[Cites 13, Cited by 0]
Karnataka High Court
Usmanasab S/O Allasab Attigeri vs The State Of Karnataka on 24 February, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A NO.100465 of 2022
CRL.A No. 100221 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 24TH DAY OF FEBRUARY 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
CRIMINAL APPEAL NO. 100465 OF 2022 (A)
C/W
CRIMINAL APPEAL NO. 100221 OF 2023 (A)
IN CRL. A NO.100465/2022
BETWEEN:
UOSMANASAB S/O. ALLASAB ATTIGERI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
...APPELLANT
(BY SRI. SIDDALINGANAGOUDA DODDAGOUDAR, ADVOCATE)
VIJAYALAKSHMI
M KANKUPPI AND:
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
Location: HIGHCOURT OF
KARNATAKA DHARWAD
1. THE STATE OF KARNATAKA,
BENCH DHARWAD
(THROUGH GUTTAL POLICE STATION, GUTTAL)
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
2. RAJESAB S/O. USMANSAB ATTIGERI,
AGE: MAJOR, OCC: COOLIE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
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3. LALESAB S/O. BADESAB ATTIGERI,
AGE: MAJOR, OCC: COOLIE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
4. SHARIFSAB S/O. RAJESAB ATTIGERI,
AGE: MAJOR, OCC: COOLIE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
5. DILSADBEE W/O. RAJESAB ATTIGERI,
AGE: MAJOR, OCC: COOLIE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
6. KHADARBEE W/O. BADESAB ATTIGERI,
AGE: MAJOR, OCC: COOLIE,
R/O. HOSARITTI, TQ: HAVERI,
DIST: HAVERI-581213.
...RESPONDENTS
(BY SRI. JAIRAM SIDDI, HCGP FOR R1;
SRI. A.M. GUNDAWADE, ADVOCATE FOR R2, R3, R5 & R6;
SRI. AVINASH ANGADI, AMICUS CURIAE FOR R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C. 1973, SEEKING TO ALLOW THE PRESENT APPEAL AND
SET ASIDE THE JUDGMENT AND ORDER AGAINST THE
RESPONDENT/ACCUSED NO.2 TO 6 DATED: 13.06.2022 PASSED
BY THE COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE,
HAVERI IN S.C.NO.68/2015 BY CONVICTING
RESPONDENTS/ACCUSED FOR THE CHARGED OFFENCES
PUNISHABLE UNDER SECTIONS 143, 148, 449, 504, 302 READ
WITH SECTION 149 OF IPC.
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CRL.A NO.100465 of 2022
CRL.A No. 100221 of 2023
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IN CRL.A NO.100221/2023
BETWEEN:
STATE O F KARNATAKA,
REPRESENTED BY THE
POLICE SUB INSPECTOR,
GUTTAL POLICE STATION,
HAVERI CIRCLE,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. JAIRAM SIDDI, HCGP)
AND:
1. SHRI SHARIFASAB ATTIGERI @ SHARIFSAB
S/O. MOULASAB ATTIGERI,
AGE: 26 YEARS, OCC: COOLIE,
2. SHRI RAJESAB
S/O. USMANSAB ATTIGERI,
AGE: 46 YEARS, OCC: COOLIE,
3. SHRI LALESAB
S/O. BADESAB ATTIGERI,
AGE: 27 YEARS, OCC: COOLIE,
4. SHRI SHARIFASAB
S/O. RAJESAB ATTIGERI,
AGE: 27 YEARS, OCC: COOLIE,
5. SHRI DILSADBEE
W/O. RAJESSAB ATTIGERI,
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AGE: 45 YEARS, OCC: COOLIE,
6. SHRI KHADARBEE
S/O. BADESAB ATTIGERI,
AGE: 57 YEARS, OCC: COOLIE,
ALL ARE RESIDENT OF HOSARITTI,
HAVERI TALUK AND DISTRICT-581213.
...RESPONDENTS
(BY SRI. AVINASH ANGADI, AMICUS CURIAE FOR R1 & R4;
SRI. A.M. GUNDAWADE, ADVOCATE FOR R2, R3, R5 & R6)
THIS CRIMINAL APPEAL HIS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 13.06.2022 AND DATED 22.06.2022 PASSED BY THE
PRL. DISTRICT AND SESSIONS JUDGE AT HAVERI IN
S.C.NO.68/2015 SO FAR IT RELATES TO ACQUITTAL OF
RESPONDENTS/ACCUSED NO.1 TO 6 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 148, 449, 302 504 READ
WITH 149 OF IPC AND TO SET ASIDE THE JUDGMENT AND
ORDER DATED 13.06.2022 AND DATED 22.06.2022 PASSED BY
THE PRL. DISTRICT AND SESSIONS JUDGE AT HAVERI IN
S.C.NO.68/2015 AND TO CONVICT AND SENTENCE THE
RESPONDENTS/ACCUSED NO.1 TO 6 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 143, 148, 449, 302, 504 READ
WITH 149 OF IPC.
THESE APPEALS, COMING ON FOR FURTHER HEARING
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
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ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
Both the above appeals are filed challenging the
judgment dated 13.06.2022 passed in S.C.No.68/2015 on
the file of Principal District and Sessions Judge, Haveri (for
short, 'Sessions Court')
2. Criminal Appeal No.100465/2022 is filed by the
complainant against the acquittal of accused No.2 to 6;
Criminal Appeal No.100221/2023 is filed by the State
praying to convict and sentence accused No.1 to 6 for the
offences under Sections 143, 148, 449, 302, 504 read with
149 of IPC.
3. Parties would be referred with their ranks as they
were before the Sessions Court for the sake of convenience
and clarity.
4. The CPI of Haveri Rural Circle has filed charge-
sheet against accused No.1 alleging the offences punishable
under Sections 504, 148, 449 and 302 of IPC. At the time of
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filing the charge-sheet, names of accused No.2 to 6 were
deleted stating that the offences against them is not made
out.
5. After filing the charge-sheet, cognizance of the
offence was taken by the concerned J.M.F.C. and then
committed the matter to the Sessions Court and numbered
as S.C.No.68/2015. Proceedings are commenced only
against accused No.1.
6. After hearing both sides, learned Sessions Judge
has framed charges against accused No.1 alleging the
offences punishable under Sections 448, 449, 504 and 302
of IPC. After commencement of the trial, as per the orders
passed on application under Section 319 of Cr.P.C., accused
No.2 to 6 were included and charge was framed against all
the accused persons for the offences punishable under
Sections 143, 148, 449, 504, 302 read with 149 of IPC.
7. All the accused pleaded not guilty and claimed
trial before the Sessions Court.
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8. On behalf of prosecution, totally 23 witnesses
were examined as P.W.1 to P.W.23 apart from marking
Exs.P.1 to P.36, M.O.1 to M.O.8 and closed its side before
the trial Court. On behalf of accused, -'B' report in earlier
criminal case lodged by the wife of deceased against
accused is marked as Ex.D.1.
9. After recording evidence of both sides and
hearing arguments of both sides, the learned Sessions
Judge has convicted accused No.1 for the offence
punishable under Section 304 Part II of IPC and acquitted
accused No.1 for the remaining offences i.e., 143, 148, 449,
504, 302 read with 149 of IPC and acquitted accused No.2
to 6 for all the offences i.e., 143, 148, 449, 504, 302 read
with 149 of IPC and sentenced him to undergo rigorous
imprisonment for 7 years 1 month 20 days and to pay a fine
of ₹.6,000/- and in default of payment of fine, to undergo
imprisonment for further period of 6 months.
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10. Aggrieved by the said judgment of acquittal of
accused No.1 to 6 for the offences punishable under
Sections 143, 148, 449, 302, 504 read with 149 of IPC, the
State has preferred appeal and complainant has preferred
appeal against acquittal of accused No.2 to 6 for all the
offences.
11. Heard arguments of both sides.
12. Learned counsel for complainant/first informant
Sri. Siddalinganagouda Doddagoudar would submit that
there is ample evidence against accused Nos.2 to 6 along
with accused No.1. P.Ws.1, 4 and 6 have categorically
deposed about involvement of accused Nos.2 to 6. They
have deposed about the instigation given by accused Nos.2
to 6 to commit the offence by accused No.1. Hence, they
being present at the spot and instigated accused No.1 are
also equally liable for the offence committed by accused
No.1 and thus, they are also to be held guilty for the
offence punishable under sections alleged against them.
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Hence, prayed for allowing Crl.A.No.100221/2023 and
convict accused Nos.2 to 6.
13. Learned HCGP Sri. Jairam Siddi for State and
appellant in Crl.A.No.100465/2022 would submit that
accused No.1 ought to have been convicted for the offences
punishable under Sections 302, 448, 449 and 143, 147, r/w
149 IPC, because involvement of accused Nos.2 to 6 is
established and trespass of accused No.1 to the house of
deceased taking crowbar and assaulting deceased with
crowbar thrice on the head would establish that accused
No.1 has an intention to commit the murder of deceased
Allah Sahib. Hence, the intention is gathered from the act
committed by him. Hence, he is to be convicted for the
offence under Section 302 IPC and as there is criminal tress
pass with an intention to commit the offence punishable
with death sentence and thus, offence under Section 449
IPC are established against accused No.1. Hence, prayed for
allowing the appeal.
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14. Learned Amicus curie Sri.Avinash Angadi for
respondent Nos.1 and 4 and learned counsel
Sri.A.M.Gundawade, for respondent Nos.2, 3, 5 and 6 would
submit that there is discrepancy in the evidence of
eyewitnesses P.W.1, PW.4, P.W.6 and P.W.7. Admittedly
there is property dispute and it is the tendency of the first
informant that all the family members were arrayed as
accused persons. However, the Sessions Judge has come to
the conclusion that only offence alleged against accused
No.1 is proved. This itself shows the exaggeration made by
P.W.1, P.W.4 and P.W.6. P.Ws.1, 4 and 6 are close relatives
of deceased i.e. son, grandson and daughter of deceased.
Except them there is no other cogent supporting evidence
to substantiate the case of prosecution. There are
contradictions in the evidence of P.W.1, P.W.4 and P.W.6 on
one side and P.W.7 said to be the eye witness. His evidence
is also unbelievable because he has deposed that he had
seen the incident from 70 feet away from the spot, which is
not a believable one. As per the case of prosecution, the
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investigation was commenced much earlier to registration of
the case. The evidence of fingerprint export is also not a
believable one. The evidence of doctor and p.m. report
shows that he has not at all applied his mind at the time of
conducting post mortem and thus his report is unbelievable
one. Hence, acquittal of accused Nos.2 to 6 by learned trial
Judge is correct. Accused No.1 has not preferred any appeal
against conviction. Hence, prayed for dismissal of both
appeals.
15. Having heard the arguments of both sides,
verifying the appeal papers as well as trial Court records,
the point that arises for our consideration is:
1) Whether prosecution proves beyond reasonable
doubt the involvement of accused Nos.2 to 6 in
committing the murder of deceased- Allasab?
2) Whether prosecution proves beyond reasonable
doubt that accused No.1 has committed the murder
of Allasab with an intention to kill him?
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16. The case of prosecution in nutshell is that
accused and deceased- Allasab are relatives; there is
property dispute between accused and deceased and his
family members in respect of Sy.No.16/2 of Hosaritti
Village. Because of that property dispute, there is ill-will
between accused persons and the deceased. Accused No.1
has taken a house from one Malleshappa Veerappa Angadi
on rent in front of the house of deceased only to harass him
and his family members; to take revenge against the
deceased and to grab his property.
17. It is the further case of prosecution that from
08.00 a.m. of 30.04.2015 after finishing his breakfast,
accused was sitting by the side of his house i.e., on Jetty
(PÀmÉÖ) of Gubbiswami Matha; he was waiting for suitable
opportunity to murder Allasab; was observing the
movement of Allasab; he had seen deceased entering his
house; then, he went to the house of deceased, pushed the
door of the house of deceased, its latch was broken; then
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he entered the kitchen and took iron crowbar and came out
from the house and abused the deceased in filthy language
by using the words "D¹ÛAiÀįÁè ¤Ã£À wAwAiÀiÁ a£Á° ªÀÄUÀ£À" in the
public road, assaulted with said iron crowbar on the head of
deceased thrice at 12.04 noon and caused murder of
Allasab and thereby committed the aforesaid offences.
18. P.W.1, P.W.2 and P.W.5 are said to be the
eyewitnesses to the incident and have not supported the
case of prosecution; P.W.3 is the complainant-cum-son of
the deceased; P.W.4 is the grandson of deceased and son of
P.W.6; P.W.6 is the daughter of deceased and they have
supported the case of prosecution; P.W.7 is an independent
eyewitness and he has also supported the case of
prosecution; P.W.5 was not only cited as an eyewitness, but
also cited as the scribe of complaint. As far as writing the
complaint is concerned, P.W.5 has supported the case of
prosecution; P.W.8 is spot panch witness for Ex.P.11; P.W.9
is inquest and spot panch witness; P.W.10 is the seizure
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panch witness for Ex.P.20-panchanama, under which M.O.1,
M.O.6, M.O.7 and M.O.8-the clothes of deceased were
seized; P.W.11 is circumstantial witness; P.W.12 is said to
be the eyewitness. P.W.13 is seizure panch witness for
Ex.P:21-panchanama, under which, the blood stained pant
of accused No.1-M.O.8 was seized; P.W.14 is the police
constable, who is the carrier of FIR; P.W.15 is the police
constable, who has handed over the dead body to its legal
representatives and received the clothes of deceased from
the doctor and produced before the I.O.; P.W.16 is the
doctor, who has conducted postmortem on dead body;
P.W.17 is the fingerprint expert, who examined the
fingerprints found on the door of the house of deceased and
also the admitted fingerprints of accused No.1; P.W.18 is
the then PSI, who has registered the case based on
complaint of P.W.3 and arrested accused No.1, produced
before the I.O.; P.W.19 is the I.O., who has conducted
major portion of investigation and filed charge-sheet
against accused No.1; P.W.20 is the Assistant Engineer of
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PWD, who has drafted spot sketch as per Ex.P.34; P.W.25 is
the in-charge CPI, who has conducted partial investigation;
P.W.22 is the wife of deceased and circumstantial witness;
P.W.23 is scientific officer at FSL, Bengaluru, who has
examined the seized articles and furnished his report as per
Ex.P.36.
19. The prime witnesses to the case are P.Ws.3, 4, 6
and 7. P.W.3 is the son, P.W.4 is the grandson, P.W.6 is
the daughter of deceased and P.W.7 is an independent
witness. There is slight variation amongst the evidence of
P.W.3, P.W.4, P.W.6 and P.W.7 about how the incident has
taken place. According to P.W.3, P.W.4 and P.W.6; P.W.4
and deceased were in the front house and P.W.3 and P.W.6
were in the back old house on 30.04.2015. On that day at
about 12 noon, accused No.1 pushed the door of the house
in which deceased and P.W.4 were there and the latch was
broke open and then he entered the house, accused No.1
dragged the deceased from the house and went inside the
house, took iron crowbar from the kitchen and came out
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and then assaulted with the said crowbar on the head of the
deceased thrice and thereby caused the death of deceased.
According to P.W.3 and P.W.6 when they were in the back
house, they heard loud sound of pushing the door and
hence they came from the house and they saw accused
No.1 going inside the kitchen taking iron crowbar and
assaulting deceased with crowbar thrice and they could not
prevent him and within that time the incident had taken
place.
20. According to P.W.7 on 30.04.2015 at 12.04
hours when deceased was sitting on the Jetty (PÀmÉÖ) of their
house, accused No.1 brought iron crowbar from the house
of deceased and assaulted with it on the crown of deceased
and because of that Allasab collapsed and accused No.1 also
kicked twice or thrice from his leg and the people gathered
there have dragged the accused and pacified the quarrel.
At that time he had seen the time, it was 12.04 hours.
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21. According to the evidence of P.Ws.3, 4, 6 and 7,
immediately Allasab was taken to hospital in a Tom Tom
vehicle by P.W.1; by examining him the doctor declared
that he was brought dead. Afterwards P.W.3 has lodged
complaint and then criminal law was set into motion.
22. Sri Avinash Angadi, learned Amicus Curiae
appearing for respondents No. 1 and 4 and Sri A.M.
Gundawade, learned counsel for respondents No. 2, 3, 5
and 6 would strenuously submit that the investigation
commenced before registering the case. Thus investigation
is bad in law and based on this investigation there shall not
be any conviction.
23. P.W.16 is the doctor who has conducted
postmortem on dead body of deceased Allasab. According
to him, he conducted postmortem on 30.04.2015 from 12
to 12.30 p.m. and Allasab died on that day at 10.00 a.m.
He has noted the same in postmortem report as per
Ex.P.24.
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24. FIR as per Ex.P.23 was registered on 30.04.2015
at about 3.00 p.m. whereas according to doctor the
postmortem was conducted on that day from 12 to 12.30
p.m. that is much earlier to registration of the complaint
and thus learned Amicus Curiae and the learned counsel for
the accused submit that the investigation has commenced
before registration of FIR.
25. It is to be noted that as per the evidence of
P.W.7, at the time of incident he was holding mobile in his
hand and had seen the time and it was 12.04. The case of
the prosecution is also that the incident had taken place at
12.04 noon.
26. Form No. 146(ii) was given to doctor to conduct
postmortem and only afterwards postmortem has to be
conducted and it is conducted after receipt of the requisition
from the I.O. This Form No.146(ii) is produced and kept in
the file reveal that the requisition was given at 17.45 hours
to conduct postmortem and dead body was found on
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30.04.2015 at 16.30 hours and incident had taken place on
30.04.2015 at 12.30 noon.
27. Coupled reading of these things clearly and
categorically reveal that postmortem could not have been
conducted from 12 to 12.30 p.m. It is only the mistake
committed by the doctor in mentioning the time as 12 to
12.30 p.m. in the postmortem report and in his evidence.
He has deposed that the incident had taken place at 10.00
a.m. However no reason is given by the doctor to say that
how he came to know that the incident had taken place at
10.00 a.m. Hence this mistake of the doctor alone cannot
be the ground to say that the investigation had commenced
much earlier to registration of FIR.
28. Having perused the postmortem report and the
evidence of P.W.16, it reveals that the deceased was aged
about 65 years and height was 5-½ feet and found ante
mortem injury on occipital region of the dead body.
According to him about three hours prior to examination,
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death might have caused. The doctor has observed that
there was mass bleeding from wound in occipital region and
he opined that death was due to hemorrhage in brain and
hemorrhage shock.
29. Afterwards the crowbar was produced before the
doctor and he has given his opinion report on 20.05.2015
as per Ex.P.25 that the wounds found on occipital part of
the dead body may be caused due to the assault by the
crowbar produced before him. He further opined that three
injuries were on scalp and they were fresh wounds and the
person might have died due to those injuries.
30. According to the evidence of P.W.3 and I.O.-
P.W.15, P.W.3 along with P.W.5 had been to the Police
Station and lodged complaint and then PSI had registered
the complaint in Crime No. 43/2015. Only afterwards the
investigation commenced because the inquest is conducted
afterwards and before conducting inquest, the dead body
cannot be given to the doctor for postmortem. According to
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the inquest report it was conducted from 3.30 to 4.30 p.m.,
in the hospital itself.
31. There is no appeal from the accused No.1 against
whom the conviction is recorded. It is only the State appeal
to convict accused No.1 for all the offences alleged against
him including for the offence under Section 302 IPC and
also against acquittal of accused Nos.2 to 6 and the appeal
by first informant to convict accused Nos.2 to 6.
32. With this background, the evidence available
against accused Nos.2 to 6 is to be analyzed to see as to
whether prosecution is able to prove the offence of murder
or whether it can be only U/s 304-II of IPC against accused
No.1 is to be analyzed.
33. The complaint averments are that there is a
property dispute between the deceased, accused No.1 to 4
and also against other two persons named in the complaint.
Thus, the relationship between parties is to be verified to
understand the case properly. One Usmansab had four
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sons and three daughters. Amongst them two -Bade Sab
and Moula Sab were no more. Accused No.2-Raje Sab is
the uncle of P.W.1 and younger brother of deceased-
Allasab. Accused No.3 is the son of accused No. 6-Khadar
Bi and Badesab. Accused No.1 is the son of Moula Sab.
Accused No.5-Dilshad Bi is the wife of accused No. 2,
accused No.4-Sharif Sab @ Chaman Sab is the son of
accused No. 2 and 5.
34. After investigation charge sheet is filed only
against accused No.1 by deleting the names of other
accused persons. Then based on the application filed U/s
319 of Cr.P.C., accused Nos.2 to 6 are impleaded.
35. The only evidence available against accused Nos.
2 to 6 is the evidence of P.Ws.3, 4, 6 and 7. The other
witnesses have not spoken anything about these accused
persons.
36. P.W.3 in his evidence has deposed that accused
Nos. 2 to 6 caught hold his father and were telling that they
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will do something to him; they abused his father; they have
brought his father outside the house and they were
instigating accused No.1 to commit murder and he has
deposed the involvement of accused No.2 to 6. In the
complaint he has stated that those accused persons also
assaulted his father with hands.
37. P.W.4, child witness has deposed that accused
No.1 has brought his grandfather outside the house by
holding the shirt collar and abused that his grandfather is
not giving property and went inside the kitchen, brought
crowbar and other accused persons were assaulting his
grandfather, they are Lale Sab, Raje Sab Mama and two
grandmothers, i.e., accused Nos.2, 3, 5 and 6 and they
were instigating accused No.1. According to this witness,
accused No.4 was not there at the spot.
38. P.W.6 has not deposed anything against the
remaining accused persons except instigation by them.
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39. P.W.7 another eyewitness who is an independent
witness, has deposed that other accused persons were not
at the spot.
40. Thus, there is a serious discrepancy amongst the
evidence of P.Ws.3, 4, 6 and 7 regarding involvement of
accused Nos. 2 to 6. Hence their acquittal by the trial Court
needs no interference.
41. Now the only point to be considered is whether
there is any intention by the accused to commit murder of
deceased or whether it has taken place in a sudden quarrel
without any intention on the part of the accused to commit
the murder.
42. According to the evidence of P.W.7, there was
oral altercation being taken place between accused No.1
and deceased. According to the case of prosecution,
accused No.1 has taken a house on rent in front of the
house of the deceased only with an intention to commit
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murder of deceased and was waiting for a suitable
opportunity and with an intention to harass the deceased.
43. In this regard in the cross-examination of P.W.6
it is elicited that accused No.1 had taken the house on rent
and residing in that house since one year prior to the
incident. Thus, the case of prosecution that accused No.1
was waiting for an opportunity appears to be not correct.
44. It is the case of the prosecution that accused
No.1 entered the kitchen of deceased, took the crowbar and
came out; then assaulted with the said crowbar on the head
of Allasab and thereby committed his murder.
45. It is not the case of the prosecution that when
accused No.1 pushed the door of the house by breaking its
latch, he was holding a weapon. Thus there was no
intention or premeditation for the accused No.1 to commit
murder. The cross-examination of P.W.7 reveals that there
was altercation between accused No.1 and deceased and he
has not gone there to pacify it because the deceased was
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not hearing his words. From this, the prior intention of
accused No.1 is not gathered.
46. P.W.7 has further deposed that in that altercation
suddenly accused No.1 went inside the house of deceased,
brought crowbar and suddenly assaulted on the head of
deceased which resulted in his death.
47. The above evidence of P.W.7 and the evidence of
other witness that people were gathered at the spot who
have not made efforts to intervene and pacify the quarrel
establish that in a sudden fight, accused No.1 entered the
house of the deceased, brought the crowbar and assaulted
with it on the head of deceased.
48. Admittedly, accused was not carrying the weapon
when he broke opened the latch of the house of deceased;
as per the evidence of P.W.7, at the time of commencement
of quarrel, there was only altercation between accused No.1
and deceased and then, suddenly he entered the house of
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deceased, brought crowbar and assaulted on the occipital
region of the deceased.
49. The sum and substance of the evidence of
witnesses reveal that immediately when the quarrel was
taking place, accused No.1 entered the house of deceased,
took crowbar from the kitchen, came in suddenly and
assaulted on the head of deceased thrice. However, the
finding of trial Court that to convict the accused for the
offence under Section 304 Part II of IPC is not proper. The
above discussion reveals that accused No.1 has committed
culpable homicide, not amounting to murder but he taking
crowbar, a weapon can be used for committing murder and
using it thrice on the head of deceased, who is an aged
senior citizen shows his intention of causing death or
causing such bodily injury as is likely to cause death and
thus, it comes under Section 304 Part I of IPC and not
under Part II of IPC.
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50. Thus, it comes within the Exception No.4 to
Section 300 of IPC. Culpable homicide is not murder if it is
committed without premeditation in a sudden fight, in the
heat of passion upon a sudden quarrel, and without the
offender having taken undue advantage or acted in a cruel
or an unusual manner.
51. For the above discussion, we hold that the
acquittal of accused Nos.2 to 6 is proper and it needs no
interference and convicting accused No.1 for the offence
under Section 304 Part II of IPC is not justifiable, but
accused No.1 is liable to be convicted for the offence under
Section 304 Part I of IPC.
52. The fact that accused No.1 entered the house of
deceased by breaking open the latch with an intention to
bring crowbar from said house itself establishes that
accused No.1 has committed house trespass, which is
punishable under Section 448 IPC.
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53. Even though, the offence punishable under
Section 504 of IPC is alleged against accused No.1, it is only
brought in evidence that he abused the deceased in filthy
language, but the other ingredients of Section 504 of IPC
that he intentionally insulted the deceased and provoked
the deceased to breach public peace or to commit any other
offence is not established. Hence, acquitting accused No.1
for the offence punishable under Section 504 of IPC is
proper.
54. Even though, it is alleged that accused
committed house trespass of deceased with an intention to
commit the offence punishable with death, as we have
come to the conclusion that intention to commit murder is
not established and hence, offence under Section 449 of IPC
is also not established.
55. The incident took place in the year 2015, 11
years have lapsed. Subsequent to this incident and his
release, it is not alleged that he is involved in any criminal
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activities. We have convicted him for the offence punishable
under Section 304 Part I of IPC. The sentence prescribed for
the said offence is either life imprisonment or the sentence
of imprisonment, which may extend to 10 years. Since, he
has already undergone more than 7 years of imprisonment,
we deem it fit that the sentence already undergone by him
may be held sufficient, however, the fine imposed can be
enhanced.
56. When accused Nos.2 to 6 are acquitted, there is
no question of proving the offences under Sections 143, 148
r/w Section 149 of IPC.
57. Accordingly, the following:
ORDER
i. Criminal Appeal No.100221/2023 filed by the
State is allowed in part.
ii. Criminal Appeal No.100465/2022 filed by the
complainant is dismissed.
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iii. The conviction of accused No.1 is modified to
304 Part I of IPC instead of 304 Part II.
iv. Acquittal of accused Nos.2 to 6 is confirmed.
v. Accused No.1 is convicted for the offence
punishable under Section 304 Part II of IPC
and sentenced to the period of sentence
already undergone by him, i.e. 7 years 1
month and 20 days. Apart from this, the
accused No.1 shall pay fine of Rs.25,000/-, in
default to make payment of fine, to undergo
further imprisonment for a period of 6
months.
vi. Accused No.1 is sentenced to undergo simple
imprisonment for one year with fine of
Rs.1,000/-, in default to undergo simple
imprisonment for further period of 15 days for
the offence punishable under Section 448 of
IPC.
vii. Both the sentences shall run concurrently.
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viii. Out of the fine amount Rs.20,000/- shall be
paid to the P.W.22 - Hawabi Attigeri, the wife
of the deceased. The balance Rs.5,000/- shall
be credited to the State Exchequer.
ix. The honorarium of Rs.30,000/- fixed to the
Amicus Curiae by this Court on 20.02.2025
shall be paid to him by the High Court Legal
Services Committee, Dharwad Bench,
Dharwad.
x. Bail bonds, if any, stands cancelled.
SD/-
(MOHAMMAD NAWAZ)
JUDGE
SD/-
(GEETHA K.B.)
JUDGE
Sh-para 1-12
Bvv-para 13-36
Rkm-para 37 to end
Ct-mck
list no.: 1 sl no.: 0
