Karnataka High Court
Siddaram And Anr vs The State Of Karnataka on 17 February, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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CRL.A No.200113 of 2019
C/W CRL.A No.200103 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200113 OF 2019
(374(Cr.PC)/415(BNSS)
C/W
CRIMINAL APPEAL NO.200103 OF 2019
IN CRIMINAL APPEAL NO.200113 OF 2019
BETWEEN:
DATTATRAYA @ DATTAPPA
S/O SIDDARAM GODAKE,
Digitally signed AGE: 56 YEARS,
by RAMESH
MATHAPATI OCC: AGRICULTURE,
Location: HIGH R/O: VILLAGE NAGALEGAON,
COURT OF
KARNATAKA TQ: ALAND,
DIST: KALABURAGI - 585 314.
...APPELLANT
(BY SRI NANDKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH
MADAN HIPPARAGI POLICE STATION,
NOW REPRESENTED BY
ADDL. SPP HCKB AT KALABURGI - 585 103.
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CRL.A No.200113 of 2019
C/W CRL.A No.200103 of 2019
...RESPONDENT
(BY SRI SIDDALING PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
CALL FOR THE RECORDS OF THE COURTS BELOW, AND SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE AND FINE IMPOSED ON THE APPELLANT / ACCUSED
NO.3, BY THE HON'BLE 1ST ADDITIONAL SESSIONS JUDGE
KALABURAGI, IN S.C.NO.63/2014, DATED 30.07.2019, FOR
THE OFFENCES PUNISHABLE UNDER SECTION 307, 324 AND
504 I.P.C., IN VIEW OF THE REASONS AS STATED ABOVE, IN
THE INTEREST OF JUSTICE AND EQUITY.
IN CRIMINAL APPEAL NO.200103 OF 2019
BETWEEN:
1. SIDDARAM
S/O NAMDEV GODAKE,
AGE: 30 YEARS,
OCC: AGRICULTURE,
2. NAMDEV
S/O SIDRAM GODAKE,
AGE: 60 YEARS,
OCC: AGRICULTURE,
BOTH ARE R/O: NAGLEGAON,
TQ: ALAND,
DIST: KALABURAGI - 585 108.
...APPELLANTS
(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH MADAN HIPPARAGI POLICE STATION,
DIST: KALABURAGI.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA - 585 103.
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CRL.A No.200113 of 2019
C/W CRL.A No.200103 of 2019
...RESPONDENT
(BY SRI SIDDALING PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CODE OF CRIMINAL PROCEDURE, 1973, PRAYING SET
ASIDE THE JUDGMENT DATED 30.07.2017 PASSED BY THE
LEARNED I ADDITIONAL SESSIONS JUDGE AT KALABURAGI, IN
S.C.NO.63/2014 AND CONSEQUENTLY BE PLEASED TO ACQUIT
THE APPELLANTS FOR THE ALLEGED OFFENCES, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL APPEAL COMING ON FOR HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K)
These two appeals directed against the judgment of
conviction and order of sentence dated 30.07.2019 passed in
S.C.No.63/2014 by the Court of I Addl. Sessions Judge at
Kalaburagi, (hereinafter referred to as 'learned Sessions Judge'
for short), whereby the learned Sessions Judge convicted the
appellants in Crl.A.No.200103/2019 i.e., Siddaram (accused
No.1) and Namdev (accused No.2) for the offence punishable
under Section 302 of IPC and sentenced them to undergo life
imprisonment and to pay a fine of Rs.10,000/- each, in default
of payment of fine, they shall undergo simple imprisonment for
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a period of (1) one year. Further, the appellant No.1/accused
No.1 in Crl.A.No.200103/2019 and appellant in
Crl.A.No.200113/2019 i.e., Dattatreya (accused No.3) are
convicted for the offence punishable under Section 307 of IPC
and sentenced them to undergo simple imprisonment for a
period of (3) three years and to pay a fine of 5,000/- each, in
default of payment of fine, to undergo simple imprisonment for
a period of (6) six months. Further, the appellant in
Crl.A.No.200113/2019 i.e., accused No.3 convicted for the
offence punishable under Section 324 of IPC and sentenced him
to undergo simple imprisonment for a period of (1) one year
and to pay a fine of Rs.2000/-, in default of payment of fine,
directed to undergo simple imprisonment for a period of (3)
three months. All the appellants in both the aforesaid appeals
are also convicted for the offence punishable under Section 504
of IPC and sentenced to undergo simple imprisonment for a
period of (6) six months or with fine of Rs.1,000/- each. In
default of payment of fine, they shall undergo simple
imprisonment for a period of (1) one month. It is also directed,
all the substantive sentences shall run concurrently.
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2. The factual matrix of the prosecution case is as
follows:
The appellant No.2 in Crl.A.No.200103/2019 one Namdev
Godake and his brothers are the owners in possession of land
bearing Sy.Nos.113 and 114 of Hiroli village situated within the
jurisdiction of Madan Hipparga Police Station. On 26.11.2013,
at about 12:30 p.m., the complainant in this case i.e., P.W.1-
Sidram, the other prosecution witnesses i.e., PWs.2 to 4 and
the deceased duo in this case i.e., Sidramappa and Sharanappa
visited the said land to amicably settle the property dispute
pending between themselves and the accused. However, in this
regard, the appellants and other accused persons who were
present in the said spot picked a row with P.Ws.1 to 4 and the
deceased duo which resulted in assaulting deceased duo and
PWs.1 to 4 by accused Nos.1 to 3 with deadly weapons like
axe, sickle and sticks. Owing to the said assault, Sidramappa
succumbed to the injuries forthwith, Sharanappa and PWs.1 to
4 sustained injuries and were admitted to the Government
Hospital at Kalaburagi. Thereafter, Sharanappa was relocated
to a Hospital at Solapur for further treatment, where he
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succumbed to the injuries after 2-3 days. Later, PWs.1 to 4
were also relocated to Aland Hospital for treatment.
3. Subsequently, P.W.1-injured set the criminal law
into motion by lodging complaint-Ex.P1 on 26.11.2013 at about
06:00 p.m. and on the strength of Ex.P1, the respondent Police
registered a case against the appellants and 3 others in Crime
No.92/2013 dated 26.11.2013 for the offences punishable
under Sections 143, 147, 148, 324, 307, 302, 504 r/w Section
149 of IPC as per Ex.P14.
4. Thereafter, P.W.24 the CPI of Alanda Circle
investigated the case by drawing spot mahazar, inquest
panchanama on the corpse of the deceased duo and on
apprehending the accused, the weapons used in the crime were
recovered, statements of witnesses were recorded and on
obtaining necessary documents from the concerned authorities
the chargesheet was laid against the accused for the
aforementioned offences before the committal Court.
5. Following committal of the case before the learned
Sessions Court, the learned Sessions Judge after securing
presence of the accused, framed charges against the accused
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for the aforementioned offences and the same was read over
verbatim to them. They pleaded not guilty and claimed to be
tried.
6. In order to prove the charges levelled against the
accused, the prosecution in total examined 24 witnesses as
P.Ws.1 to 24, marked 32 documents as Exs.P1 to P32 and
identified 11 material objects as per M.Os.1 to 11.
7. On completion of the prosecution evidence, the
learned Sessions Judge read over the incriminating evidence of
material witnesses to the accused as stipulated under the
provisions of Section 313 of Cr.P.C. and the accused collectively
denied the same. The defence of the accused is that of total
denial and false implication. However, the accused neither
examined any witness nor produced any documents on their
behalf.
8. On assessment of oral and documentary evidence,
the Sessions Court convicted the appellants in both the appeals
i.e., accused Nos.1 and 2 for the offences punishable under
Section 302 of IPC, accused Nos.1 and 3 for the offence
punishable under Section 307 of IPC, accused Nos.3 and 4 for
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the offence punishable under Section 324 of IPC and accused
Nos.1 to 3 and others for the offence punishable under Section
504 of IPC and sentenced them as stated supra. The said
judgment of conviction as well as the order of sentence is
called-in-question in these appeals by appellants No.1 to 3 i.e.,
accused Nos.1 and 2 in Crl.A.No.200103/2019 and accused
No.3 in Crl.A.No.200113/2019.
9. We have heard the learned counsel Sri. Avinash
Upaloankar for the appellants in Crl.A.No.200103/2019, learned
counsel Sri. Nandkishoreboob for the appellant in
Crl.A.No.200113/2019 and learned Addl. SPP for the
respondent-State in both the appeals.
10. The primary contention of the learned counsel for
the appellants in Crl.A.No.200103/2019 i.e., accused Nos.1 and
2 is that the judgment of conviction and order of sentence
passed by the Sessions Court suffers from perversity and
illegality. The learned Sessions Judge has grossly erred while
convicting the appellants/accused Nos.1 and 2 without duly
appreciating the evidence and documents placed before him.
According to the learned counsel, owing to a pending civil
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dispute between the accused Nos.1 and 2 and the deceased
family, the accused Nos.1 and 2 being the owners of the landed
property bearing Sy.Nos.113 and 114 of Hiroli village had
obtained an interim order of injunction against P.W.1 and the
deceased duo by a competent civil Court. On the date of
incident, the complainant, the deceased duo and their family
members forcibly entered the said property and picked a row
with the accused with an intention to dispossess them from
their lawful possession. The complainant and the deceased duo
were the aggressors and when they entered the land in dispute,
the accused made best efforts to restrain the deceased duo and
PWs.1 to 4. However, the row lead to a scuffle, the deceased
and PWs.1 to 4 assaulted the accused with deadly weapons like
axe, sickle and sticks. In the said free fight, the deceased duo
and PWs.1 to 4 sustained accidental injuries resulting in the
demise of the deceased duo-Sidramappa and Sharanappa.
According to the learned counsel, assault inflicted by the
deceased duo and PWs.1 to 4, the accused also sustained
grievous injuries and FIR has been registered against PW.1 and
others in Crime.No.93/2013 and the case was tried along with
this case in S.C.No.225/2015. Nevertheless, P.W.1 and others
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were convicted for the offences punishable under Sections 323,
324 and 354 of IPC, albeit they were charged for the offence
punishable under Section 326 of IPC. In such circumstance, the
deceased duo and PWs.1 to 4 are the aggressors, in the scuffle
the accused exercised their right of private defence owing to
reasonable apprehension of death/grievous injuries on their
person and property.
11. Alternatively, he contended that since the learned
Sessions Judge acquitted the accused for the offences
punishable under Sections 143, 147, 148 r/w Section 149 of
IPC by directing the individual overt act of the accused and the
State has not preferred any appeal against the said order of the
Sessions Judge, in such circumstance, the overt act attributed
against accused No.1 is that he had inflicted a single blow on
the deceased-Sidramappa's head, following which he
succumbed forthwith. Further, though accused No.2 assaulted
deceased-Sharanappa, however he succumbed 2-3 days after
the injuries. Hence, it could be gathered that, there was no
such premeditative motive on the part of the accused Nos.1
and 2 to do away with the deceased duo life. The entire
incident occurred out of the blue on a sudden provocation
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leading to a scuffle between the complainant's family and
accused family regarding the disputed property. As such,
viewed from any angle, at the most, act of the accused may
attract culpable homicide not amounting to murder under
Exception 4 to Section 300 of IPC which is punishable under
Section 304 Part I or II of IPC. He further contended that, PW.1
to 4 being the family members of the deceased, are the most
interested witnesses and therefore, their evidence cannot be
solely relied upon without any other impartial evidence to
convict the accused. He also contended that, there are material
contradictions in the evidence of PWs.1 to 4. Further, the
prosecution also failed to prove the recovery of the weapons
used by the accused in crime at the time of incident by placing
cogent evidence. With these submissions, he prays to allow the
appeal.
12. Whereas, learned counsel in Crl.A.No.200113/2019
submitted that, in the cross-examination of PW.1 it is admitted
that, the accused Nos.2 and 3 purchased the property in the
year 1968 and 1974 and upon purchasing the said properties,
no such rows had taken place between the vendors and this
accused regarding the same. Besides, PWs.1 to 4 and the
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deceased duo have neither stake nor connection with the said
properties. Also, a restraint order against the deceased and
PWs.1 to 4 in O.S.No.217/2013 was obtained to not interfere
with their property. Under such circumstance, there is no
reason for them to invite the deceased duo and PWs.1 to 4 for
a compromise. Hence, the genesis of the prosecution case itself
creates doubt. Further, the overt act alleged against the
accused No.3 that he assaulted P.W.4 and P.W.1 with an axe,
however, the prosecution failed to place the sufficient material
to prove those injuries are grievous in nature. Additionally,
there was no intention/motive on the part of accused No.3 to
murder either PW.4 or PW.1. The same could be gathered from
the wound certificate of PW.1 as per Ex.P9 and the wound
certificate of PW.4 as per Ex.P11, 12 and 13; it categorically
depicts that, PW.4 sustained injuries on his left hand, nose and
thigh, which are not vital parts of the body. As such, the
conviction of accused No.3 for the offence punishable under
Section 307 of IPC is liable to be set-aside and at the most
Section 324 of IPC may be attracted against him. With these
submissions he prays to allow the appeal or to modify the
sentence.
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13. Refuting the above submissions, the learned Addl.
SPP for the respondent-State vehemently contended that the
judgment challenged under these appeals neither suffers from
perversity nor illegality. The learned Sessions after meticulously
appreciating the evidence at great length has passed a well
reasoned judgment, which does not call for any interference at
the hands of this Court. He would contend that the evidence of
PWs.1 to 4, the injured eyewitnesses to the incident establishes
beyond reasonable doubt the act committed by the accused.
According to him, as admitted by the accused themselves,
owing to vengeance regarding a civil dispute, the accused
under the pretext of a compromise, invited the deceased duo
and PWs.1 to 4 to their field, where two innocent persons were
murdered and grievous injuries was caused to PWs.1 to 4. The
accused with utmost barbarism coupled with intention,
mercilessly assaulted PWs.1 to 4 and the deceased duo with
deadly weapons i.e., MOs.2, 6, 7 to 8. The evidence of PWs.1
to 4 is cogent, unambiguous and reliable. The alternative
prayer of the learned counsel for accused Nos.1 and 2 does not
hold good for the reason, the accused No.1 not only assaulted
deceased-Sidramappa but also assaulted PW.3 with an axe
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which caused him grievous injuries. The accused No.2 also
assaulted deceased Sharanappa and caused multiple injuries
and he also assaulted PW.2. This was categorically deposed by
PWs.1 to 4 and the other witnesses-PWs.9, 10, 11 and 12.
Further, accused No.3 attempted to commit murder of PW.4
and PW.1, however, PW.4 sustained grievous injuries, this was
proved by the evidence of PWs.16, 17 and 18-Medical Officers
and the wound certificates-Exs.P11, 12 and 13 respectively. In
such circumstance, the conviction and sentence imposed by the
Sessions Court is proper and does not call for any interference.
With these submissions, he prays to dismiss the appeals.
14. Having heard the learned counsel for the parties
and also upon comprehensive perusal of the evidence on
record, the points that surface for our consideration are:
(i) "Whether the judgment under these appeals
suffers from perversity or illegality?
(ii) Whether the learned Sessions Judge is
justified in convicting the accused for the
offences punishable under Sections 302, 307,
324 and 504 of IPC?"
15. In the instant case, albeit the prosecution examined
24 witnesses to prove the charges levelled against the accused,
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it is redundant to delve into the nitty gritty of individual
evidence of all witnesses, it is sufficient to appreciate the
evidence of material witnesses.
16. The homicidal death of the deceased duo in this
case Sidramappa and Sharanappa is not seriously disputed by
the accused. Nevertheless, to prove the same the prosecution
relied on the evidence of PW.22-Medical Officer who conducted
autopsy on the corpse of deceased Sidramappa and issued
postmortem report as per Ex.P18. PW.22 opined that the cause
of death is due to 'head injury-haemorrhage and shock'.
Further, the injuries are anti-mortem in nature. PW.24-
Investigating Officer also drew the inquest panchanama on the
corpse of deceased-Sidramappa as per Ex.P3. PW.6 is the
panch witness for the same. Both PWs.24 and 6 identified the
injuries on the corpse of the deceased. In such circumstance,
on collective reading of evidence of PWs.22 and 24 and Exs.P18
and P3, the prosecution has proved the homicidal death of the
deceased-Sidramappa beyond reasonable doubt. Further, to
prove the homicidal death of deceased-Sharanappa, the
prosecution has examined PW.23-Medical Officer who
conducted autopsy on the corpse and issued postmortem report
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as per Ex.P19. PW.23 opined that the death was "due to head
injury sustained". Further, it is stated that all the injuries are
anti-mortem in nature. PW.13 the ASI of respondent-Police
drew the inquest panchanama on the corpse of the deceased-
Sharanappa as per Ex.P6. He also identified the injuries on the
corpse. In such circumstance, the prosecution successfully
proved that the death of the deceased-Sharanappa also as
homicidal.
17. To connect the accused with the homicidal death of
the deceased duo and with the injuries sustained by PWs.1 to
4, the prosecution predominantly relied on the evidence of
PWs.1 to 4-injured eyewitnesses to the incident, PW.5-recovery
mahazar witness, P.Ws.9, 11 and 12-other circumstantial
witnesses and the evidence of PW.24-Investigation Officer.
18. The specific portion of the incriminating evidence of
PWs.1 to 4 extracted hereunder:
(i) PW.1 the injured-complainant in this case who
lodged Ex.P1 on 26.11.2013 and stated that owing a civil
dispute between the accused and deceased family, the
accused called PWs.1 to 4 and the deceased duo under
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the pretext of mediation. They had row, following which
they were assaulted indiscriminately with M.Os.1, 2, and
6 to 8 and committed the murder of Sidramappa and
Sharanappa and inflicted grievous injuries to PW.1 and
PWs.2 to 4. In the evidence of PW.1, he reiterated the
averments of Ex.P1-complaint and specifically stated that
accused No.1 i.e., Siddaram assaulted the deceased-
Sidramappa with M.O.1-axe, he also assaulted PW.3.
Accused No.2 assaulted the deceased-Sharanappa with
M.O.6 and he also assaulted PW.3 with M.O.2. The
accused No.3 assaulted PW.4 and PW.1 with an axe. The
other accused collectively assaulted the deceased and
PWs.1 to 4. He further stated that, owing to the assault,
the deceased-Sidramappa succumbed on the spot. Albeit,
the deceased-Sharanappa was admitted to the Hospital,
however, he succumbed to the injuries after 2-3 days.
PW.1 further deposed that, himself and PWs.2 to 4
sustained grievous injuries during the assault. According
to him, the motive for perpetrating the crime was owing
to a long-standing civil dispute between both the
families.
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(ii) PW.2 the son of deceased-Sharanappa has
stated that, accused No.1 assaulted deceased-
Sidramappa and PW.3 with an axe and accused No.2
assaulted his father deceased-Sharanappa with an axe
and he also assaulted PWs.1 and 2. Further, accused
No.3 assaulted PW.4 and the other accused collectively
assaulted them and the deceased duo.
(iii) PW.3-brother of deceased-Sidramappa also
reiterated the evidence of PWs.1 and 2 and stated that
accused Nos.1 and 2 assaulted the deceased Sidramappa
and Sharanappa and that the other accused joined in
assaulting them indiscriminately.
(iv) PW.4 the injured also stated the specific
overt act of the accused that accused Nos.1 and 2
assaulted the deceased-Sidramappa and deceased-
Sharanappa respectively and accused No.3 assaulted him
and PW.1 with an axe and sickle.
19. On careful perusal of the evidence of PWs.1 to 4, all
these witnesses have deposed as per the contents of Ex.P1-
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complaint which was lodged at the earliest point of time by
PW.1.
20. Further, PWs.1 to 4 the injured in the assault were
treated at the Hospital by P.W.16-Medical Officer. On
examination of PW.1, PW.16 found 2 simple injuries and issued
Ex.P9-wound certificate. PW.3 sustained grievous injuries, he
was examined by PW.16 and issued wound certificate-Ex.P10.
PW.4 also sustained grievous injuries and he was treated by
PWs.16, 17 and 18-Medical Officers and a wound certificates-
Exs.P11, 12 and 13 respectively were issued. The injuries
sustained by PWs.3 and 4 are grievous in nature and the CT
scan reports are also placed by the prosecution as per
Ex.P10(b) and P11(b) respectively. Hence, the oral testimony
of PWs.1 to 4 corroborates with the medical evidence of PWs.16
to 18 the Doctors who treated them and also the injuries found
the corpse of deceased Sidramappa and Sharanappa in the
postmortem report.
21. The learned counsel for the accused/appellants
vehemently contended that the testimony of these witnesses
cannot be relied upon since they are the son, brother and other
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close relative of the deceased and that they could be construed
as the most interested witnesses. We are afraid, we are unable
to accept the contentions raised by the accused for the reason
that the Hon'ble Apex Court in the case of case of
Ravasahebgouda Alias Ravasahebgouda v. State of
Karnataka reported in (2023) 5 SCC 391 held in paragraph
No.17 as under:
"17. "It is clear that it is the quality and not the
quantity of the witnesses that matters. Further in
Paragraph No.25 of the said judgment, it is stated that
"a witness being a close relative is not a ground
enough to reject his/her testimony. Mechanical
rejection of an even "partisan" or "interested" witness
may lead to failure of justice. The principle of "falsus in
uno, falsus in omnibus" is not one of the general
applications".
22. It is argued by the learned counsel for the
appellants/accused that there are contradictions in the evidence
of PWs.1 to 4. On careful perusal of the evidence, we are of the
view that, those minor contradictions do not go to the root of
the prosecution case. The Hon'ble Apex Court in the case of
Mallikarjun and Ors. vs. State of Karnataka reported in
(2019) 8 SCC 359 has held that the minor contradictions in
the evidence of material witnesses by itself is not a ground to
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discard their testimony. Further, the Hon'ble Apex Court has
held that while appreciating the evidence of a witness, the
approach must be to assess whether the evidence of a witness
read as a whole appears to be truthful. Once the impression is
formed, it is necessary for the court to evaluate the evidence
and the alleged discrepancies and then, to find out whether it is
against the general tenor of the prosecution case. If the
evidence of eyewitness is found to be credible and trustworthy,
minor discrepancies which do not affect the core of the
prosecution case, cannot be made a ground to doubt the
trustworthiness of the witness.
23. Admittedly, in the incident, the respondent-Police
have registered case and counter case. On registering an FIR
against the accused in Crime No.92/2013 dated 26.11.2013;
based on the complaint lodged by PW.1, a counter FIR was
registered against PWs.1 and others in Crime No.93/2013 for
the offences punishable under Sections 323, 324, 326 and 354
of IPC and the said case was tried in S.C.No.225/2015 along
with S.C.No.63/2014. As such, the incident in question which
occurred in the alleged spot on 26.11.2013 is not in dispute.
Additionally, to prove the spot of incident, the prosecution has
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placed Ex.P2-spot mahazar drawn by P.W.24 in the presence of
PW.5 and CW.5. P.W.5-witness for spot mahazar supported the
case of prosecution. Under spot mahazar the M.Os.1, 2, 6, 7, 8,
10 and 11 were seized i.e., 3 axes, one sickle, one stick, blood-
stained mud and sample mud. Further, the prosecution also
obtained the ROR of the place of incident as per Ex.P16. PW.20
the Village Accountant deposed to that effect. Further, PW.14
the Assistant Engineer of Alanda Sub Divison, also drew the
sketch of the spot as per Ex.P7. Hence, the prosecution has
placed sufficient evidence to prove that the incident occurred in
the property bearing Sy.No.113 of Hiroli village and also has
proved the seizure of weapons used by the accused in the
crime. The seized weapons, blood stained mud, sample mud
and the clothes of deceased were sent for Forensic Laboratory
and those certificates are marked in the evidence of PW.24-
Investigating Officer as per Exs.P29 to 31. Ex.P30-serology
report depicts the presence of bloods detached from the articles
i.e., the clothes of the deceased and the said blood stains are
of human blood 'A' group. In such circumstance, the
prosecution has proved that the weapons seized from the spot
were used in the crime by the accused; to corroborate the
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same PWs.1 to 4 identified M.Os.1, 2, 6 to 8 and categorically
stated that the accused assaulted them and the deceased duo
with the said M.Os.
24. Since the case on hand rests on the evidence of
eyewitnesses, as per the settled position of law, the
prosecution is not compelled to prove the motive for
perpetrating the crime. Nevertheless, PWs.1 to 4, 9, 11 and 12
have deposed that, owing to the civil dispute pending before
the deceased family and accused family, the accused are
nourishing ill-will against them. As such, on the guise of
mediation, they called and committed the offence. Further,
PWs.8 and 10 who visited the spot soon after the incident, also
deposed that they have witnessed the injuries sustained by
PWs.1 to 4, the deceased Sharanappa and the corpse of the
deceased-Sidramappa at the spot of the incident. The evidence
of all these material witnesses clearly corroborates to the
testimony of PW.24-Investigating Officer. Against this
backdrop, it can be implied that the prosecution has placed
cogent and reliable evidence to prove that the accused are
responsible for the homicidal death of the deceased-
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Sidramappa and Sharanappa and for injuries sustained by
PWs.1 to 4.
25. As far as the contention of the learned counsel for
the appellants that the accused exercised their right of private
defence owing to reasonable apprehension of death/grievous
hurt, as the deceased duo along with PWs.1 to 4 forcibly
trespassed the property of the accused violating the Court's
restraint order is concerned, on careful perusal of the evidence
of material witnesses-PWs.1 to 4 including their cross-
examination, the accused have failed to prove that PWs.1 to 4
along with the deceased duo are the aggressors and they
forcibly trespassed the property of the accused. Further, the
accused also failed to place any such credible evidence to prove
that they were reeling under reasonable apprehension of
death/grievous hurt which could have been perpetrated by the
deceased and PWs.1 to 4. In the cross-examination of PWs.1 to
4 aside from making suggestions that PWs.1 to 4 and the
deceased sustained accidental injuries owing to an assault no
other defence was taken by the accused. It is settled position
of law, the right of private defence cannot be exercised if there
is no reasonable apprehension of death/grievous injury or any
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other impending danger to the person or property is
established. Further, while exercising private defence more
harm should not be inflicting than necessary. In the case on
hand, as the accused persons failed to place any such credible
evidence to prove the above aspects, the contentions of the
learned counsel for the appellants remains redundant.
26. The learned Sessions Judge has convicted accused
No.3 for the offence punishable under Section 307 of IPC by
imposing minimum sentence of 3 years with fine, however the
State has not preferred any appeal against inadequate
sentence imposed by the Sessions Court. As discussed supra,
the evidence of PWs.1 and 4, the injured categorically
established that accused No.3 assaulted them with an axe.
PWs.16, 17 and 18-Medical Officers who treated PW.4 deposed
that he had sustained grievous injuries. Further, the wound
certificates-Exs.P11 to 13 issued by them also depicts that he
had sustained grievous injuries. The prosecution also placed the
X-ray report of PW.4 as per Ex.P11(b). In such circumstance,
there is no reason to discard the oral testimony of PW.4 and
PWs.1 to 3 since their testimony corroborates with the medical
evidence of the Doctors. Hence, we are of the view that the
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learned Sessions Judge has rightly convicted the accused No.3
for offence punishable under Section 307 of IPC and has taken
a lenient view by imposing 3 years imprisonment and fine along
with accused Nos.1 and 2. Further, the learned Sessions Judge
also rightly convicted the appellants and imposed sentence for
the offence punishable under Section 504 of IPC. Hence, we are
of the view that the appeal preferred by accused No.3 in
Crl.A.No.200113/2019 does not call for any interference at the
hands of this Court.
27. As far as the alternative contention raised by the
learned counsel for the appellants in Crl.A.No.200103/2019
i.e., (Siddaram) accused No.1 and (Namdev) accused No.2 are
concerned, admittedly learned Sessions Judge has acquitted
the accused for the offences punishable under Sections 143,
147, 148 r/w Section 149 of IPC and convicted them based on
their individual overt act. As discussed supra, there was a civil
case in O.S.No.217/2013 pending between the accused family
and deceased family, they being the relatives and it is the
specific case of the prosecution that the accused invited the
duo deceased and PWs.1 to 4 for mediation in the field i.e., the
alleged spot of incident and during the said compromise talk,
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all of a sudden erupted a row between them, which resulted in
assaulting each other with deadly weapons. According to the
prosecution, the accused constructed a hut on the said disputed
property, they had a row, following which they assaulted the
deceased duo and PWs.1 to 4. In such circumstance, it could
be gathered that the incident occurred out of the blue without
premeditative motive. Further, by perusal of evidence on
record, the offenders have not taken undue advantage or acted
in a cruel or unusual manner at the time of committing the
crime.
28. In such circumstance, The Hon'ble Apex Court held
in the case of Rambir Singh vs. State (NCT of Delhi)
reported in 2019 (6) SCC 122 held that, in a sudden fight, in
absence of premeditative motive, when an act is committed in
a heat of passion, should the offender not take undue
advantage or act in a cruel/unusual manner, the conviction can
be converted from Section 302 to Section 304 Part I or Part II
of IPC. In paragraph No.18 of the above judgment, the Hon'ble
Apex Court held as under:
"18. Having regard to the evidence on record, we are
of the view that the case of the appellant falls within
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Exception 4 to Section 300 IPC. Further, the judgment
in Surinder Kumar v. State (UT of Chandigarh) also
supports the case of the appellant. In the aforesaid
case, the knifeblows were inflicted in the heat of the
moment, one of which caused death of the deceased;
this Court has held that the accused is entitled to the
benefit of Exception 4. In the aforesaid judgment, this
Court further held that in a sudden quarrel, if a person,
in the heat of the moment, picks up a weapon which is
handy and causes injuries one of which proves fatal, the
accused would be entitled to the benefit of Exception 4.
We are of the view that the said judgment supports the
case of the appellant and further having regard to the
evidence on record we are of the view that all the four
ingredients which are required to extend the benefit of
Exception 4 to Section 300 IPC, apply to the facts of the
case on hand. Since the occurrence was in sudden
quarrel and there was no premeditation, the act of the
appellant-accused would fall under Exception 4 to
Section 300 IPC. As such, the conviction recorded
against the appellant under Section 302 IPC is liable to
be set aside and is accordingly set aside and the
conviction of the appellant-accused under Section 302
IPC is modified, as the one under Section 304 Part II
IPC and we impose a sentence of 10 years' simple
imprisonment on the accused."
29. Further, the Hon'ble Apex Court in the case of
Surinder Kumar vs. Union Territory of Chandigarh
reported in 1989 (2) SCC 217 held that, merely three injuries
being inflicted on the deceased by the accused is insufficient to
establish that the accused acted in a cruel manner. Where,
upon a sudden quarrel, a person in the heat of moment, picks
up a handy weapon thereby causing injuries, one of which
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proves fatal, he would be entitled to the benefit as stipulated in
Exception 4 to Section 300 of IPC. The number of wounds
inflicted during the altercation is not a decisive factor.
30. Applying the findings of the Hon'ble Apex Court in
the above judgment to the facts and circumstances of this
case, as discussed supra, the unfortunate incident occurred
owing to a pending civil dispute between the family members
regarding property and that the incident occurred during
mediation in presence of 10-20 individuals. Further, the
accused also sustained injuries and a case has been registered
against PW.1 and others and they were also convicted by the
Sessions Court. In such circumstances, we are of the view that
the act of accused Nos.1 and 2 falls within the ambit of
Exception 4 to Section 300 of IPC which is punishable under
Section 304 Part I of IPC.
31. The learned counsel submitted that accused No.1 is
in incarceration for a period of 11 years and above. However,
accused No.2 is on bail. On careful appreciation of the entire
evidence on record and the facts and circumstances of the
case, by considering that accused Nos.1 and 2 have murdered
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deceased duo, accused No.2 not only assaulted deceased-
Sharanappa but also assaulted PW.2, we are of the considered
view that the act of the accused though falls within the ambit of
Exception 4 to Section 300 of IPC, they are liable to be
punished under Section 304 Part I of IPC. Though punishment
prescribed for the offence punishable under Section 304 Part I
of IPC is imprisonment for life or imprisonment for 10 years
and fine, we are of the view that, the minimum sentence of 10
years of imprisonment with fine would meet the ends of justice.
Accordingly, we answer Point No.1 in the negative and Point
No.2 in partly affirmative and proceed to pass the following:
ORDER
i. Crl.A.No.200113/2019 is dismissed.
ii. Consequently, the order of conviction and sentence
imposed by the Sessions Court for the appellant i.e.,
accused No.3 for the offences punishable under
Sections 307, 324 and 504 of IPC is hereby confirmed.
However, all the substantive sentence shall run
concurrently.
iii. The accused No.3 shall surrender before the Sessions
Court, i.e., I Addl. Sessions Judge at Kalaburagi, within
eight weeks' from the date of receipt of certified copy
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of this order to undergo the remaining sentence.
Failing which, the learned Sessions Judge is directed to
secure his presence to commit him to prison.
iv. The bail bond executed by the accused No.3 shall
stands cancelled.
v. The accused No.3 is entitled to benefit under Section
428 of Cr.P.C for the period he has already undergone.
vi. The order of learned Sessions Judge under Section
357(A) of Cr.P.C is kept intact.
vii. The order of learned Sessions Judge under Section 357
of Cr.P.C is modified and out of total fine amount,
Rs.25,000/- each shall be paid to PW.3-Chandram and
PW.4-Chandrakanth.
viii. If the fine amount is deposited by the accused, the
learned Sessions Judge is directed to notify and
disburse the same to PWs.3 and 4 as compensation
stipulated under Section 357(1) of Cr.P.C on due
identification. The balance amount shall be submitted
to the State Treasury.
ix. Crl.A.No.200103/2019 is allowed in part.
x. The conviction and sentence imposed by the learned
Sessions Judge in S.C.No.63/2014 dated 30.07.2019
by the I Addl. Sessions Judge at Kalaburagi is modified
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in respect of offence punishable under Section 302 of
IPC.
xi. The accused Nos.1 and 2 are sentenced for the offence
punishable under Section 304 Part I of IPC instead
Section 302 of IPC. They are sentenced to undergo
imprisonment for a period of 10 years and shall pay a
fine of Rs.25,000/- each, in default of payment of fine,
they shall undergo simple imprisonment for a period of
1 (one) year for the offence punishable under Section
304 Part I of IPC.
xii. The conviction and sentence imposed by the learned
Sessions Judge for the offences punishable under
Sections 307 of IPC against accused No.1 and Section
504 of IPC against accused Nos.1 and 2 are kept
intact.
xiii. All the substantive sentences shall run concurrently.
xiv. Since accused No.1 has already been incarcerated for
11 years and above, which includes the default
sentence also, he shall be released forthwith, if he is
not required in any other case.
xv. The bail bond of accused No.2 shall stands cancelled.
He shall surrender before the Sessions Court within
eight weeks' from the date of receipt of certified copy
of this order to undergo the remaining sentence. The
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accused No.2 is entitled to benefit under Section 428
of Cr.P.C. for the period he has already undergone.
xvi. If accused No.2 fails to surrender before the Sessions
Court within eight weeks', the learned Sessions Judge
is directed to secure his presence and commit him to
prison to undergo the remaining sentence.
xvii. The Superintendent of Jail Authority is directed to
release the appellant/accused No.1-Siddaram
forthwith, if he is not required in any other case.
xviii. Registry is directed to communicate this order to the
Jail Authorities concerned.
xix. Registry is directed to send back the trial Court
records along with copy of this judgment to the trial
Court, forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
