R1IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE19H DAY OF AUGUST2020PRESENT THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD AND THE HON’BLE MR. JUSTICE V. SRISHANANDA CRIMINAL APPEAL NO.100059 OF2018BETWEEN1 NINGAPPA S/O BASAPPA @ BASAVANNEPPA ADIN, AGE:27 YEARS, OCC. AGRICULTURE, R/O. MALAKANAKOPPA VILLAGE, TQ. KALAGATHAGI, DIST. DHARWAD.
2. RAJU S/O. BASAPPA @ BASAVANNEPPA ADIN, AGE:38 YEARS, OCC. AGRICULTURE, R/O MALAKANAKOPPA VILLAGE, TQ. KALAGATHAGI, DIST. DHARWAD.
3. BASAPPA @ BASAVANNEPPA S/O BASAPPA ADIN, AGE:45 YEARS, OCC. AGRICULTURE, R/O MALAKANAKOPPA VILLAGE, TQ. KALAGATHAGI, DIST. DHARWAD.
4. SHIVAPPA S/O BASAPPA @ BASAVANNEPPA ADIN, AGE:MAJOR, OCC. AGRICULTURE, 2 R/O. MALAKANAKOPPA VILLAGE, TQ. KALAGATHAGI, DIST. DHARWAD. ... APPELLANTS (BY SRI. K. L. PATIL, ADVOCATE) AND THE STATE OF KARNATAKA THROUGH KALAGHATAGI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. ... RESPONDENT (BY SRI. V. M. BANAKAR, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGEMENT AND
ORDEROF CONVICTION AND SENTENCE DATED2610.2017 PASSED BY PRINCIPAL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN S.C.NO.131/2016 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS302 324, 504, 109 READ WITH SECTION34OF IPC, AGAINST THESE APPELLANTS AND ACQUIT THE APPELLANTS OF THE OFFENCES PUNISHABLE UNDER SECTIONS302 324, 504, 109 READ WITH SECTION34OF IPC. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0508.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, V. SRISHANANDA, J DELIVERED THE FOLLOWING:
3.
JUDGMENTThe accused persons in S.C.No.131/2016 on the file of the Principal District and Sessions Judge, Dharwad (hereinafter referred to as “Trial Court”) have questioned the validity of the judgment dated 26.10.2017 wherein they have been convicted for the offences punishable under sections 302, 324, 109 and 504 read with section 34 of IPC.
2. The brief facts, which are necessary for disposal of the appeal are as under: One Smt. Yallavva W/o.Yallappa Adin lodged a written complaint to Kalaghatagi Police on 21.06.2016 at about 1.00 p.m. alleging that she is permanent resident of Malakanakoppa village in Kalaghatagi Taluk and was living with her husband Sri.Yallappa, aged 70 years (hereinafter referred to as “deceased”) and they had no issues and were eking out their livelihood by agriculture. Deceased had elder brother by name Basappa, who died about 12 years prior to the date of complaint. Basappa 4 had five sons viz., Ningappa, Raju, Basappa, Shivappa i.e., accused No.1 to 4 and Ishwar. It is further found in complaint that the family had three acres of land and Yallappa had filed a suit in Kalaghatagi Court two years prior to the date of the complaint seeking partition of his share in the property and the said suit was pending as on the date of incident. Yallavva further contends that accused persons used to pickup quarrel with herself and deceased often in regard to the family land and elderly persons of the village had advised them. But advice went in vain. It is further contended in the complaint that on 21.06.2016 at about 11.30 a.m., Yallappa left his house in order to visit Kalaghatagi Sandy and at about 12.00 in the noon, one Gurusiddappa visited her house and informed that when Yallappa was moving on road, accused persons all of a sudden came there and picked up quarrel with Yallappa and abused him in filthy language and the first accused with the help of Koyta (a sharp edged weapon) assaulted Yallappa and the second 5 accused/Raju assaulted him with hands; Yallappa sustained grievous injuries and fell on the ground. Gurusiddappa further informed her that when himself, Subhash and Nagappa Kuri tried to rescue Yallappa, first accused Ningappa assaulted Gurusiddappa with Koyta on his left palm resulting an injury. Thereafter, the first accused again assaulted Yallappa and then Ningappa and Raju flee away from the spot throwing Koyta there itself. He also intimated that accused No.3 and 4, who were present at the spot, instigated accused No.1 and 2 to commit murder of Yallappa and the incident taken place at around 11.45 a.m. Thereafter, Yallavva and Gurusiddappa went to the place of incident. By that time Yallappa was no more. They noticed grievous injuries on the neck of Yallappa. As such she lodged complaint vide Ex.P.1.
3. On receipt of Ex.P.1, Kalaghatagi police registered a case against all the accused persons and conducted a detailed investigation. As part of 6 investigation, police conducted Inquest mahazar and spot mahazar and shifted the dead body for post mortem examination. They sent Gurusiddappa for treatment. They seized the alleged weapon used while conducting spot mahazar. They arrested accused No.1 to 3 on 24.06.2016, recorded the voluntary statement and seized the blood stained clothes worn by first and second accused. Seized articles were sent to forensic science laboratory for chemical examination. They arrested accused No.4 on 15.12.2016 and on conclusion of investigation, Kalaghatagi police filed charge sheet against all the accused persons.
4. On committal of the case to the Sessions Court, the presence of the accused persons was secured and after hearing the prosecution and the defence, charges were framed against the accused persons for the offences under sections 302, 324, 109 and 504 read with section 34 of IPC. Accused persons pleaded not guilty and claimed to be tried. As such, trial was held against the accused persons. 7
5. On conclusion of trial, statements of accused persons as contemplated under Section 313 of Cr.P.C. are recorded. Accused persons denied all the incriminating circumstances, which were put to them. The accused persons did not offer any explanation in writing as to the alleged incident nor adduced any evidence.
6. Trial court after hearing the prosecution and defence, convicted all the accused persons for the offences under sections 302, 324, 504 read with section 34 of IPC and passed sentence of life imprisonment and fine of Rs.20,000/- each for the offence under Section 302 read with 34 of IPC; sentence of simple imprisonment for two years and fine of Rs.3,000/- each for the offence under Section 324 read with section 34 of IPC; sentence of simple imprisonment for one year and fine of Rs.2,000/- for the offence under Section 504 read with section 34 of IPC. It is that judgment, which is under challenge in this appeal. 8
7. It is to be mentioned here that one of us (Justice V. Srishananda) recorded the evidence of P.W.1 to P.W.10 in the trial court. This fact is brought to the notice of learned counsel for appellant and learned Additional State Public Prosecutor.
8. Sri. K. L. Patil and learned Additional State Public Prosecutor submit that even though one of us have recorded the evidence of the P.W.1 to P.W.10, appeal can be heard by this Bench and dispose off the appeal on merits and no prejudice would be caused to the parties. Placing said submission on record, the appeal is heard and taken up for disposal.
9. The learned counsel for the appellant Sri. K.L.Patil, submitted that the trial court has grossly erred in convicting the accused persons for the offences under section 302, 324, 504 read with section 34 of IPC.
10. He argued that Yallappa left his house around 9.00-9.30 a.m. as per P.W.1. As such, he must have died much prior to 11.45 a.m. Taking advantage of his death, 9 P.W.4-Gurusiddappa in active connivance with P.W.5 and P.W.6, hatched a plan to lodge a false complaint against the accused persons so as to grab the property that would fall to the share of Yallappa in three acres of family land of Yallappa. According to him, police have implanted P.W.4 to P.W.7 as eyewitnesses to the alleged incident in view of answers obtained in the cross- examination of P.W.4 to P.W.7 vis-à-vis the contents of spot panchanama marked at Ex.P.7. He further argued that there are only three injuries noted in Ex.P.24- postmortem report. There is total variation in the ocular testimony of P.W.4 to P.W.7 and injuries found in Ex.P.24.
11. He further contended that the presence of P.W.4 during Ex.P.7-Spot Panchanama is highly doubtful inasmuch as he was in government hospital around 4.10 p.m. as per wound certificate-Ex.P.23 and Ex.P.7 is conducted around 4.45 p.m. 10
12. He also submits that P.W.1 categorically admitted that accused No.4 is the permanent resident of Mundgod village. As such, his presence at Malakanakoppa village on the day of alleged incident is highly doubtful. In this regard, he also drew the attention of this Court to Ex.P.1-complaint, wherein the name of accused No.3 and 4 were found only in the last line. It is his case that the prosecution witnesses merely saying that accused No.3 and 4 instigated accused No.1 and 2 to assault Yallappa is not sufficient enough to rope in accused No.3 and 4 in the alleged incident and trial court invoking section 109 of IPC to convict accused No.3 and 4 cannot be countenanced in law.
13. He points out that P.W.4 did not take out the name of P.W.6 in his testimony. Evidence on record suggests that it is P.W.4 and P.W.5, who tried to rescue Yallappa from the clutches of the accused persons.
14. He questions the conduct of P.W.4 in visiting the house of P.W.1 instead of visiting hospital or police 11 station when he also sustains alleged injury as per Ex.P.23. According to him said injury is a self-inflicted injury.
15. Sri. Patil, seriously disputed two sketches produced by the prosecution vide Ex.P.8 and Ex.P.16. He contends that they are concocted by police so as to make it probable the presence of P.W.4 to P.W.7.
16. It is his case that the prosecution has failed to establish a proper motive for the incident.
17. Sri. Patil submits for the sake of argument, if the case of prosecution stands proved, absolutely there is no role that could be attributed to accused No.3 and 4 and as such, they are entitled for clear acquittal. So also, even according to the prosecution, overt act of accused No.2 is that he kicked the deceased. Therefore, accused No.2 cannot be convicted on par with Accused No.1. He also contends that in the absence of proper motive being established by the prosecution, the incident must have occurred at the spur of moment. Therefore, order of Trial 12 Court, convicting the accused persons under Section 302 read with section 34 of IPC is incorrect.
18. Per contra, the learned Additional State Public Prosecutor contends that there was pre-concert among accused persons. To substantiate this contention, he pointed out that the accused persons are children of Basappa, who is elder brother of deceased. He argued that admittedly a suit for partition between the deceased and the accused persons was pending before Kalaghatagi Court as on the day of the incident. He further submits deceased was issueless and if the life of the deceased is taken away, the accused would get the entire property, which is the motive for the incident.
19. He argued that mere fact of accused No.4 residing in Mundgod village itself is not sufficient enough to infer that the accused No.4 was not present at the spot on the day of the incident. It is his case that the distance between Malakanakoppa and Mundgod is not that far. 13 Since all accused shared common intention the presence of accused No.3 and 4 should be inferred by the court.
20. He also submits that P.W.4 to 7 are chance witnesses inasmuch as the house of P.W.4 is situated at a short distance from the place of incident and he saw accused assaulting the deceased from his house and rushed to the spot as per his oral testimony. He argued that P.W.4 also sustained injury as per Ex.P.23 and presence of P.W.5 to P.W.7 at tea shop is natural.
21. He further argued that minor discrepancies as is pointed out by the learned counsel for the appellants is natural and in fact those discrepancies indicate that PW.4 to PW7 are not tutored witnesses.
22. He further argued that use of M.O.1 by accused No.1 stands clearly proved inasmuch as M.O.1 was seized under spot panchanama-Ex.P.7 and the photograph marked at Ex.P.9 clearly shows that M.O.1 was found nearby to the scene of incident in the bushes and bloodstains were also noticed by the investigation 14 officer at the time of seizure of M.O.1. He points out that in the FSL report-Ex.P.28, there is a clear mention that bloodstains detected on M.O.1 were that of human region and was belonging to “A” blood group, which is the blood group of the deceased. He also points out that blood stains found on the clothes of Accused No.1 and 2 were also of “A” blood group.
23. He further argued that from the material on record prosecution case stands proved in toto and the guilt of the accused persons is established beyond reasonable doubt and prayed for dismissing the appeal.
24. In view of the rival contentions, the points that would arise for consideration of this Court are as under:
1. Whether the prosecution has proved the charges leveled against the accused persons beyond all reasonable doubt?.
2. Whether the impugned judgment needs interference?. 15 25. We answer the above Point No.1 and 2 partly in affirmative, for the following: REASONS26 In order to prove the charges, prosecution strongly relies upon the oral testimony of P.W.1 and P.W.4 to P.W.7. The prosecution gets corroboration from documentary evidence viz., Ex.P.7-spot panchanama and photographs taken during the spot panchanama vide Exs.P.2-5, 9 and 27, sketch at Ex.P.8, FSL report at Ex.P.28 and Wound Certificate of P.W.4 at Ex.P.23.
27. As per P.W.1, on the fateful day, deceased left his house around 9.00 a.m. to 10.00 a.m. to visit Weekly Sandy, at Kalaghatagi and did not return to his house. Around in the noon, P.W.4 visits P.W.1 and informed about the incident in detail that when her husband was returning home after making purchase in Sandy, near the bus stand, accused persons all of a sudden came and assaulted deceased. He also narrates that among accused persons, accused No.1 assaulted Yallappa with 16 M.O.1-Koyta (a sharp edged weapon) on his neck and left ear and accused No.2 assaulted him with hands and kicked him; accused No.3 and 4 have instigated to commit the murder of Yallappa and thereafter, the accused No.1 threw M.O.1 there itself and ran away from the spot. He further informed her that himself and P.W.5 tried to rescue deceased from the clutches of the accused persons and he also sustained injury on his left palm.
28. Her testimony further reveals that thereafter, herself and P.W.4 visited the place of incident and found her husband was no more and noticed blood injuries on his neck. She then visits Kalaghatagi police station and got lodged a written complaint- Ex.P.1.
29. P.W.1 further deposed that the police visiting the spot, conducting inquest mahazar, spot mahazar, seizure of M.O.1 and taking photographs. She identifies the clothes worn by her husband on the day of the incident as M.O.2 to M.O.7. She categorically stated that accused persons committed the murder of her husband 17 with an intention to grab the property belonging to the family as she was issueless.
30. In her cross-examination, it is elicited that the fourth accused-Shivappa is permanent resident of Mundgod village with his family; another brother of the accused persons-Ishwar is residing separately and he was helping her family in the hour of need. She also answered that accused persons were visiting her. So also, P.W.4 used to visit her house often.
31. She denies the specific suggestion that somebody had murdered her husband and taking advantage of death of deceased, herself, P.W.4 and others hatched a plan to falsely implicate the accused persons in the present case. To a suggestion that the case, filed by her husband in Kalaghatagi Court seeking partition of his share in the family property had ended, she categorically answered that because case ended in favour of deceased, accused persons have murdered her husband. 18
32. According to prosecution. P.W.4 to P.W.7 are the eyewitnesses to the incident. Among them P.W.4 is also an injured in the same incident.
33. He deposed that on the day of the incident, he had seen Yallappa proceeding towards bus stand and on seeing him, he came out of his house; at that juncture, there was a loud hue and cry; as such he rushed there. He saw Yallappa had fallen down and himself and P.W.5 made him to drink water but he could not swallow. At that juncture, accused No.1 again came there and assaulted him on the neck and left ear with M.O.1 and the second accused kicked Yallappa. He also stated that accused No.3 and 4 instigated accused No.1 and 2 and when he tried to rescue Yallappa, he also got injured on his left palm by the assault made by accused No.1 with M.O.1.
34. It is his case that immediately he rushed to the house of Yallappa and intimated his wife regarding the incident and both of them rushed to the spot and 19 found that Yallappa was no more. He further deposed about visiting Police station and lodging Ex.P1. He identified M.O.1 seized under Ex.P.7 and also the accused persons.
35. In his cross-examination, he admits that his house is situated about 50 – 60 meters distance from the place of incident and deceased had visited his house before visiting Sandy. He admits that 20-30 persons had assembled near the place of incident but they were scattered. The defence has elicited that the deceased and the family of accused persons were residing separately since 25 years. He denies that the properties were being cultivated separately.
36. He denies that in order to grab the property belonging to Yallappa, himself and P.W.1 have lodged a false complaint against accused persons taking advantage of death of Yallappa.
37. P.W.5 to P.W.7 are few more eyewitnesses to the incident. 20
38. They deposed that on the day of the incident, they were in the tea shop situated near bus stand, which is situated about 20 feet away from the place of incident. They saw the accused persons attacking Yallappa. P.W.5 has stated that himself and P.W.4 tried to rescue Yallappa and made him to drink little water, which was not swallowed by Yallappa. P.W.6 stood little away from the place of incident. P.W.5 specifically stated that when P.W.4 tried to rescue Yallappa from the clutches of accused persons, accused No.1 assaulted P.W.4 with M.O.1 on left palm of P.W.4. They also specifically deposed that accused No.3 and 4 were instigating accused No.1 and 2.
39. In their cross-examination, suggestions that they deposed falsely are denied by them.
40. It is pertinent to note that in cross- examination of P.W.6 it was suggested to him that he has stated before the police that he had held accused No.1 and 2 and they pushed him and then they went to 21 assault Yallappa is admitted by P.W.6. Such a suggestion that too in cross-examination, establishes the case of the prosecution that P.W.6 was present at the place of the incident.
41. P.W.8 to P.W.10 are police witnesses and their evidence is formal in nature.
42. P.W.11 is an Engineer, who prepared sketch vide Ex.P.16. He has not been cross-examined.
43. P.W.12 has recorded the statements of P.W.4 to 7 under Section 164 of Cr.P.C. at the request of Police.
44. P.W.13 is the doctor, who conducted postmortem examination. He issued postmortem report- Ex.P.24 and wound certificate-Ex.P.23 pertaining to P.W.4. He identifies M.O.1. He specifically deposed that injuries mentioned in Ex.P.23 and Ex.P.24 could be caused by use of M.O.1.
45. In his cross-examination, it was suggested that injuries mentioned by him in Ex.P.23 and Ex.P.24 22 could not have been caused with M.O.1 is denied by him. Except the suggestions which were denied by him, no other useful material is elicited by defence.
46. P.W.14 is P.S.I., who received Ex.P.1- complaint and registered the case vide Ex.P.13-FIR and conducted Ex.P.6-inquest mahazar. In his cross- examination, nothing worth is elicited to discredit his evidence.
47. Further investigation officer is examined as P.W.15. He deposed regarding spot mahazar-Ex.P.7, seizure of M.O.1 under Ex.P.7, collection of sample mud and bloodstained mud, drawing rough sketch-Ex.P.8, taking of photographs, Ex.P2 to P5, Ex.P.9 and Ex.P.27; recording of statements of P.W.4 to P.W.6.
48. He further deposed about arrest of accused No.1 to 3 in their house at 11.00 p.m. on the same day; recording voluntary statements of accused No.1 and 2, pursuant to seizure of blood stained clothes of accused 23 No.1 & 2 (M.O.10-13) under Ex.P.10 and Ex.P.11- mahazars.
49. He further deposed that on 13.07.2016 he collected the postmortem report as well as the clothes worn by the deceased (M.O.2 to
7) and seized them under Ex.P.12-mahazar. He further deposed that he sent the seized clothes and other articles to FSL examination. He also deposed about handing over further investigation to P.W.17 on account of his transfer.
50. P.W.16 is the scientific officer from Regional Forensic Science Laboratory, who examined the seized clothes and M.O.1 and noticed that the bloodstains found on the articles is that of human region and was of ‘A’ blood group and issued FSL report-Ex.P.28.
51. P.W.17 is the further investigation officer, who recorded the statements of Neelappa, Shivayya, Mallikarjuna, P.H.Tekkalaki, Walikar and J.B.Kamble; collected Ex.P.23-wound certificate, Records of Rights- Ex.P.30, spot sketch-Ex.P.16 and FSL report-Ex.P.28. He 24 had shown the FSL report to P.W.13 and obtained Ex.P.29-FSL seal and filed charge sheet against the accused persons.
52. Defence could not elicit any useful materials in his cross-examination.
53. The above evidence is sought to be re- appreciated by the learned counsel for appellants Sri. K.L.Patil.
54. We have carefully perused the entire material on record, in the light of the arguments advanced by the learned counsel for the appellants and the learned additional State Public Prosecutor.
55. On cumulative consideration of entire material on record, the following admitted points would emerge. (cid:1) The relationship between the accused persons and the deceased is the accused are the nephews of deceased. 25 (cid:1) The deceased and accused persons possessed property to the extent of three acres in Malakanakoppa village as per Ex.P.30-Records of Rights extract. (cid:1) There was a civil dispute pending between the deceased and the accused persons as on the date of the incident in the jurisdictional Court at Kalaghatagi seeking partition of family properties. (cid:1) The elder brother of deceased by name Basappa is no more and left behind five children including accused persons and 5th son Ishwar. (cid:1) The homicidal death of Yallappa on 21.06.2016 as per Ex.P.24-Postmortem report. (cid:1) Blood injury found on the left palm of P.W.4 on the same day of the incident as per Ex.P.23- wound certificate. 26 (cid:1) Dead body of Yallappa laying in the vicinity of bus stand of Malakanakoppa village, vide Ex.P.7-mahazar. (cid:1) There use to be a weekly sandy on every Tuesday at Kalaghatagi and incident has taken place on Tuesday. (cid:1) The fourth accused/Shivappa is permanent resident of Mundgod village.
56. Prime contention of Sri. K. L. Patil is that Yallappa was done to death by somebody else at some other place and his dead body was later brought to the place mentioned in Ex.P.7 so as to make believe that P.W.4 to 7 are eyewitnesses to the incident. According to him, P.W. 4 to 7 are implanted by police to substantiate the false allegations made in Ex.P1.
57. He also argued that P.W.4 had an eye on the property of the deceased and with ulterior motive of grabbing the same, himself, P.W.1, P.W.5 to P.W.7 have 27 hatched a plan to falsely implicate the accused persons taking advantage of the death of Yallappa.
58. Said argument put forward on behalf of appellants should fail for more than one reason.
59. Firstly, it is pertinent to note that the very accused themselves do not offer this explanation while recording the accused statements.
60. Secondly, suggestion put to prosecution witnesses that false complaint is lodged to grab family property is consistently denied by the witnesses. No plausible material is placed to prove such a theory. Moreover when P.W.1 is alive how P.W.4 can grab the property is not explained.
61. Further, trend of cross-examination would depict that the defence at initial stage of trial denied the incident in toto. But it is pertinent to note that in further cross-examination of P.W.6, a suggestion is made as under:
28. “16.AiÀÄ®è¥Àà£À£ÀÄß DgÉÆæUÀ¼ÀÄ ºÉÆqÉzÀgÀÄ CAvÀ ºÉüÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ CAUÀrAiÀÄ°è PÀĽwzÉÝ. £À£Àß eÉÆvÉ ¸ÀĨsÁ±ï ªÀÄrè, zÉøÁ¬Ä EzÀÝgÀÄ. £Á£ÀÄ ºÉÆÃzÀ £ÀAvÀgÀ C.¸Á.4 UÀÄgÀĹzÀÝ¥Àà ¸ÀܼÀPÉÌ §AzÀ, £Á£ÀÄ ¥ÉÆð¸ÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆqÀĪÁUÀ ¤AUÀ¥Àà ªÀÄvÀÄÛ gÁdÄ CAzÀgÉ 1 ªÀÄvÀÄÛ 2 £Éà DgÉÆæUÀ¼ÀÄ £À£ÀߣÀÄß zÀÆr, PÉqÀ« AiÀÄ®è¥Àà£À£ÀÄß ºÉÆqÉAiÀÄ®Ä ºÉÆÃzÀgÀÄ CAvÀ ºÉýzÉÝãÉ.
62. Said suggestion is admitted by P.W.6. Above suggestion by defence in fact strengthens the prosecution case that P.W.4 to 7 were present when accused No.1 and 2 attacked Yallappa.
63. Further, the wound certificate issued by the P.W.13 vide Ex.P.23 clearly shows that in the very same incident, P.W.4 also sustained injury on his left palm when he tried to rescue Yallappa from the clutches of accused No.1 and 2. P.W.4 unequivocally deposed that he sustained injury mentioned in Ex.P.23 from the blow made by the first accused with M.O.1.
64. P.W.4 had seen the incident when he was at his house and after hearing hue and cry, he rushed to the scene of occurrence. P.W.5 to P.W.7 were sitting in the tea shop, which is 20 feet away from the scene of 29 occurrence and they have also rushed to the scene of occurrence soon after they saw accused No.1 and 2 attacking Yallappa.
65. Suggestion made to P.W.4 that injury mentioned in Ex.P.23 is a self inflicted injury is denied by P.W.4.
66. Thus, we can safely infer that P.W.4 to P.W.7 are the chance witnesses. It is also pertinent to note that P.W.4 to 7 did not possess any previous enmity or animosity against the accused persons nor did they possess any affinity towards the complainant. In view of the same, we are of the considered opinion that oral testimony of P.W.4 to 7 is trustworthy and natural. Thus, we have to dismiss the arguments of defence that P.W.4 to 7 are implanted eyewitnesses.
67. Having held thus, it is now task of this Court to find out whether the prosecution is able to establish the culpability of all the accused persons in regard to the charges leveled against them. 30
68. In this matter, having regard to the opinion expressed by the doctor in Ex.P.24 coupled with his oral testimony; seizure of M.O.1 under Ex.P.7 there cannot be dispute as to the homicidal death of Yallappa.
69. The injury found on the neck of Yallappa is sufficient in the ordinary course of nature to cause death. Therefore, we can safely conclude that Yallappa died a homicidal death.
70. It is well established that every homicidal death need not be a murder.
71. In order to conclude that a homicidal death is murder, the prosecution has to necessarily establish that the accused persons possessed intention of causing death. Culpable homicide is murder if the act by which the death caused is done ; (cid:1) with the intention of causing death; or (cid:1) with the intention of causing such bodily injury as the offender knows to be likely 31 to cause the death of the person to whom the harm is caused; or (cid:1) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or (cid:1) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
72. In order to establish the charge under Section 302 of IPC, the prosecution has to necessarily establish beyond all reasonable doubt such ingredients. In this regard, it is worth to quote the relevant portion of judgment of the Hon’ble Apex Court in the case of Rawalpenta Venkalu v. State of Hyderabad, reported in AIR1956SC17 which reads as under:
32. “Merely causing death, by doing an act with the knowledge that is so imminently dangerous that it must, in all probability cause death, is not murder. In order that an act, done with such knowledge, should constitute murder, it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act, done with the knowledge of its consequences, is not prima facie murder, it becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must, in addition, be wholly in inexcusable. When a risk in incurred even a risk of the gravest possible character which must normally result in death, the taking of that risk is not murder unless it was inexcuatble to take it; Emperor v. Dhirajia, AIR1940All 486; Gyarsibai w/o Jagannath v. State, AIR1953MB61” 33 73. In Jai Prakash v. State (Delhi Administration) reported in (1991) 1 Crimes 474 (SC), Hon’ble Apex court held as under: “Intention and knowledge It is fallacious to contend that when death is caused by a single blow, clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient `intention` in that clause gives clue in a given case whether offence involved is murder or not.
74. In yet another decision of Hon’ble Apex court in the case of State of Rajashtan v. Dhool Singh reported in AIR2004SC1264 it is held : “(ii) Legislature had advisedly used the words:
"bodily injury as the offender knows to be likely to cause death". Therefore, from an understanding of the legislative intent of section 300, I.P.C., a culpable homicide becomes murder if the attacker causes an injury which he knows is likely to cause death and, of 34 course, consequent to such injury, the victim should die.
75. In the backdrop of above settled principles, when we analyze the materials on record, it is seen that the accused persons are none other than the nephews of the deceased. It is there on record that there was a civil dispute between the accused persons and the deceased, pending in jurisdictional court at Kalaghatagi in respect of partition of family properties.
76. Though not in so many words, P.W.1 has answered in her cross-examination to a suggestion that the pending suit is decreed, is the reason for the accused persons to take away the life of her husband. P.W.1 is a rustic lady from a village. Her answer as above to the suggestion of defence in the cross-examination on careful appreciation can be safely inferred as the motive for incident.
77. The presence of accused persons at the spot is unequivocally spoken to by P.W.4 to 7. According to 35 P.W.4 to 7, accused persons came to the spot when Yallappa was near the bus stand of Malakanakoppa village as is shown in Ex.P.7 and Ex.P.8 and all of a sudden assaulted Yallappa. Hearing the hue and cry, P.W.4 came from his house to the spot. P.W.5 to 7, who were sitting in the tea shop, situated about 20 – 30 feet away from the spot of incident also rushed to the spot. They found that Yallappa had fallen down with a cut injury on his neck. P.W.4 and 5 tried to feed water to Yallappa but he spitted it out. It is an unequivocal say of P.W.4 to 7 that the first accused again assaulted Yallappa with M.O.1 and when P.W.4 tried to rescue him, he also sustained injury on his left palm as is found in Ex.P.23.
78. In the absence of any previous enmity between P.W.4 to 7 and the accused persons, their testimony as to the alleged incident has to be accepted as true version. 36
79. However, Sri. Patil pointed out to Ex.P.24- postmortem report, in which the autopsy surgeon, P.W.13 has noted three injuries. As such, version of P.W.4 to 7 that second attack made by the first accused is not proved. But, in our considered opinion, presence of only three injuries itself would not be sufficient to disbelieve the version of P.W.4 to 7.
80. The second accused has also assaulted Yallappa and kicked him even in the second attack. The injury is on the neck, which is a vital part of the body and M.O.1 being a sharp edged object, which is used in the incident is sufficient enough to infer that accused No.1 and 2 had come prepared to take away the life of Yallappa on the day of the incident and the prosecution has proved the nexus between the injury found on the neck of deceased and the seizure of M.O.1 under Ex.P.7. Therefore, there is no hesitation for us to hold that the prosecution has proved the preparation and commission of offence, which are two more ingredients to attract the offence of murder. 37
81. The fact that soon after the arrest of accused No.1 to 3 by P.W.15 on the same day of the incident at about 11.00 p.m. in their house is not disputed by the defence. FSL report-Ex.P.28 clearly shows that the bloodstains were found on the clothes of accused No.1 and 2, which are marked vide M.O.10 to 13. No explanation is offered as to how blood stains were found on clothes (M.O.10-13) worn by accused.
82. The presence of bloodstains on the clothes worn by accused No.1 and 2, which were seized from them in the police station under Ex.P.10 and 11 mahazars, P.W.2 being an independent witness having supported the case of the prosecution and spoken about the seizure of M.O.10 to 13 under Ex.P.10 and 11 not only establishes the presence of accused No.1 and 2 but also their involvement in the incident. The prosecution also gets corroboration from the postmortem report marked at Ex.P.24. 38
83. All these factors when viewed cumulatively, there is no hesitation for us to hold that it is accused No.1 and 2 who attacked Yallappa and accused No.1 assaulted with M.O.1 on the neck of Yallappa and a second attack was made by them when P.W.4 and 5 tried to rescue Yallappa from the clutches of accused No.1 and 2. The specific overt act attributed to accused No.2 is that he kicked Yallappa.
84. But, insofar as accused No.3 and 4 are concerned, even though P.W.4 to 7 have unequivocally deposed that they were also present at the time incident and instigated accused No.1 and 2, having regard to admission of P.W.1 that accused No.4 is permanent resident of Mundgod village and no bloodstains are found on the clothes of accused No.3, who was also arrested along with accused No.1 and 2, raises sufficient doubt about their presence. In this regard, when contents of Ex.P.1 are perused carefully, in the body of the complaint, there is no mention about the presence of 39 accused No.3 and 4. But in the last line there is an insertion, which reads as under: “C®èzÉ ¸ÀzÀjAiÀĪÀj§âgÀÄ
1) §¸À¥Àà §¸ÀªÀuÉÚ¥Àà Dr£À
2) ²ªÀ¥Àà Dr£À EªÀgÀ PÀĪÀÄäQ̤AzÀ PÉÆ¯É ªÀiÁrzÀÄÝ EgÀÄvÀÛzÉ.
85. If at all P.W.4 had narrated the presence of accused No.3 and 4 and the instigation made by them, what prevented the author of Ex.P.1 to name all accused persons in the beginning sentence of Ex.P.1, is not explained by prosecution. The evidence on record is also not consistent as to the alleged abatement or instigation either. Scribe of Ex.P.1 is not cited and examined by prosecution. The investigation officer did not chose to make further investigation as to the presence of accused No.4 in the incident, especially when he is a permanent resident of Mundgod village. No mobile telephone call records are obtained. His arrest is also after a long gap. The mentioning name of accused No.3 and 4 in the last line of Ex.P.1, thus appears to be unnatural and an insertion as an after thought. Such a reasonable doubt in 40 prosecution case should enure to the benefit of defence. In the absence of such cogent and clinching evidence on record as to the presence of accused No.3 and 4 at the spot of incident, we are unable to accept the finding recorded by the Court below as to the involvement of accused No.3 and 4 in the incident by resorting Section 34 of IPC. Therefore, to that extent, the judgment of the Trial Court needs interference.
86. Whenever prosecution invokes Section 34 of IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- “(i) there was common intention on the part of several persons to commit a particular crime and ii) the crime was actually committed by them in furtherance of that common intention.
87. The essence of liability under Section 34 IPC thus can be summarized as simultaneous conscious 41 mind of persons participating in the criminal action to bring about a particular result by a pre-arranged plan and acting in concert pursuant to it.
88. In this regard, we place reliance on the decision of Hon’ble Supreme Court in the case of Suresh v. State of U.P., reported in (2001) 3 SCC673 The relevant portion is culled out hereunder : “39. The dominant feature for attracting Section 34 of the Penal Code, 1860 (hereinafter referred to as “the Code”) is the element of participation in absence resulting in the ultimate “criminal act”. The “act” referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused 42 persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of 43 constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor [AIR1919Pat 111 :
20. Cri LJ289 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.
41. …… 42. The classic case on the subject is the judgment of the Privy Council in Mahbub Shah v. Emperor [AIR1945PC118:
46. Cri LJ689 . Referring to Section 34 prior to its amendment in 1870 wherein it was provided 44 “when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone” It was noticed that by amendment, the words “in furtherance of common intention of all” were inserted after the word “persons” and before the word “each” so as to make the object of the section clear. Dealing with the scope of the section, as it exists today, it was held: “Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intentions of all’ nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 45 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.” (emphasis supplied) 43. …… 46 44. Approving the judgments of the Privy Council in Barendra Kumar Ghosh [AIR1925PC1:
26. Cri LJ431:
52. Cal 197]. and Mahbub Shah [AIR1945PC118:
46. Cri LJ689 cases a three-Judge Bench of this Court in Pandurang v. State of Hyderabad [AIR1955SC216:
1955. Cri LJ572 held that to attract the applicability of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a prearranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, 47 the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. Common intention, arising at any time prior to the criminal act, as contemplated under Section 48 34 of the Code, can thus be proved by circumstantial evidence.
45. …… 46. This Court again in Tukaram Ganpat Pandare v. State of Maharashtra [(1974) 4 SCC544:
1974. SCC (Cri) 580 : AIR1974SC514 reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. “Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.” (SCC p. 547, para
10) 48. to 50. ……… 51. In Krishnan v. State of Kerala [(1996) 10 SCC508:
1996. SCC (Cri) 1375 : JT (1996) 7 SC49613]. this Court even assuming that one of the appellants had not caused the injury to the deceased, upheld his conviction under Sections 302/34 of the Penal Code holding: (SCC p. 515, para
15) “15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service Section 34 of the Penal Code. It is no doubt true that the court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. Question is whether an overt act is always to be established?. I am of the view that establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this section gets attracted when ‘a criminal act is done by several persons in furtherance of the common intention of all’. What has to be, therefore, established by the prosecution is that all the persons concerned had shared the common intention. Court's mind 50 regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.
89. In a recent pronouncement in the case of Asif Khan v. State of Maharashtra, reported in (2019) 5 SCC210 Hon’ble Apex Court has held as under: “22. The Constitution Bench of this Court in Mohan Singh v. State of Punjab [Mohan Singh v. State of Punjab, AIR1963SC174: (1963) 1 Cri LJ100 had again reiterated the ingredients of Section 34. The Constitution Bench has also relied on and approved the Privy Council judgment in Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC5: (1944-45) 72 IA148: AIR1945PC118 noticing the essential constituents of vicarious liability under Section 51 34, Gajendragadkar, J.
speaking for the Bench, laid down the following in para 13: (Mohan Singh case [Mohan Singh v. State of Punjab, AIR1963SC174: (1963) 1 Cri LJ100 , AIR pp. 180-81) “13. … The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they 52 may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in- concert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor [Mahbub Shah v. King Emperor, 1945 SCC OnLine PC5: (1944-45) 72 IA148: AIR531945 PC118 common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
90. Keeping in view the above well established principles of law, when we analyze the materials on record, we find that the Trial Court in convicting accused No.3 and 4 by resorting section 34 of IPC cannot be countenanced in law in view of our discussion as to their presence at the spot on the day of incident.
91. Sri. K. L. Patil, submitted that even according to the prosecution, the specific over act i.e. attributed to the second accused is that he assaulted and kicked Yallappa on the day of the incident and therefore, 54 convicting accused No.2 for the offence punishable under Section 302 of IPC is erroneous and needs interference.
92. While appreciating the above argument we notice that accused No.2 kicked the deceased when accused No.1 was assaulting Yallappa with M.O.1 for the second time is proved by oral testimony of P.W.4 to 7. If accused No.2 did not share common intention, either he would have kept quiet or he would have gone away from the spot. Instead he also kicked the deceased even in second attack. The action of accused No.2 in kicking the deceased would be sufficient enough to infer that he has also common intention to take away the life of the deceased.
93. In this regard, it is worth to rely upon a decision of Hon’ble Apex Court in the case of Ramesh Singh alias photti v. State of A.P., (2004) 11 SCC305 where in it is held as under:- “12. … As a general principle in a case of criminal liability it is the primary responsibility of the person 55 who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from 56 the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC696
13. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed 57 would certainly be one of the important factor to be taken into consideration but should not be taken to be the sole factor.
14. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.
94. Applying the legal principles enunciated in the above case to case on hand and analyse the material on record, admittedly accused No.2 is the brother of accused No.1 and when accused No.1 was assaulting 58 Yallappa with M.O.l on his neck, the accused No.2 assaulted Yallappa and during the second attack he kicked Yallappa. In the present case the assault and kick made by accused No.2 cannot be treated in isolation with the attack made by accused No.1 to deceased with M.O.1. Thus, we can safely infer that he also shared common intention of taking away the life of Yallappa.
95. Hence, the argument advanced by Sri. Patil that accused No.2 is wrongly convicted by the Trial Court for the offence under Section 302 of IPC cannot be countenanced in law.
96. We noticed that in the impugned judgment, no order is passed regarding payment of compensation to Smt. Yallavva, wife of deceased-Yallappa as contemplated under Section 357 of Cr.P.C. The Trial Court has ordered fine of Rs.25,000/- each payable by accused No.1 and 2. Since the fine amount ordered by the Trial Court may not suit to award adequate compensation to Smt. Yallavva, we deem it appropriate that Smt. Yallavva be directed to 59 approach the District Legal Services Authority, Dharwad with an application seeking adequate compensation.
97. If such an application is filed, the District Legal Services Authority, Dharwad shall consider the same in accordance with law and allow the appropriate compensation.
98. In view of the foregoing discussions, the points are answered accordingly and the following order is passed.
ORDERThe appeal is allowed in part. The order of conviction passed against accused No.1 and 2 for the offences punishable under Section 302, 324, 504 read with 34 of IPC and the sentence passed thereon by the Principal District and Sessions Judge, Dharwad, in S.C.No.131/2016 is confirmed. 60 Accused No.3 and 4 are acquitted of the offences under Section 302, 324, 504 read with 34 of IPC. Accused No.3 and 4 were granted bail by this Court on 27.09.2018 and their bail bonds stands discharged. Fine amount, if any, paid by accused No.3 and 4 shall be refunded to them. Sd/- JUDGE Sd/- JUDGE yan