Karnataka High Court
Sri. Ramesh Rudrappa Banoshi vs The State Of Karnataka on 11 September, 2023
Bench: Ashok S. Byaskj, Vntj
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CRL.A No. 100119 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T.
CRIMINAL APPEAL NO.100119 OF 2018
BETWEEN:
1. SRI RAMESH RUDRAPPA BANOSHI
AGED ABOUT 45 YEARS
2. SHRI RAVI RUDRAPPA BANOSHI
AGED ABOUT 55 YEARS
3. SHRI BASAPPA @ BASAVANNI RUDRAPPA BANOSHI
AGED ABOUT 60 YEARS
4. SHRI ASHOK RUDRAPPA BANOSHI
Digitally AGED ABOUT 47 YEARS
signed by
SHILPA R
TENIHALLI 5. SHRI SURESH RUDRAPPA BANOSHI
Location: AGED ABOUT 50 YEARS
HIGH COURT
OF
KARNATAKA 6. SHRI VITHAL IRAPPA BANOSHI
AGED ABOUT 55 YEARS
7. SHRI KALMESH VITHAL BANOSHI
AGED ABOUT 26 YEARS
8. SHRI SHRIKANT DEMANNA BANOSHI
AGED ABOUT 45 YEARS
9. SHRI MARUTI DEVENDRA BANOSHI
AGED ABOUT 60 YEARS
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10. SHRI MAHABALESHWAR DEVENDRA BANOSHI
AGED ABOUT 63 YEARS
11. SHRI SANJU MARUTI BANOSHI
AGED ABOUT 27 YEARS
12. SHRI VISHNU DEMANNA BANOSHI
AGED ABOUT 38 YEARS
13. SHRI MAHANTESH MALLAPPA BANOSHI
AGED ABOUT 40 YEARS
ALL ARE AGRICULTURIST
AND ALL ARE RESIDENT OF MUGLIHAL,
KHANAPUR, BELAGAVI.
...APPELLANTS
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
(NANDGAD POLICE STATION)
BY IT'S STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL'S OFFICE
HIGH COURT BENCH PREMISES
DHARWAD-11.
...RESPONDENT
(BY SRI V. M. BANAKAR, ADDITIONAL S.P.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 28.03.2018 AND ORDER OF
SENTENCE DATED 02.04.2018 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS COURT, BELAGAVI, IN S.C.
NO.281/2013 AND ACQUIT THEM ALL THE CHARGES FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148,
323, 324, 302, 341, 447, 307, 504 AND 506 READ WITH
SECTION 149 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.06.2023 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, VENKATESH NAIK T., J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the appellants aggrieved by
the impugned judgment of conviction dated 28-3-2018
and order on sentence dated 02.04.2018 passed by the I
Additional District and Sessions Judge, Belagavi, in
Sessions Case No.281 of 2013, convicting them for the
offences punishable under Sections 143, 147, 148, 323,
324, 302, 341, 447, 307, 504 and 506 read with Section
149 of the Indian Penal Code, 1860 (for short, 'IPC').
2. The brief facts of the prosecution case are that,
on 4-6-2013 at about 8:30 a.m., when the
complainant-Sri Malappa Rudrappa Hattiholi (PW1), a
resident of Mugalihal, Khanapur Taluk, Belagavi, was in
his land bearing Sy. No.148/1B measuring 5 acres along
with his father, brother, brother's wife and children i.e.,
his entire family, at that time, the accused persons
formed themselves into an unlawful assembly, with their
common object to finish the complainant and his family
members trespassed into his land, having a dispute with
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regard to the landed property, picked up a quarrel with
them by abusing the complainant and his family
members in a filthy language and assaulted with axe,
pick axe, stick, stone on the head, nose and mouth and
right eye of Nagappa (deceased) with the pick axe and
club. Suresh Banoshi (Accused No.5) assaulted the
complainant on his right hand and on the backside of the
neck and also assaulted the complainant's brother
Earappa (PW3) with axe. Vishnu (Accused No.12)
assaulted on Earappa's (PW3) neck with club. Maruti
Devendra Banoshi (Accused No.9) and Mahabaleshwar
Banoshi (Accused No.10) assaulted Earappa with their
hands, legs and with a sickle on the head and they also
assaulted Rudrappa's (PW2) feet with axe and club.
Further, the accused persons have assaulted
Rukammava's (PW4) left hand and Annapurna's (Not-
examined) left ear and caused grievous injuries with an
intention to finish the complainant and his family
members. Due to the injuries sustained, Nagappa died in
the Hospital while taking treatment. Further, accused
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have threatened the lives of the complainant and his
family members and thereby, they committed the
offences punishable Sections 143, 147, 148, 324, 302,
341, 447, 307, 504 and 506 read with Section 149 of
IPC. Hence, PW1 lodged complaint (Ex.P1) to the
Nandagad Police, Belagavi District.
3. On the basis of the complaint-Ex.P1 lodged by
P.W.1, Nandagad Police registered the case for the
aforesaid offences. Investigation Officer visited the spot,
collected material objects, drew mahazars, recorded
statements of witnesses and after conclusion of
investigation, filed charge-sheet against the accused
persons for the aforesaid offences and the learned
Magistrate took cognizance of aforesaid offences Under
Section 190(1)(a) of Cr.P.C. in C.C. No.729/2013 against
the accused persons. As the alleged offence exclusively
triable by Court of Sessions, the Jurisdictional Magistrate
committed the matter to the Court of Sessions for trial.
After committal of the case to the Court of Sessions, the
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learned Sessions Judge after hearing both side framed
charges against the accused persons for the offences
punishable under Sections 143, 147, 148, 324, 302, 341,
447, 307, 504 and 506 read with Section 149 of IPC and
the same was read over to the accused persons, they
pleaded not guilty and claimed to be tried.
4. In order to prove the case, the prosecution
examined in all 19 witnesses as P.W.1 to P.W.19 and
marked documents as per Exs.P.1 to P.64 and material
objects as per M.Os.1 to M.O.45. After completion of the
evidence on behalf of the prosecution, the statement of
the accused persons were recorded by the trial Court as
contemplated under Section 313 of the Code of Criminal
Procedure, 1973. The accused persons denied all the
incriminating evidence appeared against them and did
not lead any defence evidence and their case is of total
denial.
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5. Based on the oral and documentary evidence
on record, the learned Sessions Judge framed the
following points for consideration:
1. Whether the prosecution proves beyond all
reasonable doubts that the death of deceased
Nagappa Rudrappa Hattiholi is of culpable
homicide?
2. Whether the prosecution proves beyond all
reasonable doubts that on 4.6.2013 at about
8.30 a.m., within the limits of Khanapur
P.S., the accused persons forming
themselves into an unlawful assembly, in
the land bearing Sy No. 148/1 B situated at
Beedi Village of Khanapur Tq., with their
common object to assault, abuse, threaten
to the complainant, complainant's brother,
complainant's father, having land dispute
with the complainant party and thereby,
committed the offence punishable U/sec. 143
R/w Sec. 149 of IPC?
3. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
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being the members of such unlawful
assembly and in prosecution of common
object of such unlawful assembly were
holding axe, pick axe, club and stones and
used force against the complainant, his
brother deceased Nagappa, Malappa, the
complainant's brother Erappa, Rudrappa
Banoshi, complainant's brother's wife viz.
Rukammava and Annapurna and thereby
committed the offence punishable U/Sec.
148 R/w. Sec. 149 of IPC?
4. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of unlawful assembly
and in prosecution of common object of
such unlawful assembly trespassed into the
land bearing Sy No. 148/1 B of Beedi Village
of Khanapur Tq., in order to commit certain
offences and thereby committed the offence
punishable u/s 447 R/w Sec. 149 of IPC?
5. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of such unlawful
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assembly and in prosecution of common
object of such unlawful assembly, wrongfully
restrained the complainant and his family
members from going in the land and
thereby committed the offence punishable
U/sec. 341 R/w. Sec. 149 of IPC?
6. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of such unlawful
assembly and in prosecution of common
object of such unlawful assembly, the
accused no.1, 2 and 6 caught hold deceased
Nagappa Rudrappa Hattiholi and accused
no.3 assaulted the Nagappa with the axe on
his head and accused no.13 and 5 assaulted
with pick axe on his nose, on right eye and
head and caused the death of deceased
Nagappa Rudrappa Hattiholi and thereby
committed the offence punishable U/sec. 302
R/w. Sec. 149 of IPC ?
7. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of such unlawful
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assembly and in prosecution of common
object of such unlawful assembly, while they
were assaulting complainant and while CW9
came to pacify the quarrel, the accused no.3
with an intention to finish him assaulted him
with an axe on his head and caused grievous
injuries on his head with intention and having
knowledge that, by that act, if they caused
the death of CW9, they were guilty of
murder and thereby committed an offence
punishable U/sec. 307 R/w. Sec. 149 of IPC?
8. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of such unlawful
assembly and in prosecution of common
object of such unlawful assembly, when the
complainant came to intervene while they
were assaulting Nagappa, the accused no.8
and 12 and accused no.9 and 10 assaulted
CW-9 with their hands and kicked with their
legs and caused simple injuries to him and
thereby committed an offence punishable
u/s 323 R/w Sec. 149 of IPC and within my
cognizance.
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9. Whether the prosecution proves beyond all
reasonable doubts that on the above said
date, time and place, the accused no.1 to 13
being the members of such unlawful
assembly and in prosecution of common
object of such unlawful assembly, while they
were assaulting Nagappa and when the
complainant intervened the incident, the
accused no.4 assaulted with stick on the
right hand of complainant, accused no.5
assaulted with a pick axe on his ear, accused
no.7 assaulted with club on his neck and
assaulted CW8 with axe on his left leg foot,
accused no.11 assaulted with club on his
back, accused no.2, 5, 6 and 11 assaulted
CW10 to 15 with clubs on their back and
caused simple injuries to them and thereby
committed an offence punishable u/s 324 R/w
Sec. 149 of IPC?
10. Whether the prosecution proves
beyond all reasonable doubts that on the
above said date, time and place, the
accused no.1 to 13 being the members of
such unlawful assembly and in prosecution
of common object of such unlawful
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assembly, abused the complainant and his
family members in a filthy language by
saying that ' ¨ÉÆøÀr ªÀÄPÀ̼À E°è KPÉ UÀ¼É
ºÉÆqÉAiÀÄÄwÛ¢ÝÃj d«ÄãÀÄ £ÀªÀÄäzÀÄ' and gave
provocation to them intending that such
provocation would cause them to break
public peace and thereby committed the
offence punishable U/sec. 504 R/w. Sec.
149 of IPC?
11. Whether the prosecution proves
beyond all reasonable doubts that on the
above said date, time and place, the
accused no.1 to 13 being the members of
such unlawful assembly and in prosecution
of common object of such unlawful
assembly, threatened to the life of
complainant and his family members with
dire consequences as to take away their
lives and gave alarm to them by saying
'E£ÉÆߪÉÄä ¹UÀj ªÀÄPÀ̽gÁ ¤ªÀÄä£ÀÄß PÉÆAzÀÄ ©qÀÄvÉÛêÉ' and
thereby committed an offence punishable
U/sec. 506 R/w. Sec. 149 of IPC?
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6. The learned Sessions Judge after considering
the entire oral and documentary evidence on record has
answered point Nos.1 to 11 in the affirmative and
recorded a finding that the prosecution has proved its
case beyond all reasonable doubt that on 4-6-2013 at
about 8:30 a.m., all the accused persons formed an
unlawful assembly by holding deadly weapons committed
rioting, assaulted the family members of the complainant
and committed murder of deceased Nagappa Rudrappa
Hattiholi. Hence, the learned Sessions Judge convicted
the accused persons for the aforesaid offences.
Aggrieved by the judgment of conviction and order on
sentence passed by the trial Court, the accused persons
have preferred this appeal.
7. We have heard the learned counsel for the
parties to the lis.
8. Sri Ashok Kalyan Shetty, learned counsel for
the accused, vehemently submitted that the impugned
judgment of conviction and order on sentence being bad
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in law, required to be set aside; the trial Court has not
rightly appreciated the evidence on record; the trial
Court has failed to see that the prosecution has utterly
failed to prove the prosecution case beyond reasonable
doubt the alleged possession of the disputed land by the
complainant's party, unlawful assembly by these accused
with common object to commit crime, criminal trespass,
rioting, wrongful restraint, assaulting with mens rea to
commit either murder or attempt to commit murder or to
commit any offence or to cause injuries, intentional
insult, criminal intimidation, manner of incident and if the
injured sustained in the manner and by the weapons
described during the course of trial, especially having
regard to inconsistent stand, material improvements,
admissions by the material witnesses, and as a
consequence, even if for a sake of argument, there was
any incident on spur of moment and a free fight, the
appellants cannot be termed either as criminal trespasser
or aggressor or caused injuries or took undue advantage
being in a settled possession of the disputed land. It is
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further contended that for the alleged possession and the
agricultural activities by the complainant's family
members, objection and assault by the appellants but
such genesis being falsified from their own documents
and admissions a reasonable doubt arises regarding such
genesis and probabilities, twisting of facts, and making
false accusation of high handedness against these
appellants, as they did not give up their settled position.
9. It is further contended that the disputed land
purchased by P.W.2-Sri Rudrappa Chanabasappa
Hattiholi was 15 and 1/2 acre stands falsified as he
himself in the Court deposed that admittedly, 6 acre was
also not in their possession for years together on account
of boundary and measurement dispute as evident from
the proceedings before Tahsildar and the measurement
done by him at the instance of P.W.2 and passing an
order. This admission given by P.W.2 as the plaintiff in
his suit in Original Suit No.93/2012 for bare injunction in
respect of the disputed land and the evidence of P.W.3
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that his father had approached the Tahsildar for
possession, encroachment by the appellants family and
ultimate dismissal of the suit holding that plaintiff i.e.
P.W.2 failed to prove his possession as on the
date of the suit.
10. It is contended that the prosecution which
produced temporary injunction order in Original Suit
No.93/2012 to claim possession by the complainant's
side suppressed that such an order was stayed and
ultimately, set aside in Miscellaneous Appeal No.10/2012
holding that the plaintiff has not made out prime facie
case and then, as admitted by the said witness, replacing
it with an order of status quo as per certified copy
produced as part and parcel of the statement recorded
under Section 313 of Cr.P.C. It is further submitted that
the ultimate dismissal of suit proved that the possession
of the disputed land of 4 acre was not with P.Ws.1 to 4
and deceased Nagappa. It is further contended that
when the possession by the complainant's side itself does
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not stand proved, then their claim regarding the
agricultural activities being carried out by them is false
claim and it stands fortified by the admission of P.Ws.1
and 17 and Ex.D.1. In addition to it, even the panch
witness, Sri Narayan also does not vouch such activities
as none of the neighbouring land owners or persons
alleged to have seen the incident and the Investigating
Officer has not made them as witness to the case.
11. It is further contended that P.Ws.1 to 4 are
unreliable as they have no regard to truth. They have
made material improvements with a view to somehow
involve all the innocent persons in the crime. P.Ws.5 and
6 are got up witnesses as their names and presence was
not mentioned in the complaint- Ex.P1.
12. It is further contended that in the facts and
circumstances of the case and assertion of their certain
possession of disputed land even at undisputed time and
a right from beginning both before Revenue Authorities
and in Original Suit No.93/2012, they have fortified by
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admissions and material on record. It is contended that,
the appellants formed an unlawful assembly with
common object to commit either an offence or criminal
trespass is baseless and devoid of merits and truth. As
such, there being no proof of ingredients and formations
of unlawful assembly thus, Section 149 of IPC is not
attracted, thus it has no application in the case and
consequently, the conviction and sentence of all the
appellants either with the aid of Section 149 of IPC or for
the offences punishable Sections 143, 147 and 148 read
with Section 149 of the IPC, being bad, hence, it is liable
to be set aside.
13. It is further contended that when the
possession of such land by the complainant's side is not
proved and when the accused-appellants is in possession
thereof, having regard to the material on record, the
necessary ingredients to attract the definition of criminal
trespass being absent, the offence being punishable
under Section 447 read with Section 149 of IPC is neither
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made out or attracted, nor proved beyond reasonable
doubt. Hence, the conviction and sentence for the said
offences cannot be sustained.
14. It is contended that there being absolutely no
evidence on record to make out requisite ingredient
within this definition of wrongful restraint under Section
341 of IPC. Therefore, the conviction and sentence for
the offence under Section 341 read with Section 149 of
IPC being bad in law and it cannot be sustained. It is
further contended that the trial Court erred in law in
convicting and sentencing all 13 accused persons for the
offences punishable under Section 302 read with Section
149 of IPC by overlooking the evidence on record. In
fact, all of them did not assault deceased and all of them
did not share a common object to commit his murder and
that Section 149 of IPC has no application to the case on
hand. It is further contended that in Ex.P1-complaint, it
is alleged that accused No.2-Ravi and accused No.6-Vittal
having grappled and held the deceased Nagappa while
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accused No.3-Basappa assaulted with an axe on his
head, accused No.5-Suresh assaulted with handle of
peak axe on his nose, mouth and right eye. But before
the Court, it is stated that accused No.1-Ramesh, who
did not figure earlier was added as the third person to
have grappled and held the deceased along with accused
Nos.2 and 6. In the Court, it is stated that, apart from
accused No.3, accused No.5 assaulted with peak axe on
the face and accused No.13-Mahantesh assaulted with
another type of peak axe on the head. Therefore, there
being material improvement and not corroborated by
medical evidence either regarding injuries or nature of
offence. The conviction of all the accused cannot be
sustained. Especially, when accused Nos.1, 2 and 6 being
unarmed with and did not assault the deceased and when
the complainant has not alleged any overt act against
accused No.1, whose presence becomes doubtful. It is
further contended that the alleged fatal injury on the
head of the deceased Nagappa as per the post-mortem
report was not found immediately after the alleged
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incident even after examination of the Medical Officer at
Nandagad, who issued Wound Certificate as per Ex.P13,
who vouches for the correctness of the wounds found by
him. P.W.17-Investigation Officer also admits the head
injury is not mentioned in such Certificate. As such, the
medical opinion mentions about the blunt force, it ruled
out use of sharp edged weapons as alleged by the
witness, non-production of records from both the hospital
at Belagavi, there is something fishy about the
prosecution case and the appellants cannot be allowed to
become victims of the same and malafides. The
admission made by the Medical Officers that such
injurious by the deceased Nagappa could also be
sustained otherwise than assault assumes importance
and cannot be ruled out. Hence, in view of the material
discrepancies, the conviction of the appellants for the
offence under Section 302 read with Section 149 of IPC
cannot be sustained. It is further contended that, the
conviction of all the accused for the offences under
Section 307 read with Section 149 of IPC for the injuries
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on P.W.3-Eerappa is bad and unsustainable. Since it is
not the case of the prosecution that all of them had
assaulted the deceased or that the common object was
to assault and to attempt to murder the deceased, but as
per Ex.P9 Wound Certificate, the said witness had
sustained simple injuries, but described as cut lacerated
wound over the left parito temporal region measuring 4
cm x 1/2 cm on P.W.3, who went to Hospital by himself
treated as an out-patient. The said injury did not have
even bleeding or such an injury even otherwise is not
sufficient to attract an offence punishable under Section
307 read with 149 of IPC. It is further contended that he
was treated as an out-patient at Nandagad and Belagavi
and his condition was not described as either serious or
critical and his injury is described as simple in nature and
there is nothing to hold that the death could have been
caused.
15. It is further contended that even otherwise
also it is not specifically forthcoming or proved beyond all
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reasonable doubt as to who is the author of the single
injury on the head of P.W.3 as he has alleged that
accused No.3 with an axe and accused No.2 with sickle
assaulted on his hand. There being a single simple
injury, such an allegation cannot be said to have been
proved and benefit of doubt goes to both of them and
hence, there cannot be any conviction on this regard.
16. It is further contended that according to
P.W.3, accused Nos.9 and 10 were not armed with any
weapons. Accused No.12 has not assaulted on his head
and assault by accused No.12 with club is ruled out as
there is no bar mark on his neck as P.W.3 says that
assault by club gives bar mark. The said witness also
says that tenderness is not an injury. Generalised body
pain is too vague and general and accused Nos.9 and 10
cannot be held to the author of such vague as deposed
by P.W.3. Hence, under such circumstances, the trial
Court erred in law in convicting all the appellants for the
offence punishable under Section 307 of IPC and even
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accused Nos.2, 3, 9, 10 and 12 cannot be convicted for
the offences punishable under Section 307 of IPC either
individually or with the aid of Section 149 of IPC.
17. It is further contended that the conviction for
the offences punishable under Sections 323 and 324 read
with 149 of IPC is bad and unsustainable as they were
not caused intentionally and as the injuries are such that
they are not the ones which could be caused by the
deadly weapons, but the witnesses who have suffered
mainly abrasion have exaggerated the manner of
incident though they were not assaulted by an weapon.
It is further contended that P.W.1-Sri Mallappa-
complainant as per Wound Certificate at Ex.P7 sustained
simple injury, such as, abrasion over the right posterior
part of the forearm; pain over nape of his neck;
generalised body pain and the said witnesses with regard
to abrasion over forearm does not say that he was
assaulted by any of the accused on such part and hence,
it is not on account of an assault.
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18. It is further contended that the overt act by
P.W.1 that accused No.4 assaulted with a club on his
upper arm stands falsified as he was not the one named
in the complaint, but had named accused No.5 in this
regard, further at any rate, there is no corresponding
injury on his upper arm and as such, there cannot be
conviction for the said injury.
19. It is further contended that with regard to
pain over nape of his neck, P.W.1 had alleged in his
complaint that he was assaulted with a club by accused
No.7, but in the Court, he has stated that he was
assaulted by accused Nos.6 and 7. Such assault by both
accused is not supported by medical evidence, neither of
them could be convicted on account of assault on the
said witness.
20. It is further contended that as per the
allegation of P.W.1 on oath that accused Nos.5 and 12
kicked and fisted him stands unacceptable as he had not
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named accused No.5 in his complaint, but had alleged
therein that it was accused Nos.8 and 12. Even
otherwise, he has not specified on which part of his body,
they kicked and fisted. Such allegations are being two
ways as accused Nos.5 and 12 cannot be convicted
especially when it is not proved as P.W.1 has not
whispered regarding any pain sustained on the said
account while stood in the witness box.
21. It is further contended that P.W.2, as per
Wound Certificate at Ex.P4 sustained cut lacerated
wound middle of left foot with no evidence of fracture.
The injury is described as simple in nature, he had come
on his wound and was treated on OPD basis. The weapon
mentioned as a sickle at the earliest time and is later
replaced by an axe used by accused No.3. Accused No.3
did not have sickle and even the axe allegedly used did
not have any blood stains. Its use is not definitely
proved. Assault by accused No.11 on the back of P.W.2
stands falsified as there is no corresponding injury and as
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the Medical Officer opined that said club by him would
not have been used. Hence, both of them cannot be
convicted for the alleged assault on P.W.2.
22. It is further contended that P.W.4, as per
Wound Certificate at Ex.P10, sustained simple injury, i.e.
an abrasion over the dorsal part of left wrist measuring 1
cm x 1 1/2 cm. With regard to the said injury is
concerned in Ex.P1-complaint, it is alleged that accused
No.10 assaulted with a club on her left wrist, but
contrary thereto P.W.1, however, deposed that she was
assaulted with stone by accused No.10. P.W.4 has not
alleged that accused No.10 assaulted her with a club on
her left wrist, but in vagueness deposed that he
assaulted by his hands. Therefore, accused No.10 cannot
be convicted for simple injury or assault as alleged by the
prosecution. It is further contended that as per the case
of prosecution, Smt. Annapurna, wife of deceased
Nagappa, was also assaulted by accused No.11 and she
sustained an abrasion over the posterior part of the right
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ear. However, Annapurna is not examined and hence,
having regard to the nature of injury, accused No.11
cannot be convicted under Section 323 or 324 of IPC for
the assault on the said Annapurna.
23. It is further contended that the conviction of
the appellants for the offence punishable under Section
504 read with Section 149 of IPC is bad in law. There
was no criminal intentional insult as alleged. The words
assuming uttered was not to insult and they are not
considered in the light of the circumstances and settle
position of the appellants. It is further contended that
the conviction and sentence of all the appellants for the
offence under Section 506 read with Section 149 of IPC is
bad and unsustainable. There was no criminal
intimidation. The words assuming uttered only want the
complainant's side not to come as the said complainant
was not in a possession. It is further contended that in
view of the admissions given by and suggestions made, it
probablise that there was a free fight on a spur of
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moment as it seems that the complainant's side being
frustrated attempted to take and asserted forcible
possession as they had filed suit as if in possession.
Hence, assuming without admitting and in the
alternative, it is submitted that the conviction with the
aid of Section 148 of IPC is bad as individual acts and
intention matter. It is further contended that the
sentence imposed is harsh and unreasonable, fine
amount imposed is also harsh and very much on the
higher side and there is no case for imposition of fine.
Thus, the sentence being bad and unsustainable is liable
to be set aside. On all these grounds, the learned
counsel for accused prays to set aside the judgment of
conviction and order on sentence passed by the trial
Court and prayed for acquittal of all the accused persons.
24. Per contra, Sri V. B. Bankar, learned
Additional State Public Prosecutor appearing for the
respondent-State, sought to justify the impugned
judgment and order of conviction and contended that all
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the prosecution witnesses have supported the case of
prosecution and all injured persons including the
complainant have categorically stated about the
individual overt act of each accused. The learned trial
Court considering the evidence of injured witnesses and
other circumstantial witnesses and considering the
evidence of mahazar witnesses and the fact that motive
aspect has been established on the part of the accused,
as there was a rivalry between the accused persons and
the complainant's family in respect of land and there was
cases pending against them. On the ill-fated day, the
accused persons took quarrel with the complainant's
family, assaulted P.Ws.1 to 4 with axe and other material
objects and caused injuries to the complainant and his
family members, the accused persons also committed
murder of Nagappa. Even considering both oral and
documentary evidence on record, the trial Court has
rightly convicted the accused for the aforesaid offences
and the sentence imposed by the trial Court is just and
proper. Therefore, he sought to dismiss the appeal.
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25. In view of the rival contentions urged by the
learned counsel for both parties, the points that arise for
our consideration in the present appeal is:
1. whether the accused/appellants have made out any
case for interference with the impugned judgment
of conviction and order on sentence passed by the
trial Court?
2. What Order?
26. We have given our anxious consideration to
the arguments advanced by the learned counsel for the
parties and perused the entire material including original
records carefully.
27. In order to re-appreciate the oral and
documentary evidence on record, it is relevant to
consider the evidence of the prosecution witnesses and
the documents relied upon:
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a. P.W.1-Mallappa Rudrappa Hattiholi is the
complainant. He has deposed that on 4.6.2013, in the
morning at 7.30 hours, himself, his father Rudrappa,
younger brother's wife Rukmawwa, his elder brother's
wife Annapurna, his brother's son Girish, his son Kiran,
his elder brother's son Basappa and his elder brother's
daughter Priya were engaged in work in their land, at
that time, accused Nos.1 to 13 by holding sickle, axe and
stones, trespassed into their land by abusing them in
filthy language and threatened them. Accused No.1-
Ramesh, accused No.2-Ravi, accused No.6-Vithal caught
hold his brother Nagappa, at that time, accused No.3-
Basappa assaulted Nagappa with axe on his head and
caused bleeding injuries on the head of Nagappa,
accused No.5-Suresh assaulted Nagappa with pick axe on
his face, accused No.13-Mahantesh assaulted Nagappa
with the handle of pick axe on his head. Then, his
brother Nagappa fell down and he became unconscious.
Accused No.4-Ashok assaulted on his left arm hand and
caused injury. Accused No.5-Suresh and accused No.12-
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Vishnu kicked him with their legs. Accused No.3-Basappa
assaulted his elder brother on his head with axe and
caused injuries and accused No.2-Ravi assaulted his
brother Earappa with a sickle on his head and caused
injuries. Accused No.12-Vishnu assaulted on the neck of
Earappa with club, accused Nos.9 and 10 kicked Earappa
with their legs and assaulted with their hands and caused
injuries and hurt them and accused No.3-Basappa
assaulted his father with pick axe on the left leg and
caused bleeding injury. Accused No.11-Sanju assaulted
with club on the back of his father. Accused No.10-
Mahantesh assaulted Rukmawwa with stone, accused
No.11-Sanju assaulted Annapurna with stick on her right
hand. Accused Nos.6 and 7 assaulted him with a stick on
his neck and caused injuries to him. All the accused
persons threatened the complainant's family by saying
that if they visit their land once again, they will take
away their lives. Thereafter, in a private vehicle, they
had gone to Nandagad Police Station to lodge the
complaint. As Nagappa had sustained grievous injuries,
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the Police asked them to file complaint later. Then, he
immediately went to Government Hospital and from
there, the Doctors sent Nagappa, Earappa and his father
Rudrappa to KLE Hospital, Belagavi. Thereafter, he filed a
complaint as per Ex.P1 before Nandagad Police Station.
On the same day, the Police came to the spot with
panchas and recorded the spot panchanama shown by
him as per Ex.P2 and seized MO1 stone, MO2 blood
stained piece of stick and MO3 sample piece of stick. On
4.6.2013, his brother Nagappa succumbed to the injuries
in the hospital.
P.W.1 was cross examined. In his cross-
examination, he has specifically denied that they
themselves raised over the accused persons and admits
that an oral quarrel taken place in between themselves
and accused persons. In that quarrel, injury was caused
to his brother Nagappa. He has specifically denied the
suggestion that his father sustained injuries on his leg by
a sickle which was held by himself. Further, he has
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specifically denied that, in order to dispossess the
accused persons from their land, himself, his father, his
brothers and family members quarreled with the accused
persons and in that quarrel, they themselves sustained
injuries with the weapons held by them. He has further
denied the suggestion that, knowing fully well that the
accused persons are the owners and in possession of the
land, just in order to dispossess the accused persons
from their land, they themselves trespassed into the said
land and picked up quarrel with the accused persons and
filed a false complaint against the accused persons.
b. P.W.2-Rudrappa Chanabasappa Hattiholi, P.W.3-
Earappa Rudrappa Hattiholi, P.W.4-Rukmawwa Nagappa
Hattiholi, P.W.5-Priya Earappa Hattiholi and P.W.6-Girish
Nagappa Hattiholi have deposed on par with P.W.1.
c. P.W.7-Hanamantha M. Mitagar is the witness to
inquest panchanama as per Ex.P3. He has deposed
that about three years ago, he had been to KLE
Hospital along with P.W.21 in order to see the dead
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body of the deceased and saw the visible injuries on
the dead body of the deceased. He saw the injuries
on head, nose and mouth of the deceased. In the
cross-examination, he admits that he is one of the
relatives of P.W.1 and he visited the mortuary. He
further admits that he does not know the contents of
Ex.P3-inquest panchanama.
d. P.W.8-Dr. Vishnu Mahadev Pai, who examined
C.W.2 and issued Wound Certificate as per Ex.P4 and h e
f u r n is h e d opinions as per Ex.P5 and P6 on
examination of MO.6-Axe. In the cross-examination,
he admits that the injury mentioned in Ex.P4 would be
caused by MO.6 and not by MO.10.
e. P.W.9-Dr. M.A. Hiremath, who examined the
complainant/P.W.1-Mallappa Rudrappa Hattiholi,
P.W.3-Earappa Rudrappa Hattiholi, P.W.2-Rudrappa
Channabasappa Hattiholi, Smt. Annapurna E.
Hattiholi-CW11, P.W.6-Girish Nagappa Hattiholi and
issued Wound Certificates as per Exs.P7 to 13.
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f. P.W.10-Dr. M.S. Mundignal, Casualty Medical
Officer, who examined PWs.2 and 3 and issued Wound
Certificates as per Exs.P14 and P15.
g. P.W.11-Nutan Ganapa Vaidya, Assistant
Engineer, P.W.D, who prepared sketch (Ex.P36) of
scene of occurrence.
h. P.W.12-Kemapanna Satyapapa Kocheri,
Assistant Sub-Inspector of Nandagad Police Station,
who secured accused Nos.1 to 5 and produced before
the Investigating Officer.
j. P.W.13-Narayan Ramappa Gulekar is a witness
to spot mahazar and seizure mahazar as per Exs.P2,
19, 20, 29 and took photographs as per Exs.P21
to 28.
k. P.W.14-Dilip Panduranga Nimbalkar, Sub-
Inspector of Police, Nandagad, has deposed that on
4.6.2013 at 11.30 a.m., when he was on station
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duty, PW1 produced a written complaint.
Accordingly, he registered the same in Crime
No.148/13 and sent the F.I.R. to the Court as per
Ex.P35 and thereafter, immediately visited the spot
along with CW4 and PW13 and recorded the spot
panchanama as per Ex.P2 shown by PW1 between
1.30 and 3.00 p.m. and seized MOs.1 to 3 palm sized
stone, blood stained stone and sample sand,
respectively. At that time, he prepared a sketch as per
Ex.P36 and obtained Ex.D1-photograph and on the
same day, he recorded the further statement of PW1
and statements of PWs.2 to 6, CW11 and 13.
Further, on the same day, he visited Government
Hospital, Belagavi, and recorded the statement of
injured Earappa Rudrappa Hattiholi and thereafter,
visited KLE Hospital, Belagavi, and found that, the
injured Nagappa was not in a position to give his
statement as endorsed by the Medical Officer. He
recorded the statement of another injured Rudrappa
Channabasappa Hattiholi and deputed the official to
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trace out the accused persons. On 5.6.2013, he
received intimation from KLE Hospital, Belagavi, that
at 23.40 hours of 4.6.2013, the injured Nagappa
died due to the injuries sustained in the assault.
Accordingly, he submitted a requisition to the Court
as per Ex.P39, to add Section 302 of IPC.
l. P.W.15-Maruti Baburao Mahajan, Head
Constable, has deposed that on 4.6.2013, he was fixed
for search of the accused persons. On 7.6.2013, he
received information that all the accused persons are
at Alnawar and thus, he visited the Bus Stand,
wherein, the accused Vishnu, Mahantesh and Ashok
were present. Thereafter, brought the accused
persons to Nandagad Police Station and produced at
about 10.00 hours before CW31 with the Report as per
Ex.P40.
m. P.W.16-B.R. Ravate, Assistant Sub-Inspector
of Police, Nandagad, arrested accused Nos.7, 8, 9
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and 11 and produced before the Investigating Officer
with report as per Ex.P41.
n. P.W.17-Mahanteshwar S Jiddi, Investigating
Officer, who conducted the investigation, recorded
statements of the accused persons, collected
documents and filed charge-sheet against the accused
persons.
o. P.W.18-Dr. Manjula, F.S.L., Belagavi, who
conducted autopsy on the dead body of the deceased
Nagappa Rudrappa Hattiholi and issued post-mortem
examination Report as per Ex.P55.
p. P.W.19-Dr Chayakumari, Deputy Director,
R.F.S.L., who issued report as per Ex.P60.
28. On perusal of the evidence of PWs.1 to 4 and 6,
they are injured eyewitnesses to the incident and they
have clearly deposed that on 4.6.2013 at 7.30 a.m., all
the accused persons formed unlawful assembly by holding
deadly weapons, started quarrel with PWs.1 to 4 and 6
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and deceased in respect of land dispute, contending that
the land belongs to them and the family of complainant
and deceased should not cultivate the land and abused
them in a filthy language and threatened to the lives of
the complainant and his family members with dire
consequences to take away their lives. Accordingly,
accused Nos.1, 2 and 6 caught hold his brother Nagappa,
at that time, accused No.3 assaulted with axe on his head,
thereby caused bleeding injuries, accused No.5 assaulted
with peak axe on the face of the deceased and accused
No.3 assaulted with handle of peak axe on the head of the
deceased, thereby, deceased Nagappa was severely
injured and fell down unconscious.
29. On perusal of oral testimony of PWs.1 to 4
and 6, in categorical terms, they have stated that,
accused No.1 assaulted PW.1 on his left arm hand and
caused simple injury, accused Nos.5 and 12 kicked him
with legs, accused No.2 assaulted his brother with sickle
on his head, accused No.12 held on the neck of the
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deceased, accused Nos.9 and 10 kicked with their legs and
assaulted with their hands and caused injuries, accused
No.11 assaulted with club on the back of his father,
accused No.10 assaulted PW4 with stone, accused No.11
assaulted Annapurna with stick on her right hand and she
has not been examined. Accused Nos.6 and 7 assaulted
PW.1 with stick on his neck and caused injuries to him.
All the accused persons made criminal intimidation to
eliminate the complainant's party. During the assault, the
injured were shifted to Primary Health Center, Nandagad
and again shifted, to District Hospital, for treatment to
KLE Hospital and the deceased succumbed to head injury.
Further, PWs.1 to 4 and 6 have deposed in categorical
terms about the manner of assault made by all the
accused persons with material objects. Admittedly, PWs.1
to 4 and 6 are close relatives i.e., father, son and grand-
son and since they are close relatives to each other, their
evidence cannot be discarded when their version clearly
corroborates with each other. Furthermore, they are
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injured eyewitness to the incident and the presence of the
accused persons were admitted by the accused persons on
the alleged date, time and place of incident. Further in
the cross-examination of PWs.1 to 4 and 6, they have
specifically denied that, when all the accused persons in
their land, the complainant party i.e., they themselves
entered into the land of accused persons in order to
dispossess the accused persons from their land by taking
disadvantage of an order of temporary injunction granted
in favour of the complainant's party and against the
accused persons and picked up a quarrel with the accused
persons and in a scuffle, all the injured persons have
sustained injuries with the deadly weapons brought by
themselves. Therefore, from the above suggestion, it is
evident that on the alleged date, time and place of
incident, all the accused persons were present and PWs.1
to 4 and 6 have sustained injuries as specified in the
Wound Certificates as per Exs.P7 to 13. Therefore, it
clearly establishes that PWs.1 to 4 and 6 have sustained
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injuries and their oral testimony corroborates with medical
evidence. Further, PW.9-Medical Officer, also in
categorical terms, deposed about the examination of
PWs.1 to 4 and 6 and injuries sustained by them.
30. On perusal of the post-mortem examination
report as per Ex.P55 issued by PW.18, she has
categorically stated that the deceased died on account of
head injury sustained by him. Therefore, the oral
testimony of PWs.1 to 4 and 6 is supported by medical
evidence.
31. On perusal of the evidence of PWs.17, 8 to 10,
it is evident that, a cut lacerated wound is caused on the
head of deceased leading from left ear to middle of the
scalp and scalp was broken into two pieces and brain was
damaged. On perusal of Exs.P.7 to 13, it appears that
PWs.1 to 4 and 6 sustained simple injuries and it would
attract Section 324 of the IPC. The injuries sustained by
PW.1 are abrasion over the right posterior part of
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forearm and pain over back of neck measuring 3 x ½ CM
length and width and generalised body pain. PW.2
sustained injuries of cut wound over the left medial part
of foot measuring 4 x 1 CM with bleeding and generalised
body pain, PW.3 sustained cut lacerated wound over left
parito temporal region measuring 4 x ½ cm length and
width, pain and tenderness over the neck and
generalised body pain, PW.4 sustained injuries of
abrasion over dorsal part of left wrist measuring 1 x ½
CM length and width and generalised body pain,
Smt. Annapurna Irappa Hattiholi-CW11 sustained
abrasion over the posterior part of right ear measuring
1 x ½ CM length and width and no external injuries over
the other parts of the body, and PW.6 sustained injuries
to his right eye (swollen), bluish in colour and bleeding
from nose, swelling over left zeugmatic region measuring
3 x 3 CMs length and width, left shoulder region abrasion
is present and swelling measuring 3 x 3 CM length and
width, semiconscious, bleeding from mouth and nose.
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32. The accused persons have taken the
contention that the complainant's party themselves
entered into their land in order to dispossess them from
the land and hence took up quarrel with them and in a
scuffle, PWs.1 to 4 and 6 and the deceased sustained
injuries. Strangely, the accused persons have not taken
any defence that they have exercised the right of their
private defence in order to protect themselves or protect
their property.
33. On perusal of Ex.P62 (order on I.A. No.1 in
O.S. No.93/2012) and evidence of PWs.1 to 4 and 6, it
appears that temporary injunction was granted in favour
of the complainant's party against the accused persons
restraining the accused persons from interfering with the
possession of the complainant's party over the disputed
land.
34. It is evident from the order passed in
Miscellaneous Appeal No.10/12 dated 10.2.2015 that
both the parties were directed to maintain status quo till
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disposal of the suit. Admittedly, the incident took place
on 4.6.2013 as there was direction to maintain status
quo and the fact that both the land of accused persons
and the complainant's party are adjacent to each other.
The accused persons enraged against PWs.1 to 4 and 6
and the deceased in view of the interim order passed by
the trial Court, took quarrel with them and their common
object was to take revenge against PWs.1 to 4 and 6 and
the deceased. Thus, they assaulted the complainant and
his family members with the deadly weapons at MO.1-
stone, MO.2-blood stained piece of wood, MO.5-sickle
and MO.6-axe, MO.7-pick axe, MO.8-pick axe, MOs.9 and
10-clubs and caused fatal grievous injuries and simple
injuries. However, witnesses to spot mahazar and
seizure mahazar have categorically stated with regard to
their presence, investigation conducted by the
Investigating Officer and regarding seizure of material
objects. Therefore, in the present case, motive for
murder of deceased Nagappa and assault on PWs.1 to 4
and 6 are proved. Admittedly, there are four injured
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eyewitnesses and the incident took place in the land of
PW.2.
35. The learned counsel submitted that, the trial
Court convicted accused Nos.1 to 13 for the offences
punishable under Sections 143, 147, 148, 323, 324, 302,
341, 447, 307, 504 and 506 read with Section 149 of
IPC.
36. On careful perusal of Section 302 of IPC, it
makes it clear that, the person committing murder shall
be punishable with a death sentence or imprisonment for
life. It is the case of prosecution that, all the accused
formed an unlawful assembly by holding deadly weapons,
committed rioting, took quarrel with family of the
complainant, intentionally insulted to provoke their
breach of peace, threatened them with dire
consequences to eliminate them and assaulted with
deadly weapons on PWs.1 to 5 and committed murder of
the deceased Nagappa.
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37. The Hon'ble Supreme Court observed in catena
of decisions that evidence of an eyewitness cannot be
discarded only for the reasons that they are family
members and interested witness. But on perusal of the
evidence of PWs.1 to 4 and 6, they are eyewitnesses to
the incident, remains unimpeachable and their testimony
is cogent, consistent and corroborative nature and hence,
their evidence cannot be discarded. Further, the evidence
of an eyewitness cannot be discarded on the ground that,
he did not raise any alarm.
38. The Hon'ble Supreme Court in the case of
Shahajan Ismael Mohammed Sheikh v. State of
Maharashtra, in Criminal Appeal No.239 of 2017
dated 14-7-2022, held that,
"in assessing the value of the evidence of
eyewitness, two principal considerations are
whether, in the circumstances of the case, it is
possible to believe their presence at the scene
of occurrence or in such situations as would
make it possible for them to witness the facts
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deposed to by them and secondly, whether
there is anything inherently improbable or
unreliable in their evidence. In respect of both
these considerations, the circumstances either
welicited from those witness themselves or
established by other evidence tending to
improbabalise their presence or to discredit the
veracity of their statements, will have a bearing
upon the value which a Court would attach to
their evidence".
39. The Hon'ble Supreme Court in catena of
decisions has held that there are situations in which
several accused participate in an assault and there is
often tendency to spread the liability to all of them,
whenever a conviction is recorded and vice-versa where
an acquittal results, regardless of the very fundamental
proposition of criminal law that even in such instances
where there may be a charge of common intention,
unlawful assembly or rioting, that the Court is still
required to sift the evidence and decide as to whether
there is evidence of commonality of intent on the part of
all the accused or whether a distinction will have to be
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made between some of them and the rest. Criminal law
undoubtedly admits to the proposition that commonality
of intent may develop on the spot but on the other hand,
citing the present case the intention of the group may
have been to assault the victim, whereas one or more of
the persons may have acted otherwise and would
possibly qualify individually for a heavier conviction and
sentence.
40. Undoubtedly, the Court will go by the
weapons used, the overt acts attributed, the degree of
force that was exerted and such other finer features of
the incident while recording its findings. This is very
important because it is equally essential that no accused
person should end up with a heavier liability than what is
strictly contemplated by the law and conversely, that
there should not be a failure of justice through too light a
consequence or wrongful exoneration. These are all very
fundamental principles of evaluation of evidence and of
criminal jurisprudence.
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41. It is well-settled that where a crowd of
assailants who are members of an unlawful assembly
proceeds to commit an offence in pursuance of common
object of the unlawful assembly, it is often not possible
for witnesses to describe accurately the part played by
each one of the assailants. Besides, if a large crowd of
persons armed with weapons assaults a victim, it is not
necessary that all of them must take part in the actual
assault. Even in absence of actual assault, all members
of unlawful assembly may be held vicariously liable for
the acts of others provided there was common object to
commit a crime.
42. Appreciation of evidence in such a complex
situation is indeed a difficult task, but Courts exercising
powers in administering criminal justice have to do their
best in dealing with such cases and it is expected of them
to discharge their duty to sift the evidence carefully and
to decide which part of it is true and which is not.
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43. Learned counsel for the appellants vehemently
argued that present case is in nature of civil dispute, but
the Investigating Officer given colour of criminal offence.
Hence, prayed to acquit the accused persons. In this
regard, he has relied upon the decision of the Hon'ble
Apex Court in the case of Mitesh Kumar J. v. State of
Karnataka and others reported in 2021 SCC OnLine
SC 976.
44. On perusal of the aforesaid decision, the
Hon'ble Apex Court held that there can be no doubt that
a complaint disclosing civil transactions may also have a
criminal texture. The High Court has, however, to see
whether the dispute of a civil nature has been given
colour of criminal offence. Whereas in the present case,
there is civil dispute between the accused persons and
the complainant's party, but the accused persons have
taken law into their hands, formed unlawful assembly
and their motive was to assault PWs.1 to 4 and 6 and the
deceased. Therefore, they entered the land with deadly
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weapons and assaulted PWs.1 to 4 and 6 and caused the
death of the deceased. Therefore, causing the death by
deadly weapon would not amount to civil dispute.
45. Further, in the case of Ganesan v. State,
represented by its Inspector of Police reported in
(2020) 10 SCC 573, the Hon'ble Apex Court held that
testimony of victim is found reliable and trustworthy,
reiterated, conviction on basis of sole testimony is
permissible.
46. Whereas in this case, PWs.1 to 4 and 6 are
injured eyewitnesses. Their testimonies are found reliable
and trustworthy. Their evidence corroborates with each
other and their testimony also corroborates with medical
evidence.
47. Further, in the case of State of Madhya
Pradesh v. Chhaakkilal and another reported in
(2019) 12 SCC 326, the Hon'ble Apex Court held that
in a murder trial, involvement of the accused
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established by trustworthy testimony of related
eyewitness, conviction can be restored.
48. Further, in the case of Sidhartha Vashisht @
Manu v. State (NCT of Delhi) reported in (2010) 6
SCC 1, the Hon'ble Apex Court held that presence of
accused at scene of occurrence is established, through
testimonies of prosecution witnesses. It was
contemporaneous documents, which was corroborated by
prosecution witnesses and if the evidence is cogent,
conviction is sustainable.
49. In the light of aforesaid judgments and the
prosecution evidence on record, PWs.1 to 4 and 6 in
categorical terms have stated that, accused Nos.3, 5 and
13 have assaulted deceased Nagappa. On perusal of the
medical evidence, the evidence of Doctor also
corroborates ocular evidence of injured eyewitnesses.
50. In view of the above facts and circumstances of
the case and placing reliance on the above judgments of
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the Hon'ble Apex Court, it appears that, accused Nos.3, 5
and 13 have committed the murder of the deceased and
accused Nos.2, 3, 4, 5, 7 to 12 assaulted PWs.1 to 4
and 6. So far as the trial Court observation with regard
to all the accused persons involved for the offence
punishable under Section 302 of the IPC is concerned, on
perusal of evidence of PWs.1 to 4 and 6, it appears that
only accused Nos.3, 5 and 13 are involved in the offence
punishable under Section 302 of the IPC, but trial Court
invoked Section 302 read with Section 149 of the IPC.
Trial Court has wrongly under misconception by invoking
Section 149 of IPC, has convicted all the accused
persons, which requires modification.
51. In order to attract Section 307 of the IPC,
according to the prosecution, accused Nos.2, 3, 4, 5, 7 to
12 attempted to commit the murder of PWs.1 to 4 and 6.
On perusal of the Wound Certificates, PW.9-Medical
Officer has issued Wound Certificates as per Exs.P.7 to
13, wherein, it appears that the injuries sustained by
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PWs.1 to 4 and 6 are simple in nature. Therefore,
ingredient of Section 307 of the IPC is not attracted and
at the most, Section 324 of the IPC is attracted.
52. In the instant case, as per the prosecution
version, accused No.3-Basappa assaulted deceased
Nagappa with axe on his head, accused No.5-Suresh
assaulted deceased Nagappa with a peak axe on his face
and accused No.13-Mahantesh assaulted deceased
Nagappa with handle of peak axe on his head and thus,
Nagappa fell down and became unconscious. From this,
it is clear that only three persons participated in assault
and it was accused Nos.3, 5 and 13 who had caused
injuries to the deceased Nagappa. Hence, even if Section
149 of IPC is attracted and is applied and accused Nos.1,
2, 4, 6 to 12 are not held liable for the act of accused
No.3, 5 and 13. But, the trial Court convicted accused
Nos.1 to 13 for the offence punishable under Section 302
of IPC, the order of conviction for offence punishable
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under Section 302 read with Section 149 of IPC cannot
be said to have been made out by the prosecution.
53. It was the case of the prosecution that,
accused Nos.8 to 11 caught hold deceased Nagappa and
other accused, i.e. accused Nos.1, 2, 4, 6 to 12 assaulted
Nagappa, but the prosecution evidence have not
enlighten, any focus on accused Nos.8 to 11, except the
allegations that, accused Nos.8 to 11 held the hands and
legs of deceased Nagappa and thrown on the ground. On
perusal of post-mortem report and the evidence of
Doctor, who conducted autopsy on the dead body of
deceased Nagappa, has opined that the death was due to
head injuries, therefore, no significance shall be attached
to the other minor injuries sustained, especially in the
absence of any injuries sustained by deceased Nagappa
as alleged by the prosecution against accused Nos.8
to 11 are concerned. The only persons who attacked the
deceased Nagappa with deadly weapons are accused
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Nos.3, 5 and 13 and they caused injuries on his person
which resulted in his death.
54. The trial Court believed the ocular evidence of
prosecution witnesses and convicted all the accused for
offences punishable under Section 302 read with Section
149 of IPC. When PWs.1 to 4 and 6 being the injured
witnesses have in categorical terms deposed about the
individual overt act of each accused, especially, about
accused Nos.3, 5 and 13 assaulting deceased Nagappa.
Therefore, the benefit of doubt should be given to other
accused persons for the offence punishable under Section
302 read with Section 149 of IPC, except accused Nos.3,
5 and 13.
55. The trial Court did not record a finding that,
along with accused Nos.3, 5 and 13, the other
unidentified persons also attacked the deceased and
caused his death in furtherance of common object of
unlawful assembly. Precisely for that reason, conviction
of accused Nos.1, 2, 4, 6 to 12 for offence punishable
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under Section 302 read with Section 149 of IPC are not
on the basis of material available on record.
56. We find considerable force in the argument
canvassed by the learned counsel for the accused. In
view of the acquittal of accused Nos.1, 2, 4, 6 to 12 for
offence punishable under Section 302 of IPC and in the
light of the ocular evidence that, remaining accused
assaulted PWs.1 to 4 and 6 and caused simple injuries, in
our opinion, ends of justice would be met if we convict
accused Nos.1, 2, 4, 6 to 12 for offence punishable under
Section 324 of IPC, instead of Section 302 and 307 of
IPC are concerned.
57. We have already observed in the earlier part
of the judgment that accused Nos.1, 2, 4 and 6 to 12
have remained in jail for more than 5 years (i.e., from
2-4-2018). In the circumstances, in our considered view,
it would be appropriate if the sentence already
undergone by accused Nos.1, 2, 4 and 6 to 8 are treated
as adequate and sufficient.
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58. For the aforesaid reasons, the conviction
recorded by the trial Court against accused Nos.1, 2, 4
and 6 to 12 requires modification. Accused Nos.3, 5 and
13 are convicted for offence punishable under Section
302 of IPC, whereas accused No.1, 2, 4 and 6 to 12 are
convicted for offence punishable under Section 143, 147,
148, 323, 324, 341, 447, 504 and 506 read with Section
149 of IPC.
59. Since accused Nos.1, 2, 4 and 6 to 12 have
remained in prison for more than five years, in our
considered opinion, the interest of justice would be
served if we reduce substantive sentence already
undergone by accused Nos.1, 2, 4 and 6 to 12.
However, the sentence of fine imposed by trial Court
remains unaltered.
60. Accordingly, we pass the following:
ORDER
i. Appeal is partly allowed;
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ii. The judgment of conviction 28.03.2018 and order
on sentence dated 02.04.2018 passed by the I
Additional District and Sessions Judge, Belagavi,
in Sessions Case No.281 of 2013, in so far as
accused Nos.3, 5 and 13 for the offence
punishable under Section 302 read with Section
149 of IPC is confirmed;
iii. The judgment of conviction and order on sentence
in respect of accused Nos.1, 2, 4, 6 to 12 for the
offences punishable under Sections 143, 147,
148, 323, 324, 341, 447, 504 and 506 read with
Section 149 of IPC is confirmed and the period
already undergone by them is given set off under
Section 428 of the Code of Criminal Procedure,
1973, and accused Nos.1, 2, 4, 6 to 12 are
directed to be enlarged forthwith. The bail bonds
executed by accused Nos.1, 2, 4, 6 to 12 stands
cancelled.
iv. The judgment of conviction and order on sentence
regarding Section 307 of IPC is modified and
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altered into Section 324 of IPC and the period
already undergone by them is also given set off
under Section 428 of the Code of Criminal
Procedure, 1973.
v. The Trial Court is directed to refund the fine
amount deposited, if any, by accused Nos.1, 2, 4,
6 to 12.
Sd/-
JUDGE
Sd/-
JUDGE
KVK/gab
