Investigating Officer for the offences punishable under
Sections 143, 147, 148, 341, 302 read with Section 149
of IPC.
6. The accused Nos. 1 to 7 were arrested by the
Investigating Officer and they were produced before the
Court and later they were enlarged on bail. After
investigation, the chargesheet was laid by the
Investigating Officer for aforesaid offences and on the
committal of the case to the Sessions Court, the Sessions
Court secured the accused and framed the charges for
the aforesaid offences, for which accused Nos. 1 to 7
pleaded not guilty.
7. In order to prove the guilt of the accused, the
prosecution examined 23 witnesses as PWs- 1 to 23,
Exhibits P1 to P47 and MO 1 to 19 were marked in
evidence.
8. The defence has got marked Ex.D1 to D17 in the
cross-examination of the prosecution witnesses. After
recording the statements of the accused Nos. 1 to 7
under Section 313 of Cr.PC., the arguments by learned
SPP for the State and learned counsel for the accused
were heard.
9. Accused had contended in their statement under
Section 313 Cr.P.C. that they had not given any voluntary
statement before the Investigating Officer and had not
produced any incriminating articles, clothes etc. They
contended that there was a dispute regarding property
No.95 of Hirehonnalli village, but it was the deceased
Ningappa, who used to pick up quarrel with various
people whenever he comes to the village saying that he is
a Military man. They contended that deceased Ningappa
has grabbed the property of one Dyavanagouda Govind
Patil by threatening him and there was also an assault on
one Basayya Chikkamath about 3 years prior to the
incident and also there was wrongful confinement of one
Nagappa Sheelavantar by the deceased under the pretext
of illicit intimacy with one Laxmi and therefore, he had
many people who were in enimical terms with him and
therefore, they have committed the murder, but not the
accused persons.
10. After hearing the arguments, the Sessions
Court, by the impugned judgment has recorded the
finding of acquittal.
11. The Sessions Court raised the following points
for consideration which were answered in the negative
while coming to such conclusion:
"1. Whether the prosecution proves all
reasonable doubt that, on 20/09/2015 at about
4.30 p.m at Yaliwal crusher on Hirehonnalli-
Dhulikoppa road, all the accused 1 to 7 being the
members of an unlawful assembly came with a
common object by holding deadly weapons like
longs and sticks, as there was dispute in respect of
the property bearing No. 95 of Hirehonnalli with the
complainant and with an intention to commit the
murder, they have indulged in rioting and
wrongfully restrained the deceased Ningappa who
was coming with C.W.16 Mallikarjun Hatagar on a
motor cycle and thereby all the accused have
committed an offence punishable under section
143, 147, 148 and 341 R/w Sec 149 of I.P.C. ?
2. Whether the prosecution proves beyond all
reasonable doubt that on the above said date, time
and place, all the accused 1 to 7 being the
members of an unlawful assembly came with
common object by holding deadly weapons as
stated supra and the accused 1, 4, 6 and 7
assaulted the deceased Ningappa with longs and
the accused 2, 3 and 5 assaulted Ningappa with
sticks and who succumbed to the injuries on the
way to K.I.M.S hospital Hubballi at 5.30 p.m. and
thereby all the accused have committed an offence
punishable under Section 302 R/w. Sec. 149 of
I.P.C. ?
3. What order ?"
12. Aggrieved by the said judgment, the
complainant-Somalingappa S/o Ningappa Yaliwal, who
was PW12 before the Sessions Court, has approached this
Court in appeal in Crl.A.No.100251/2019 and the State
has also approached this Court in appeal in
Crl.A.No.100423/2019.
13. The appellants contend that the Sessions Court
has seriously erred in appreciating the evidence produced
by the prosecution and failed to consider strong material
evidence available. It is contended that the evidence on
record shows that the accused have participated actively
in the commission of the crime and the Sessions Court
failed to understand the case of the prosecution in
accepting the strong material evidence and that the
corroborative evidence put forth by the prosecution has
not been considered. It is contended that PWs 12, 13 and
22 and other witnesses have spoken about the motive,
the commission of the offence and the oral dying
declaration by the deceased Ningappa.
14. It is contended that PW12-Somalingappa
Yaliwal, who is none else than the father of the deceased
has stated clearly in his evidence about the deceased
Ningappa having disclosed the names of the assailants.
So also the evidence of the other witness i.e. PW 13 is
also believable and the sole eye witness to the incident
PW22- Mallikarjun Mahadevappa Hatigar, has stated
about seeing the assault by the accused. It is contended
that the Sessions Court failed to appreciate that PW7-
Rudrappa, the relative of the accused, has obviously
turned hostile. It is contended that the Sessions Court
unnecessarily placed reliance on the evidence of PW7 and
PW14 who had not spoken about the alleged dying
declaration made by deceased Ningappa. Therefore, the
revelations by the deceased about the assailants
corroborate the evidence of PW22, which clearly falsifies
the say of PW7 Rudrappa and PW14- Mehboobsab. This
aspect has not been properly appreciated by the Sessions
court in coming to the conclusion and therefore, they
contend that the impugned judgment is perverse,
arbitrary and is based on the wrong inferences being
drawn from the evidence available on records.
15. The appeals were admitted by this Court and on
issuance of notice, accused Nos. 1 to 7 have appeared
before this Court through their counsel and trial Court
records have been secured.
16. We have heard the arguments by learned
counsel appearing for the appellant/complainant and the
learned High Court Government Pleader for State. We
have also heard the arguments by the learned counsel
appearing for the respondents-accused and have perused
the records.
17. The points that arise for our consideration in
these appeals are:
(i) Whether the prosecution has proved that death
of deceased Ningappa was homicidal death?
(ii) Has the prosecution proved beyond reasonable
doubt that the accused 1 to 7 have caused the death of
deceased Ningappa Yalival?
(iii) Whether the alleged act of the accused in
causing death of deceased Ningappa by assaulting him
with machetes and sticks is culpable homicide
amounting to murder or not amounting to murder?
(iv) What order?
18. Before proceeding to consider the evidence, we
are aware that the Appellate Court has to be cautious
while considering an appeal against acquittal. The law
relating to an appeal in acquittal is settled. The latest
decision of the Apex Court in the case of Ravi Sharma
vs. State (Government of NCT of Delhi) and
Another1 chronicles the consistent stand taken by the
Apex Court over a long period of time concerning the
appeal against acquittals. It is relevant to note that the
decision in the case of Chandrappa vs. State of
Karnataka2 in para No.42 lays down the following
principles.
"42. From the above decisions, in our
considered view, the following general principles
regarding powers of appellate Court while dealing
with an appeal against an order of acquittal
emerge;
(1) An appellate Court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate Court on
(2022) 8 SCC 536
(2007) 4 SCC 415
the evidence before it may reach its own
conclusion, both on questions of fact and of law;
(3) Various expressions, such as,
'substantial and compelling reasons', 'good and
sufficient grounds', 'very strong circumstances',
'distorted conclusions', 'glaring mistakes', etc. are
not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of
'flourishes of language' to emphasize the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear
in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be
innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having
secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the finding
of acquittal recorded by the trial court."
19. Thereafter, the Apex Court in the case of
Jafrudheen vs. State of Kerala3 in para 25 held as
below:
"25. While dealing with an appeal against
acquittal by invoking Section 378 of the Cr.PC, the
Appellate Court has to consider whether the Trial
Court's view can be termed as a possible one,
particularly when evidence on record has been
analysed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour
of the accused. Thus, the Appellate Court has to
be relatively slow in reversing the order of the
Trial Court rendering acquittal. Therefore, the
presumption in favour of the accused does not get
weakened but only strengthened. Such a double
presumption that enures in favour of the accused
has to be disturbed only by thorough scrutiny on
the accepted legal parameters."
20. All the above decisions along with many other
precedents have been considered elaborately by the Apex
Court in Ravi Sharma's case and it has reiterated those
principles and therefore, it is evident that the Appellate
Court should be cautious while reversing a judgment of
acquittal. The reason behind the principle is that the
(2022) 8 SCC 440
accused has the benefit of innocence as a basic principle
of a criminal jurisprudence. Secondly, the accused has
the benefit of acquittal by the Trial Court which had the
occasion to peruse and observe the demeanor of the
witnesses and the manner in which they had spoken
before the Court. The confidence of the Trial Court arises
on the basis of the deposition of the witnesses who
physically appeared before it. That advantage is not
before the Appellate Court and therefore, keeping in view
these principles, the case on hand needs to be
appreciated by this Court. Therefore only if the approach
of the trial Court is perverse and such perversity go to
the root of the case, the appellate court can intervene.
PROSECUTION CASE:
21. The case of the prosecution as it unfolds from
the chargesheet papers is that, there was a dispute
between the accused No.1 and PW12 regarding the
property bearing panchayat Nos.95 and 98. The accused
were trying to construct a building in the property of
PW12. The deceased Ningappa was serving in Military and
he had informed his higher officers regarding the dispute
and as such, they had written a letter as per Ex.P24 on
3-8-2015 to the Tahasildar, Superintendent of Police and
other officials of the Government stating that there was
forcible, illegal occupation of the property of the deceased
Ningappa by one Basavaraj Sangappa Yaliwal and
Shivappa Yaliwal. It was also stated in the said letter that
all efforts made by the deceased Ningappa went in vain
and the family was under the threat of dire consequences
from the miscreants. When the request by the higher
officers of the deceased Ningappa was not fruitful,
Ningappa had come to the village to resolve the matter.
The dispute was that the accused were trying to construct
the house in property bearing panchayat No. 95 though
they are claiming right in the property bearing panchayat
No.98. After the deceased came to the village on 20 days
leave on 16.9.2015, the deceased as well as the PW12
had been to the office of the panchayat and had met the
President and complained about the claim by the
accused. They were informed that there will be a meeting
of the panchayat on 21.9.2015 and they have to come to
the meeting and explain their case. But in the meanwhile,
Ningappa was murdered on 20-9-2023. Therefore, the
prosecution contends that there was a motive for
commission of the offence.
22. It is the further case of the prosecution that on
20-09-2015, when the deceased Ningappa was in his
house, his childhood friend, PW22- Mallikarjuna
Mahadevappa Hatgar came to his house and deceased
Ningappa accompanied PW22 Mallikarjun Mahadevappa
Hatgar to his groundnut field. While they were returning
back there was an assault as contended in the complaint
supra. Therefore, accused had a motive in respect of
property dispute and the prosecution alleges that the
accused mounted assault on the deceased with weapons
and killed him.
23. Soon after the receipt of the complaint by
PW12, PW18 - Maralusiddappa Doddabasappanavar,
registered the case in Crime No.280/2015 and launched
the investigation. The case was registered at 9.45 p.m.
and the FIR was received by the Court at 2.20 AM.
24. On 21-09-2015, the inquest of the body of the
deceased was conducted as per Ex.P23 in presence of
PW14. The body was subjected to autopsy by PW6-Dr.
A.A. Nadaf. Thereafter, PW18 visited the spot and
conducted the spot mahazar as shown by PW22-
Mallikarjun Mahadevappa Hatagar and the said spot
mahazar is at Ex.P8. A machete was also seized from
spot (MO5), along with the blood stained mud, normal
mud, blood stained twigs. On the same day, he records
the statements of the witnesses and then arrested the
accused Nos. 1 and 6 and recorded their voluntary
statement. At the instance of accused No.1, the
Investigating Officer seized the Long (a machete with
long blade) which was used by accused No.1 (MO No.7)
and mahazar was conducted as per Ex.P16. Thereafter,
their blood stained clothes were seized by the
Investigating Officer. The prosecution contends that the
accused Nos. 2 to 4 and 7 were arrested on 23-9-2015
and they also gave voluntary statement and on the basis
of which, the weapons like machetes and sticks and the
vehicle used by them were also seized at their instance
under the mahazar.
25. On 29-9-2015, the Investigating Officer
received the report of the Post Mortem of the deceased
conducted by PW6. Then the investigation was handed
over by him to PW23-Motilal Ramaswami Pawar.
Thereafter, PW23 recorded the statements of the Police
Constables who were involved in the investigation i.e.,
carrier of the FIR, carrier of the MOs to the FSL etc., and
after securing the relevant documents, ultimately, filed
the chargesheet. PW22 gave a statement under Section
164(5) of Cr.P.C. before the Magistrate, Dharwad.
26. According to the prosecution, PW22-Mallikarjun
Mahadevappa Hatagar, while fleeing away from the spot
informed PW19-Basalingappa Yaliwal, over phone to
inform the incident to the family members of Ningappa.
However, PW13 and PW17 having got the information of
assault on deceased Ningappa, went to the spot over the
motor cycle and then brought the deceased Ningappa on
the motor cycle by triple riding to Hireagasi (a place at
Hirehonnalli village). Then PW12-Somalingappa Yaliwal,
his wife-Yellavva and PW7-Rudrappa Yaliwal and PW14-
Mehboobsab Makandar along with PW13-Prabhuling
Yaliwal took the deceased in the car of the PW7 to the
KIMS hospital, Hubballi. The prosecution contends that,
on the way to the hospital, deceased Ningappa had given
a dying declaration informing the names of the assailants.
However, before the deceased reached the hospital, when
they entered the compound of the KIMS hospital,
Hubballi, Ningappa breathed his last. Therefore, the
prosecution heavily relies on the evidence of PWs
7,12,13,14, 17 and PW22 in this regard and also the
evidence of PW6-Dr.A.A.Nadaf, who conducted the
autopsy of the body of the deceased. It also relies on the
evidence of expert of FSL i.e. PW20-Dr.
Mahadeshwaraswami Y.H., to establish that the blood
stains on the clothes worn by the accused also belong to
the blood-group which is found on the clothes of
deceased Ningappa. Therefore, the prosecution contends
that there is evidence to show that the accused had made
preparation and in view of the panchayat meeting fixed
on 21-9-2019, they were looking for an opportunity to kill
the deceased Ningappa. There was also an incident which
had taken place in front of the panchayat office, where
the accused had threatened the deceased that they will
kill someone of the family of the PW12.
27. It is in the light of the above contentions of the
prosecution that the evidence on record and contentions
by defence need to be considered.
EVIDENCE
28. PW1-S.M.Hallad, happens to be the Police
Constable, who took the body of the deceased Ningappa
to the Post mortem.
PW2-Hema, happens to be the Women Head
Constable who collected the PM report and submitted the
same to the Investigating Officer.
PW3-Sahadev Siddappa Dharwad, is a Head
Constable who carried the articles 1 to 18 to the FSL on
the instructions of the Investigating Officer.
PW4-D.R. Kumbar happens to be the AEE of PWD
who prepared sketch of the spot as per ExP2.
PW5-P.H. Takkalaki happens to be the Police
Constable who submitted the FIR to the concerned
Magistrate as per instructions of the Investigating Officer.
He states that he received the FIR at 9.45 p.m. and he
submitted the same to the Magistrate who was sitting at
Dharwad at 2.00 a.m.
PW6-Dr.A.A.Nadaf, happens to be the Medical
Officer, who conducted the autopsy of the body of the
deceased and submitted the P.M. report as per ExP5 and
the notes of the post mortem are also marked at Ex.D3.
The requisition submitted by the Investigating Officer to
the PW6 in Form No.146 (ii) is at Ex.D1.
PW7-Rudrappa C. Yaliwal, happens to be the
relative of both the parties and car owner, who took the
deceased in his car to KIMS Hospital, Hubballi. He has
turned hostile to the prosecution case.
PW8-B.B. Belliwale, happens to be the pancha of
the spot mahazar which is at Ex.P8, Recovery mahazars
at Exs.P10 and 11.
PW9-C.K Bommigatti, PW10-P.Y.Kichadi, PW11-I.C.
Kamadhenu, PW15-V.M. Mugad, happen to be the
panchas who were present at the time of recoveries made
by the Investigating Officer at the instance of the
accused.
PW12-Somalingappa Ningappa Yaliwal, happens to
be the complainant and father of the deceased Ningappa.
He speaks about the motive, dying declaration, filing of
the complaint to the police.
PW13-Prabhuling M. Yaliwal, happens to be the
relative of the deceased Ningappa. He accompanied the
deceased from the spot to Hireagasi on motor cycle,
along with PW17. Then he accompanied PW12 and
deceased to KIMS, Hubballi.
PW14-M.M.Makandar has accompanied the
complainant and others in the car while going to hospital
and he was also a signatory to inquest panchanama.
PW16-D.M.Dhanigonda, happens to be the pancha
who was present at the time of seizure of the clothes of
the deceased.
PW17-Manjunath.S.Yaliwal, happens to be the
brother of the deceased. He and PW-13 had brought the
deceased from the spot of the incident to Hireagasi on a
motor cycle.
PW19-B.S.Yaliwal, happens to be the person who
has received the call from PW22 and had informed PW-12
about the incident. He has turned hostile and denied that
he had received call from PW22.
PW20-Dr.Mahadeshwaraswami Y.H., happens to be
the expert from FSL who speaks about the blood stains
and the groups. He also speaks about the blood stains
found on two of the weapons.
PW21-Vinayak Chandrakant Annigeri, happens to be
the scribe who wrote the complaint as per Ex.P4 at the
instance of the PW12 at KIMS hospital, Hubballi.
PW22-Mallikarjun Mahadevappa Hatagar, happens
to be the friend of the deceased and an eye witnesses to
the incident.
PW18-M.R. Doddabasappanavar, CPI, who
conducted major part of the investigation and PW23-
Motilal Ramaswami Pawar, CPI, is the Investigating
Officer, who completed the investigation and filed the
chargesheet in this case.
THE ARGUMENTS:
29. Learned counsel Sri L.S. Sullad, appearing for
the appellant/complainant contended that though the
prosecution has proved its case, the Trial Court has
placed reliance on the hostile witnesses and inconsistent
discrepancies in the evidence to base its finding. The
points he contended in his submissions are as below:
(a) He submitted that PW12-Somalingappa
Ningappa Yaliwal, PW13-Prabhuling M. Yaliwal, PW17-
Manjunath Yaliwal and PW22- Mallikarjun Mahadevappa
Hatagar are important witnesses for the prosecution. He
submitted that the evidence of PW12 and the documents
at Exs.P24 to P27 show that there was a motive for
commission of the offence by the accused. The elaborate
cross-examination of PW12 regarding the dispute in
respect of the open space of the panchayat Nos 95 and
98 and the fact that the higher officers of the deceased
had written letter to the SP, Tahasildar and etc., clearly
disclose that there was a motive for the accused for the
commission of the offence and the said fact has been
proved by the prosecution. He submits that the deceased
had only come for resolving dispute on a leave for 20
days and the meeting of the panchayat was fixed for
hearing the pleas of the parties on 21-9-2015. It is
submitted that the accused had the criminal background
and therefore, the motive for commission of the offence
has been sufficiently established by the prosecution.
(b) He submitted that the accused coming to the
spot with preparation by holding the weapons clearly
indicate that they were looking for an apt opportunity to
finish the deceased Ningappa. The deceased Ningappa
and PW22 were found to be going to the land of PW22
and while they were returning on the motor cycle, they
were assaulted by the accused. The evidence of the
PW22-Mallikarjun Hatagar, being an eye witness clearly
establish this aspect. Therefore, he submitted that there
was preparation for commission of the offence. Four
Longs (machetes with longer blade) and three sticks have
been seized by the Investigating Officer at the instance of
the accused as well as from the spot. He submitted that
the recoveries are proved by the evidence of the panch
witnesses.
(c) He submitted that none of the injuries found on
the body of the deceased show that he was incapable of
speaking. Though there is a small injury which had
occurred on the mandible, it cannot in any way show that
the deceased was incapable of speaking. Therefore, the
ability of the deceased to speak before dying, while
entering the compound of the KIMS hospital at Hubballi
cannot be doubted. He submits that the minute details
about the status of the deceased Ningappa while he was
being taken to the hospital, as spoken by PW12, clearly
establish that his evidence is believable. He submitted
that dying declaration before PW12 and PW13 is clear and
there is no reason to discard the same. He also submits
that the deceased was fit as suggested by the defence to
PW12 and he had undergone the training in the defence.
Therefore, he submitted that it cannot be believed that
the deceased was not capable of speaking while he was
being taken to the hospital. Moreover, from the spot, he
was brought on the motor cycle and then he was shifted
to the car of the PW7. He argued that this also shows
that the deceased was alive when he was taken into the
car of PW7-Rudrappa C. Yaliwal. He points out that the
say of PW12 that the deceased Ningappa had requested
for water while he was being taken to the hospital has
not been denied and therefore, the ability of the deceased
to speak and inform the names of the assailants cannot
be doubted.
(d) He submitted that the evidence of the eye
witness PW22 is believable unless the contradictions are
substantial. It is submitted that he was under threat and
fear by the accused who were having the criminal
antecedents. He submitted that he was in the fear of the
backslash of taking the deceased to his groundnut field
and while returning back the incident had happened.
Therefore, the pressure and the fear on PW22 who was
the friend of the deceased Ningappa has to be understood
in the circumstances of the case. Later, PW22 gave a
statement under Section 164 of Cr.P.C. before the
Magistrate and there also, he has stated about the names
of the assailants. He submitted that some discrepancies
in the evidence of PW22 as to whether PW12 and himself
had been to the Kalagatagi Police Station in the evening
on the date of the incident is minor and it cannot be a
factor which would discredit the testimony and that the
fact remains that FIR has been registered by the police
after receiving the complaint from PW12-Somalingappa
Ningappa Yaliwal at KIMS hospital, Hubballi, which was
written by PW21-Vinayak Chandrakant Annigeri.
(e) He submitted that the blood stains on the
clothes of the deceased and two of the weapons seized
clearly show that they belonged to 'AB' group and the
clothes of the deceased also have the stains of 'AB' group
blood. Therefore, it is submitted that the blood stains of
'AB' blood group on the clothes of the accused should
have been explained by them in their statement under
Section 313 of Cr.P.C.
(f) He submitted that the evidence of the PW18,
Investigating Officer shows the investigation done by him
though there are some lacunae in such investigation. He
submitted that such lacunae will not go to the root of the
case and it cannot be a circumstance which would favour
the defence. It is submitted that the investigation done
by PW18 and PW23 do not show anything which is fatal
to the case of the prosecution.
(g) He submitted that the Trial Court suspected the
presence of PW12-Somalingappa Ningappa Yaliwal, in the
car on the basis of the evidence of PW7. More
importantly, PW13, PW14 and PW17 support the case of
the prosecution that the PW12 traveled in the said car
and therefore, the say of PW12 cannot be brushed aside.
He submitted that the Trial Court erred in coming to the
conclusion that the deceased was not capable of speaking
or giving any dying declaration. The injuries sustained by
the deceased were not properly assessed by the Trial
Court in coming to such conclusion. He submitted that
the evidence of the PW6-Dr.A.A.Nadaf, clearly establishes
that there was nothing to believe that the deceased could
not have spoken about the names of the assailants. In
fact, the evidence of PW6 throws light on the nature of
the injuries sustained by the deceased and it clearly
establish that the death of the deceased Ningappa was a
homicidal death. He further submitted that the Trial Court
disbelieved the evidence of PW22 due to inconsistency in
the evidence and his statement under Section 164 of
Cr.P.C. He submitted that the statement under Section
164 of Cr.P.C. was made by the PW22 under distress
during the investigation and it is the testimony before the
Trial Court which gains importance. He points out that the
discrepancy is not in respect of the contradictions in
material evidence, but it is only as to whether subsequent
to the incident PW12 and PW22 had been to the police
station at Kalagatagi or not.
(h) Lastly, he submits that the Trial Court erred in
holding that the clothes of the father, brother and mother
of the deceased were not seized by the Investigating
Officer to establish that they bore the blood stains of the
deceased while he was being taken to the KIMS hospital.
He submitted that this observation by the Trial Court is
unnecessary when PW12, PW13, PW7 and PW14 also say
that PW12 was also present in the car, it was not at all
necessary that their clothes be seized.
30. In support of his contentions, he relies on the
decision of the Apex Court in the case of Kushal Rao Vs.
State of Bombay4 the Apex Court in para 16 has laid
down the following principles:
AIR 1958 SC 22
"(i) that it cannot be laid own as an absolute rule of
law that a dying declaration cannot form the sole
basis of conviction unless it is corroborated,
(ii) that each case must be determined on its own
facts keeping in view the circumstances in which the
dying declaration was made,
(iii) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind
of evidence than other pieces of evidence,
(iv) that a dying declaration stands on the same
footing as another piece of evidence has to be
judged in the light of surrounding circumstances and
with reference to the principles governing the
weighing of evidence,
(v) that a dying declaration which has been recorded
by a competent magistrate in the proper manner
that is to say, in the form of questions and answers,
and, as far as practicable, in the words of the maker
of the declaration, stands on a much higher footing
than a dying declaration which depends upon the
oral testimony which may suffer from all the
infirmities of human memory and human character,
and
(vi) that in order to test the reliability of a dying
declaration the court has to keep in view the
circumstances like the opportunity of the dying man
for observation, for example, whether there was
sufficient light if the crime was committed at night,
whether the capacity of the man to remember the
facts stated had not been impaired at the time he
was making the statement has been consistent
throughout if he had several opportunities of making
a dying declaration apart from the official record of
it, and that the statement had been made at the
earliest opportunity and was not the result of
tutoring by interested parties."
31. Regarding the proof of the oral dying
declaration, the learned counsel for the appellant has
relied on the decision in the case of Atbir vs. Government
of NCT of Delhi5 wherein, in para 22 it is observed as
below:
"(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.
(iii) Where the court is satisfied that the declaration
is true and voluntary, it can base its conviction
without any further corroboration.
(iv) It cannot be laid down as an absolute rule of
law that the dying declaration cannot be the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence.
(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
2010 (9) SCC 1
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is not
to be rejected.
(viii)Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied
that it is true and free from any effort to induce the
deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even
if there is no corroboration."
32. He also relied on the decision in the case of
Parbin Ali and another Vs. State of Assam6 to
contend that the statements made by the deceased can
very much be believed if found credible.
33. Learned High Court Government Pleader
appearing for the State has adopted the arguments by
(2013) 2 SCC 81
the learned counsel appearing for the complainant PW12.
He submitted that the evidence of the PW5-P.H.Takkalaki
P.C., sufficiently explains the delay in reaching the FIR to
the concerned Magistrate and therefore, the judgment of
acquittal by the Trial Court is not sustainable under law.
34. Thus, both the counsel appearing for the
appellants have sought for setting aside the acquittal
judgment and seek for conviction of the accused.
35. The learned counsel Sri K.L.Patil, appearing for
the accused has argued on the following lines:
(a) He submits that the motive for the commission
of the offence has not been proved by the prosecution by
producing sufficient evidence. He submits that if at all
there was a dispute, the matter is of civil in nature. It is
submitted that the meeting fixed by the panchayat on
21-9-2019 is not established and it was only the say of
PW12 but not the matter of the investigation. He submits
that whenever the deceased used to come on leave, he
used to have rubbings with the localites. This is stated by
the accused in their statement under Section 313 of
Cr.P.C. as well as suggested to PW12, though he has
denied.
(b) He submits that the alleged FIR at Ex.P4 is not
the real first information report. It is contended that
PW12 allegedly gave statement to the SP at KIMS
hospital at 6.20 p.m. and it was the real first information
report. The said statement has not been produced by the
prosecution before the Court and as such, the one which
was written at about 9.00 p.m. cannot be termed to be a
First Information Report. He submitted that Ex.P4 was
written by PW21. But the identity of PW21 is not proved
and it is doubtful as may be seen from the evidence of
PW21. He was not from the same village as that of PW12
and therefore, why he wrote the complaint even though
there were other police constables and officers present at
KIMS hospital, is not explained properly. It is submitted
that though the alleged incident had taken place at about
4.00 p.m. and by 5.30 p.m. the body of the deceased
was at KIMS hospital, the first information report was
received at 9.00 p.m. This delay is not explained properly
and therefore, the false implication of the accused cannot
be ruled out. He submits that PW22-Mallikarjuna Hatagar,
in his statement under Section 164 of Cr.P.C. states that
he along with PW12 went to the Police station at
Kalagatagi in the night and gave the complaint. This is
contrary to the evidence of the PW12 and as such, there
is material discrepancy which goes to the root of the
case.
(c) He relies on the evidence of PW7 and PW14 who
have not supported the prosecution. He points out that
PW7 denied that PW12 was present in the car while the
deceased Ningappa was taken to KIMS hospital.
Therefore, the very presence of PW12 is doubtful and
therefore, the dying declaration of the deceased as stated
by PW12 becomes unreliable. He also points out that the
PW14-Mehboobsab Makandar, also do not say anything
about the dying declaration of the deceased Ningappa.
Therefore, the prosecution heavily relies on the close
relatives of the deceased and PW12; and as such, the
evidence is unreliable. He submits the alleged dying
declaration cannot be believed as it is difficult to accept
that the deceased was capable of making a statement. In
this regard, he relies on the decision in the case of Uttam
vs. State of Maharashtra.7 In this decision, the Apex
Court after considering decisions concerning dying
declaration came to the conclusion that when there are
two contradictory dying declarations, the accused is
entitled for the benefit of doubt.
Obviously, in the present case, there are no such
multiple dying declarations and therefore, this decision
cannot be useful for the accused.
(2022)8 SCC 576
(d) He points out that OPD chit at Ex.D2 clearly
establishes that the deceased was brought dead. He
points out that OPD chit also mention that the deceased
was brought by Mahaboobsab Makandar i.e. PW14, but
not the PW12-Somalingappa Yaliwal, the complainant. If
the complainant, PW12 was present, his name would
have been found in the OPD chit as he was none else
than the father of the deceased Ningappa.
(e) The learned counsel for the accused also
contends that there are many discrepancies in the
evidence of the prosecution witnesses. He submits that
the Trial Court has considered these discrepancies in
detail while discussing the evidence on record. He
submits that PW-13 says that he does not know whose
motor cycle was used to bring the deceased Ningappa
from the spot to the Hireagasi. It is pointed out that there
are contradictions and improvements in the evidence of
PW-12 and the Investigating Officer had never secured
any documents in respect of the civil dispute between the
accused and the PW-12. It is submitted that PW-12 is
trying to falsely implicate the accused in the matter and
his evidence in seeking to produce certain documents
before the Trial Court which were not secured by the
Investigating Officer clearly establish this aspect. He also
points out the improvements and the contradictions in
the evidence of PW-22 regarding the place where the
incident took place, the conduct of the PW-22 after the
incident etc. It is pointed out that there are vague replies
in the evidence of the PW-22 and as such his evidence is
not reliable.
(f) The learned counsel for the accused also
submitted that the descriptions of the weapons are not
properly established. He points out that whether it was a
'machu' or a 'long' is in dispute. Initially PW-22 says that
it was a 'machu' or 'chopper'. Later, he makes a U-turn
and say that it was a 'long'. His evidence before the Court
as well as the statement made under Section 164 of
Cr.P.C. are totally contradictory in this regard. The
discrepancy regarding the wooden handle or metallic
handle is also pivotal in this regard and therefore, the use
of such weapon is not established by the prosecution.
(g) He submits that the recovery of the weapons
made by the Investigation Officer at the instance of the
accused do not fall within the scope of provisions of
Section 27 of Evidence Act. He contends that, allegedly
the Investigating Officer knew about the voluntary
statement, the place of concealment of weapon and
thereafter, he had secured the panchas and then went to
the alleged spot. When the Investigating Officer had the
knowledge of the spot where the alleged weapons were
kept, such recoveries do not fall within the scope of the
provision of Section 27 of the Evidence Act. In this regard
he relies on the decision in the case of Thimma Reddy
Vs State of Karnataka8 where the law relating to
recovery made under Section 27 of the Evidence Act is
dealt with.
(h) The learned counsel for the accused submits
that manner in which the accused came to know about
the movement of the deceased is not forthcoming in the
prosecution evidence. When the deceased had come to
the village on leave, the accused coming to know about
such movement of the deceased and he going to the land
of PW-22 is totally by chance and therefore, it cannot be
said that the accused knew about the fact that deceased
Ningappa had been to the land of PW-22. This aspect has
not been brought out by the prosecution and therefore, it
is totally improbable that the accused had committed the
said offence.
(i) Lastly, he contends that the Post Mortem report
clearly establishes that there was fracture of mandible
2018(2) AKR 577
and therefore, the deceased could not have spoken and
disclosed the name of the assailants to either PW-12 or
anybody else. Therefore, he contends that dying
declaration is not feasible and the evidence of PW-22 is
not reliable and as such, the conclusion reached by the
Trial Court that there is insufficient evidence against the
accused is correct. Hence, he prayed for dismissal of the
appeals.
36. In the light of the above submissions by the
rival parties, let us examine the points raised by this
Court supra.
WHETHER HOMICIDAL?
37. The first aspect to be considered by this Court
is, whether the death of the deceased Ningappa is
homicidal?
The evidence of PW6- Dr.A.A. Nadaf, throws light in
respect of the injuries sustained by the deceased. The
autopsy report, coupled with the inquest mahazar of the
body of the deceased which is at Ex.P23 show the nature
of the injuries sustained by the deceased. The PW14-
Mehaboobsab Makandar and one Gangappa were the
panchas of the said inquest mahazar-Ex.P23. The other
relevant evidence in respect of the nature of the death of
the deceased Ningappa is that of the eye witness PW22.
38. The perusal of the evidence of PW6 and P.M.
report produced at Ex.P5 show the following injuries on
the body of the deceased Ningappa, which are as below:
"1. Vertically placed abraded laceration measuring
4cmsx 1cms x bone deep present over right side of
forehead above right eyebrow.
2. Horizontally placed chop wound measuring 7cms x
1.5cmsx bone deep present over left side of forehead
situated 5cms above left eyebrow, underlying bone is
cut.
3. Obliquely placed chop wound measuring 5cms x
1cms x bone deep present over front region situated 1
cms above external injury No.2, underlying bone is cut.
4. Chop wound measuring 7.5cms x 1.5cms x bone
deep present over left side of head situated 5cms
above 1cms behind left ear, underlying bone is cut.
5. Chop wound measuring 5cms x 0.5cms x bone deep
present over left side of head situated 1cms inner to
external injury No.4, underlying bone is cut.
6. Horizontally placed chop wound measuring 6cms x
0.5 cms x bone deep present over top of back of head
situated 12cms above left ear, underlying bone is cut.
7. Vertically placed chop wound measuring 6cms x
0.5cms x bone deep situated 1 cms right of external
No.6, underlying bone is cut.
8. Vertically placed laceration measuring 3cms x
0.5cms x bone deep present over top of head situated
3cms right of external injury No.7.
9. Horizontally placed laceration 3cms x 0.5cms x bone
deep present over back of head situated 8cms behind
right ear.
10. Vertically placed chop wound 5cms x 0.5cms x
bone deep present over back of head situated 12cms
behind right ear, underlying bone is cut.
11. Horizontally placed chop wound measuring 7cms x
3cms x muscle deep present over right side back
(nape) of neck situated 5cms behind right side angle of
lower jaw.
12. Obliquely placed incised wound measuring 5cms x
0.5cms x skin deep present over back of nape of neck
1cms left of external injury No.11.
13. Horizontally placed chop wound measuring 6cms x
0.5 cms x muscle deep present over back of left side
nape of neck situated 6cms back of left side angle of
lower jaw.
14. Horizontally placed chop wound measuring 12cms
x 2cms x vertebra deep present over back of right side
of neck situated 2cms below external injury No.11
underlying C5, C6 vertebrae are fractured.
15. Horizontally placed chop wound measuring 4cms x
1cms x muscle deep present over back of right side
lower part of neck situated 2.5cms below external
injury No.14.
16. Obliquely placed chop wound measuring 2cms x
1cms x bone deep present over top of right shoulder
8cms inner to tip of right shoulder, underlying bone is
cut.
17. Horizontally placed chop wound measuring 3cms x
1cms x muscle deep present over back of right
shoulder situated 3cms below external injury No.16. Its
inner end shows tailing (Superficial incised wound) up
to 11cms.
18. Horizontally placed incised wound measuring
11cms x 2cms x muscle deep present over back of
right shoulder situated 1cms below external injury
No.17. Its inner end shows tailing up to 4cms.
19. Two superficial linear incised wound each
measuring 12.5cms present over back of right shoulder
separated 0.5cms apart situated 3cms inner to tip of
right shoulder.
20. Obliquely placed chop wound measuring 8cms x
1cms x muscle deep present over back of upper part of
right arm situated 1cms above and right of right
armpit.
21. Horizontally placed superficial linear incised wound
measuring 11cms present over back of right shoulder
situated 6cms below external
injury No.18.
22. Vertically placed chop wound measuring 6cms x
2.5cms x cavity deep present over right side back of
chest 6cms below external injury No.21 and 13cms
from right of midline, underlying bone is cut.
23. Horizontally placed chop wound measuring 2cms x
1cms x bone deep present over right side back of chest
situated 9cms below external injury No.22 and 14cms
right of midline underlying bone is cut.
24. Horizontally placed superficial incised wound
measuring 2cms x 0.5cms x skin deep present over top
of left shoulder situated 4cms inner to tip of left
shoulder.
25. Horizontally placed chop wound measuring 3cms x
1cms x bone deep present over back of left shoulder
situated 11cms down of top of left shoulder and 10cms
left of midline.
26. Obliquely placed three linear contusions measuring
22cms, 9cms, 12cms present over right side back of
chest.
27. Obliquely placed three linear superficial incised
wound measuring 21cms, 5cms, 13cms present over
back of lower part of chest and upper part of abdomen.
28. Obliquely placed chop wound measuring 15cms x
4cms x bone deep present over outer side of lower part
of left arm and left elbow, underlying bone is cut.
29. Abrasion measuring 3cms x 1cms present over
front of lower part of left arm situated 3cms above left
elbow.
30. Abraded contusion measuring 11cms x 10cms
present over outer side of right shoulder.
31. Abraded contusion 8cms x 6cms present over outer
side of middle of right arm.
32. Obliquely placed chop wound measuring 9cms x
2.5cms bone deep present over back of middle one
third of right forearm, situated 15cms below right
elbow, underlying bone is cut.
33. Obliquely placed chop wound measuring 5cms x
2cms x bone deep present over back of right wrist,
underlying bone is cut.
34. Obliquely placed chop wound measuring 1cms x
0.5cms x bone deep present over tip of little finger,
underlying nail is avulsed.
35. Vertically placed chop wound 1cms x 1cms present
over right side of neck 3cms below right side angle of
mandible, underlying lower jaw
bone is cut.
36. Horizontally placed chop wound measuring 2cms x
0.5cms x bone deep present over right side of face
1cms in front of right ear lobule, underlying bone is
cut."
39. According to PW6, the external injury Nos.
28,29,32,33 and 34 are possibly the defence injuries. It is
the case of the prosecution that the deceased was
assaulted by the accused with long and sticks. Obviously,
he being a defence personnel (a PT instructor in army -as
stated by PW17), had resisted and brought his hands
across his head in order to avoid the assault. As a result,
assault was received on his hands and the above
mentioned injury Nos. 28,29,32,33 and 34 were inflicted
on the arms and elbow. Therefore, it is evident that he
offered resistance. These injuries cannot be termed to be
accidental injuries at any stretch of imagination. So also,
the inquest mahazar produced at Ex.P23 also discloses
that there were several injuries which can only be
inflicted by way of assault. These two documents which
are at Ex.P23-Inquest mahazar and Ex.P5-PM report
disclose the nature of the injuries that could be inflicted
only by way of an assault by a third party. The cause of
death is stated to be hemorrhage and shock as a result of
injuries sustained.
40. A perusal of the evidence of PW14-Mahaboob
sab Makandar, shows that he was present at the time of
the inquest mahazar on the next date of the incident and
the it was conducted in his presence.
41. It is relevant to note that the defence does not
dispute the fact that deceased died due to the above said
injuries. The defence contends that the accused were not
involved in the commission of the offences, but it was
somebody else who had inimical terms with the deceased
Ningappa might have committed said assault which has
resulted in his death. Therefore, there being no resistance
by the defence about the nature of the death that it was
a homicidal in nature, it can easily be concluded that the
nature of the death of the deceased Ningappa was
homicidal in nature. Hence, we answer Point No.1 in
affirmative.
WHETHER THE ACCUSED CAUSED THE DEATH?
42. Once we conclude that the nature of death of
the deceased Ningappa is homicidal in nature in view of
the injuries sustained by him as above, the next question
that arises is, whether the accused 1 to 7 committed the
culpable homicide?.
In this regard, the evidence of PW7-Rudrappa C.
Yaliwal, PW13-Prabhulig M. Yaliwal, PW17-M.S. Yaliwal
and PW22-Mallikarjun Mahadevappa Hatagar, coupled
with the evidence of PW6-Dr.A.A.Nadaf and PW20-
Dr.Mahadeshwaraswami Y.H., gain much importance. The
motive to commit the offence, the evidence of eye
witness, the oral dying declaration of the deceased and
the recoveries are the factors to be considered by the
court.
THE MOTIVE:
43. The first aspect to be considered by this Court
is, whether there was motive for the commission of the
offence. Of course, we are aware that the motive is of
greater importance when the prosecution relies on the
circumstantial evidence. In the case on hand, the
prosecution relies heavily on the alleged dying declaration
by the deceased Ningappa and the eye witness account of
PW22. Therefore, though motive is not of greater
importance in the matter, it is necessary to ascertain that
the accused had the reason to have grudge against the
deceased Ningappa and PW12.
44. PW12-Somalingappa Yaliwal, has stated in his
testimony before the Trial Court that, he has backyard
bearing panchayat property No.95 and it is a open space
and his relative Bharmappa Basappa Yaliwal and
Parvatevva Huragadali were owning property bearing
panchayat No.98. He states that the said property No.98
was relinquished in the name of accused No.1 and that
the said Bharmappa Basappa Yaliwal died in the year
2011. Parvatevva is still alive. The alleged relinquishment
was in the year 2014 and as such it was fake. Thereafter,
the accused started asserting that the said property
bearing panchayat No.98 comes within the property
bearing panchayat No.95 belonging to PW12 and
therefore, there was a dispute. He states that the
accused No.1 and his family members i.e. accused Nos.
2,3,6 and 7 had forcibly tried to construct a house in the
property belonging to PW12. The said dispute was
informed to the deceased Ningappa and the deceased
Ningappa had apprised his higher officers, who had
written a letter to the Superintendent of Police, Dharwad
and the Deputy Commissioner, Dharwad etc. The said
letter is produced at Ex.P24. Even then the concerned
authorities had not taken any action and therefore,
deceased Ningappa came to the village on 16-9-2015, on
20 days leave. On 19-9-2015, PW12 and said Ningappa
had been to the office of the President of the Panchayat
and appraised their contention regarding the property.
The President of the panchayat had informed that on 21-
9-2015 there will be a meeting of panchayat and PW12
should come and appraise the members of the
panchayat. These facts which are mentioned by PW12
gets support from the document at Ex.P24. It is relevant
to note that the fact that there was a dispute in respect
of the property bearing panchayat No. 98 and 95 is not
much in dispute. However, it is the contention of the
accused that the deceased Ningappa had other people
who are in enimical terms with him in the village and they
might have committed the offence.
45. The evidence of PW12 coupled with Ex.P24 and
also the evidence of PW7 and other witnesses show that
there was a dispute regarding the open space in respect
of property bearing panchayat No. 95 and 98. Under
these circumstances, it is evident that there was a motive
for the accused to commit an offence is fairly established
by the prosecution.
46. Apart from that, it is the case of the
complainant, PW12 that while he and Ningappa were
coming out of the Panchayat Office on 19-9-2015, the
accused had also threatened that one of the members of
his family would be killed or injured. It is relevant note
that the said alleged incident on 19-9-2015, obviously,
was not mentioned in the complaint. It is evident that the
complaint need not be an encyclopedia and it was written
by PW12 while he was in grief of the death of his son
Ningappa. Under these circumstances, even though the
accused denied that there was any such incident infront
of the office of the Panchayat, Ex.P24 indicates that there
were threats by the accused and therefore, the higher
authorities of the deceased had written letter to the
Deputy Commissioner and others. Obviously, Ex.P24
mentions that the deceased had complained of the
forcible illegal occupation of his immoveable property
adjoining his parental house by one Basavaraj Shivappa
Yelival and Sangappa son of Shivappa Yelival of the same
village. It was also stated in Ex.P24 that all efforts to
persuade the miscreants to vacate the land has been
futile, rather the family is under the threat of dire
consequences from miscreants. It was also stated that
the police of Kalaghatagi Police station were complained
about the said acts of the accused, but they had not
registered the FIR. Under these circumstances, the
Ex.P24 dated 3-8-2015 is clear indication to show that
there was the motive for the accused to commit the
offence.
47. The next aspect to be considered is, whether
the accused are involved in commission of the offence?
THE SOLE EYE WITNESS:
48. According to the prosecution, PW22-Mallikarjuna
Hatagar is an eye witness to the incident. PW22- in his
testimony before the Trial Court states that he knew
accused Nos. 1 to 7. He also states that deceased
Ningappa was his childhood friend. He states that on
16-9-2015 deceased had come to the village on leave for
20 days. He states that on 20-9-2015 at 2.30 p.m. he
had been to the house of the deceased Ningappa and
called the deceased to go to the groundnut field where
they are harvesting the ground nut. Accordingly, both of
them went to their field on their bike and by parking the
bike at some distance they walked to their land. They
spent some time in the field, ate groundnut, got pan from
father of PW22 and at about 3.30 pm they wanted to
come back. The deceased was riding the motor cycle and
PW22 was the pillion rider and near the crusher of one
Yeliwala, the accused Nos. 1 to 7 came suddenly from
behind the fencing bushes and pulled their (of PW22 and
deceased) shirts and therefore, both of them fell down.
He states that when accused assaulted the deceased, he
shouted and the accused shouted that PW22 should also
be killed and therefore, being frightened he fled away
into the fields. He states that accused Nos. 2, 3 and 5
were holding the sticks and the other accused were
holding the machete, called as long. While running away,
he informed PW19-Basalingappa Yaliwal over phone that
the accused had attacked the deceased Ningappa and
PW19 had retorted him as to why they had gone there.
Then he went to his house. Further PW22 has also
identified the accused Nos. 1 to 7 before the Trial Court.
49. PW22 further states that on the same day after
about 10 p.m. PW12 came to his house and informed that
Ningappa had died and thereafter, they went to the Police
station and PW12 confirmed as to whether the FIR was
registered. He also states about the motive for the said
assault and states that the accused were shouting as to
whether the deceased want to take the backyard. PW22
states that on the next day police had came to the spot
and he showed the spot and they conducted the spot
mahazar and the 'long' used by accused No.6 was lying
there and he showed the same and mahazar was
prepared as per Ex.P8. The other articles seized i.e.,
normal mud, blood stained mud, blood stained twigs etc.,
are identified by him and MOs 6, 10, 13 and 14 are
marked.
50. It is also elicited in his evidence by the
prosecution that on 4-11-2015, the police had brought
him to the Court at Dharwad and he had given a
statement before the Court. The said statement made by
him before the learned Magistrate is at Exs. P46 and 47.
In the said statement, he had stated that while they were
returning back by walk from their field, about five
persons came towards them from behind the fence and
among them, he identified Basavaraj, Prabhu, Muthu and
Kumar and they were holding the sticks and machu.
Fearing the assault, he ran away from the spot and he
also saw that Manjunath and Manjappa (accused No.4
and 6) were also going towards the field holding sticks.
He also saw that the accused were assaulting the
deceased. Then he informed the same over the phone to
Basalingappa Yaliwal -PW19 and thereafter, he
mentioned the names of the accused.
In the cross-examination of PW22, much is elicited
as to how he has come to the Court or whether the
summons was served or not. Obviously, PW22 had stated
that he was under threat which he had mentioned on
18-7-2017 at the time of the trial. The defence had
sought for time for his cross-examination and by
observing that the witness was secured on proclamation,
with necessary directions for the safety of PW22 the Trial
Court had granted the time. Therefore, it is evident that
PW22 being the star witness, had been subjected to
detailed cross-examination. In the cross-examination,
nothing is elicited which discredits his testimony.
Para 25 of the cross-examination of PW22 shows
that he did not inform the incident to PW12 but returned
to his house. It is evident that PW22 expected the
backlash of the assault on the deceased and therefore, he
had informed PW19 and did not speak to PW12 who was
standing near Agasi. It is further elicited that when he
visited the police station during night on the same day
along with PW12 police had not enquired him. It is also
elicited that somebody had pelted stone on his house
during night. It was suggested to PW22 that on that
night, the brothers of deceased Ningappa had caused
galata by visiting the house of PW22, suspecting his
involvement in the incident, which is denied by him.
Thus, it is evident that PW22 had feared the backlash as
the incident had occurred when he had taken the
deceased to his field and while returning back, the assault
had occurred. Obviously, it is for this reason that he did
not orally inform the PW12 who was standing near the
Agasi. This conduct of the PW22 is noteworthy.
It is further elicited that he felt that he should
rescue the deceased, but he says that the accused had
threatened him also. Para 29 and 30 of his cross-
examination is relevant in this regard. It shows a natural
conduct. It is elicited that he had seen the deceased
Ningappa having fallen down on account of the assault.
This elicitation in cross-examination of PW22 gains much
importance about the nature of the injuries. Certain
minor omissions, which he had not stated before the
Magistrate under Section 164 of Cr.P.C. are suggested to
him. Also he contradicted his say in 164 Cr.P.C.
statement that he and PW 12 and some others had gone
to Police station and lodged complaint (Ex D13). It is
pertinent to note that the substantial evidence of PW22 is
that he had identified the accused before the Court and
he had identified the accused at the time of the incident
and he had mentioned the names of the accused to the
police clearly. He was an eye witness to the incident and
when the accused started assaulting the deceased, he
shouted and when he was also threatened, fled away
from the spot. It is also elicited in the cross-examination
of PW22 that while he gave a statement before the
Magistrate, he was under fear. This mental state of PW22
needs to be appreciated by the Court in the light of the
fact that there was a backlash on account of the death of
the deceased that he may be the reason for the incident.
If PW22 had not called the deceased to his groundnut
field, the incident might not have occurred. This aspect
was in the mind of PW22 when he gave statement before
the police. However, PW22 has categorically stated that
they were returning on the motor cycle and accused had
pulled the shirts and therefore, they fell down. He pleads
ignorance as to whether they were riding motor cycle
while returning from the land was stated before the
learned Magistrate while recording the statement under
Section 164 of Cr.P.C. These are the minor discrepancies
and cannot discredit his testimony.
In the cross-examination dated 21-7-2017, PW22
clarifies, as to whether they were walking back or they
were on the motor cycle. He says that they walked for
some distance and then they were on the motor cycle. It
is also elicited as to whether it is a Machu or long. When
he has identified the weapons, the question as to whether
it is called 'machu' or 'long' is of no relevance. The
evidence of PW22 shows a natural conduct during and
after the incident. He feared to face PW12 and inform the
incident and therefore, went back to his house via
backyard. The cross-examination in no way discredits his
testimony.
51. The next evidence which is of relevance is of
PW19-Basalingappa Yaliwal, who was the second person
to know about the assault by the accused. PW19 states
that, he only knows about the death of the deceased
Ningappa, but he denies that PW22-Mallikarjun Hatagara
had informed him over phone that the accused had
assaulted the deceased. Therefore, he was treated as
hostile and the cross-examination by prosecution has not
yielded any results. Therefore, the phone call made by
PW22 to PW19 does not get support from the evidence of
PW19.
THE DYING DECLARATION:
52. The next important witness in the matter is
none else than PW12-Somalingappa Ningappa Yaliwal,
who happens to be the father of the deceased Ningappa.
PW12 states that on 20-9-2015, PW22 had called on
the deceased Ningappa while PW12 and his family
members were in their house. PW22 took deceased
Ningappa to his ground nut field on a motor cycle.
Thereafter, at 4.00 p.m. PW-12 came to his another
house at Hireagasi at their village. While he was there,
PW19- Basavalingappa Yaliwal, came there and informed
that PW-22 Mallikarjuna Mahadevappa Hatagar, had
called him over phone and informed that Ningappa was
assaulted with long and sticks by accused Nos. 1 to 7 on
Dhulikoppa road near the crusher of one Yaliwal. After
getting the information from PW19, PW13-Prabhulinga
and PW17-Manjunatha, together went on a motor cycle
and brought the deceased Ningappa on a motor cycle
near the place where PW12 was standing. He states that
many people gathered at the spot and the PW14-
Mahaboobsab also came there. Thereafter, PW7 who was
in his house nearby also came there. Deceased Ningappa
was helped to alight from the motor cycle of PW13 and
PW17 and then PW7 brought his car and with the help of
PW14 and PW7, the deceased Ningappa was taken into
the car. He states that PW12, PW13 and the wife of PW12
Yellavva, sat in the rear seat of the car and deceased
Ningappa was made to sleep on their thighs in supine
position. While PW7 drove the car towards the hospital,
PW14 was on the left front seat of the car. It is stated
that while they were coming to KIMS Hospital, Hubballi,
he enquired Ningappa as to what had happened. Then he
states that, Ningappa had informed that when PW22 and
Ningappa were returning on the bike along Dhulikoppa
road and when they were to join Dhulikoppa road, Basya,
Sangya, Prabhya, Doddamani Manjya, Valikar Kumya,
Sotta Manjya, Mutthu (the names as they are called in
local slang) i.e., accused Nos. 1 to 7 had come with long
and sticks and had assaulted him on the neck, head,
forehead, back of the head, arms etc. When PW-12
enquired the reason for such assault, Ningappa informed
that it was regarding the dispute of the backyard. He also
stated that when the deceased moaned, he was provided
with water.
53. It is further stated by PW-12 that Ningappa
informed to make him to sleep face down i.e., in prone
position and therefore, he was made to sleep facing down
with his legs protruding out of the window of the car.
Ningappa stated that he be saved and then they came to
KIMS hospital where the deceased was taken into the
hospital on a stretcher and after 30 minutes of examining
the deceased, the Doctors of the KIMS hospital informed
that he was dead. Later, he says in his testimony before
the Trial Court that deceased had informed that accused
Nos. 1, 4 6 and 7 were holding longs and the accused
Nos. 2, 3 and 5 were holding sticks.
In the cross-examination of PW-12, only denials are
elicited by the defence. The suggestion to PW-12 that the
deceased was not in a condition to speak was denied. He
also denied the suggestion that PW-12 was not in the
said car. Much of the cross-examination is in respect of
dispute in respect of back yard and the manner in which
the accused were asserting their rights on the said
property. It is relevant to note that, much of the cross-
examination of the PW-12 is about the denials. The
examination-in-chief of PW-12 is put to PW-12 verbatim,
word to word to be false. All such suggestions are denied
by PW-12 meticulously. It is significant to note that the
say of PW-12 that the deceased moaned for water and
then PW-12 had provided water to the deceased
Ningappa was not denied by the defence.
54. A perusal of the evidence of PW-13-Prabhuling
Yaliwal, discloses that on 20-09-2015 he and PW-17-
Manjunath Yaliwal, were going on their motor cycle to
their land at about 4.00 p.m. via Hireagasi. The people
were coming saying that Ningappa had been assaulted
near the crusher on Dhulikoppa road. Therefore, they
went there. When they reached the spot, deceased
Ningappa had sustained injuries and the blood was oozing
out and Ningappa pleaded them to take him to the
hospital and be rescued. Immediately, PW-13 and PW-17
took the deceased Ningappa on their motor cycle and
made him to sit in between them and brought him near
Hireagasi. At Hireagasi PW-7 saw that the deceased had
bleeding injuries and therefore, he brought his car and in
the said car PW-12, his wife (of PW-12) Yellavva and PW-
14 took the deceased Ningappa to the hospital. He states
that PW-7 drove the car and PW-14 was sitting in the
front and deceased Ningappa was made to sleep on the
thighs of PWs 12, 13 and Yellavva. He states that, when
the deceased was enquired, he stated that while
Ningappa and PW-22 Mallikarjun Hatagar were returning
from their land and while they were about to reach
Dhulikoppa road, the accused Nos. 1 to 7 were standing
by the side of the bushes holding weapons in their hands
and suddenly, they came and assaulted the deceased. He
also states that the deceased Ningappa had informed that
the assault was regarding the dispute in respect of the
backyard. He also states that the deceased had requested
to make him to sleep in prone position. When the
deceased demanded water, he was provided with the
water and by that time, they reached KIMS hospital
compound and after entering the hospital compound, the
deceased had stopped speaking and his eyes were
looking up. He was taken inside the hospital and Doctors
informed that Ningappa was dead. He also states that
PW-22 has also informed about the incident on the next
day that the accused Nos. 1 to 7 had assaulted the
deceased with long and sticks. He states that PW-22 had
informed that accused Nos. 1,2 and 6 assaulted deceased
Ningappa with long and accused Nos. 4 and 7 were also
holding similar weapon and when they started assaulting
the deceased Ningappa, accused Nos. 2,3 and 5 assaulted
with sticks and longs and seeing the same, PW-22 had
run away from the spot.
In the cross-examination it is elicited that there is
dispute in respect of the land. It is elicited that there are
hospitals at Hirehonnalli and Kalagatagi. He states that
they reached KIMS hospital at 5.30 p.m. and he returned
to the village at about 10.30 p.m. He states that the
police had come to the hospital at about 6.30 p.m. It is
elicited that after knowing about the assault near
Hireagasi, he did not try to inform either to PW-12 or
others. However, when he returned with the deceased,
PW-12 and Yellavva were there. It is elicited that distance
from the spot of the incident to the Hireagasi is about 1.5
kilometers. He is unable to say about the name from
whom, he came to know about the assault on the
deceased Ningappa. He states that he do not know about
the motor cycle of PW-22 which was used by him and the
deceased on that day. He denies that the deceased was
not in a position to speak. He states that before they
went to KIMS hospital, he had not met PW-22 or PW-19.
He states that he was not in a position to file the
complaint to the police on that day. It is elicited in the
cross examination that it was PW-14-Mahaboob sab, who
got the chit prepared in KIMS hospital. Rest of the cross
examination is about the denial of the statement in the
examination in chief. It is again, significant to note that
his evidence that the deceased has moaned and had
asked for water was not denied in the cross examination.
Para 32 of the cross-examination clearly shows that
deceased demanding water and PW-12 and PW-13
providing water to him was not specifically denied by the
defence.
55. The other important witness of the prosecution
is, PW-17-Manjunath Yaliwal. It was PW-17 and PW-13
who have brought the deceased Ningappa from the spot
of the incident to Hireagasi. In his examination- in- chief,
he states that deceased was serving in the Military and
he came to the village on 3-9-2015 on 20 days leave. He
reiterates what has been stated by PW-s- 12 and 13 in
respect of the dispute in respect of back yard of the
house. He states that on 20-9-2015, between 2 to 3
p.m., he and his family members along with the deceased
were in the house and PW-22 came on his motor cycle
and called deceased Ningappa to go to their land. Then at
about 4.00 p.m. he and PW-13 were going to the land on
the motor cycle via Hireagasi and came to know from the
people that deceased Ningappa was assaulted by accused
No.1 and his companions. Therefore, they went near the
crusher of Yalivala on Dhulikoppa road and saw that the
deceased Ningappa had fallen with injuries. Deceased
Ningappa pleaded to take him to the hospital and save
him and blood was oozing from the injuries. They brought
him to the Hireagasi and thereafter, the deceased was
taken to the hospital in the car belonging to PW-7. He
also states that PWs-12, 13 and mother of the deceased
Yallavva had gone to the hospital along with PW-7 and
PW-14. Thereafter, PW-17 and his uncle Mahadevappa
went to KIMS hospital by bus and came to know that
Ningappa died. He also states that he enquired with PW-
13, who informed about the information divulged by the
deceased while coming to the hospital that accused Nos.
1 to 7 have assaulted the deceased Ningappa while PW-
22 and deceased Ningappa were coming on the
Dhulikoppa road. He reiterates what has been stated by
PW-13 in his evidence. He also states that PW-22 knew
about the incident that the accused Nos. 1 to 7 have
assaulted the deceased.
In the cross- examination, it is elicited that before
he reached KIMS hospital, police had arrived there and he
states that it was about 7 or 8 p.m. when he reached the
hospital. He states that his father had given complaint to
the police and he had not given any information to the
Kalagatagi police. He states that when he and PW-13
reached the spot, there were none in the vicinity. It is
relevant to note at this juncture that PW-s- 13 and 17
had come to know about the incident from the people
who were near Hireagasi.
56. The cross-examination of PW-17 shows that
there was no public near the crusher or near the
Dhulikoppa road where the deceased had fallen.
Obviously, the distance between Hireagasi and the spot is
about 1.5 KMs. Therefore, at no stretch of imagination,
the argument of defence that the evidence of the PW-17
is contra to the evidence of PW-13, (who says that there
are many people from whom he came to know about the
assault) can be accepted. In the cross- examination, it is
elicited that the police have not seized the blood stained
clothes of PWs 13 and 17. The rest of the cross
examination is verbatim denial of the examination- in-
chief.
57. The next important witness is, PW-14-Mahaoob
Sab Makandar. He states in his examination-in-chief that
he knew accused Nos. 1 to 7 as well as PW-12-
Somalingappa Yaliwal and the deceased Ningappa. He
states that deceased Ningappa had come to the village on
leave on 16-9-2015 and there was a dispute between the
accused No.1 and the deceased Ningappa. He states that
on 20-9-2015 at about 4 to 4.30 p.m. some people have
gathered near Hireagasi and therefore, he also joined
them. He states that PWs- 13 and 17 also came on motor
cycle with the deceased Ningappa from Dhulikoppa road
side and deceased Ningappa had bleeding injuries and
the people gathered were saying that they had to take
Ningappa to the hospital. In the meanwhile, PW-7-
Rudrappa came there with his car and he and PW-7-
Rudrappa along with the PW-12, wife of PW-12 -Yallavva
and PW-13 took the deceased Ningappa in car to the
KIMS hospital. When they entered the KIMS hospital, the
Doctors examined Ningappa and informed that he was no
more. On enquiring the PW-12, he (PW-14) came to
know that the deceased Ningappa and Mallikarjuna had
been to the land and while returning, near the quarry of
Ulavappa Yalivala, accused No. 1 to 7 have assaulted
Ningappa with sticks and longs. It is relevant to note that
PW-14 had enquired the PW-12 and that PW-12 had
informed that the deceased Ningappa had told him that
the accused had assaulted the deceased Ningappa. This
say of PW-14 in para 3 of his examination-in-chief is
relevant to show that PW-12 had informed about the
statement made by the deceased Ningappa to PW-12. He
further states that on the next day, police had called him
for the inquest mahazar and he had seen the injuries on
the body of the deceased and the inquest mahazar was
prepared between 8.00 am to 10 a.m. He identifies his
signature on Ex.P23.
In the cross-examination, much is questioned as to
how he received the Court summons and warrants etc.
We do not find that such cross- examination is of any
relevance here.
58. It is pertinent that after issuance of summons
and warrants, the presence of PW-14 was secured by the
Trial Court and he has deposed before the Trial Court.
This elicitation in the cross-examination about PW-14 that
he not appearing before the Court immediately on
receiving the summons reflects that the witnesses who
had deposed before the Court were under pressure by
someone. However, the evidence of PW-14 so far as it
relates to the fact that PW-12 had also accompanied the
deceased Ningappa in the car to the KIMS Hospital is
clear and is contrary to what has been stated by PW-7
that PW-12 had not come in the car. In the cross-
examination, it is further elicited that there was dispute
in respect of the Panchayat Property Nos. 95 and 98
between the accused, PW-12 and the deceased Ningappa.
It is elicited that there are various private hospitals
between Hirehonahalli and KIMS Hospital and he had
prepared the chit at the KIMS Hospital. Obviously, the
perusal of the said chit marked at Ex D2 show that it was
PW-14 who is said to have accompanied the deceased to
the Hospital. He states that they did not make any effort
to take the deceased to any private hospital in between.
It is also elicited that the clothes of PW-13 and PW-17
were blood stained and there were also blood stains in
the car. Further in para-11 of the cross-examination, it
was again elicited that the Police were writing as stated
by PW-12 and he had seen the same. Curiously, the time
when the Police were writing the statement of PW-12 is
not elicited. The suggestion that he had not at all gone to
the hospital and that PW-12 and his wife Yellavva also
had not gone to hospital has been denied by him.
59. The other witness who had accompanied the
deceased Ningappa to the hospital as per the case of the
prosecution is, PW-7-Rudrappa Yeliwala. He states that
usually he is residing at Dharwad and occasionally he
goes to Hirehonnalli village. He states that at about 4.00
p.m. he came to know that near the bus stand, the
deceased Ningappa, PW-13 and some others were there
and Ningappa had sustained injuries. He pleads ignorance
as to how the injuries had happened and states that he
took the deceased Ningappa to KIMS hospital, Hubballi.
The mother of deceased Ningappa i.e,. Yellavva and PW-
13 as well as PW-14 Mehaboob Sab were in the car. He
categorically says that PW-12 had not accompanied him
in the car. Therefore, he was treated as hostile and cross-
examined by the learned Public Prosecutor.
In the cross-examination, it was elicited that he
knew that on 16.09.2015 Ningappa had come to the
village on leave. He denies about the knowledge of the
dispute in respect of the backyard. Thus, his evidence is
only to the effect that he had taken the injured Ningappa
along with his mother Yellavva and Mehboob Sab to the
hospital. He also does not say that PW-13 had
accompanied the deceased Ningappa to the hospital. In
the cross-examination, it was elicited that he is cousin of
the accused No. 1 to 3. In the cross-examination by the
defence, it was elicited that it will take about 30 minutes
to 45 minutes to reach KIMS hospital from Hirehonnalli.
He states that the Police had visited the hospital at about
6.30 to 7.00 p.m. It is elicited that since PW-14 informed
that deceased Ningappa had already died and therefore,
they have to go to KIMS hospital and as such, the
deceased was taken to the KIMS hospital. He has denied
the suggestion that he did not take the deceased
Ningappa to the KIMS hospital. It is pertinent to note that
he do not say as to why the dead body of the deceased
was taken to KIMS without informing to the police.
Curiously, the defence has not elicited at what time PW-
12 came to hospital and he gave statement to police.
60. The above evidence on record shows that PWs-
12 and 13 categorically say that the deceased Ningappa
had disclosed about the assault by the accused No. 1 to 7
on him near the crusher of one Yalivala. The evidence
regarding the dying declaration made by the deceased
Ningappa is clear and categorical. Obviously, they were
sitting at the rear of the car and therefore, their proximity
to the deceased was more than PW-7 and PW-14. There
is a possibility that PW-14 might not have heard what the
deceased Ningappa had informed to PWs-12 and 13. The
evidence of PWs-12 and 13 show that their testimony has
not been impeached in anyway.
61. The evidence of PWs-12 and 13 show that there
is nothing elicited in the cross-examination which would
render their testimony unbelievable which discredit their
ability to say about the incident. Their evidence appear to
be natural and they were not impeached in any way by
the cross- examination. It is relevant to note that there
may be certain minor contradictions or omissions which
do not render their testimony unbelievable. Obviously,
PW-s- 12 and 13 were in grief when the incident
happened and their first response was to save the
deceased Ningappa.
62. It was elicited in the cross-examination of PW-
12 that there were many hospitals on the way to KIMS
hospital, Hubballi. It was replied that, it was a Sunday
and there are no hospitals where the Doctors in the
hospitals are available. It is evident that only hospital
available for the public in and around the village is the
KIMS Hospital only. Of course, there may be certain
private hospitals on the way to Hubballi but the
explanation given by PW-12 is sufficient enough to show
that their intention was to bring deceased Ningappa to
KIMS hospital which had better facilities.
63. It is also pertinent to note that the evidence of
PW-14 shows that he partially support the prosecution
case but the prosecution has not cross-examined him as
to whether he had heard the statement made by the
deceased that the accused had assaulted him. He clearly
states that the deceased was injured and that there was
a dispute between the deceased and accused in respect
of the backyard i.e. property Nos. 95 and 98. He states
that he accompanied the deceased, PWs-12 and 13 and
Yellavva to the hospital. He also states that PW-14 has
driven the car to the hospital. However, he does not say
that the deceased Ningappa had stated before PWs- 12,
13 and Yellavva that accused had assaulted him with long
and sticks. This evidence of PW-14 that PW-12 was in the
car is of much importance as he is a witness not related
to either the deceased or the accused. On the contrary,
PW-7-Rudrappa happens to be cousin of accused No. 1 to
3. When the evidence of PW-7 and PW-14 are
contradictory to each other, the evidence of PW-14 gains
credibility since he is not related either to the accused or
to the deceased. Therefore, when the evidence of PW-14
substantially support the say of PW-12, we do not find
any reason to hold that the testimony of PW-12 has to be
discarded. Thus, the testimony of PW-12 holds ground
and there is no reason to disbelieve his version. The fact
that PW-14 is also from the Hirehonnalli village and that
the accused are also from the Hirehonnalli village is an
aspect which needs to be borne in mind. Further, the
cross-examination of PW-14 by learned counsel
appearing for the defence shows that initially he was little
reluctant to appear before the Court when the summons
were issued by the Trial Court. It was only on the
coercive actions being employed by way of issuance of
the warrants that PW-14 had appeared before the Court.
Under these circumstances, we find that the testimony of
PWs-12 and 13 having supported substantially by the
PW-14, there is no reason as to why the say of PW-12
and 13 is not to be accepted.
64. The next aspect which needs to be ascertained
is, whether the deceased was capable of giving the
statement in the light of the injuries sustained by him.
It is pertinent to note that the deceased had
sustained 36 injuries on his body. The injury Nos.35 and
36 were on the neck and mandibles of the deceased. It is
evident that the injuries were on the neck and on the
jaws. Therefore, it is possible that the deceased Ningappa
was capable of speaking and he disclosed the name of
the accused to PWs-12 and 13 while they were in the car.
It has also come in the evidence of PWs- 13 and 17 when
they reached the spot where the deceased had fallen near
the crusher at the place of assault, he was pleading for
saving his life and to take him to the hospital. The
evidence of PWs- 13 and 17 is clear in this regard.
Therefore, the contention of the prosecution that
deceased was capable of speaking gains importance.
65. The evidence of PW-6 shows that there were no
such injuries which affected the speech of the deceased
Ningappa. There were no injuries to the larynx and the
throat. The injuries were on the back of the neck.
Therefore, when the evidence of PW-6 clearly show that
larynx was not injured, it is not possible to hold that the
deceased was incapable to speak. More importantly, the
PM report shows that brain was intact though there were
several injuries on head. This rules out that the deceased
died at the spot.
66. Significantly, either the prosecution or the
defence has not elicited or cross-examined PW-6, on the
aspect as to whether the injuries had any effect on the
speech of the deceased Ningappa. Therefore, the injuries
sustained by the deceased Ningappa do not show that he
was incapable of making any oral statement.
67. The Trial Court has come to the conclusion that
considering 36 injuries suffered by deceased Ningappa, it
cannot be said that he is capable of giving any statement.
It is relevant to note that PWs-13 and 17 state that when
they reached the spot where the deceased had fallen he
was pleading for the medical help and to save him. This
say of the PW-s-13 and 17 coupled with the time gap
between the deceased being picked up by PW-s-13 and
17 from the spot and the statement given by him on the
way to the hospital plays a vital role. It is necessary to
note that unless the injuries are directly on the larynx
and it damages the larynx, a person who suffers injuries
would continue to speak till he fades out. Under these
circumstances, we find that the say of PWs-13 and 17
coupled with the testimony of PW-12 establish that the
deceased was capable of giving the statement and he had
made statement before PWs-12 and 13 that the accused
1 to 7 had assaulted the deceased with longs and sticks.
Further, there is no reason as to why the testimony of
PWs- 12, 13 and 17 should be discarded. When PW-7 and
PW-14 have not fully supported the case of the
prosecution, that portion of the evidence which they have
supported the case of the prosecution has to be accepted.
When the evidence of PW-14 supports the version of
PWs- 12 and 13 that they have accompanied the
deceased Ningappa in the car to the hospital and when
PW-7 admits that he drove the deceased to the hospital,
such evidence has to be accepted and it supports the
case of the prosecution. In no way, the testimony of PWs-
12 and 13 was impeached by the defence.
THE RECOVERIES:
68. The evidence of PW-18- M.R.
Doddabasappanavar, Investigating Officer, who had
initiated the investigation since inception shows that the
accused Nos. 1 and 6 were arrested on 21-9-2015 and on
questioning them, accused No.1 gave voluntary
statement as per Ex.P35 and informed that he would
produce the weapon used for the commission of the
offence. As such, the Investigating Officer has summoned
PW-10-P.Y.Kichadi and CW7 and then accused No.1 led to
the spot where he had hidden the Long which he had
used for commission of the offence. The said weapon at
MO 7 was seized under Ex.P16. Thereafter, on return to
the police station accused No.1 also produced the clothes
and were seized under the mahazar in the presence of
PW-8-B.B.Belliwale and CW-4.
69. Thereafter, accused No.6 also gave a voluntary
statement as at Ex.P36 and produced the clothes worn by
him and they were seized under mahazar as per Ex.P11
in the presence of PW-8-Belliwale and CW4. Thus, PW-8
and CW 4 were the panchas in respect of the recovery of
clothes of accused Nos. 1 and 6. The evidence of PW-10-
P.Y. Kichadi, who is the pancha for the recovery discloses
that on 21-9-2015 the police had called him and he and
CW7 went to the police station. The police enquired the
accused No.1 and he informed that he had hidden the
long by the side of the land of one Basamma and they
went in police jeep and accused No.1 led the police to the
said spot and picked up the MO 7 from the bushes and
produced it. It was seized under the mahazar as per
Ex.P16. This evidence of PW-10 shows that the accused
No.1 was questioned in the police station and accused
No.1 led police and panchas to the spot. It corroborates
the evidence of PW-18 who states that soon after the
accused gave the voluntary statement, he had
summoned the panchas and they went to the place where
MO 7 was hidden.
70. After return from the spot, the clothes worn by
the accused Nos. 1 and 6 were seized by the
Investigating Officer and they were seized under the two
mahazars i.e. Exs.P10 and 11. PW-8-B.B.Belliwale, was
the pancha for the said mahazars. The evidence of PW-8
discloses that accused No.1 had produced his blood
stained full shirt and jeans pant and it was seized under
mahazar Ex.P10. He has identified the same as MO 15
and 16. He states that after half an hour of the said
mahazar, the accused No.6 also produced his T shirt and
the pant and they were seized under the mahazar as per
Ex.P11 and they were at MO 17 and 18.
In the cross- examination of PW-8, it is elicited that
the signatures were taken by the police on 4 to 5 blank
papers. However, the evidence of the investigating officer
in this regard is clear. Sofar as recovery is concerned,
PW-8 states that he was present in the police station in
the evening on 21-9-2015 and denies that the police had
not recovered the clothes of accused Nos. 1 and 6. Even
though, his testimony creates doubt in respect of the
mahazar prepared at spot of incident (Ex.P8), his
testimony withstands the say of the police that the
clothes of the accused Nos. 1 and 6 were recovered in the
police station.
71. Sofar as PW-10-P.Y. Kichadi, is concerned, his
cross examination is clear and categorical in saying that
accused No.1 led the Investigating Officer to the spot
where he had hidden the weapon. He has denied the
suggestion that no such weapon was seized and he has
replied that the said spot was about one kilometre from
the village. He is also clear and categorical in saying that
mahazar was drawn between 3.50 to 4.20 p.m.
Therefore, there is no reason to disbelieve the evidence
of PW-10 regarding the said recovery.
72. The Investigating Officer- PW-18 states that
accused Nos. 2 to 4 and 7 were arrested on 23-9-2015
and they also gave voluntary statements as per Exs.37,
38, 39 and 41. He states that when the accused No.2 and
3 gave the voluntary statement, he summoned panchas
PW-9 and CW-8 to the police station and the accused led
for the recovery of the sticks. The perusal of evidence of
PW-9 discloses that the accused No.2 was enquired by
the investigating officer and he informed that he would
produce the stick which was used by him. Accordingly,
the police and the panchas went to the spot where the
stick was thrown and he produced the said stick and it
was seized under the mahazar as Ex.P12. He identifies
the said stick at MO8.
73. Thereafter, accused No.3 was enquired, he also
led the police and panchas to the spot where he has
hidden the stick and mahazar was drawn for the recovery
of MO.9 as per Ex.P14. The cross examination of the PW-
9 discloses that, it was suggested to him that his son was
working as the driver on the vehicle belonging to PW-12
Somalingappa. He has denied the said suggestion. The
cross- examination tries to elicit that he had political
connections and he had stated that he had contested for
Panchayat, but had lost. It is elicited that he did not give
the information to the police to write the mahazar, but he
has read the mahazar and thereafter, he signed it. An
effort was made in the cross examination to elicit that he
is an interested witness. But there is no clear elicitation
that he is an interested witness as he is close to the
family of PW-12. Thus, the evidence of PW-10 shows that
the accused Nos.2 and 3 had mentioned about the sticks
and they had led the police for the recovery of MOs 8 and
9.
74. In pursuance to the voluntary statements of
accused Nos. 4 and 7, Investigating Officer states that he
has summoned PW-11 and CW10 and accused were
enquired and they disclosed that they would produce a
stick and Long and they led the investigating officer and
panchas to the respective spots. The perusal of evidence
of PW-11- Irappa Kamadhenu, shows that he and CW10
Manjunath were called to the police station. On enquiry,
accused No.4 had told that he would produce the long
which was used for commission of the offence.
Accordingly, accused No.4 led the police and panchas to
the place on Hubballi Karwar road near bridge and
produced the Long which was seized by the police.
After that, when PW-11 and CW10 were about to
return to their house, police said that there is another
mahazar to be done and accused No.7 was in police
station and on enquiry, accused No.1 told about the place
where he had kept the long. Accordingly, they went to
the place along with accused No.7 and he produced the
weapon. Thus, the evidence of PW-11 in this regard
clearly establish that recoveries were made as per the
statement made by the accused Nos. 4 and 7 in his
presence. The police have conducted the mahazars as per
Exs.P18 and P21 and he has identified his signatures and
the contents of the mahazars to be correct.
In the cross-examination, PW-11 states that he is
from Begur village and he is a distant relative of PW-12.
He states that when he went to the police station PW-12
was not in the police station. In the cross-examination, it
is categorically elicited that when he was in the police
station, accused 4 and 7 have not stated the place where
they have kept the weapon but only say that they will
produce the weapons if they go to the said spot. This
elicitation in the cross- examination of PW-11 discloses
that the Investigating Officer did not have prior
information as to the place where the weapons were
kept.
75. PW-18, Investigating Officer states that accused
No.5 gave voluntary statement as per Ex.P41 and said
that he would produce the stick and Scorpio vehicle which
was used to come to the spot of the incident. Accordingly,
PW-15-V.M.Mugad and CW13 were summoned to the
Police station and in their presence again accused was
enquired and then he led the police and panchas to the
spot. The perusal of evidence of PW-15 shows that
accused No.5 was enquired by the Investigating Officer
and he said that he would show the vehicle and the stick.
Accordingly, they went in the police jeep and the accused
No.5 produced the vehicle bearing No.KA.41.P.6657. He
also produced the stick which was kept in the dickey of
the said vehicle. They were seized under the mahazar as
per Ex.P33. PW-15 has identified his signature on the
same.
In the cross- examination, PW-15 states that he
knew the accused but he do not know the PW-12 or his
wife. Much of the cross-examination is in respect of the
manner in which the summons by the trial court was
served upon him and how he came to the court to
depose. He states that police had not issued him notice to
come to the police station for the purpose of the mahazar
and police had not recorded the voluntary statement in
his presence. However, he categorically says that Ex.P33
is the said mahazar. Rest of the cross-examination is
denials.
76. Ex.P8 happens to be the spot mahazar under
which one of the weapon i.e. MO 5 was seized. It is none
else than PW-8 who was present at the time of spot
mahazar and he has stated that in a channel near the
spot, the MO 5- Long had fallen and it had blood stains.
77. PW-8 clearly says that he was also summoned
to the spot of the incident and police had conducted the
mahazar. However, in the cross examination, he has
stated that he has signed on blank papers. He identified
his signature on Ex.P8 and he did not say that mahazar
was prepared in his presence at the spot. He identifies
the contents of the mahazar. The recovery of MO5 from
the spot is spoken by the Investigating Officer as well as
by PW-22 also.
78. It is the case of the prosecution that these
weapons which were recovered and the clothes of the
accused as well as deceased were sent to FSL, which was
examined by PW-20-Dr.Mahadeshwaraswamy Y.H. There
appears to be some discrepancy in respect of the
numbering of the material objects and the articles. It is to
be noted that PW-8-B.B.Belliwale, was shown MOs 15 to
18 to be the clothes of the accused Nos. 1 and 6 and he
identified them. The evidence of PW-18-M.R.
Doddabasappanavar, also shows that the MOs 15 to 18
are the clothes of the accused Nos. 1 and 6. However,
the evidence of PW-20 is not clear as to which are these
objects in his report. Para 4 of the examination in chief of
PW-20 describes the articles which he had examined and
co relates the same to the MO 5 to 18. This evidence of
PW-20 does not co-relate to the material objects and
there appears to be certain discrepancy. However, it is
relevant to note that PW-20 is categorical in saying and
describing the articles which he had examined. Obviously,
PW-20 did not have the information as to which articles
were seized and from whom. It was for the Investigating
Officer to clarify this aspect and such co-relation between
the articles examined by PW-20 and the material objects
which were marked are not available in the deposition of
PW-20. It appears to be a small lacunae in the
investigation.
79. The evidence of PW-20 discloses that the
clothes of the accused Nos. 1 and 6 which are MOs 15 to
18 had the blood stains. So also the two of the Longs
which were allegedly seized from accused Nos. 1 and 6
had blood stains and Ex.P43 issued by PW-20 clearly
shows this aspect. Under these circumstances, the blood
stains on two of the weapons tallied with the blood stains
which were found on the clothes of the deceased.
Obviously, the undergarments of the deceased Ningappa
were also blood stained and they were of 'AB' blood
Group. Therefore, it is evident that the weapons as well
as the clothes of the accused and the deceased contained
'AB' group blood. The cross-examination of PW-20 does
not discredit his testimony. The evidence of the
Investigating Officer and the documents produced though
have some lacunae, they would not discredit their
testimony.
80. The learned counsel for the accused submitted
that the Investigation Officer had the prior information of
the place where the weapons were hidden by the accused
and therefore, there is no such discovery of the weapons
as envisaged under Section 27 of the Evidence Act. We
find considerable force in this argument as the voluntary
statements at Ex P 31 to 37 disclose the place where they
were hidden/thrown. The decision in the case of Thimma
Reddy Vs Vs State of Karnataka9, referred by learned
counsel for the accused, wherein, the law relating to
discovery of the fact and recovery of the incriminating
2018(2) AKR 577
material was considered by the co- ordinate Bench of this
Court at length, which was authored by one of us. It was
observed that "procedures followed in the alleged
recovery of the weapon was not proper and in fact, there
was no such recovery of the incriminating material".
Therefore, we have restricted our discussion to the blood
stains found on the clothes worn by the accused 1,6 and
the clothes of the deceased.
DEFENCES AND DELAY IN FILING FIR
81. One of the main defence of the accused is that
there is delay in registering the FIR. According to the PW-
12 and other witnesses, the incident had occurred around
4.00 p.m. and the deceased along with PWs-12, 13 and
others reached KIMS hospital, Hubballi, around 5.30 p.m.
The First Information report as per Ex.P4 was received by
PW-18 at 9.00 p.m. It is contended that this delay of 3
1/2 hours is fatal to the prosecution case.
82. It is pertinent to note that soon after the
deceased brought to Hireagasi at around 4 to 4.30 p.m.,
without delay he was taken to KIMS Hospital, Hubballi.
The PW-12 says that the deceased was taken into the
hospital on a stretcher and within 30 minutes the Doctors
informed that he was brought dead. Simultaneously, PW-
14 prepared the OPD chit as per Ex.D2, wherein it is
mentioned that the deceased Ningappa was brought
dead. It was subsequent to this information received by
PW-12 that the filing of the First Information Report is
relevant. In all probability, only after recovery from the
initial shock of the death of deceased Ningappa, PW-12
could have lodged the complaint.
83. In the evidence of PW-12, it is elicited that the
Superintendent of Police and other officials had come to
the hospital at around 6.30 p.m. It is elicited that he gave
a statement to the Superintendent of Police and it was
recorded by him. It is this statement of PW-12 in the
cross- examination at para 80 and 81 which is heavily
relied by the defence. The Trial Court in its judgment,
holds that the said statement made before the
Superintendent of Police, Dharwad, is the first
information under Section 156 of Cr.P.C. and therefore,
conclude that the Ex.P4 is doubtful.
84. It is pertinent to note that a mere enquiry by
the Superintendent of Police, Dharwad, cannot be termed
to be the first information report. PW-18 reached the
KIMS hospital, Hubballi, after getting information and
visiting the spot of the incident. As such, the receipt of
the Ex.P4 by PW-18 at 9.00 p.m. cannot be termed to be
an outcome of delay and that it was a product of
consultation and deliberation. There is nothing elicited in
the cross- examination of PW-12 which establishes that
PW-12 has consulted anyone who were in the knowledge
of the incident and there was room for embellishments.
The Ex.P4 was written by PW-21- Vinayak, who was a
resident of Hebballi. Though PW-21 says that he is a
stranger to PW-12, PW-12 states that PW-21- Vinayak
had come to see his son. PW-21 has been elaborately
cross examined and he says that he is a resident of
Hebballi and not a resident of Kalaghatagi. Though he
admits that his signature on Ex.P4 and the summons
Ex.D12 differs, he categorically identifies his signature
and handwriting on Ex.P4. Therefore, the contention of
the defence that the identity of PW-21 is doubtful cannot
be accepted.
85. Evidently, PW-12 was in grief of the death of his
son Ningappa and an oral enquiry by the police who were
present at the KIMS Hospital, Hubballi, may be
Superintendent of Police, Dharwad, cannot be termed to
be a first information report. What he has stated was
reduced into writing by PW-21 and it was received by
PW-18 at 9.00 p.m. Then he returned to Kalaghatagi,
registered the same and commenced the investigation.
Therefore, this contention of delay in registering the FIR
is not acceptable.
86. Here it is relevant to refer the decision in the
case of Ashok Kumar Pandey Vs. State of Delhi10
which lays down that, "it is a natural conduct of a normal
human being to rush the injured persons to the hospital,
particularly, when they are his near and dear ones, instead of
leaving them in the place of occurrence to die and to go to the
police station to give information about the occurrence." In
the said decision, there was delay in filing the FIR by a
few hours. In para 9 it was observed that, "the incident
had occurred in the mid night and the FIR was received by the
Magistrate at 7.30 hours and considering the same, the Apex
Court held that it cannot be construed to be a delay".
87. The learned counsel for the accused has pointed
out several discrepancies in the evidence of PW-22 vis-a-
vis, the statement under Section 164(5) of Cr.P.C. This
(2002) 4 SCC 76
aspect has been dealt with in the above paragraphs while
considering his evidence as an eye witness. The
substantial evidence of PW-22 regarding the incident
remain unimpeached. Whether PW-22 and PW-12 visited
the Kalaghatagi Police station after 10.00 p.m. to verify
whether the case was registered or not is not of much
importance which would negate the entire evidence of
PW-12 or PW-22. Obviously, PW-22 was under pressure.
His statement under Section 164 of Cr.P.C. says that PW-
12, one Gurulingappa, Nagu, Eerappa had been to the
police station to lodge the complaint. Obviously, the
complaint was received by PW-18 at 9.00 p.m. Under
these circumstances, this discrepancy pales into
insignificance. Moreover, there is nothing wrong in PW-12
visiting the police station on his return from hospital.
88. The defence has pointed out that all the
supporting witnesses are the close relatives and
therefore, their evidence cannot be relied to base the
conviction. We are afraid that such a contention could
hold any water. It is settled principles of law that, the
evidence of the interested witnesses, if it is clear, cogent
and natural, can be the basis for conviction. The
contradictions pointed out by the defence in the evidence
of PWs- 12 and 22 are the two perceptions of these
witnesses. None of these contradictions, like visiting the
police station after 10.00 p.m., PW-22 seeing PW-12 in
the evening, say of PW-22 that he was under fear, etc.,
do not go to the root of the case. Rather they are only
superficial in nature and bound to occur when the
witnesses are deposing out of their memory after certain
period of time.
89. Another point raised by the defence is about the
description of the weapons. The question is, whether it is
a machu or a long? When the witnesses have identified
the weapons, the question whether it is called as 'machu'
or ' long' is not of much relevance. It is to be noted that if
the blade of the weapon is little longer, it is described as
'long' and if it is shorter, it is described as 'machu'.
Moreover, PW-6 in his opinion has stated that the injuries
found on the body of the deceased may be inflicted by
the weapons seized and examined by him.
90. The last point raised by the learned counsel
appearing for the accused is that, the accused could not
have known that PW-22 and deceased are visiting the
land of PW-22. It is evident that the investigation does
not show a previous conspiracy among the accused to
commit the crime. It is for this reason that PW-22 feared
the backlash that he may be the perceived to be the
informant (of movement of deceased) to the accused.
However, PW-22 has deposed before the Court and also
before the Magistrate under Section 164 of Cr.P.C. that it
was the accused Nos. 1 to 7 who had assaulted the
deceased Ningappa. Therefore, the question whether the
accused had kept a surveillance about the movements of
the deceased Ningappa is not the subject matter of the
investigation and as such, this point raised is of no
relevance. The fact remains that on 19-9-2015 the
accused as well as PW-12 and the deceased had faced
each other at the panchayat office, when the President of
the panchayat had informed that there would be a
meeting on 21-9-2015.
CONCLUSIONS:
91. The above discussions show that the accused
had the motive and they had also expressed that one of
the family member of the PW-12 would be killed or
injured. The motive regarding the dispute in respect of
property Nos. 95 and 98 has been elicited in the cross-
examination by the accused. Ex.P24 is a clinching
document to establish that the deceased had expressed
about the threats to him and his family. It has also come
in the evidence of PW-12 that after the dispute regarding
the backyard commenced, there were police complaints
filed by him as well as by the accused. This aspect is
elicited in the cross-examination of PW-12. It is not
known whether investigation was done in this regard.
Therefore, the motive has been sufficiently proved by the
prosecution. The Trial Court holds that the motive is not
proved by any clinching evidence. We are unable to
accept the reasoning by the Trial Court in this regard.
92. The revelations by the deceased while he was
being taken to KIMS hospital, Hubballi, is spoken by PW-
12 and PW-13. The presence of the PW-12 in the car is
fortified by the evidence of independent witness i.e., PW-
14-Mahaboob Sab. Though PW-7 denies the presence of
PW-12, his evidence has to be termed to be biased as he
is cousin of accused Nos. 1 to 3. Therefore, the Trial
Court expressing that PWs 7 and 14 do not vouch for the
dying declaration and it creates a doubt cannot be
accepted. It is trite law that such portion of the evidence
of a hostile witness which is of relevance to the
prosecution case may be accepted. The Trial Court failed
to note that the evidence of PW-14 falsifies the say of
PW-7 regarding the presence of PW-12 in the car. We see
no reason not to accept this evidence of PW-14 which
supports the prosecution case regarding the presence of
PW-12.
93. Soon after the deceased Ningappa was declared
brought dead at KIMS Hospital, Hubballi, PW-12 and his
wife Yellavva were in grief. PW-12 has stated that he was
in grief and do not know who were the police authorities
visited the hospital. It is also relevant to note that PW-12
was cross-examined on 7 different dates. There is
repetition of many facts in the cross-examination.
Therefore, it is quite natural that discrepancies creep in
when the witness is deposing repeatedly on the same
aspect at different points of time. One cannot expect that
on each occasion, the witness has to depose in a parrot
like manner.
94. The recovery of the weapons and clothes as
discussed above show that on the basis of the voluntary
statement by the accused, PW-18 knew the place where
they were hidden. Therefore, such recovery of the
weapons was known to PW-18 as may be seen from the
voluntary statements and therefore, such recovery do not
fall within the scope of Section 27 of the Evidence Act. It
is not a fact which has been discovered. It has to be
termed to be recovery simplicitor. The clothes of the
accused Nos. 1 and 6 are also the recovery simplicitor.
These clothes of the accused Nos. 1 and 6 had the
bloodstains of AB+ human blood. The clothes of the
deceased also bore the stains of AB+ human blood. This
circumstance, as may be found from the evidence of PW-
s 20 and 18 is of some relevance. The Trial Court has
totally discarded the matching of the blood group by
holding that PW-6 had not collected the sample blood
from the body of the deceased and PW-18 had not
collected the sample blood of the accused. Such
observation could not have been the basis to hold that
the prosecution has failed to prove its case. Similarly,
non-seizure of the motor cycle used by PW-13 and 17 to
bring the deceased Ningappa from the spot to Hireagasi
and the non seizure of clothes of PW-s-12, 13,17 and
Yellavva, also cannot be a ground to disbelieve the
prosecution case. We note that the Investigating Officer
has not seized the said motor cycle or the car used for
ferrying the deceased to the hospital. There are also
certain lacunae in the investigation which we have
pointed out while considering the recoveries under the
mahazars. Such lacunae in the investigation cannot be a
ground to hold that the prosecution has not proved its
case if there is other evidence.
95. In this regard, the Apex Court in the case of
Dhanaj Singh @ Shera and others Vs. State of
Punjab11 observed that the defective investigation would
(2004) 3 SCC 654
not come in the way of convicting the accused. It was
held as below:
"5. In the case of a defective investigation the Court
has to be circumspect in evaluating the evidence.
But it would not be right in acquitting an accused
person solely on account of the defect; to do so
would tantamount to playing into the hands of the
investigating officer if the investigation is designedly
defective.
6. In Paras Yadav v. State of Bihar (1999) 2 SCC 126
it was held that if the lapse or omission is committed
by the investigating agency or because of negligence
the prosecution evidence is required to be examined
dehors such omissions to find out whether the said
evidence is reliable or not. The contaminated
conduct of officials should not stand in the way of
evaluating the evidence by the courts; otherwise the
designed mischief would be perpetuated and justice
would be denied to the complainant party."
96. Sofar as the dying declaration is concerned, we
have noticed that in the cross-examination of PW-6
nothing is elicited that the injuries suffered by the
deceased Ningappa incapacitated him from speaking. PW-
6 was an expert and could have deposed about the time
that would take for a person to fade out and die after
suffering the injuries as found on the body of the
deceased. Therefore, there is no reason to disbelieve the
say of PW-s 12 and 13. We have noticed that the brain
was intact and there was fracture of C5 and C6
vertebrae. Therefore, we hold that the deceased was
capable of giving an account of the incident and divulging
the names of the assailants. The decision in the case of
Parbin Ali and another Vs. State of Assam12
chronicles most of the decisions rendered by the Apex
Court till then, including the decision in the case of
Lakshman Vs. State of Maharastra13. It is held that
the oral dying declaration have to be considered with care
and caution and when there is no cross- examination
about the capability of the victim giving the dying
declaration to the Medical Officer, there was no reason to
discard such dying declaration. In paras 11 to 21, it is
held as below:
(2013) 2 SCC 81
(2002) 6 SCC 710
"PW- 1 (relative of deceased), PW- 2 (wife of
deceased), PW- 3 and PW- 5 (father-in-law of
deceased), deposed that the deceased had named
three accused persons as the assailants. PW- 6, who
came later to the place of occurrence, had found that
the deceased was not in a position to speak. PW- 8
did not support the prosecution case in entirety.
Thus, the real witnesses to the oral dying declaration
were PW-s 1,2,3 and 5 and hence, the veracity of
their version is required to be scrutinized. The wife,
father-in-law and two other relatives clearly stated
that the deceased had informed them about the
name of the assailants. Nothing was elicited in the
cross-examination which would discredit the
testimonies of the PW-s. They have deposed in a
categorical manner that by the time they arrived at
the place of occurrence, the deceased was in a fit
state of health to speak and make a statement and,
in fact, he did make a statement as to who had
assaulted him. Nothing was suggested to these
witnesses in cross-examination about the fitness of
deceased to make declaration. Again, the final
opinion of PW- 4 (doctor who performed the post-
mortem) was that death was caused due to shock
and haemorrhage as a result of ante-mortem injuries
in the abdomen caused by sharp weapon and which
injuries were homicidal in nature. Said opinion of the
doctor was not challenged either before the trial
court or before the High Court. The doctor was not at
all cross-examined. Hence, whether such a person
(herein deceased), receiving certain injuries, would
be in a position to speak or not, was not brought out
any where in the evidence. In this backdrop, it can
safely be concluded that the deceased was in a
conscious state and in a position to speak. Thus, it is
difficult to accept that the wife, father-in-law and
other close relatives would falsely implicate the
appellant-accused by attributing a false oral dying
declaration to the deceased. That apart, in the
absence of any real discrepancy or material
contradiction or omission and additionally non-cross-
examination of the doctor in this regard, makes the
dying declaration absolutely credible and conviction
based on the same really cannot be faulted. Hence,
the conviction of the appellants is confirmed."
97. The learned counsel appearing for the appellant
has also placed reliance on the decision in the case of
Kamal Kudal Vs. State of Assam14 wherein, it was
observed as below:
"21. The law regarding the nature, scope and value
as a piece of evidence of oral and written dying
declarations is now fairly well settled by various
judicial decisions of this Court. A dying declaration,
oral or written, before it could be relied upon, must
pass a test of reliability as it is a statement made in
the absence of the accused and there is no
opportunity to the accused even to put it through the
fire of cross examination to test is genuinity or
veracity. The court has, therefore, to subject it to
close scrutiny. But once the court is satisfied that it
is a truthful version as to the circumstances in which
the death resulted and the persons causing injuries,
the law does not expect that there should be
corroboration before it can be relied upon. However,
2022 SCC Online SC 882
if there are infirmities and the court does not find it
safe to base any conclusion on it without some
further evidence to support it, the question of
corroboration arises.
22. We may refer to one of the decisions of this
Court in the case of Heikrujam Chaoba Singh v.
State of Manipur, (1999) 8 SCC 458, wherein in para
3 this Court observed as under:
"3. An oral dying declaration no doubt can
form the basis of conviction, though the Courts seek
for corroboration as a rule of prudence. But before
the said declaration can be acted upon, the Court
must be satisfied about the truthfulness of the same
and that the said declaration was made by the
deceased while he was in a fit condition to make the
statement. The dying declaration has to be taken as
a whole and the witness who deposes about such
oral declaration to him must pass the scrutiny of
reliability. ..."
23. "Truth sits upon the lips of a dying man."
98. The above facts and circumstances show that
the Trial Court jumped to the conclusion that the
prosecution has not proved its case by cogent evidence.
The reasons assigned by the Trial Court are prima facie
perverse and was not in the light of the settled principles
of law governing the oral dying declarations. There was
no reason to hold that PW-12, PW-13 and PW-22 were
deposing falsehood and PW-7 was truthful. But it was
otherwise. The Trial court also erred in holding that the
motive is also not proved. Therefore, we have no
hesitation to hold that the impugned judgment is not
sustainable under law.
99. The discussions made supra, clearly establish
that the accused Nos. 1 to 7 came to the spot knowing
that the deceased Ningappa and PW-22 had come to the
ground nut field of PW-22 by forming an unlawful
assembly. When PW-22 and deceased Ningappa were
returning on their motor cycle, way laid them, pulled
them holding their shirts and made them to fall. While
the deceased Ningappa was beaten the PW-22 raised hue
and cry and then he was also threatened which made him
to run. The assault on the deceased continued till he fell
down. This shows that the accused had come with
preparations with weapons to assault the deceased
Ningappa and to kill him. The object of all the accused
was to annihilate the deceased Ningappa.
100. The assault on the deceased was
premeditated, with preparations and with an object of
preventing him from appearing before the Panchayat on
the next day. The injuries sustained by the deceased as
may be found from Ex.P5 show that the assault was
brutal and the deceased succumbed to the injuries due to
hemorrhage within a span of two hours. The intention of
the accused was clear and it was to annihilate the
deceased Ningappa. Hence, we have no doubt in our
mind that the act of the accused is a culpable homicide
amounting to murder.
101. Hence, the points raised above are answered
accordingly and accused Nos. 1 to 7 are liable to be
convicted for the offences punishable under Sections 143,
147, 148, 341, 302 read with Section 149 of IPC.
ORDER
[i] Both the appeals are allowed.
[ii] The judgment in SC No.5/2016 by IV
Additional District and Sessions Judge, Dharwad,
dated 18-4-2019 acquitting the accused Nos. 1 to 7
for offences punishable under Sections 143, 147,
148, 341, 302 read with Section 149 of IPC is
hereby set aside and the accused Nos.1 to 7 are
convicted for the said offences.
To hear on sentence, the matter is passed over.
(DR. H.B. PRABHAKARA SASTRY)
JUDGE
(C M JOSHI)
JUDGE
tsn*
ORDER ON SENTENCE
102. Learned High Court Government Pleader
appearing for State submitted that the accused have
taken the law into their hands and killed the deceased,
who was a soldier. He submits that age of the accused
cannot be ground for seeking any lenient view since all
the accused are aged more than 21 years. It is submitted
that the criminal antecedents of these accused are also to
be borne in mind while awarding sentence coupled with
the gravity of the offence committed by these accused.
There was motive, preparation and then the crime was
executed. Therefore, he contends that the accused Nos.1
to 7 are to be punished with the severest sentence
possible. He also relied on the decision in the case of
Manoharan Vs. State by Inspector of Police, Variety Hall
Police Station, Coimbatore15, wherein it was held that
opinion of the society and not the personal opinion of the
2020 (1) Crimes 335(SC)
judge should be considered whilst awarding sentence of
death.
103. Per contra, learned counsel appearing for
accused Nos.1 to 7 submits that these accused are at the
prime of their age, have to look after their parents and
families and therefore lenient view may be taken. He has
placed reliance on the decision in the case of Yogendra
Alias Jogendra Singh vs. State of Madhya Pradesh16 to
contend that this case do not fall within the purview of
rarest of the rare case and by relying on the case of
Machhisingh & others Vs. State of Punjab17 wherein the
Court has held that when there is no depravity or
brutality in the acts of the accused, it does not fall within
the purview of rarest of the rare case. In Machhisingh &
others Vs. State of Punjab18 the Hon'ble Apex Court in
para-39 laid down tests for the rarest of rare case as
below-
(2019) 9 SCC 243
(1983)3 SCC 470
Supra
"39. In order to apply these guidelines interalia
the following questions may be asked and
answered:
(a) Is there something uncommon about
the crime which renders sentence of
imprisonment for life inadequate and calls
for a death sentence?
(b) Are the circumstances of the crime such
that there is no alternative but to impose
death sentence even after according
maximum weightage to the mitigating
circumstances which speak in favour of the
offender ?:
104. Learned counsel for accused submit that the
benefit of set off may be given to them under Section 428
of Cr.P.C.
105. Sentence prescribed for various offences under
which the accused are convicted are as below:
Sl. Indian Penal Maximum Minimum Fine
No. Code, 1860 ImprisonmentImprisonment
1. 143 unlawful 6 months - Or fine
assembly
2. 147 Rioting 2 years or - Or both
fine or both
3. 148 Rioting with 3 years or - Or both
fine or both
weapons -
4 341 1 month Fine of Rs.500 Or both
imprisonment
/ fine/ both
5 302 Death and Life shall
fine imprisonment
and fine
106. There has been much debate about the capital
punishment and the sentencing policy in the Country.
After such debate about the sentencing policy and catena
of decisions rendered by Hon'ble Apex Court, general
agreement seems to be that there should be balancing of
the mitigating and aggravating circumstance and balance
has to be struck between the two set of facts and
adequate and deterrent sentence has to be imposed. At
the same time, the cardinal principle of any sentencing
that sentencing is based on reformative theory (of the
convict) should not be forgotten. The decision of the
Hon'ble Apex Court in the case of Bachan Singh Vs. State
of Punjab19 and thereafter, a clarification issued by the
Hon'ble Apex Court in Machhi Singh Vs. State of Punjab20
almost settled all the issues in this regard. Over ruling of
the judgment in the case of Rajendra Prasad Vs. State of
Uttar Pradesh21 by the decision of the Bachhan Singh Vs.
State of Punjab22 clarifies the situation applicable as of
now. In Bachan Singh23 it was observed that judges should
not be blood thirsty. A real and abiding concern for the
dignity of human life postulates resistance to taking life
through law's instrumentality. That ought not to be done
say in the rarest of rare cases when the alternative option
is unquestionably foreclosed. This view was followed by
the Courts in various subsequent decisions. In the case of
(1980) 2 SCC 684
Supra
AIR 1979 SC 916
Supra
Supra
Machhi singh, the Hon'ble Apex Court has laid down the
two tests which are to be considered by the Court. It is in
the background of these tests laid down that the
adequate sentence has to be imposed on the accused.
When we examine the factual matrix of the present case,
it is evident that the aggravating circumstances are that
the i) deceased was a soldier, ii) he was killed with 36
injuries, majority of which are on his head portion, iii) the
crime involved preparation and motive to usurp property
and iv) the available civil remedy was ignored.
107. The circumstances which are contended to be
mitigating one are: i) the accused are in the age group of
21 years to 42 years and ii) they have families to look
after.
108. Now the question is, whether it falls within the
category of rarest of rare case. In order to ascertain this
aspect, the two questions raised in Machhi singh supra
need to be answered. First one is, is there something
uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death
sentence? The urge of a person for wealth and pecuniary
gain is the cause for committing crimes. The accused No.
1 to 7 were trying to usurp the property of the
complainant and the deceased. They did not opt for the
civil remedy which was available. The criminal
antecedents are not proved. There are no convictions
against them. Mere pendency of a case cannot be a
proven criminal antecedent. Therefore, we do not find
that aggravating circumstances contended by the learned
High Court Government Pleader would fall within the
purview of rarest of rare case. Therefore, we are unable
to accept the contention that there is something
uncommon about the crime which renders the sentence
of imprisonment for life inadequate.
109. Second question is - Are the circumstances of
the crime such that there is no alternative but to impose
death sentence even after according maximum weightage
to the mitigating circumstances which speak in favour of
the offender? It is relevant to note that the aggravating
circumstances, though indicate that there was planning
and implementation, it cannot be said that there is no
alternative but to impose death sentence. In our
considered opinion, life sentence would be adequate since
it is not brought to the notice of this Court that in any
case of similar nature, accused has been sentenced for
capital punishment. Had they been suffering an earlier
sentence, it could have been said that there is no such
alternative. In the circumstances of the case, except the
fact that they have families and parents to look after,
none other contentions are mitigating factors.
110. It is the duty of the Court to consider grant of
compensation to the victims of the crime. PW-12-
Somalingappa Yaliwal, is the father and CW21-Yellavva,
is mother of the deceased-Ningappa. By act of crime,
they have lost their son, who was a soldier. It is not
possible to fathom the loss of life of son of parents.
Compensation in terms of money cannot be equivalent of
the loss. However, the law takes into its fold to do its bit
in compensating the victims. Hence they are to be
compensated.
111. Hence, the following:
ORDER
(i) For offence under Section 302 r/w.
are sentenced to undergo imprisonment for life
and to pay fine of `25,000/- each. In default to
pay the fine, they shall undergo additional
imprisonment for six months each.
(ii) For offence under Section 143 r/w.
are sentenced to undergo simple imprisonment
for 6 months and each to pay a fine of `2,000/-.
In default to pay the fine, they each shall
undergo imprisonment for three months each.
(iii) For offence under Section 147 r/w.
are sentenced to undergo simple imprisonment
for two years and to pay fine of `5,000/- each.
In default to pay the fine, they each shall
undergo imprisonment for three months.
(iv) For offence under Section 148 r/w.
are sentenced to undergo simple imprisonment
for two years and to pay fine of `5,000/- each.
In default to pay the fine, they each shall
undergo imprisonment for three months.
(v) For offence under Section 341 r/w.
are sentenced to undergo simple imprisonment
for one month and to pay fine of `2,000/- each.
In default to pay the fine, they each shall
undergo imprisonment for one month.
(vi) Term sentences of punishment for the
above offences shall run concurrently, followed
by life imprisonment.
(vii) Convicts are entitled for set off under
Section 428 of Cr.P.C. in respect of period of
their detention in judicial custody.
(viii) Out of fine amount, a sum of
`1,00,000/- each is ordered to be paid to
PW12-Somalingappa Yaliwal and CW21-
Yellavva, as compensation under Section 357 of
Cr.P.C.
(ix) The Trial Court is directed to secure the
accused No. 1 to 7 and commit them to suffer
sentences.
(x) The Trial Court is also directed to pass
appropriate orders regarding the disposal of the
property seized.
Registry to transmit a copy of this judgment to the
Sessions Judge's Court, forthwith along with its records,
for doing the needful in the matter in securing the
accused Nos.1 to 7 for serving the sentence in
accordance with law.
Accused Nos. 1 to 7 are entitled for free copies of
this judgment immediately.
Sd/-
JUDGE
Sd/-
JUDGE
tsn*
