IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.838 OF 2013 C/W CRIMINAL APPEAL NOS.839 OF 2013 & 789 OF 2013 IN CRIMINAL APPEAL NO.838 OF 2013 BETWEEN:
SRI. YARRISWAMY SON OF GANGANNA AGED ABOUT 41 YEARS RESIDING AT BOMMADEVARAHALLI MOLAKALMURU TALUK-577 540 CHITRADURGA DISTRICT. ... APPELLANT (BY SRI. KEMPEGOWDA C.M., ADVOCATE) AND:
1. SRI. HANUMANTHA SON OF VADDLAGANGAPPA AGED ABOUT 45 YEARS 2. SRI. JAYADEVA SON OF HOTTE GANGANNA AGED ABOUT 40 YEARS 3. SRI. LINGARAJ SON OF KAJJI NINGAPPA AGED ABOUT 40 YEARS 4. SRI. LAKSHMANA SON OF LAKKLAHALLI PEDDAIAH AGED ABOUT 45 YEARS 5. SRI. NAGARAJ SON OF BOMMALINGAPPA AGED ABOUT 27 YEARS 6. SRI. DEVENDRA SON OF LAKKLAHALLI PEDDAIAH AGED ABOUT 40 YEARS.
7. SRI. KADANNA SON OF HONNURAPPA AGED ABOUT 45 YEARS 8. SRI. D. HANUMANTHAPPA SON OF LAKKLAHALLI DEVANNA @ PEDDAIAH AGED ABOUT 40 YEARS 9. SRI. BANGARI SON OF P.P. LINGANNA AGED ABOUT 33 YEARS 10. SRI. KAJJI NINGAPPA @ KAJJI LINGANNA SON OF KATAPPA AGED ABOUT 70 YEARS 11. SMT. YARRALINGAMMA WIFE OF HANUMANTHAPPA AGED ABOUT 45 YEARS 12. SMT. JAYALAKSHMI WIFE OF JAYADEVAPPA AGED ABOUT 30 YEARS 13. SMT. NAGAMMA WIFE OF KADAPPA AGED ABOUT 35 YEARS 14. SRI. LINGANNA SON OF GANGANNA AGED ABOUT 40 YEARS ALL ARE AGRICULTURISTS AND RESIDING AT BOMMADEVARAHALLI VILLAGE MOLAKALMURU TALUK-577 540 CHITRADURGA DISTRICT.
15. STATE OF KARNATAKA BY RAMPURA POLICE STATION MOLAKALMURU CIRCLE CHITRADURGA DISTRICT.
BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING COMPLEX HIGH COURT OF KARNATAKA BENGALURU-560 001. ... RESPONDENTS (BY SRI. N. SRINIVAS, ADVOCATE FOR RESPONDENTS 1 TO 14 SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II FOR RESPONDENT No.15) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER DATED 09/12.07.2013 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SESSIONS CASE NO.8/2008 - ACQUITTING THE RESPONDENT Nos.1, 2, 4, 5, 7 TO 16/ ACCUSED NOS.1 TO 14 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 149 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.839 OF 2013 BETWEEN:
SMT. MALLIYAMMA WIFE OF YARRISWAMY AGED ABOUT 35 YEARS RESIDING AT BOMMADEVARAHALLI MOLAKALMURU TALUK-577 540 CHITRADURGA DISTRICT. ... APPELLANT (BY SRI. KEMPEGOWDA C.M., ADVOCATE) AND:
1. SRI. HANUMANTHA SON OF VADDLAGANGAPPA AGED ABOUT 45 YEARS 2. SRI. JAYADEVA SON OF HOTTE GANGANNA AGED ABOUT 40 YEARS 3. SRI. LINGARAJ SON OF KAJJI NINGAPPA AGED ABOUT 40 YEARS 4. SRI. LAKSHMANA SON OF LAKKLAHALLI PEDDAIAH AGED ABOUT 45 YEARS 5. SRI. NAGARAJ SON OF BOMMALINGAPPA AGED ABOUT 27 YEARS 6. SRI. DEVENDRA SON OF LAKKLAHALLI PEDDAIAH AGED ABOUT 40 YEARS.
7. SRI. KADANNA SON OF HONNURAPPA AGED ABOUT 45 YEARS 8. SRI. D. HANUMANTHAPPA SON OF LAKKLAHALLI DEVANNA @ PEDDAIAH AGED ABOUT 40 YEARS 9. SRI. BANGARI SON OF P.P. LINGANNA AGED ABOUT 33 YEARS 10. SRI. KAJJI NINGAPPA @ KAJJI LINGANNA SON OF KATAPPA AGED ABOUT 70 YEARS 11. SMT. YARRALINGAMMA WIFE OF HANUMANTHAPPA AGED ABOUT 45 YEARS 12. SMT. JAYALAKSHMI WIFE OF JAYADEVAPPA AGED ABOUT 30 YEARS 13. SMT. NAGAMMA WIFE OF KADAPPA AGED ABOUT 35 YEARS 14. SRI. LINGANNA SON OF GANGANNA AGED ABOUT 40 YEARS ALL ARE AGRICULTURISTS AND RESIDING AT BOMMADEVARAHALLI VILLAGE MOLAKALMURU TALUK-577 540 CHITRADURGA DISTRICT.
15. STATE OF KARNATAKA BY RAMPURA POLICE STATION MOLAKALMURU CIRCLE CHITRADURGA DISTRICT.
BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING COMPLEX HIGH COURT OF KARNATAKA BENGALURU-560 001. ... RESPONDENTS (BY SRI. N. SRINIVAS, ADVOCATE FOR RESPONDENTS 1 TO 14, SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II FOR RESPONDENT NO.15) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CRIMINAL PROCEDURE CODE PRAYING TO ENHANCE THE SENTENCE AND FINE IMPOSED IN ORDER DATED 9/12.07.2013 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SESSIONS CASE No.8/2008 AGAINST THE ACCUSED Nos.1, 2, 4, 5, 7 TO 16/ RESPONDENT Nos.1 TO 14 FOR THE OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148, 324, 323, 324, 304-II READ WITH SECTION 149 OF INDIAN PENAL CODE AND ETC., IN CRIMINAL APPEAL NO.789 OF 2013 BETWEEN:
1. SRI. HANUMANTHA SON OF VADDLAGANGAPPA NOW AGED ABOUT 44 YEARS 2. SRI. JAYADEVA SON OF HOTTE GANGANNA NOW AGED ABOUT 39 YEARS 3. SRI. LINGARAJA SON OF KAJJI NINGAPPA NOW AGED ABOUT 39 YEARS 4. SRI. LAKSHMANA SON OF LAKKLAHALLI PEDDAIAH NOW AGED ABOUT 44 YEARS 5. SRI. NAGARAJ SON OF BOMMALINGAPPA NOW AGED ABOUT 26 YEARS 6. SRI. DEVENDRA SON OF LAKKLAHALLI PEDDAIAH NOW AGED ABOUT 39 YEARS.
7. SRI. KADANNA SON OF HONNURAPPA NOW AGED ABOUT 44 YEARS 8. SRI. D. HANUMANTHAPPA SON OF LAKKLAHALLI DEVANNA NOW AGED ABOUT 39 YEARS 9. SRI. BANGARI SON OF P.P. LINGANNA NOW AGED ABOUT 32 YEARS 10. SRI. KAJJI NINGAPPA @ KAJJI LINGAPPA SON OF KATAPPA NOW AGED ABOUT 69 YEARS 11. SMT. YARRALINGAMMA WIFE OF HANUMANTHAPPA NOW AGED ABOUT 44 YEARS OCCUPATION: HOUSEHOLD WORK 12. SMT. JAYALAKSHMI WIFE OF JAYADEVAPPA NOW AGED ABOUT 29 YEARS OCCUPATION: HOUSEHOLD WORK 13. SMT. NAGAMMA WIFE OF KADAPPA NOW AGED ABOUT 34 YEARS OCCUPATION: HOUSEHOLD WORK 14. SRI. LINGANNA SON OF GANGANNA NOW AGED ABOUT 39 YEARS OCCUPATION: APPELLANT NOS.1 TO 11 AND 14 ARE AGRICULTURISTS ALL ARE RESIDING AT BOMMADEVARAHALLI VILLAGE MOLAKALMURU TALUK CHITRADURGA DISTRICT-577 501.
... APPELLANTS (BY SRI. N. SRINIVAS, ADVOCATE) AND:
STATE OF KARNATAKA BY RAMPURA POLICE STATION MOLAKALMURU CIRCLE CHITRADURGA DISTRICT-577 501. ... RESPONDENT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER DATED 09/12.07.2013 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SESSIONS CASE No.8/2008 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 304 PART-II, 324, 323 OF INDIAN PENAL CODE AND ETC., THESE CRIMINAL APPEALS HAVING BEEN RESERVED FOR JUDGMENT ON 27.08.2019, THIS DAY, H.P.SANDESH, J., PRONOUNCED THE FOLLOWING:
JUDGMENT These appeals are filed challenging the judgment and order dated 9.7.2013 passed in S.C.No.8/2008 on the file of Additional District and Sessions Judge, Chitradurga.
2. Crl.A.No.838/2013 is filed by P.W.1 against respondents 1 to 14/accused Nos.1, 2, 4, 5, 7 to 16 and respondent No.15/State, praying to set aside the order of acquittal and to convict respondents 1 to 14 for the offence punishable under Section 302 of Indian Penal Code.
3. Crl.A.No.839/2013 is filed by P.W.12 against respondents 1 to 14/accused Nos.1, 2, 4, 5, 7 to 16 and respondent No.15/State, praying to enhance the sentence of imprisonment and fine imposed by trial Court against respondents 1 to 14 for the offences punishable under Sections 143, 147, 148, 323, 324, 304-II r/w Section 149 Indian Penal Code.
4. Crl.A.No.789/2013 is filed by accused Nos.1, 2, 4, 5, 7 to 16 against the State challenging the judgment and order of conviction and sentence passed against them.
5. Brief facts of the case are:
It is the case of the prosecution that on 15.4.2007 around 5.00 p.m. one Hanumantha and 15 others formed an unlawful assembly armed with deadly weapons like clubs and stones assaulted the complainant-Yarriswamy, his father-Gangappa and wife Malliyamma and also C.W.16- Ramanna in the Grama Panchayath property situated by the side of Bommalingeshwara temple. It is further alleged that his wife Malliyamma is a sitting member of Molakalmuru Taluk Panchayath. The Zilla Panchayath had sanctioned amount for construction of ‘Kala Mandira’ in Bommadevarahally, since it was decided to construct ‘Kala Mandira’ in the Grama Panchayath property situated by the side of Bommalingeshwara temple, that a portion measuring 10x7’ of Grama Panchayath property was encroached by one Kajji Ningappa (accused No.12). Himself, his father and wife had been to the said property to request Kajji Ningappa to vacate the encroached portion and at that time, galata took place, as a result, father of the complainant succumbed to the injuries at the spot. The complainant, his wife and brother have also sustained injuries in the incident. Accordingly, the complaint came to be lodged.
The complainant who has been examined as P.W.1 before the Court below gave the written complaint and based on the said complaint, P.W.13-PSI has registered the case in crime No.24/2007 for the offences punishable under Sections 143, 147, 148, 323, 324, 302 r/w Section 149 of Indian Penal Code and sent the FIR to the concerned Magistrate, Molakalmuru and also to higher officers. Thereafter, P.Ws.16 and 18, the Investigating Officers have conducted further investigation of the case. Mahazar of the spot was drawn, inquest was conducted, statement of witnesses was recorded and accused persons were apprehended and produced before the Court. P.W.18-Investigating Officer after completion of investigation, has filed the charge sheet for the offences punishable under Sections 143, 147, 148, 323, 324, 302 r/w Section 149 of Indian Penal Code.
Thereafter, the case was committed to the Sessions Court and accused persons were secured. Since they did not plead guilty and claimed to be tried, the prosecution has examined P.Ws.1 to 18 and got marked Exs.P1 to P19 and also got marked M.Os.1 to 13. After closure of prosecution side, accused were examined under Section 313 of Cr.P.C. All of them have denied the incriminating circumstances and also did not choose to lead any defence evidence. However, accused No.1 during his examination under Section 313 of Cr.P.C. orally submitted that with regard to construction of Kala Mandira, injured P.W.1, deceased Gangappa, P.W.12 and C.W.16 Ramanna came and demolished the shed and assaulted them.
The Court below, after closure of evidence, heard the arguments of both sides and convicted accused Nos.1 and 2 for the offence punishable under Section 304 part II of Indian Penal Code. Accused Nos.4 and 5 were convicted for the offence punishable under Section 324 of Indian Penal Code. Accused Nos.7 to 16 were convicted for the offence punishable under Sections 323 of Indian Penal Code. All the accused were convicted for the offences punishable under Sections 143, 147, 148 read with Section 149 of Indian Penal Code.
6. Being aggrieved by the judgment of conviction and sentence, accused Nos.1, 2, 4, 5, 7 to 16 have filed Crl.A.No.789/2013. The grounds urged in this appeal are that the Court below has committed an error in accepting the complaint Ex.P1. Though the incident has taken place at 5.00 p.m., the witnesses who have been examined as P.Ws.3, 10 and 12 have stated that incident has taken place at 4.30 p.m. The police were present at the place of incident at 5.30 p.m. The typed copy of the complaint came to be lodged at 8.00 p.m. According to P.W.1, he got typed the complaint in the police station itself. On the contrary, P.W.13 – PSI, has categorically stated that Ex.P1 complaint was not prepared in the police station. In terms of Ex.P1, the complainant has contended that accused No.12 has encroached on the village panchayath property to an extent of 10x7’ by erecting stone pillars for cattle shed. However, P.Ws.1, 7, 10 and 12 admit that accused No.4 was enjoying the said property, for which, P.Ws.1 and 8 have deposed that a notice to evict him was under process. Such being the case, the complainant and his party tried to vacate the accused from the said place in order to build Kala Mandir, as a result, quarrel had taken place. Hence, the complainant and others who made an attempt to remove the shed are the aggressors.
It is further alleged that, according to P.Ws.3, 13 and 16, the incident in question was a group clash between the parties. As such, if the evidence of P.Ws.1, 10 and 12 are examined in the light of P.Ws.3, 13 and 16, the same casts a doubt as they could not have stated specific overt acts. P.Ws.1, 10 and 12 are highly interested witnesses. There are material discrepancies in the prosecution version with respect to use of weapons M.Os.1 to 4, 12 and 13. Planting of M.Os.12 and 13 ie., sickle and bachi (agricultural instrument) in the case creates doubt on the case of the prosecution since there is no mention about M.Os.12 and 13 in the complaint, which were recovered at the instance of voluntary statement of accused No.1 vide Ex.P9.
The ocular evidence of prosecution witnesses does not fit into the medical evidence on record. The Doctor P.W.17 who conducted post mortem in terms of Ex.P15 held that injury No.1 was fatal and other injuries were simple. Injury No.1 was found at lumbar region which finds place between two eyebrows. The prosecution has not placed any material to show how the said injury was caused on the deceased and which of the accused with what weapon have caused the said fatal injury.
P.Ws.1, 10 and 12 contends that accused Nos.1 to 6 have assaulted using M.Os.1 to 4, 12 and 13. M.Os.1 and 2 stones were used by accused Nos.2, 4, 5, 6 and 9. But no specific evidence has been led to indicate which of the M.O. was used by which of the accused. M.Os.3 and 4 are clubs alleged to have been used by all the accused and hence, it casts a serious doubt on the participation of the accused. It is contended that accused Nos.3, 13, 14 and 15 have sustained injuries vide Ex.D series and P.Ws.1, 3, 10 and 12 have suppressed the said fact and have categorically contended that accused have not sustained the injuries. Further, prosecution has not chosen to examine independent witnesses to the incident.
The accused persons are having dwelling house adjoining the place of incident, particularly, accused Nos.4 and 12 are having right to defend/protect themselves and that they could not have been over thrown by dispossessing them illegally. Thus, the act of the accused is covered under Sections 97 and 98 of Indian Penal Code as they have not exceeded their rights and more so, when accused were found very much in their dwelling house, complainant and his persons went and raised quarrel and assaulted the accused, which is proved by Ex.D series.
The prosecution witnesses who have been examined have stated that there was push and pull among the crowd as many persons assembled in the place of incident, which would create doubt on accused persons participating in the incident. Accordingly, on these grounds, prayed the Court to set aside the judgment of conviction and sentence.
7. Learned counsel for the appellants also in his arguments vehemently contended that the death of complainant’s father was on account of head injury and medical evidence does not corroborate the case of prosecution. The Court below has committed an error in relying upon the evidence of P.Ws.1, 10 and 12. Ex.P2 spot mahazar was drawn and four stones and two clubs were seized at the spot. The alleged recovery of axe at the instance of accused No.1 is doubtful since there is no mention in the complaint with regard to using of sickle and bachi (agricultural instrument). The very appreciation of the evidence of the trial Court is erroneous and it has failed to take note of the fact that the injured persons are the interested witnesses and none of the independent witnesses have supported the case of the prosecution.
8. In Crl.A.No.838/2013 injured P.W.1 i.e., the complainant has challenged the judgment of conviction passed by the trial Court against the accused persons in bringing the case within the purview of Section 304 part II of Indian Penal Code instead of Section 302 of Indian Penal Code and has prayed to convict accused Nos.1, 2, 4, 5, 7 to 16 for the offence punishable under Section 302 r/w Section 149 of Indian Penal Code.
In the grounds of appeal it is contended that though there is positive and conclusive evidence of P.Ws.1 to 7 and 10 to 18, the Court below has not considered the evidence in right perspective particularly, the evidence of P.Ws.1 and 12 who are injured witnesses. P.Ws.4, 10 and 15 are the independent eyewitnesses to the incident and they have specifically stated that respondents 1 to 14 herein are responsible for causing injuries to P.Ws.1 and 12 and also committing the murder of the deceased. The Court below has committed an error in acquitting the other accused persons and also in bringing the accused persons Nos.1 and 2 herein within the purview of Section 304 part II of Indian Penal Code. Hence, it is a fit case to convict the accused persons for the offence punishable under Section 302 of Indian Penal Code.
9. In Crl.A.No.839/2013, P.W.12, who is the wife of the complainant, has contended that the Court below has committed an error in not appreciating the prosecution evidence and erroneously acquitted the accused persons for the offence punishable under Section 302 of Indian Penal Code and instead, it has only convicted accused Nos.1 and 2 for the offence punishable under Section 304 part II of Indian Penal Code. The very approach of the trial Court is erroneous. In this appeal also, the appellant has prayed this Court to enhance the sentence of imprisonment and fine imposed by the Court below against the accused persons for the offences punishable under Sections 143, 147, 148, 323, 324, 304 part II r/w Section 149 of Indian Penal Code.
10. The learned counsel appearing for the appellants/P.Ws.1 and 12 in both the appeals would submit that P.Ws.1 and 12 are the injured witnesses and apart from that, the prosecution has relied upon the evidence of P.W.10, eyewitness who has supported the case of the prosecution. The other witnesses P.Ws.3, 4 and 15 though have turned hostile to some extent, have categorically deposed that the accused persons were present at the spot and as a result of the incident, P.Ws.1 and 12 have sustained injuries and injured Ganganna has succumbed to the injuries at the spot. It is their further contention that in the cross-examination, the witnesses have admitted the rivalry between the complainant’s family and the accused persons. P.W.12, who is the wife of P.W.1 was the Gram Panchayath member and the Court below while bringing the accused within the purview of Section 304 part II of Indian Penal Code, has erroneously come to the conclusion that other accused persons have not shared common object in committing the murder and the very approach of the trial Court is erroneous.
11. Having heard the arguments of the learned counsel appearing for injured P.Ws.1 and 12 and also the learned counsel appearing for the accused persons and on perusal of both oral and documentary evidence available on record, the points that would arise for our consideration are:
(i) Whether the Court below has committed an error in not convicting accused persons for the offence punishable under Section 302 r/w Section 149 of Indian Penal Code?
(ii) Whether the Court below has committed an error in convicting accused Nos.1 and 2 for the offence punishable under Section 304 part II of Indian Penal Code, accused Nos.4 and 5 for the offence punishable under Section 324 of Indian Penal Code and accused Nos.7 to 16 for the offence punishable under Section 323 of Indian Penal Code and so also, in brining all the accused persons within the purview of Sections 143, 147 and 148 of Indian Penal Code?
(iii) Whether the sentence of imprisonment imposed by the trial Court for the offences punishable under Sections 143, 147, 148, 323, 324 and 304 part II of Indian Penal Code requires enhancement?
(iv) What order?
12. The main contention of the accused persons in Criminal Appeal No.789 of 2013 is that the Court did not appreciate the material available on record and the witnesses who have been examined by the prosecution are interested witnesses. The other independent witnesses who have been examined also have not supported the case in entirety and the persons who have been examined as independent witnesses were also having enmity against the accused persons. Hence, the evidence has not been appreciated in a right perspective.
13. The appellants, who are the injured persons, i.e., PW1 and PW12, in their separate appeals, have contended that the Court below has committed an error in not convicting all the accused persons for the offences punishable under Section 302 read with Section 149 of Indian Penal Code. Instead, convicted only accused Nos.1 and 2 for the offence punishable under Section 304 Part-II of Indian Penal Code. The other accused persons have been convicted only for the offences punishable under Sections 143, 147, 148, 323 and 324 read with Section 149 of Indian Penal Code. The very approach of the Trial Court is very erroneous and hence the same has to be set aside and all the accused persons have to be convicted for the offence punishable under Section 302 read with Section 149 of Indian Penal Code. In keeping the contentions urged in all the three appeals, this Court has to re-appreciate the evidence available on record.
14. The prosecution mainly relies on the evidence of PWs.1, 10 and 12 i.e., the complainant/injured, eyewitness and the injured witness. In support of their cases they have also got marked the wound certificates at Ex.P16 to Ex.P18. The prosecution also relied upon the evidence of the doctor, who has been examined as PW17 both in respect of conducting the post mortem as well as examining the PWs.1 and 12 and so also CW16, who has not been examined before the Court regarding the injuries sustained by him.
15. The prosecution also relies on the evidence of PWs.3, 4 and 5 – eyewitnesses. The witnesses have partly turned hostile, but they have spoken with regard to the presence of the accused persons at the spot and also injuries sustained by PWs.1, 12 and CW16. But they state that they came to the spot immediately after the incident.
16. The prosecution also relied upon Ex.P.19, report of the FSL Officer. It discloses that the officer conducted the examination of the seized articles, which were sent to him and found ‘O’ group blood on the said articles.
17. The prosecution also relied on the evidence of PW13, who went to the spot, received the complaint and registered the FIR and sent the FIR to the Court through PW14. PWs.16 and 18 are the Investigating Officers who have conducted the investigation in the case. The prosecution also examined recovery witness-PW11 with regard to seizure of club and bachi (agricultural instruments) stating that the same was seized at the instance of the accused No.1.
18. PW6 is the spot mahazar witness, who is the signatory to the spot mahazar which is marked as Ex.P2. The prosecution also relied upon other witnesses and those witnesses are formal witnesses and the evidence of formal witnesses is not material with regard to consider the case on hand and some of them have turned hostile, i.e., PWs.8, 9 and 15.
19. Now let us see the evidence of PW1. PW1 in his evidence states that accused Nos.4 and 12 have encroached the site which was reserved for construction of Kala Mandira. Hence, he along with his wife, brother and father went and told accused Nos.4 and 12 to remove the encroachment and they refused to remove the same. By that time, the other accused persons came with deadly weapons holding club, stone and sickle. Accused No.1 assaulted his father with club on his head and accused No.2 assaulted with stone on right portion of the head. As a result of the same, his father fell down and died on the spot. Accused No.3 assaulted on his head with club and accused No.2 assaulted him with stone on his left hand middle finger. It is also evidence that accused No.1 assaulted his wife with bachi and accused Nos.2, 4 and 5 assaulted his wife with stone and also kicked her with their legs. Accused No.2 was holding CW16 and accused No.6 assaulted with stone. As a result, CW16 sustained injuries and fell on the ground. The other accused persons assaulted them with stone and small wooden sticks. PWs.3, 6, 10, 15 and 18 came and pacified the galata. The weapons which were used were lying on the spot and the police came and collected his complaint and mahazar was drawn in terms at Ex.P2. He also identified the MOs. In the cross-examination it is elicited that accused Nos.4 and 12 were using the said place as shelter to cattle for the last 4- 5 years. The incident had taken place for a period of 10-15 minutes. At the time of incident, only accused persons and they themselves were there at the spot. He also admits that there was a counter case. He was the first accused in the said case. One Ninganna had given the complaint.
20. The other injured witness is PW12, who is none other than the wife of PW1. PW12 also reiterated the evidence of PW1 in her chief evidence. In the cross- examination, she also admits that for the last 3-4 years the accused Nos.4 and 12 were using the said place as shelter to the cattle. PW12 also admits that if there are any encroachment, the same has to be cleared in accordance with law. She states that she cannot tell at what time the police came to the spot but it may be around 6.00 p.m. and she was an inpatient in Danamma Hospital for a period of 10-15 days and thereafter for a period of 5 days.
21. PW10 in his evidence also reiterated the evidence of PWs.1 and 12. The overt act of each of the accused has been stated by PW10 and also states that PWs.1, 12 and CW16 also sustained injuries. Accused persons were having deadly weapons like club, sticks, bachi and stones. In the cross-examination, it is elicited that before the incident, no talks were held between the two groups. He states that he did not interfere and pacify the incident. He states that supporters of PW12 have not assaulted the accused and he does not know whether the accused persons have sustained the injuries. However, he admits that he gave the evidence against the accused persons in connection with fair price shop.
22. According to the prosecution, PW3 is an eyewitness to the incident. PW3 in his evidence states that when he went to the spot, already galata had taken place between the two groups and he witnessed the incident. But he cannot tell the overt act of each of the accused persons but claims that Ganganna, Malliyamma, Yarriswamy and Ramanna had sustained the injuries. Ganganna had succumbed to the injuries. The galata had taken place in respect of construction of Kala Mandira. In the cross-examination he admits that when he went to the spot, already they had sustained injuries and Ganganna was lying on the ground. Except four persons no other persons had sustained injuries.
23. PW4 in his evidence states that after hearing the galata, he went to the spot. The persons who havd murdered also were there at the spot. They had assaulted with stone, bachi, sickle and machete. PWs.1, 12, CW16 and Ganganna have sustained injuries. In the cross- examination, he admits that when he went to the spot, the incident had already taken place.
24. PW15 did not support the case of the prosecution. In his evidence, he states that PW12 also sustained the injuries and the incident had taken place between the two groups and he cannot tell the overt act of each of the accused persons. He was treated as hostile. It is suggested that PW1, his wife-PW12, deceased Ganganna and CW16 have told the accused Nos.4 and 12 to remove the stones and accused Kajji Ningappa did not accept their advise and refused to remove the same. Hence oral galata had taken place between them. He also admits that accused Lingaraju, Lakshmana and Jayadeva have assaulted with stones. In the cross-examination he admits that the police have not recorded his statement and he cannot tell for how long the incident took place and for the first time he is deposing on behalf of the prosecution.
25. Having taken note of the material evidence, particularly the evidence PWs.1 and 12 and also other eyewitness PW10, the evidence is consistent and each of the witnesses have deposed the overt act, particularly of accused Nos.1 and 2 stating that both of them have inflicted the injuries on the deceased Ganganna with the club and stone. Nothing is elicited in the cross-examination to disbelieve the evidence of these witnesses with regard to causing injuries to the deceased. In the cross- examination of PWs.1, 10 and 12 also nothing is elicited to disbelieve the evidence of the prosecution, except the answer eliciting that they cannot tell each and every overt act of the accused assaulting them but specific that accused Nos.1 and 2 assaulted the deceased Ganganna and accused Nos.1 to 6 have assaulted PWs.1, 12 and CW16. CW16 has not been examined before the Court. However, wound certificate at Ex.P16 to Ex.P18 are marked and the doctor has been examined as PW17 and he categorically states that the cause of death is due to shock and hemorrhage as a result of injury to vital organ brain by a sharp weapon. The doctor-PW17 has also given the post mortem report as Ex.P18. The same confirms that due to the injuries on the vital organs, the deceased succumbed to injuries. Hence, it is clear that it is a case of homicidal death. The doctor-PW17 also examined the injured PWs.1, 12 and CW16. Ex.P.16 to Ex.P18 are marked. The accused in the cross-examination did not dispute that these witnesses have not sustained injuries. But during the course of argument, a defence was taken that they have exercised private defence in order to protect their property and right and the same has been turned down by the Court below. The evidence emerged before the Court also did not support the case of the defence of accused persons that the same warranted to take private defence as contended by the accused persons.
26. Having considered the consistent evidence of PWs.1, 10 and 12 coupled with the medical evidence of PW17-doctor, it is clear that PWs.1, 12 and CW16 were subjected to assault and they have taken treatment immediately after the incident. The cause of death deposed by PW17 is on account of the injuries sustained to the vital organ brain. Hence the Court below has rightly come to the conclusion that accused Nos.1 and 2 have inflicted the injuries on the head of the deceased. As a result, he succumbed to the injuries. The evidence of PWs.1 and 12 have been examined and their evidence is also clear that accused Nos.4 and 5 have inflicted the injuries on them with deadly weapons and the Court below comes to the conclusion that as a result they have sustained the injuries. Having considered the material against accused Nos.1 and 2 and so also accused Nos.4 and 5, who have committed the offence, we do not find any reason to come to other conclusion that the Court below has committed an error in convicting the accused persons.
27. The main argument of the State in the appeal is that the Court below has committed an error in bringing the offence under Section 304 Part-II of Indian Penal Code instead of 302 of Indian Penal Code. The said contention also cannot be accepted. In the cross-examination of the Investigating Officer and other witnesses, it is elicited that it was a group clash between two groups and also the medical evidence is clear that the deceased had sustained one grievous injury and other injuries are simple in nature and they have inflicted only injury on the head. As a result, he succumbed to the injuries. If really they were intended to take away the life of the deceased, they would have inflicted more injures when they had been armed with club and stone and the Trial Court rightly comes to the conclusion that the other accused have not shared the common object in taking away the life of the deceased. It is also the specific case of the prosecution witnesses that accused Nos.1 and 2 have only inflicted the injuries on the deceased and if they had real intention to take away the life when they have armed with deadly weapons, they would have inflicted more injuries on the deceased. Hence, having taken note of the single blow on the head which caused grievous injury, death had occurred. No doubt injuries inflicted on the head is likely to cause death of a person but there must be an intention to take away the life and the same is missing in the case on hand. The evidence emerged also does not suggest that there was a premeditation and the incident had taken when the deceased and P.W.1, 12 and C.W.16 went to spot to clear the encroachment. Hence, the Court below has rightly come to the conclusion that accused Nos.1 and 2 have committed the offence under Section 304 Part-II of Indian Penal Code.
28. The other contention that only accused Nos.4 and 5 have been convicted for the offence punishable under Section 324 of Indian Penal Code and not convicted the other accused persons also cannot be accepted. The witnesses who have spoken before the Court categorically state that accused Nos.3 to 6 have assaulted the PWs.1 and 12 with weapons like clubs and stone. Accused Nos.3 and 6 are no more and the case against them is abated. That being the case, we do not find any error committed by the Trial Court in convicting the accused Nos.4 and 5 for the offence punishable under Section 324 of Indian Penal Code.
29. Now the question is with regard to convicting accused Nos.7 to 16 for the offence punishable under Section 323 of Indian Penal Code. It is the specific case of the complainant that all of them gathered near the place of the incident and when the complaint was given at the first instance, names of all the accused persons were included and their presence has not been disputed. Throughout in the cross-examination it was suggested that it was a clash between the two groups and only in the family of the victim there were four persons. Accused persons came with sticks and stone and assaulted. No doubt the Trial Court also considered the aspect of no overt act against each other in respect of accused Nos.7 to 16. But PWs.1 and 12 have categorically stated that accused Nos.7 to 16 have assaulted with fist and legs. As a result, the Court below comes to the conclusion that they have committed the offence punishable under Section 323 of Indian Penal Code. We do not find any reason to reverse the findings of the Trial Court and that too in a case of group clash and a mob fury. The Court also cannot expect the overt act of each of the accused persons when the assailants are more in number. Hence the Court below has rightly convicted the accused Nos.7 to 16 for the offence punishable under Section 323 of Indian Penal Code.
30. The accused persons are also convicted for the offences punishable under Sections 143, 147, 148 read with Section 149 of Indian Penal Code. The Court below has taken note of the very presence of the accused in the place of incident and also in the complaint it is mentioned about the very presence of all the accused persons and so also the overt act of the accused persons. Having considered the very presence of the accused being part of unlawful assembly and armed with deadly weapons, we do not find any reasons to interfere with the order of conviction against the accused persons for the offences punishable under Sections 143, 147, 148 read with Section 149 of Indian Penal Code. Hence there are no reasons to interfere with the judgment of conviction for the said offence.
31. Having considered the material on record, both oral and documentary, we do not find any reason to come to the other conclusion in the appeal filed by the complainant to bring the accused persons within the purview of Section 302 read with Section 149 of Indian Penal Code and so also we do not find any reason to reverse the findings of the Trial Court as sought by the accused persons. The Trial Court assigned the reasons while bringing the case within the purview of Section 304 Part-II of Indian Penal Code. There are no merit in all the three appeals to come to other conclusion and modify the conviction for the respective offences.
32. This Court has also taken note of the nature of injuries suffered by PWs.1 and 12 and so also the fine imposed by the Trial Court in respect of each of the offences.
(i) The Court below has taken note of the circumstances under which the incident had taken place and has rightly awarded rigorous imprisonment for a period of seven years.
(ii) As regards imposition of fine is concerned, the Court below has not considered the object of Sections 357 and 357A of Code of Criminal Procedure. Since the life of deceased was taken away at the age of 60 years, it is appropriate to enhance the fine amount.
(iii) Regarding sentence under Section 324 of Indian Penal Code against accused Nos.4 and 5 is concerned, fine amount of Rs.500/- each is imposed and they are sentenced to undergo simple imprisonment for one year. Records disclose that it was a group clash and there was no motive and only incident had taken place at the time of asking to remove the encroachment, that too for the purpose of public utility. Hence, it is appropriate that instead of imposing sentence, the fine amount could be enhanced.
(iv) Regarding sentence for the offence punishable under Section 323 of Indian Penal Code against accused Nos.7 to 16 is concerned, the allegation is that they have assaulted with their hand and legs and having taken note of the group clash, instead of sentencing them for one year imprisonment, it is appropriate to enhance the fine amount.
The same is meager and requires to be enhanced.
Hence, we pass the following:
ORDER (i) All the three appeals are partly allowed insofar as sentence is concerned. Instead of imprisonment, fine amount is enhanced for the offences punishable under Sections 324, 323, 143, 147, 148 read with Section 149 of Indian Penal Code.
(ii) The conviction and sentence as against accused Nos.1 and 2 for the offence under Section 304 Part-II of Indian Penal Code and the same is hereby confirmed. Accused Nos.1 and 2 are directed to pay enhanced fine amount of Rs.50,000/- each as against Rs.2,000/-. In default of payment of fine, they shall undergo rigorous imprisonment for a period of six months.
(iii) Accused Nos.4 and 5 are directed to pay fine of Rs.20,000/- each for the offence punishable under Section 324 read with Section 149 of Indian Penal Code. In case of default, they shall undergo simple imprisonment for a period of six months.
(iv) The accused Nos.7 to 16 are sentenced to pay fine of Rs.5,000/- each as against Rs.500/- for the offence punishable under Section 323 of Indian Penal Code. In case of default, they shall undergo simple imprisonment for a period of two months.
(v) Accused Nos.1, 2, 4, 5 and 7 to 16 are directed to pay fine of Rs.5,000/- each for each offences for the offence punishable under Sections 143, 147, 148 read with Section 149 of Indian Penal Code. In case of default, they shall undergo simple imprisonment for a period of three months each for each offence.
(vi) Out of the fine amount, an amount of Rs.2,50,000/- is payable to the wife of the deceased and an amount of Rs.30,000/- each is payable to P.Ws.1 and 12. Remaining amount shall vest with the State.
(vii) The accused persons are entitled for the benefit of set off under Section 428 of Criminal Procedure Code, if they were in custody during the period of Trial. The Court below is directed to secure accused Nos.1 and 2 and subject them for sentence.
(viii) In case the other accused fail to deposit the fine amount as directed, the Court below is directed to secure and subject them for sentence as against fine for each of the offence.
Sd/- Sd/-
JUDGE JUDGE bkp/MD